Schreiber v. Pima, County of et al

Filing 68

ORDER granting 52 Motion for Summary Judgment. The Clerk's Office is DIRECTED to enter a Final Judgment in accordance with this Order in favor of Defendants. This action is dismissed with prejudice as to all claims, but for the claims made in lieu of a criminal appeal which are dismissed without prejudice as is required by Rooker-Feldman. Defendants Pima County Sheriff's Department and Pima County Public Defenders Office are both dismissed with prejudice. The Motion to Strike (Doc. 53) the audio CD is GRANTED. The Motion to Strike (Doc. 64) the supplemental statement of facts is GRANTED. Signed by Senior Judge David C Bury on 8/9/17. (See attached PDF for complete information.) (KAH)

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2

WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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7

Nicholas Schreiber,

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CV-14-2363-TUC-DCB

Plaintiff,
v.

FINAL ORDER

Pima County, et al.,

11

Defendants.

12
13
Defendants’ Motion for Summary Judgment/Partial Summary Judgment

14
is before the Court.

The Court previously entered an Order dismissing

16

several

leaving

17

Department,

18

remaining Defendants. 1 A Second Amended Complaint was filed on June 18,

19

2015 alleging violations of the ADA, Rehabilitation Act, Arizona Civil

20

Rights

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summary judgment was filed in February 2017 and the parties requested

22

oral argument. Oral argument was conducted on August 1, 2017.

15

23
24

Defendants,

Act,

and

and

the

Pima

Arizonans

Pima

County

with

County,
Public

Pima

County

Defenders

Disabilities

Act.

Sheriff’s

Office

The

as

motion

the

for

During oral argument, the Court ruled from the bench that the
motion for summary judgment (Doc. 52) is granted and this written

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28

1

Plaintiff does not contest dismissing the Sheriff’s Department
and the Public Defender’s Office as Defendants, because the proper
Defendant is Pima County in this instance.
Defendants Sheriff’s
Department and Public Defender’s Office will be dismissed with
prejudice.

1

order clarifies and expands on that ruling.

In addition, the Court

2

ruled that the motion to strike the audio CD (Doc. 53) is granted and

3

the Court indicated for the record that it had never listened to the

4

audio

5

constitute any basis for the Court’s ruling on the motion for summary

6

judgment.

7

CD

10

will

be

returned

to

Defendants)

and

it

does

not

SUMMARY

8
9

(which

Schreiber is deaf. He was arrested by the Pima County Sheriff’s
Office, and appeared in the Superior Court in Pima County. Plaintiff’s
ADA/RA

civil

rights

action

focuses

on

the

prosecution

(Public

arrest

Defenders

(Sheriff’s

11
Department),

the

Office)

and

the

accommodated

his

12
13
14
15

incarceration

(Pima

County

Jail)

as

not

having

disability and for treating him differently to his detriment than
people with hearing.

16

STANDARD OF REVIEW

17

Summary judgment is proper where the pleadings, discovery and

18

affidavits demonstrate that there is “no genuine dispute as to any

19

material fact and [that] the movant is entitled to judgment as a

20

matter of law.” Fed. R. Civ. P. 56(a). The party moving for summary

21

judgment bears the initial burden of identifying those portions of the

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pleadings, discovery and affidavits that demonstrate the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.

24
317, 323 (1986). Material facts are those that may affect the outcome

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of

the

(1986).

case.
A

Anderson

dispute

as

v.
to

Liberty
a

Lobby,

material

fact

Inc.,
is

477

U.S.

genuine

if

242,

248

there

is

sufficient evidence for a reasonable jury to return a verdict for the

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1

nonmoving party. Id. Where the moving party will have the burden of

2

proof on an issue at trial, it must affirmatively demonstrate that no

3

reasonable trier of fact could find other than for the moving party.

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Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007).

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On an issue where the nonmoving party will bear the burden of proof at

6

trial, the moving party can prevail merely by pointing out to the

7

district court that there is an absence of evidence to support the

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nonmoving party's case. Celotex, 477 U.S. at 324-25.

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If the moving party meets its initial burden, the opposing party
must then set forth specific facts showing that there is some genuine

11
issue for trial in order to defeat the motion. Fed. R. Civ. P. 56(c);

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Anderson, 477 U.S. at 250. All reasonable inferences must be drawn in
the light most favorable to the nonmoving party. Olsen v. Idaho State

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Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). However, it is not the

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task of the Court to scour the record in search of a genuine issue of

17

triable fact. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The

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Court “rel[ies] on the nonmoving party to identify with reasonable

19

particularity the evidence that precludes summary judgment.” Id.; see

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also Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1017 (9th Cir.

21

2010). Thus, “[t]he district court need not examine the entire file

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for evidence establishing a genuine issue of fact, where the evidence
is not set forth in the opposing papers with adequate references so

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that it could conveniently be found.” Carmen v. S.F. Unified Sch.

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Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). If the nonmoving party
fails

to

make

this

showing,

the

moving

judgment. See Celotex, 477 U.S. at 323.

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party

is

entitled

to

a

DISCUSSION

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2

A.

General ADA/RA Law

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To establish a claim under the ADA, a plaintiff must show that he

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or she: (1) is an individual with a disability; (2) is otherwise

5

qualified to participate in or receive the benefit of some public

6

entity's services, programs, or activities; (3) was either excluded

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from participation in or denied the benefits of the public entity's

8

services,

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10

against

programs,

by

the

or

public

activities,

or

entity;

(4)

and

was

otherwise

such

discriminated

exclusion,

denial

of

benefits, or discrimination was by reason of his or her disability.

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Americans with Disabilities Act of 1990, § 202, 42 U.S.C.A. § 12132.

