Bedford v. Michigan, State of et alBRIEFW.D. Mich.July 22, 2016 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ALEXANDRA BEDFORD, CASE NO.: 15-CV-1139 Plaintiff, HON. JANET T. NEFF v. STATE OF MICHIGAN, and, KALAMAZOO COUNTY, Defendants. ______________________________________________________________________________ Joseph P. Vredevelt (P69659) Gary Grant (P76261) Attorney for Plaintiff Assistant Attorney General PO Box 310192 Attorneys for Defendant State of Michigan Houston, Texas 77321 Civil Litigation, Employment & Elections Tel/Fax – (888) 831-2357 PO Box 30736 cdlsmiami@gmail.com Lansing, Michigan 48909 cdlshouston@gmail.com (517) 373-6434 Allan Vander Laan (P33893) Andrew Brege (P71474) Attorneys for Defendant Kalamazoo County Cummings McClorey Davis & Acho PLC 327 Centennial Plaza Building 2851 Charlevoix Drive SE Grand Rapids, Michigan 49546 (616) 975-7470 _____________________________________________________________________________ BRIEF IN SUPPORT OF PLAINTIFF’S RESPONSE IN OPPOSITION TO KALAMAZOO COUNTY’S MOTION TO DISMISS Case 1:15-cv-01139-JTN-ESC ECF No. 69 filed 07/22/16 PageID.590 Page 1 of 10 TABLE OF CONTENTS Page Table of Contents …………………………………………………………………………. i Issue Presented …………………………………………………………………………… ii Index of Authority …….………………………………………………………………….. iii Statement of Facts ………………………………………………………………………... 1 Argument …………………………………………………………………………………. 1 I. Plaintiff has properly plead in her Second Amended Complaint that she has suffers from an invisible disability recognized under the ADA for which she requested reasonable accommodations and was denied, causing her to be excluded from the judicial proceedings of which she was a litigant. …………..... 1 A. Standard of Review ………………………………………………………….. 1 B. Analysis ……………………………………………………………………… 1 Conclusion and Relief Requested ……………………………………………………….. 6 Case 1:15-cv-01139-JTN-ESC ECF No. 69 filed 07/22/16 PageID.591 Page 2 of 10 ISSUES PRESENTED I. Whether Plaintiff properly plead in her Second Amended Complaint that she suffers from a recognized disability under the ADA and whether the denial of her accommodations requests had the effect of excluding Plaintiff from the judicial proceedings of which she was a litigant. Case 1:15-cv-01139-JTN-ESC ECF No. 69 filed 07/22/16 PageID.592 Page 3 of 10 INDEX OF AUTHORITY page Cases Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356, 360 (6th Cir. 2001) ……………1 Heffernan v. UNUM Life Ins. Co. of America, 101 Fed.Appx. 99 (6th Cir. 2004) …..4 Marks v. Tennessee, 562 Fed.Appx 341 (6th Cir. 2014) ……………….…………….4 Statutes 42 U.S.C. § 12131(2) ………………………………………………………………..2 Case 1:15-cv-01139-JTN-ESC ECF No. 69 filed 07/22/16 PageID.593 Page 4 of 10 STATEMENT OF FACTS Plaintiff filed her Second Amended Complaint on June 01, 2016 (ECF No. 57, PageID. 334-346), alleging that the State of Michigan as well as the Kalamazoo County violated the rights guaranteed to her through the Americans with Disability Act (“ADA”) as well as Section 504 of the Rehabilitation Act. Specifically, that the ADA policies and procedures for the lower courts were non-existent and which led to arbitrary and capricious administration of ADA accommodation requests made by Plaintiff, the denials of which caused her to be excluded from participation in the court proceedings of which she was a litigant. On June 9, 2016, Kalamazoo County served Plaintiff with its Motion to Dismiss on the merits, alleging that Plaintiff has failed to state a claim under the ADA and Rehabilitation Act. ARGUMENT I. Plaintiff has properly alleged a cause of action against Kalamazoo County and has established a cognizable claim under the ADA and Rehabilitation Act. A. Standard of Review Pursuant to Fed.R.Civ.P 12(b)(6), when determining the merit of a motion seeking dismissal of a complaint for failure to state a claim upon which relief can be granted, the Court must construe the complaint in a light most favorable to the non-moving party and accept all factual allegations as true. Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356, 360 (6th Cir. 2001). The Court may take into judicial notice of any integral document in the underlying record in its consideration of the Motion. B. Analysis I. Kalamazoo County’s Liability Case 1:15-cv-01139-JTN-ESC ECF No. 69 filed 07/22/16 PageID.594 Page 5 of 10 Plaintiff denies the arguments put forth by Kalamazoo County that is not liable for its violation of Plaintiff’s rights under the ADA due to the fact that the State of Michigan is a unified court, and therefore, the State is the only liable defendant in this action. Although Plaintiff agrees that the State of Michigan is liable, that liability also includes Kalamazoo County. Title II, 42 U.S.C. § 12131(1) of the ADA defines a “public agency” as any State or local government, thus, making it applicable in this matter to both the State of Michigan as well as Kalamazoo County equally. Both entities have a duty under federal law to properly implement and enforce ADA requirements to ensure qualified persons are not excluded from services, activities, or programs of the public entities. Regardless of the State of Michigan’s ultimate control over the administrative policies of the lower courts, Kalamazoo County had a duty to abide by the requirements of the ADA and failed to do so when it failed to have an ADA policy in place and/or implement a non-arbitrary ADA procedure that would ensure that the administration of accommodations request wasn’t capricious in nature and followed all of the requirements of the ADA. II. Plaintiff Has Stated a Valid Claim for Which Relief Can Be Granted Plaintiff alleged in her Second Amended Complaint that she suffers from a “diagnosed and qualifying invisible disability” which limits her major life activities of thinking, talking, concentrating, hearing, retrieving information, etc. as defined by 42 U.S.C. § 12131(2) (Doc. No. 57, Plaintiff’s Second Amended Complaint, PageID. 344 ¶55; 338 ¶16). Plaintiff further alleges that Kalamazoo County discriminated against her by failing to provide auxiliary aids necessary to ensure an equal opportunity to participate in judicial services provided by Kalamazoo County and the State of Michigan. (Doc. No. 57, Plaintiff’s Second Amended Complaint, PageID. 344 ¶59). Case 1:15-cv-01139-JTN-ESC ECF No. 69 filed 07/22/16 PageID.595 Page 6 of 10 Kalamazoo County seeks this Court to delve deep into the records of the underlying trial court proceedings to make a factual determination as to whether Plaintiff if seeking to avoid negative treatment from the trial court by claiming to have a recognized disability, and ultimately if what Plaintiff “truly” suffers from is a “made up” disability that is not recognized by the ADA. Kalamazoo County asks this Court to take judicial notice of a litany of documents, both in and out of the underlying record to make these determinations. This Court should do no such thing. Although the general rule is to allow intrinsic documents to be made a part of the Court’s determination of 12(b)(6) motions, it should be limited only to those intrinsic documents, e.g. the contract in a contract dispute or the news article in a libel lawsuit. Kalamazoo County rather, believes it proper for this Court to look into transcripts, case filings, and actions of Plaintiff to make a factual determination that Plaintiff is, for all intent and purpose, suffering from a “made-up illness”. Kalamazoo County goes as far as diagnose Plaintiff themselves under the assumption that one of Plaintiff’s disability advocates has begun or published papers on the subject of “Legal Abuse Syndrome”. Kalamazoo County’s conclusion without merit and is completely a factual question for an expert to examine and a jury to decide upon at trial. It is not appropriate in a 12(b)(6) motion where all facts alleged by the Plaintiff are to be taken as true and viewed in a light most favorable to the Plaintiff. Further, Kalamazoo County alleges that Plaintiff was allowed accommodations she requested, and therefore, her claim of exclusion is without merit. Plaintiff denies this. Plaintiff requested multiple accommodations to ensure her access to the court proceedings, including a disability advocate to be present. (Doc. 57, Plaintiff’s Second Amended Complaint, PageID. Case 1:15-cv-01139-JTN-ESC ECF No. 69 filed 07/22/16 PageID.596 Page 7 of 10 339, ¶23). This request was not granted and it is arguably the most important accommodation request made by Plaintiff. The Court instructed Plaintiff to file a motion with the Court to allow any disability advocate to be present. Doc. 57, Plaintiff’s Second Amended Complaint, PageID. 342, ¶43). When Plaintiff’s disability advocate appeared for a hearing, the Court refused to allow the advocate to speak in any capacity and threatened said advocate with a contempt charge. Doc. 57, Plaintiff’s Second Amended Complaint, PageID. 