Opinion
IP02-0648-C-T/K.
June 28, 2004
ENTRY ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
This Entry is a matter of public record and may be made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
The Plaintiff alleges that the Defendant discriminated against him on the basis of his disability in violation of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq. This entry addresses the cross-motions for summary judgment.
I. BACKGROUND
On June 5, 2001, the Plaintiff James Kennington was arrested and taken to the Marion County Jail Central Receiving Medical Office or Lock-up, where he was detained from the early morning hours until late in the afternoon the next day. Mr. Kennington is deaf. His first language is American Sign Language. He has a limited ability to vocalize words. He has testified that he has a minimal ability to read and write the English language. He also testified to having a "very limited" ability to lip-read. (Pl.'s Dep. vol. I at 145-46.) However, he is able to communicate with others through the use of gestures, some lip-reading and written notes. On arriving at the Lock-up, the paddy wagon driver told a jail officer that Mr. Kennington was deaf. Mr. Kennington indicated that he was deaf also. The Plaintiff was identified by a corrections officer as deaf, and the officer wrote "Deaf/Mute" on his book-in slip.
This corrections officer and Mr. Kennington used paper and a writing utensil as well as gesturing to communicate during the book-in process. Mr. Kennington had been handcuffed, but his handcuffs were removed as soon as he reached the Lock-up. The officer assisted him in filling out the necessary book-in forms, including the property sheet and medical card, on which it was recorded that the Plaintiff is deaf. Mr. Kennington appears to have signed the medical card.
During the book-in process, the Plaintiff asked the corrections officer through gesturing, "Why am I in jail?" and said, "I only had one beer." (Pl.'s Dep., vol. II at 14.) The officer just shrugged his shoulders. When Mr. Kennington was given a paper and writing utensil, he wrote to the officer, "Why jail?" and the officer shrugged and shook his head "as if he didn't know," according to the Plaintiff. ( Id. at 19.) That was the only message he attempted to write to the officer. After the book-in process was completed, Mr. Kennington was taken to a general holding cell and then to the medical block.
The Plaintiff was not given access to a TTY or TDD device while in the general holding cell or the medical block. At the time, however, the Lock-up had one TTY available for use by deaf or hearing impaired inmates. However, the TTY was stored in the medical unit, there were no medical personnel on the third shift, and the corrections officers were not allowed to go into the medical unit. (Pierce Dep. at 22.)
A TDD or Telecommunications Display Device "is a telephone equipped with a keyboard and a display for people who are hearing — or speech-impaired." http://search-networking.techtarget.com/sDefinition/0%2C%2Csid7 _gci860526%2C00.html (last visited Jan. 4, 2004). A TTY or teletypewriter is "an input device that allows alphanumeric character to be typed in and sent, usually one at a time as they are typed, to a computer or a printer." http://whatis.techtarget.com/definition/0%2C%2Csid9 _gci-213663%2C00.html (last updated July 30, 2001).
The Plaintiff alleges that he attempted to request a TTY telephone by waving to get an officer's attention, gesturing "telephone," pointing to his ear and shaking his head "no." (Pl.'s Dep. vol. II at 22, 31.) The officer would walk away. When he returned, Mr. Kennington would make the same gesture again, the officer would say "wait a minute" and then walk away. ( Id.) Mr. Kennington testified that he attempted to request a TTY device in this manner several times, in fact, every time an officer came within his eyesight. ( Id. at 22.) The officers "just walked by," "shrugged their shoulders" "shook their heads" and, in the Plaintiff's impression, "were too busy." ( Id. at 22, 31, 32.) Mr. Kennington attempted to request a pen and paper from the officers by gesturing, but he did not succeed. ( Id. at 31.) He testified that none of the officers even attempted to communicate with him. ( Id. at 32.) He eventually gave up and asked another inmate to make a phone call for him. ( Id. at 22.) The inmate did, and the Plaintiff did not ask for a telephone again.
On June 6, Mr. Kennington was taken to his initial pre-trial hearing at which he was provided a sign language interpreter. He was released following the hearing.
At the time of the Plaintiff's incarceration, the Lock-up had a policy regarding the medical care of inmates. During the book-in process, a medical book-in card is completed for the inmate, and the inmate is asked if he has any medical problems and is requested to sign the card. If an inmate complains of or exhibits a major medical need, he or she is to receive immediate medical care. Otherwise, the inmates are to be provided appropriate medical care as determined by medical staff.