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To establish a claim under the Rehabilitation Act, a plaintiff
must show that he or she: (1) is handicapped within the meaning of the

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Act; (2) is otherwise qualified for the benefits or services sought;

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(3) was denied the benefit or services solely by reason of his or her

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handicap; and (4) that the program providing the benefit or services

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receives federal financial assistance. Rehabilitation Act of 1973, §

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504, 29

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either the ADA or the Rehabilitation Act, the law in the Ninth Circuit

21

requires that a plaintiff show that a defendant had discriminatory

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23

U.S.C.A.

§

794.

In

claims

for

compensatory

damages

under

intent. Id.
A defendant must act with deliberate indifference; plaintiff is

24
required to show discriminatory intent toward the plaintiff because of

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his or her disability, permitting an award of compensatory damages,
only if: (1) the defendant has knowledge from which an inference could
be drawn that a harm to a federally protected right is substantially

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1

likely, and (2) the defendant actually draws that inference and fails

2

to act upon the likelihood. Id. To show that a public entity had

3

knowledge from which an inference could be drawn that a harm to a

4

federally protected right was substantially likely, as required to

5

demonstrate that the entity acted with deliberate indifference toward

6

a plaintiff because of his or her disability in violation of the ADA

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and

8

plaintiff

9
10

Rehabilitation
must

accommodation

Act,

permitting

identify

that

the

a

award

specific,

entity

failed

of

compensatory

reasonable,
to

provide,

damages,

and

necessary

and

that

the

plaintiff notified the entity of the need for accommodation. Id.

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“To recover monetary damages under Title II of the ADA or the

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14

Rehabilitation Act, a plaintiff must prove intentional discrimination
on the part of the defendant.” Duvall v. County of Kitsap, 260 F.3d

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1124, 1138 (9th Cir.2001). In order to show intentional discrimination

16

in the Ninth Circuit, the plaintiff must show that the defendant acted

17

with

18

indifference

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protected right is substantially likely, and a failure to act upon

20

that

21

California, 283 Fed.Appx. 470, 471 (9th Cir. 2008). To show that a

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23

“deliberate

...

requires

indifference.” Id. at1138-39. “Deliberate
both

knowledge

likelihood.” Id. at

1139.;

that

a

Suarez

harm

v.

to

a

Superior

federally

Court

of

public entity inferred that harm to a federally protected right was
substantially

likely

and

failed

to

act

upon

the

likelihood,

as

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required

to

demonstrate

that

the

entity

acted

with

deliberate

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26
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indifference toward a plaintiff because of his or her disability in
violation

of

the

ADA

and

Rehabilitation

Act,

permitting

award

of

compensatory damages, plaintiff must show that the entity deliberately

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1

failed

to

fulfill

its

duty

to

act

in

response

to

a

request

for

2

accommodation. Duvall; Updike v. City of Gresham, 99 F.Supp.3d 1279

3

(D.Or. 2015)(failure to show deliberate indifference when preferred

4

accommodation was not available, but alternative accommodation worked

5

just as well).

6

B.

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9
10

Arrest
This

lawsuit

arises

originally

from

Plaintiff’s

arrest

and

incarceration for domestic violence. (DSOF 1). Plaintiff ultimately
plead guilty to the domestic violence charge. (DSOF 2).
On October 4, 2013, Plaintiff was at 4129 Alexandrite Avenue,

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where Plaintiff’s wife, children and step children reside. (DSOF 3 &

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4). Plaintiff was not living at the residence because of a pending
child protection services investigation. (DSOF 5). Plaintiff had been

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accused of sexually assaulting one of his step daughters. (DSOF 6).

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Plaintiff was convicted of sexual abuse of a step daughter in June

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2016. (DSOF 7). Plaintiff is currently in prison serving his sentence

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for the conviction. (DSOF 8).

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On October 4, 2013, Plaintiff showed up at the residence without

20

invitation or prior invite from his ex-wife, Cecilia Schreiber. (DSOF

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9). At some point, there was an altercation between Plaintiff and his

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wife. (DSOF 11). During the altercation, Plaintiff threw his cell
phone on the ground, which caused it to break into pieces. (DSOF 12).

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The altercation continued and at some point, Plaintiff slammed his

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wife against the wall, struck her and placed his hands around her
throat

causing

red

marks.

(DSOF

13).

These

red

marks

were

still

visible 20-30 minutes after the incident, when viewed by the Pima

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County Sheriff’s Department. (DSOF 14). Based upon Cecilia Schreiber’s

2

report

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Sheriff’s Department determined that there appeared to be probable

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cause to arrest Plaintiff for domestic violence/criminal damage and

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domestic violence/assault. (DSOF 17).

6

and

the

Plaintiff

physical

argues

evidence

that

the

at

the

Pima

scene,

County

the

Sheriff

Pima

County

Department’s

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Administrative Policies and Procedures require that when arresting a

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hearing impaired individual, the arresting officer “shall procure a

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qualified interpreter in order to properly do any of the following: 1.
Administer

Miranda

warnings;

2.

Interrogate

the

hearing

impaired

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person; and 3. interpret the hearing impaired person’s statements.”

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13
14

Exhibit C, Administrative Policies and Procedures.
placed

in

police

custody,

his

hands

were

When Plaintiff was

handcuffed

behind

him,

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preventing him from signing or writing. Exhibit A, pg. 35, ln. 23-24;

16

pg.

17

investigation

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Correction Sergeant Crystle Prosser, who was working as a housing

19

liaison at the time of Plaintiff’s incarceration, believed that the

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TTY machine at the jail was “not working.” Exhibit D, Pima County

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Sheriff’s Department Memorandum.

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23

at

46,

ln.

least

2-5.

The

into

three

Pima

a

separate

County

complaint

Sheriff’s

filed

by

Department’s
Plaintiff

internal

found

that

Plaintiff complained in writing on

occasions

that

the

TTY

machines

were

not

working. Id. at pg. 3. Plaintiff communicated with Sean Bruner, his

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public defender, primarily by exchanging written notes back-and-forth

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on paper and on Mr. Bruner’s iPad. Id. pg. 81, ln. 11-15. Plaintiff
asked

Mr.