343, ¶49). It is a genuine issue of material fact whether the accommodations afforded to Plaintiff by Kalamazoo County placed her in an identical position of a person without disability. Plaintiff argues that such accommodations did not place Plaintiff in this category. III. Litigation is Inherently Stressful Kalamazoo County’s argument that the Sixth Circuit has recognized that litigation is “inherently stressful” is disingenuous at best. Kalamazoo County cites for this reasoning, Heffernan v. UNUM Life Ins. Co. of America, 101 Fed.Appx. 99 (6th Cir. 2004) and Marks v. Tennessee, 562 Fed.Appx 341 (6th Cir. 2014) as authority. Heffernan is not an ADA matter, rather, it is a case in which a litigation attorney was suing her insurer for denial of her disability benefits when she began to suffer anxiety in stressful situations, a heavy litigation caseload being one of the contributing factors. Heffernan was a junior partner in a large litigation firm who worked excessive hours and was let go after she could no longer function in the capacity of a litigator. Her doctors insisted that she keep her position but be placed in less stressful conditions. The Court quipped in its opinion that “a litigation attorney who is prone to stress- induced mental illness might be able to function in an employment environment with less stress is akin to observing that a tight-rope walker with acrophobia would do well to avoid high places.” Heffernan at 107-108. Case 1:15-cv-01139-JTN-ESC ECF No. 69 filed 07/22/16 PageID.597 Page 8 of 10 It is obvious that litigation is stressful, however, Heffernan does nothing to support Kalamazoo County’s argument that ADA accommodations should not be afforded to litigants as a result. If in fact Ms. Heffernan made an ADA accommodation request to her employer in this matter, the ADA would have demanded the employer provide Ms. Heffernan reasonable accommodations, even requiring, if necessary, that the employer place Ms. Heffernan in a similar position for similar pay with accommodations to ensure her disability rights are protected. Kalamazoo County’s reliance upon Marks is also without merit as the facts in Marks are greatly distinguishable from the facts of the instant case. Marks was an attorney representing himself pro se in an enforcement action stemming from a legal malpractice lawsuit. During the time of the litigation he suffered complications from an illness necessitating the amputation of his leg and leaving him permanently disabled. Mr. Marks asked for accommodations on many occasions during the litigation, mainly to obtain continuances of the matter while he convalesced. The trial court granted the continuances as well as the other requests, including limiting hearings to three (3) hours. After losing the case, Marks sued the State of Tennessee making a claim that the procedures for requesting accommodations caused him emotional pain and suffering. The Court held that the ADA procedures and policies were properly administered by the trial court and the administrative office; and as a result, Marks could not claim he was discriminated against. In the instant case, it is a matter of genuine material fact whether Kalamazoo County even had an ADA policy in place at the time Plaintiff was making her accommodation requests. Further, it is a genuine question of material fact as to whether the accommodations Plaintiff Case 1:15-cv-01139-JTN-ESC ECF No. 69 filed 07/22/16 PageID.598 Page 9 of 10 was afforded were sufficient enough to find she was not excluded from court proceedings. Plaintiff alleges appropriately throughout her Second Amended Complaint that they were not. CONCLUSION AND RELIEF REQUESTED Reading Plaintiff’s Second Amended Complaint in a light most favorable to the Plaintiff and taking all factual allegations as true, this Court should find that Plaintiff has demonstrated that she has properly plead a cognizable claim under the ADA and Rehabilitation Act and deny Kalamazoo County’s Motion to Dismiss. Dated: July 8, 2016 Respectfully Submitted, /s/ Joseph P. Vredevelt Joseph P. Vredevelt (P69659) Attorney for Plaintiff PO Box 310192 Houston, Texas 77231 Tel./Fax: (888) 831-2357 cdlsmiami@gmail.com cdlshouston@gmail.com Case 1:15-cv-01139-JTN-ESC ECF No. 69 filed 07/22/16 PageID.599 Page 10 of 10