Also during the relevant time period, the Sheriff's Department had a policy for the arrest and processing of deaf persons, which provided: "It shall be the Policy of all Marion County Officers to secure the services of an interpreter for the hearing impaired when a deaf person has been arrested." (Gohmann Decl. ¶ 8, Ex. B ¶ .10.) The policy provided for certain procedures "if no interpreter is immediately available," including requesting an interpreter from the Sheriff's Department and from the Indianapolis Police Department. ( Id., Ex. B. ¶ .20A-B.)
As well, at all relevant times, the Marion County Jail had a policy for inmate access to the telephone. The stated policy is "to permit inmates reasonable access to telephones to maintain essential community and legal contacts." (Pl.'s Ex. 4 (Tab H).) The Marion County Jail Inmate Handbook states that "[a]ccess to telephones is generally allowed twenty-four hours a day." (Pl.'s Ex. 5 (Tab I).)
The Plaintiff alleges emotional damages as a result of being detained in the Lock-up without being able to use a telephone. He testified that "it bothered me very much that I was not allowed to use the phone when all these hearing people could get up anytime they wanted and call whoever they needed to call, and I couldn't do it." (Pl.'s Dep. vol. II at 41.) He became "quite jealous" that the hearing inmates could use the phone and he could not and felt that he was "not equal to the hearing people." ( Id. at 25, 39.) The Plaintiff also testified that it was "very frustrating not being able to communicate, people moving around, and facial and body expressions that I didn't understand" ( Id. at 41.)
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether a genuine issue of material fact exists, the court construes all facts in the light most favorable to the nonmoving party and draws all reasonable in favor of that party. See id. at 255.
A party moving for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. A party moving for summary judgment on a claim on which the nonmovant bears the burden of proof at trial may discharge its burden by showing an absence of evidence to support the nonmoving party's case. Id. at 325. To prevail on a summary judgment motion on a claim on which it bears the burden of proof at trial, though, the party must produce sufficient evidence to show the existence of each element of its case on which it will bear the burden of proof. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).
III. DISCUSSION
The Plaintiff contends that the Sheriff discriminated against him in violation of Title II of the ADA by failing to accommodate his disability while he was in the Lock-up. More specifically, the Plaintiff alleges that the Sheriff deliberately violated the ADA by failing to provide him with a TTY, an interpreter or other reasonable accommodation, despite an awareness that he was disabled and required such accommodations. The Plaintiff seeks summary judgment on his claims. The Sheriff, for his part, contends that he is entitled to summary judgment on the grounds that the corrections officers effectively communicated with the Plaintiff, the Plaintiff was not entitled to an interpreter, the Plaintiff cannot prove intentional discrimination and cannot establish compensable damages, and the claims against the unknown officers are time barred. The Plaintiff concedes that the statute of limitations bars his claims against the "unnamed officers." Thus, these defendants will be DISMISSED with prejudice.
The Plaintiff asserts that he alleged a violation of § 504 of the Rehabilitation Act, but the Complaint makes no reference to that Act.
Magistrate Judge Baker's entry of August 13, 2002, dismissed these unnamed officers without prejudice. Their dismissal now will be with prejudice.
Title II of the ADA 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; see also Discovery House, Inc. v. Consol. City of Indianapolis, 319 F.3d 277, 279 (7th Cir.) ("Title II of the ADA prohibits a public entity from denying equal services to individuals because of their disabilities."), cert. denied, 124 S. Ct. 301 (2003). The Defendant does not dispute that the Plaintiff is a "qualified individual with a disability" and that the Marion County Lock-up is a "public entity" within the meaning of the ADA.
Title II does not expressly provide for reasonable accommodations. However, one of the regulations implementing the ADA provides:
A public entity shall make reasonable modifications in policies, practices, or procedures when 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). The regulations promulgated by the Department of Justice to implement Title II of the ADA are entitled to deference. See 42 U.S.C. § 12134(a); Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 598 (1999) (the regulations implementing Title II "warrant respect"). Thus, a violation of the ADA can be established by, inter alia, "showing that the plaintiff was a qualified individual with a disability, and the defendant either failed to reasonably accommodate the plaintiff's disability or intentionally discriminated against the plaintiff because of [his] disability." Dadian v. Village of Wilmette, 269 F.3d 831, 838 (7th Cir. 2001); see also Washington v. Ind. High Sch. Athletic Ass'n, Inc., 181 F.3d 840, 846-48 (7th Cir. 1999). The Plaintiff maintains that he can prove both a failure to accommodate and intentional discrimination.