Bruner

repeatedly

to

get

an

ASL

interpreter

for

their

meetings, but Mr. Bruner refused. Id. ln. 16-20; pg. 83, ln. 11-14;

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Exhibit B, pg. 30, ln. 2-8; pg. 31, ln. 8-13; pg. 33, ln 2-17. Because

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of this, Plaintiff alleges that he did not understand the plea deal

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that was offered to him by the prosecutor. Exhibit A, pg. 82, ln. 1 –

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pg. 83, ln. 14. Plaintiff felt pressured and rushed to sign the plea

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agreement, despite not fully understanding it. Id. pg. 85, ln. 15 –

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pg. 88, ln. 25.

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9
10

On November 13, 2013, Plaintiff filed a complaint with the Pima
County

Sheriff’s

Department,

complaining

that

he

was

arrested

and

jailed for 25 days without benefit of an ASL interpreter except in
Court. Exhibit D. He complained that the TTY machines in the jail did

11
not work. Id. pg. 2. He complained that his public defender attempted

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14

to

meet

with

him

over

the

jail’s

telephone/video

system.

Id.

He

complained that he should have been granted an interpreter for his

15

statement to police and during the booking process. Id. He complained

16

that he did not have access to a functioning TTY machine at the jail.

17

Id.

18

Pima County Sheriff’s Department employees involved in his case “took

19

reasonable measures to communicate” with him. Exhibit E, December 24,

20

2013 letter from David Peru to Nicholaus Schreiber.

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23

An investigation into Plaintiff’s complaint determined that that

Plaintiff alleges a violation occurred at the scene of the arrest
when he was interviewed by Deputy Mitchell. Deputy Mitchell had asked
to speak with Plaintiff (DSOF 31). At the start of the communication

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with

Plaintiff,

Deputy

Mitchell

showed

Plaintiff

his

Pima

County

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Sheriff Department Quick Reference Guide which contains the Miranda
Rights. (DSOF 32). While Plaintiff was reading the Miranda Rights,
Deputy Mitchell verbally went through each right with Plaintiff. (DSOF

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1

33). When necessary Deputy Mitchell would explain or give examples to

2

Plaintiff.

3

understood his rights and was willing to speak with Deputy Mitchell.

4

(DSOF 35). Deputy Mitchell was of the opinion that he was able to

5

effectively communicate with Plaintiff while discussing the Miranda

6

Rights.

7

hearing aid in his left ear (DSOF 21). Deputy Mitchell also noticed

8

that during the conversation, Plaintiff would put his left ear toward

9
10

(DSOF

(DSOF

34).

36).

Plaintiff

Deputy

told

Mitchell

Deputy

noticed

Mitchell

that

that

Plaintiff

he

had

a

Deputy Mitchell but was also concentrating on his face (DSOF 22). It
was Deputy Mitchell’s opinion that Plaintiff was reading lips and

11
listening

to

him

testifies

that

at

the

same

time.

(DSOF

23).

Deputy

Mitchell

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13
14

Plaintiff

understood

his

statements

and

responded

appropriately to those statements. (DSOF 37). At no time did Plaintiff

15

ask for an interpreter or to communicate in any other manner. (DSOF

16

38). At no time did Plaintiff ask that his handcuffs be removed so he

17

could use sign language. (DSOF 39). Plaintiff did ask that the air

18

conditioning be turned off so he could hear better. (DSOF 40). Deputy

19

Mitchell turned the vent off as requested by Plaintiff. (DSOF 41). It

20

is

21

statement,

22
23

Deputy

Mitchell’s
he

was

able

opinion
to

that

during

effectively

the

communicate

entirety
with

of

the

Plaintiff.

(DSOF 42).
Sheriff’s deputies made a decision to arrest Plaintiff based on

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his wife’s statements to them about what happened. CSOF ¶ 17. They

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27
28

went in search of Plaintiff, located him, took custody of him, and
brought him back to the residence. SOF ¶¶ 18-19. They handcuffed his
hands behind his back, such that he could neither communicate in his

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1

first language, American Sign Language (“ASL”), nor by way of written

2

notes. AMF ¶ 138. He tried to communicate verbally with the officers,

3

but he struggled to speak more than a few words. CSOF ¶ 20. He felt

4

“really

5

officers. AMF ¶ 140. Sometime later, when he saw a transcript of his

6

recorded

7

attributed to him did not reflect what he tried to say. AMF ¶ 141.

8

Plaintiff attempted to request an ASL interpreter during questioning.

9
10

frustrated”

conversation

with

with

his

inability

officers,

the

to

communicate

words

in

the

with

the

transcript

CSOF ¶ 25. Plaintiff did not understand his Miranda rights as they
were explained to him in English by Deputy Mitchell. CSOF ¶¶ 32-34.

11
Nonetheless, Pima County asserts that Plaintiff does not have any

12
13
14

rights to auxiliary aids at the scene of the arrest. It has been held
that

police

are

not

required

to

provide

auxiliary

aids

prior

to

15

arrival at the stationhouse or prison. Rosen v. Montgomery County, 121

16

F. 3d. 154 (4th Cir. 1997). It would be impractical and an undue

17

burden to require others to retain an interpreter at the scene of a

18

crime.

19

Plaintiff may not substitute this civil action for an appeal from

20

his criminal conviction, consequently harm or injury derived from the

21

allocution and during the plea agreement negotiation are not the kind

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23

of harm contemplated by the ADA or RA. 2 “Disappointed state court
litigants sometimes attempt to overturn state court rulings in federal

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25
2

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27
28

Judge Bernini questioned Plaintiff to make sure that he
understood the charges, the terms and conditions of the plea
agreement, the possible consequences thereof and the constitutional
rights he waives by entering the plea. (Exhibit 15). Judge Bernini
found that Plaintiff knowingly, voluntarily and intelligently entered
into a plea agreement for domestic violence and that there was a
factual basis for the plea. (Exhibit 15).

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1

court § 1983 actions.” 1 Martin A. Schwartz, Section 1983 Litigation §

2

1.07[B]

3

failure.” Id. Under the Rooker–Feldman doctrine, lower federal courts

4

do not have subject matter jurisdiction to conduct appellate review of

5

state court proceedings. Rooker v. Fidelity Trust Co., 263 U.S. 413,

6

416 (1923); D.C. Ct.App. v. Feldman, 460 U.S. 462, 482 (1983). The

7

doctrine applies not only to claims that were actually raised before

8

the state court, but pursuant to res judicata and collateral estoppel,

9
10

(4th

ed.2003).

“This

endeavor

is

frequently

doomed

to

also to claims that are “inextricably intertwined” with state court
determinations. Feldman, 460 U.S. at 483 n. 16; see also Noel v. Hall,

11
341 F.3d 1148 (9th Cir.2003). Rooker–Feldman requires a party seeking

12
13
14

review of a state court judgment to pursue relief through the state
court system and ultimately to the United States Supreme Court.2 See 28

15

U.S.C. § 1257; Rooker, 263 U.S. at 416; Feldman, 460 U.S. at 476. The

16

doctrine stems in part from a recognition of the fact that “a decision

17

by a state court, however erroneous, is not itself a violation of the

18

Constitution actionable in federal court.” Plaintiff’s claims are a de

19

facto appeal of the proceedings in state court, which he could have

20

appealed. Any challenge he had to the reading of his rights, failure

21

to knowingly and intelligently enter a plea could have been raised on

22
23

appeal but were not and barred here under Rooker-Feldman. As to the
ADA/RA claims, there are no material questions of fact precluding

24
resolution by summary judgment here.

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C.

Prosecution

26
27
28

Plaintiff

admits

that

the

State

provided

him

with

an

ASL

interpreter when he appeared in Arizona Superior Court. (Doc. 24, ¶

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1

32.) Plaintiff’s complaint with the State was that Superior Court

2

Judge Deborah Bernini could not order that an interpreter be provided

3

at

4

Office. 3 The Superior Court provided him with an ASL interpreter in the

5

courtroom.

6

of the courtroom setting.

the

Pima

County

Jail

or

at

the

Pima

County

Public

Defender’s

Plaintiff claims he was entitled to an interpreter outside

7

ADA, Title II and its implementing regulations require that a

8

public entity “furnish appropriate auxiliary aids and services” to

9
10

individuals with disabilities so that they have “an equal opportunity
to participate in, and enjoy the benefits of, a service, program, or

11
activity of a public entity.” 28 C.F.R. § 35.160(b)(1); see also 42

12
13
14

U.S.C. § 121312 (“[N]o qualified individual with a disability shall,
by reason of such disability, be excluded from participation in or be

15

denied the benefits of the services, programs, or activities of a

16

public

17

“services,

18

entity does.” Barden v. City of Sacramento, 292 F.3d 1073, 1076 (9th

19

Cir. 2002) (quoting Lee v. City of L.A., 250 F.3d 668, 691 (9th Cir.

20

2001)). “Whether a particular public function is covered by the ADA

21

turns simply on whether it is ‘a normal function of a governmental

22
23

entity.”).

The

programs,

Ninth

or

Circuit

activities”

has

to

interpreted

include

the

“anything

phrase,
a

public

entity.’” Fortyune v. City of Lomita, 766 F.3d 1098, 1102 (9th Cir.
2014) (quoting Bay Area Addiction Research & Treatment v. City of

24
Antioch, 179 F.3d 725, 731 (9th Cir. 1999)). Title II requires that

25
26
27
28

the

State

make

its

courtrooms

accessible

to

individuals

with

disabilities, including by providing auxiliary aids and services where
3

All state and judicial defendants have been dismissed from this
action.

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1

appropriate

to

allow

those

individuals

to

participate

fully

in

2

courtroom proceedings. Plaintiff admits that the Superior Court agreed

3

to provide him with the auxiliary aid and service of sign language

4

interpretation in the courtroom. (Doc. 24, ¶ 32.) And he does not

5

allege that he was ever denied an interpreter in court. Ensuring that

6

parties

7

courtroom, however, is not a normal function of the Arizona Superior

8

Court.

9
10

can

adequately

prepare

with

their

counsel

outside

the

In sum, Title II does not require the State to provide sign
language interpretation for Plaintiff’s meetings with counsel at the

11
Pima

County

Jail

or

at

the

Pima

County

Public

Defender’s

Office.

12
13
14

Plaintiff has cited no legal authority for a different conclusion.
Attorney Bruner made clear that he opined his communications with

15

Plaintiff were reasonable and effective and that an interpreter was

16

not needed. Plaintiff complains that without an interpreter that he

17

did not understand the plea agreement. However, Plaintiff was given a

18

copy of the plea agreement prior to the hearing. It is uncontroverted

19

that Plaintiff could read, write, graduated from high school and in

20

fact, took classes at Pima County. Further, Plaintiff met with Bruner

21

and an interpreter at the courthouse, prior to his entering a guilty

22
23

plea.

Attorney

Sean

Bruner

testified

that

in

general

costs

are

a

factor in defending a case. However, Mr. Bruner consistently testified

24
that he did not retain an interpreter for this case because in his

25
26
27
28

opinion there was always effective communication between himself and
Plaintiff. (Exhibit 13, P. 46 L. 10 to P. 48 L. 4).
Even taken in a light most favorable to the nonpleading party,

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1

the evidence is such that communications with Plaintiff’s attorney

2

were not so lacking as to cause injury. Again, any claims here that

3

are a substitute for a criminal appeal are barred by Rooker-Feldman.

4

D.