The Seventh Circuit has not said what level of deference should be afforded the regulations, but other courts use a "substantial deference" standard. See, e.g., Chisholm v. McManimon, 275 F.3d 315, 325 (3rd Cir. 2001).
A public entity is required to "take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others." 28 C.F.R. § 35.160(a). A public entity also is required to "furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity." 28 C.F.R. § 35.160(b)(1). An exemption is provided where the entity proves that an action "would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens." 28 C.F.R. § 35.164. The Sheriff has not relied on this exemption, however.
In deciding "what type of auxiliary aid and service is necessary," a public entity is required to "give primary consideration to the requests of the individual with disabilities." 28 C.F.R. § 35.160(b)(2); see also Chisholm, 275 F.3d at 325; 28 C.F.R. Pt. 35, App. A (the "public entity shall honor the [disabled individual's] choice [of auxiliary aid] unless it can demonstrate another effective means of communications exists or that the use of the means chosen would not be required under § 35.164."). "Auxiliary aids and services" include:
Qualified interpreters, notetakers, transcription services, written materials, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunications devices for deaf persons (TDD's), videotext displays, or other effective methods of making aurally delivered materials available to individuals with hearing impairments[.]28 C.F.R. § 35.104(1). The regulations explain that:
in some circumstances a notepad and written materials may be sufficient to permit effective communication, [but] in other circumstances they may not be sufficient. For example, a qualified interpreter may be necessary when the information being communicated is complex, or is exchanged for a lengthy period of time. Generally, factors to be considered in determining whether an interpreter is required include the context in which the communication is taking place, the number of people involved, and the importance of the communication.28 C.F.R. Pt. 35, App. A.
The Plaintiff contends that the Sheriff discriminated against him in violation of the ADA by failing to provide him with an interpreter. The Sheriff argues that he is not liable because the corrections officers effectively communicated with the Plaintiff through auxiliary aids and services. He also argues that the Plaintiff cannot claim that an interpreter should have been provided because he never requested one.
The Sheriff cites several cases for the proposition that the Plaintiff is not entitled to an interpreter because he never requested one. None is controlling and most are easily distinguished. Though a public entity is to give consideration to an individual's requested accommodation, see 28 C.F.R. § 35.160(b)(2), the ultimate issue is not whether the individual requested a particular accommodation, but rather, whether the public entity took appropriate steps to ensure that effective means of communication were provided, see 28 C.F.R. § 160(a); 28 C.F.R. Pt. 35, App. A. Further, it is noted that the Plaintiff never requested an interpreter despite having paper and a writing utensil during the book-in process and thus the opportunity to request an interpreter.
The undisputed facts establish that the Sheriff took appropriate steps to ensure that communications with Mr. Kennington during the book-in process were as effective as communications with others and furnished appropriate auxiliary aids and services during that process. Mr. Kennington's handcuffs were removed when he arrived at the Lock-up so he could communicate through gesturing and by using the paper and writing utensil which were provided him. A corrections officer also communicated with Mr. Kennington and assisted him in completing the book-in forms. The regulations expressly recognize that "in some circumstances a notepad and written materials may be sufficient to permit effective communication[.]" 28 C.F.R. Pt. 35, App. A. The booking-in of Mr. Kennington is such a circumstance. The information exchanged was neither complex nor exchanged for a lengthy period of time. There is no evidence that Mr. Kennington ever indicated an inability to or difficulty in understanding the book-in process. And, there is no evidence that he ever requested an interpreter or another assistive aid or service. The jail's own internal policy was to provide an interpreter for the hearing impaired, but the failure to follow jail's policy by itself does not render ineffective otherwise effective means of communication.
Moreover, Mr. Kennington has not raised a reasonable inference that the means of communication provided him during book-in was ineffective. He argues ineffectiveness because he did not understand why he was in jail. He points to evidence that he asked the officer why he was in jail and indicated that he only had one beer, but the officer just shrugged his shoulders. The officer, however, had no duty to discuss the circumstances of or reason for Mr. Kennington's arrest. See Kladis v. Brezek, 823 F.2d 1014, 1018 (7th Cir. 1987) (noting that an arrestee does not have a right to be informed of the reason for his arrest until the government commits itself to prosecution). The Plaintiff also claims a limited ability to read and communicate through the written word, but there has been an insufficient showing to raise a reasonable inference that any such limitation prevented effective communication. Even now, Mr. Kennington has not identified anything in the book-in forms or process which he claims to have misunderstood, and nothing reasonably suggests that his book-in forms were completed incorrectly.