Incarceration

5

Plaintiff complains that he was unable to use the telephone while

6

incarcerated at Pima County Jail. However, Plaintiff did not make such

7

a complaint for the last two weeks of his incarceration. Further,

8

Plaintiff was offered help to use the TTY machine and refused (DSOF

9
10

91). The call log shows that Plaintiff successfully made telephone
calls while in prison. (DSOF 134). The corrections officers helped

11
Plaintiff get in contact with his public defender. (DSOF 95). There is

12
13
14
15

no evidence or claim that Plaintiff was unable to contact anyone else
other than his wife, who he was prohibited from speaking with. (DSOF
92-93).

16

The evidence shows that the County jail had multiple TTY machines

17

and Plaintiff has not provided any evidence that the TTY machines did

18

not work for any other hearing impaired prisoner. Further, Plaintiff

19

only

20

incarceration. Plaintiff never complained after that time that the TTY

21

machines were not working including during his second incarceration.

22
23

complained

three

times

within

the

first

few

days

of

his

The evidence also shows that numerous detention center employees tried
to help him use the TTY machine. For example, Ms. Hyman testified that

24
Plaintiff was not interested in using the TTY machine and only wanted

25
26
27
28

a cell phone to call his wife. (DSOF 91). Further, the Call Log from
the PCADC indicates that Plaintiff successfully made telephone calls
on several occasions including on October 8 and 11, 2013. (DSOF 134).

- 14 -

1
2

Therefore, Plaintiff either successfully used the TTY machine or used
the regular telephone to make such calls.

3

On October 8, 2013, Plaintiff complained to Sergeant Gomez that

4

the TTY machine was not working. (DSOF 83). Also present was Sergeant

5

C.W.

6

written communication. (DSOF 84). In Sergeant Cooper's opinion, the

7

communication

8

effective. (DSOF 85). Sergeant Cooper observed that at no time did

9
10

Cooper.

Sergeant

between

Cooper

observed

Cooper

and

Gomez

and

Plaintiff

Plaintiff

seemed

using

reasonable

Plaintiff request an interpreter or ask to use any other time of
communication. (DSOF 86). Sergeant Cooper attempted to help Plaintiff

11
use the TTY machine. (DSOF 87). Cooper recalls that the TTY machine

12
13
14

was not working on that occasion but recalls that the problem was that
they

could

not

get

sufficient

power

to

it.

(DSOF

88).

Since

the

15

officers were not able to get the machine to work on that occasion,

16

Sergeant Gomez took Plaintiff to Specialist Hyman so that Plaintiff

17

could make a phone call. (DSOF 89).

18

On the contrary, Plaintiff claims he tried to call his public

19

defender, Sean Bruner, using a TTY at the jail, but it did not work,

20

despite repeated attempts. CSOF ¶ 73. Plaintiff complained in writing

21

about the TTY machines not working at least three times before finally

22
23

giving up on making a call from jail. AMF ¶¶ 143-45.
Ms. Hyman recalls seeing Plaintiff on October 8, 2013. Ms. Hyman

24
recalls that she was told that Plaintiff was being brought to her

25
26
27
28

office

because

they

were

having

trouble

getting

power

to

the

TTY

machine. (DSOF 90). Ms. Hyman offered to set up the TTY machine but it
appeared to her that Plaintiff was not interested in using the TTY

- 15 -

1

machine. (DSOF 91). Plaintiff only requested a cell phone and wanted

2

to call his wife, Cecelia. Ms. Hyman informed Plaintiff that he was

3

not

4

violence. (DSOF 92). Ms. Hyman asked Plaintiff if he wanted to contact

5

any other family members of friends. Plaintiff did not give her any

6

other names to call. (DSOF 93). Plaintiff did ask her to call his

7

public defender. (DSOF 94). Ms. Hyman called the Public Defender’s

8

Office but Plaintiff’s lawyer was not available. Ms. Hyman left a

9

able

to

call

his

wife

because

of

the

charges

for

domestic

message for the lawyer to contact Plaintiff. (DSOF 95).

10

Initially, it should be noted that Plaintiff has not provided any

11
written custom or policies from Pima County. Further, Plaintiff has

12
13
14

not provided any evidence or testimony from a policymaker at Pima
County. Plaintiff’s only two allegations are that the TTY machine

15

didn’t work for Plaintiff and that the Pima County Defender’s Office

16

did not retain the services of an interpreter for him. However, the

17

evidence shows that the PCADC had multiple TTY machines and Plaintiff

18

has not provided any evidence that the TTY machines did not work for

19

any

20

complained three times within the first few days of his incarceration.

21

Plaintiff never complained after that time that the TTY machines were

22
23

other

hearing

impaired

prisoner.

Further,

Plaintiff

only

not working including during his second incarceration. The evidence
also shows that numerous detention center employees tried to help him

24
use the TTY machine. For example, Ms. Hyman testified that Plaintiff

25
26
27
28

was not interested in using the TTY machine and only wanted a cell
phone to call his wife. (DSOF 91). Further, the Call Log from the
PCADC indicates that Plaintiff successfully made telephone calls on

- 16 -

1

several occasions including on October 8 and 11, 2013. (DSOF 134).

2

Therefore, Plaintiff either successfully used the TTY machine or used

3

the regular telephone to make such calls.

4

E.

ADA Claim against the County (Count I)

5

At issue is whether Pima County effectively communicated with

6

Plaintiff without the assistance of an auxiliary aid. Sign language

7

interpreters are not required when lip reading or other accommodations

8

are sufficient. Board of Educ. of Hendrick Hudson Sch.Dist. v. Rowley,

9
10

458 U.S. 176 (1982). Plaintiff argues that whether the communication
was

effective

is

a

fact

intensive

inquiry

not

resolvable

by

a

11
dispositive motion. While that may be so, that does not mean that

12
13
14

summary

judgment

cannot

be

granted

when

the

facts

show

effective

communication. See Bircoll v. Miami-Dade Cty., 480 F.3d 1072 (11th

15

Cir. 2007) (the court found summary judgment warranted on the issue of

16

effective communication even though factual issues existed whether the

17

prisoner asked for an interpreter). Effective communication does not

18

mean identical results, just meaningful interaction.

19

In the case at hand, Defendants argue that the audio recording 4

20

and

21

establishes that Plaintiff effectively communicated with Pima County

22
23

the

employees.

testimony

There

is

from

no

the

Pima

evidence

of

County

employees

deliberate

conclusively

discrimination

when

Deputy Mitchell took a statement from Plaintiff. Plaintiff’s self-

24
serving statements at deposition do not create a material issue of

25
26
4

27
28

The audio CD lodged and filed in this action will be stricken
from the record. It was not heard by the Court and does not provide
any basis for this Court’s ruling. The audio CD will be held in the
event of appellate review even though was not used as part of the
Court’s decision making process.
- 17 -

1

fact to prevent entry of summary judgment. The evidence supports that

2

Plaintiff

was

3

proving effective communication.
Despite

4

responsive

Nick’s

to

repeated

Mitchell’s

requests

questions

for

an

and

statement,

interpreter

for

his

5

meetings with Mr. Bruner, the public defender’s office refused to

6

provide one, in part because of the cost. AMF ¶¶ 148-49, 162-64. Mr.

7

Bruner, believing that Nick was entitled to an interpreter for his

8

meetings with his attorney, did file a motion requesting that the

9
10

Court provide an interpreter, but the motion failed. AMF ¶¶ 163-65.
Plaintiff testified that because of all this, he felt pressured to

11
sign a plea agreement he did not fully understand. AMF ¶¶ 150-51.

12
There is no evidence that an interpreter was not at any meetings

13
14

with Bruner because of cost. Bruner testified that he spoke with Ms.

15

Lefferts,

16

effectively communicate with hearing-impaired individuals without an

17

interpreter. (DSOF 118 & 119) Bruner continually testified that he

18

communicated effectively with Plaintiff and that an interpreter was

19

not necessary. (DSOF 109, 110, 111, 112, 113, 117, 120, 124, 127).

20

Bruner did acknowledge that budgetary concerns were always present at

21

his

22
23

who

office;

stated

however,

in

he

her

nor

experience

Ms.

Lefferts

she

ever

had

been

testified

able

that

to

an

interpreter was not hired in this case because they did not want to
spend the money. (DSOF 169).

24
Taking all of the facts as true, there is no violation of the ADA

25
26
27
28

or RA, particularly because there is no direct or inferred evidence of
deliberate indifference and discrimination on the part of the public
entities

named

in

this

action

and

- 18 -

there

is

evidence

that

the

1

Defendants acted reasonably under the circumstances.

2

Counts I and III.

3

F.

4

This resolves

(Count II)

Section

1983:

Sheriff’s

Office,

County

Jail,

Public

Defender

5

In order to sustain a claim under 42 USC § 1983, Plaintiff “must

6

show that the [Defendants] acted under color of law, and that their

7

conduct deprived him of a constitutional right.” Duffy v. Riveland, 98

8

F.3d 447, 456 (9th Cir. 1996) (reversing summary judgment against a

9
10

deaf inmate on his ADA, Rehabilitation Act and Section 1983 claims).
In order to prevail on his section 1983 claim, Plaintiff will also

11
need demonstrate that Defendants have customs or policies which amount

12
13
14

to deliberate indifference to his constitutional rights. Lee v. City
of L.A., 250 F.3d 668, 681 (9th Cir. 2001). Deliberate indifference

15

occurs when the need for more or different action is so obvious, and

16

the inadequacy of the current procedure so likely to result in a

17

violation

18

reasonably be said to have been deliberately indifferent. Id. at 682

19

(citation omitted). Whether a local government entity has displayed

20

such a policy of “deliberate indifference” is generally a question of

21

fact for the jury. Id. Here, Plaintiff alleges that he requested an

22
23

of

constitutional

rights,

that

the

policymakers

can

interpreter at virtually every turn – when he was arrested and his
statement was taken, when he was booked, when he met with his public

24
defender

–

and

he

was

consistently

denied.

He

alleges

that

he

25
26
27
28

complained repeatedly about the TTY machines not working and nothing
was done to remedy the situation. From this evidence, Plaintiff argues
that there is enough material evidence that a jury could conclude that

- 19 -

1
2

Defendants displayed a pattern of “deliberate indifference” toward the
hearing impaired.

3

A Section 1983 claim cannot be used to enforce rights under the

4

ADA or the Rehabilitation Act since both contain statutory schemes

5

that

6

Thomas, 288 F.3d 1145 (9th Cir. 2002). The Vinson court relied on the

7

holding in Holbrook v. City of Alpharetta, 112 F.3d 1522 (11th Cir.

8

1997), which found that a plaintiff, who was suing a city, could not

9
10

already

include

comprehensive

remedial

measures.

Vinson

v.

maintain a Section 1983 in lieu or in addition to a Rehabilitation/ADA
cause

of

action

when

the

alleged

violation

is

covered

by

the

11
Rehabilitation Act and the ADA. Other district courts have agreed with

12
13
14

this reasoning. See Hill v. Baca, No. CV 08-03834 CAS (C.D. Cal 2006).
Section 1983 does not provide a cause of action to vindicate statutory

15

rights

16

Ecology, 132 F. Supp. 2d 896 (Wash. 1999) (Section 1983 cannot be used

17

to enforce rights created by a statutory scheme that already included

18

comprehensive remedial measures).

19

In

under

the

the

ADA.

Section

Save

1983

Our

claim,

Summers

v.

Plaintiff

Wash.

State

asserts

that

Dep't.

he

is

of

a

20

qualified individual under Title II of the ADA. (DSOF 154). Plaintiff

21

complains that his constitutional rights were violated because he was

22
23

not

given

the

services

of

an

interpreter.