Mr. Kennington claims that he was injured by the officers who arrested him, but no notation was made on his medical card. However, he has offered nothing to reasonably suggest that these minor injuries — a silver dollar sized cut on his left knee, a small laceration or lacerations on his face, sore right arm, sore ribs and sore right shoulder (Pl.'s Dep. vol. I at 51, 53, 57) — should have been noted on the medical card or required immediate medical attention. The Plaintiff never sought medical attention for these injuries ( id. at 57), and the cut on the knee healed completely without leaving a scar ( id. at 51). Importantly, the Plaintiff does not claim that he attempted, or was unable, to communicate with jail staff about these minor injuries.
He makes the same argument respecting his arrest report, but nothing suggests that the Sheriff had any involvement in completing the arrest report. It seems that the arresting officers rather than the jail officers would have completed that report.
However, the record does not raise a reasonable inference that any type of auxiliary aid or service was provided to the Plaintiff once the book-in process was completed and he was taken to the holding cell and the medical block. Instead, the evidence is that Mr. Kennington attempted to request a pen and paper from jail officers by gesturing, but to no avail, and that none of the officers ever attempted to try to communicate with him while he was in Lock-up. The Sheriff argues that inmates are held in Lock-up for a brief period of time, but he cites no authority for the proposition that the protections of the ADA only extend to individuals interacting with a public entity for a lengthy duration. The court has found no such authority in the ADA, the regulations or case law. Thus, the record establishes that once the book-in process was completed, the Defendant failed to attempt to furnish any type of assistive communicative aid or device to the Mr. Kennington while in Lock-up. This was a failure to accommodate the Plaintiff's disability in violation of the ADA. See Chisholm v. McManimon, 275 F.3d 315, 325 (3rd Cir. 2001); 28 C.F.R. §§ 35.130(b)(7), 35.160(a).
Furthermore, the Plaintiff claims that the Defendant intentionally discriminated against him in violation of the ADA. The Sheriff presumes that this claim is limited to the failure to provide Mr. Kennington with a TTY device to assist him in making a telephone call. This presumption seems incorrect. The intentional discrimination claim is premised on the failure to provide the Plaintiff with any assistive communicative device. ( See, e.g., Pl.'s Resp. Br. Opp'n Def.'s Mot. Summ. J. at 11 (arguing that the Defendant's failure to follow internal policy regarding the services of an interpreter reflects deliberateness), 13 (arguing that the Plaintiff was not provided with any assistive communicative device); Pl.'s Br. Supp. Mot. Summ. J. at 20 (asserting that the Plaintiff "was not provided with a TTY device in order to make a phone call, and he was not provided with any help in order to bridge his communicative gap").)
The Plaintiff does not claim that a TTY device should be placed in all cells in the Lock-up, but that he should have the same access provided hearing inmates.
The Sheriff does not dispute that Mr. Kennington was never provided a TTY device, or that hearing inmates in Lock-up were afforded the opportunity to use a telephone to contact persons outside the jail. Indeed, the jail's stated policy regarding telephone access by inmates was "to permit inmates reasonable access to telephones to maintain essential community and legal contacts" (Pl.'s Ex. 4), and the inmate handbook stated that "[a]ccess to telephones is generally allowed twenty-four hours a day." (Pl.'s Ex. 5.) The Sheriff does not dispute that a TTY device is a reasonable accommodation. He contends, rather, that the Plaintiff cannot establish intentional discrimination in connection with a TTY device.
Proof of intentional discrimination is necessary before a plaintiff may recover compensatory damages under Title II of the ADA. See 42 U.S.C. § 12133 (Title II of the ADA borrows remedies from the Rehabilitation Act); 29 U.S.C. § 794a(2) (Rehabilitation Act borrows remedies from Title VI of the Civil Rights Act of 1964); Alexander v. Sandoval, 532 U.S. 275, 280-81 (2001) (stating that private individuals may not recover compensatory damages under Title VI except for intentional discrimination). Though the Seventh Circuit has not addressed the issue, several circuits have held that the appropriate test for intentional discrimination is the "deliberate indifference" standard. Duvall v. County of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001; Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1153 (10th Cir. 1999); Bartlett v. N.Y. State Bd. of Law Examiners, 156 F.3d 321, 331 (2nd Cir. 1998), rev'd on other grounds, 527 U.S. 1031 (1999). The parties have agreed that this is the appropriate standard and so the court applies it here.
"Deliberate indifference requires both knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that likelihood." Duvall, 260 F.3d at 1139 (citing City of Canton v. Harris, 489 U.S. 378, 389 (1988)). Thus, the "deliberate indifference" standard has two elements. The first is satisfied when the public entity has notice that an accommodation is required. Lovell v. Chandler, 303 F.3d 1039, 1056 (9th Cir. 2002), cert. denied, 537 U.S. 1105 (2003). In this case, it is undisputed that Mr. Kennington can satisfy the first element. The Sheriff was on notice that an accommodation was required — the jail officers were informed that Mr. Kennington is deaf when he was brought into the jail, and that fact was noted in the book-in process.
Regarding the second element, "a failure to act must be a result of conduct that is more than negligent, and involves an element of deliberateness." Duvall, 260 F.3d at 1139; see also Lovell, 303 F.3d at 1056. The Plaintiff can satisfy this element as well. The record establishes that the Sheriff had made a TTY device available at the Lock-up, implicitly recognizing the need for such a device. However, the undisputed evidence is that the TTY device was stored in the medical unit, but there were no medical personnel on the third shift, and the corrections officers were prohibited from going into the medical unit. Thus, the evidence establishes that the Defendant made the TTY device unavailable to deaf inmates during the third shift. The decision to store the device in the medical unit to which corrections officers had no access during the third shift was deliberate. The exclusion of all deaf inmates from telephone access during the third shift, particularly when hearing inmates had access, amounts to deliberate indifference to those inmates' federally protected rights. See Lovell, 303 F.3d at 1057-58 (categorical exclusion of all disabled persons from state healthcare program was at the very least deliberate indifference to the disabled persons' rights and constituted intentional discrimination). Further, there is evidence that corrections officers acknowledged yet ignored Mr. Kennington's several requests for a TTY telephone, also exhibiting deliberateness to his rights.
The Defendant asserts that the Plaintiff concedes he was given a reasonable accommodation, but just did not get access to it. No such concession was made; moreover, an inaccessible accommodation is no accommodation at all.
Moreover, the record leads to the conclusion that the Sheriff's failure to furnish (or attempt to furnish) any type of assistive communicative aid or service to Mr. Kennington following the book-in process amounts to deliberate indifference to his rights and intentional discrimination. The Defendant clearly had notice that the Plaintiff was deaf, but even the jail policy regarding provision of interpreters for the hearing impaired was not followed. As well, deliberate indifference may be inferred from the utter failure to attempt to provide any accommodation to Mr. Kennington once the book-in process was completed, particularly where the ADA regulations require a public entity to take appropriate action "to ensure that communications with" disabled individuals "are as effective as communications with others," 28 C.F.R. § 35.160(a), and to "furnish appropriate auxiliary aids and services" to a disabled individual, 28 C.F.R. § 35.160(b)(1). Thus, Mr. Kennington has shown intentional discrimination and can recover compensatory damages, provided he can prove such damages.
The Sheriff contends that the Plaintiff cannot prove compensable damages. None of the cases cited by the Defendant support the conclusion that the Plaintiff cannot establish compensable damages, and all are factually distinguishable. Here, the record is clear that, though minimal they may be, Mr. Kennington can establish compensable damages as a result of the Defendant's failure to provide him with any accommodation after the book-in process was completed. Mr. Kennington has testified, for example, that it was "very frustrating not being able to communicate[.]" (Pl.'s Dep. vol. II at 41.) He also testified more specifically that "it bothered me very much that I was not allowed to use the phone when all these hearing people could get up anytime they wanted and call whoever they needed to call, and I couldn't do it." ( Id.) The amount of Plaintiff's damages remains to be determined at trial.
IV. CONCLUSION
The "unnamed officers" will be DISMISSED with prejudice, but the Defendant's motion for summary judgment is otherwise DENIED and the Plaintiff's motion for summary judgment is GRANTED. Entry of judgment will await a determination of the Plaintiff's damages.