(DSOF

155).

Finally,

Plaintiff alleges the same damages as in the causes of action pursuant

24
to alleged violations of the ADA and 504 of the Rehabilitation Act.

25
26
27
28

(DSOF 152). Plaintiff is asserting rights under his Section 1983 claim
that are covered by the ADA and Rehabilitation Act. As such, the
Section 1983 claims are precluded by the ADA and Rehabilitation Act.

- 20 -

1

Plaintiff does not respond to this case authority.
Even assuming that a Section 1983 cause of action exists in

2
3

conjunction

4

evidence to prove his 1983 claim. Since Pima County is the defendant

5

in this case, Plaintiff must show a policy or custom and practice of

6

the

7

persons. Monell v. Dept. of Social Services, 436 U.S. 658 (1978).

8

Plaintiff has produced no evidence to support any policy or custom and

9
10

with

alleged

ADA/RA

violation

claims,

of

denying

Plaintiff

has

interpreters

not

to

provided

hearing

any

impaired

practice on behalf of Pima County. Plaintiff has not provided any
written

custom

or

policies

from

Pima

County.

Plaintiff

has

not

11
provided any evidence or testimony from a policymaker at Pima County.

12
13
14
15

Plaintiff’s only two allegations are that the TTY machine did not work
for

Plaintiff

and

that

the

Pima

County

Defender’s

Office

did

not

retain the services of an interpreter for him.

16

Plaintiff’s allegations do not support a claim for deliberate

17

indifference. Deliberate indifference requires that a different action

18

be obvious and that the inadequacy of the current procedure is likely

19

to result in a violation of constitutional rights. Any problems with

20

the

21

constitute

22
23

TTY

machine
a

appeared

policy

or

to

be

an

procedure.

isolated

incident

Especially,

since

and

cannot

Pima

County

actually had a policy to provide the use of the TTY machine, had
multiple TTY machines and continually attempted to help Plaintiff to

24
use

the

machine.

Also,

there

is

no

evidence

that

there

was

non-

25
26
27
28

effective communication between Plaintiff and his lawyer. Plaintiff’s
only complaint that he didn’t understand his plea agreement is dubious
since he read a copy prior to the hearing, met with his attorney prior

- 21 -

1

to

the

hearing,

met

with

his

attorney

and

interpreter

prior

to

2

changing his plea and that the court noted that Plaintiff understood

3

and accepted the plea agreement. Therefore, there is no evidence of

4

deliberate indifference.

5

In cases involving hearing impairment, the issue is whether the

6

communication

7

appropriate steps to ensure that the communication with members of the

8

public

9
10

with

was

effective.

disabilities

A

are

public

as

entity

effective

needs

as

only

to

communications

take

with

others. 28 CFR 35.160(a). Although a public entity may be required to
make

available

appropriate

auxiliary

aids

where

necessary

for

11
effective

communications,

the

type

of

auxiliary

aid

necessary

to

12
13
14

ensure effective communication will vary in accordance with the length
and complexity of the communication involved. 28 CFR 35, 160(a)(2);

15

Department of Justice Technical Assistance Manual on the Americans

16

with Disabilities Act III-4-3200. Auxiliary aids include the use of

17

written

18

principle does not require a public entity to employ any and all means

19

to

20

modifications that would not fundamentally alter the nature of the

21

service of the public entity or impose and undue burden.

22
23

communication.

make

Pima

auxiliary

County

Id.

aids

contends

Further,

accessible

that

at

the

but

all

reasonable

only

times

make

they

modification

reasonable

effectively

communicated with Plaintiff either verbally or through written means

24
Plaintiff admits that he reads well and has been reading books most of

25
26
27
28

his life. (DSOF 135). Plaintiff indicates that he communicates with
his family through verbal and written methods. (DSOF 136). Plaintiff
also acknowledges that he communicates through text and through e-mail

- 22 -

1

(DSOF 137, 139). Plaintiff has a high school degree and went to Pima

2

College for a year and a half studying writing and reading (DSOF 140,

3

141). Nonetheless, Plaintiff alleges that he should have been given an

4

interpreter. However, the Supreme Court has held that sign language

5

interpreters are not required when lip reading or other accommodations

6

are sufficient. Board of Educ. of Hendrick Hudson Cent. Sch. Dist. v.

7

Rowley, 458 US 176, 102 S. Ct. 3034 (1982).

8
9
10

Pima County contends that there was effective communications at
all

times

while

Plaintiff

was

in

the

Pima

County

Adult

Detention

Center. Plaintiff was incarcerated in the Pima County Adult Detention

11
Center

from

October

5,

2013

through

October

24,

2013.

(DSOF 66).

12
13
14

Prisoner use of the telephone during incarceration is allowed but
limited. (DSOF 67). The procedure for using the telephone is contained

15

in

16

prisoner

17

prisoner should either submit a phone trouble report, speak with a pod

18

officer or submit an assistance request form. (DSOF 69). Additionally,

19

for

20

machines. (DSOF 70). A TTY machine allows the hearing-impaired person

21

to type his communications to the other person and to receive the

22
23

the

Prisoner
that

hearing

if

Handbook
they

impaired

(DSOF

have

68).

trouble

prisoners,

The
using

the

handbook
the

also

telephone

detention

complex

informs
that

has

a

the

TTY

other person's communication by text. (DSOF 71). Pima County had a
procedure regarding the use of TTY machines. (DSOF 72). Plaintiff did

24
make some complaints regarding the use of the TTY machine on October

25
26
27
28

6th

and

8th.

(DSOF

73).

Plaintiff

did

not

make

any

complaints

regarding the use of telephones or the TTY machine after October 8,
2013. (DSOF 74).

- 23 -

The evidence shows that at all times while at the Pima County

1
2

Adult Detention Center Plaintiff was able to effectively communicate

3

with the correction officers. Additionally, there was no evidence that

4

Plaintiff

5

communication. Plaintiff was in communication with his lawyer. He was

6

prohibited from contacting his wife and children. Plaintiff has not

7

alleged that he was unable to contact anyone else.

8
9
10

suffered

any

injury

as

a

result

of

any

lack

of

Pima County also contends that Plaintiff was able to communicate
effectively at all times with his public defender Sean Bruner. It was
determined

that

Plaintiff

would

be

represented

by

the

Public

11
Defender's Office and attorney Sean Bruner was assigned to Plaintiff's

12
13
14

case. (DSOF 99). Mr. Bruner cannot recall whether he received notice
on October 7th or the next day, October 8th. (DSOF 100). Mr. Bruner

15

sent out a letter of representation on October 8, 2013. (DSOF 101).

16

Mr. Bruner visited Plaintiff in person on October 9, 2013. (DSOF 104).

17

On October 9, 2013, Mr. Bruner filed a GAP motion requesting that

18

Plaintiff be released from jail. (DSOF 105). The motion was set to be

19

heard on October 24, 2013. (DSOF 106). At the hearing on October 24th,

20

the GAP motion was granted and Plaintiff was released from jail. (DSOF

21

107).

22
23

Mr.

Bruner

used

both

verbal

and

written

communication

with

Plaintiff. (DSOF 108). (DSOF 109). Mr. Bruner opines that Plaintiff

24
speaks very well. (DSOF 110). Mr. Bruner assumed Plaintiff understood

25
26
27
28

him because Plaintiff would respond appropriately. (DSOF 111). Mr.
Bruner

recalls

primarily

that

verbal.

at

(DSOF

the

first

112).

Mr.

- 24 -

meeting
Bruner

the

communication

recalls

that

was

Plaintiff

1
2

verbally asked a lot of questions during the first meeting. (DSOF
113).

3

After Plaintiff was released from jail, the primary communication

4

between Plaintiff and Mr. Bruner was written through e-mail. (DSOF

5

114). However, there were times that the two would meet in person and

6

use both verbal and written communication. (DSOF 115). On October

7

29th, Plaintiff sent an e-mail to Mr. Bruner's secretary requesting an

8

interpreter at their next meeting. (DSOF 116). Mr. Bruner responded

9
10

that he did not think an interpreter was necessary because he had
"communicated quite well at the jail and could always write notes."

11
(DSOF 117).

12
On October 31, 2013, Mr. Bruner sent Plaintiff correspondence

13
14

which also contained a copy of a plea agreement. (DSOF 121). The two

15

met

16

agreement. (DSOF 122). The two communicated both verbally and written.

17

(DSOF 123). Mr. Bruner was of the opinion that the communications were

18

reasonable and effective. (DSOF 124). Plaintiff was unsure whether to

19

accept

20

discussing the acceptance of the plea agreement. (DSOF 126). Again,

21

Mr.

22
23

on

November

the

Bruner

plea

5,

2013

to

agreement.

thought

the

discuss

(DSOF

e-mail

the

125).

case

The

including

two

communication

the

exchanged

was

plea

e-mails

reasonable

and

effective. (DSOF 127). Mr. Bruner opined that Plaintiff's e-mails were
articulate and well thought out. (DSOF 128). Plaintiff admits that he

24
communicated

with

attorney

Bruner

through

e-mail

and

was

able

to

25
26
27
28

understand the contents of the e-mail. (DSOF 149).
On November 13, 2013, Plaintiff filed a formal complaint with the
Pima County Sheriff’s Department. AMF ¶ 167. He complained that he was

- 25 -

1

not

provided

with

an

ASL

interpreter

when

arrested,

booked

and

2

incarcerated, and that the TTY machines at the jail did not work. Id.

3

An investigation by the department concluded that its employees took

4

“reasonable

5

additional action was taken. AMF ¶ 168.

measures

to

communicate”

with

Plaintiff,

and

so

no

6

On November 15, 2013, Mr. Bruner filed a motion with the superior

7

court seeking an interpreter for any meetings between the two. (DSOF

8

129). Mr. Bruner did not feel that an interpreter was necessary. (DSOF

9
10

130).

The

superior

court

denied

the

motion

and

stated

that

an

interpreter was only required in court and not for meetings outside of

11
court

between

counsel

and

the

client.

(DSOF

131).

The

court

did

12
13
14

provide interpreters at the court hearings. (DSOF 132). Mr. Bruner
acknowledged that use of the interpreter sped up the communications

15

but Mr. Bruner opined that use of the interpreter did not improve the

16

quality of the communications. (DSOF 133).
In sum, summary judgment will be granted on the Section 1983

17
18

claim.

19

G.

Rehabilitation Act against County (Count III)

20

A cause of action under 504 of the Rehabilitation Act essentially

21

parallels an ADA cause of action. Olmstead v. Zimring, 527 U.S. 581

22
23

(1999). Importantly, in the prison context, both Title II of the ADA
and 504 of the Rehabilitation Act must be applied with consideration

24
to legitimate penological interests. Gates v. Rowland, 39 F.3d 1349

25
26
27
28

(9th Cir. 1994). To prevail on a claim that a prisoner's rights have
been violated, the inmate must show that the challenged prison policy
or regulation is unreasonable. Pierce v. County of Orange, 526 F.3d

- 26 -

1

1190 (9th Cir. 2008). Accordingly, the resolution of Count III mirrors

2

the resolution of Count I.

3

H.

State rules and statutes (Counts IV and V)
In

4

Counts

Four

and

Five

of

the

Second

Amended

Complaint,

5

Plaintiff

6

(hereinafter "ACRA") and the Arizonans with Disabilities Act, which is

7

a subsection of the ACRA. These counts basically contain the same

8

cause of action. Further, these counts are the same as the violations

9
10

alleges

violation

of

the

Arizona

Civil

Rights

Act

alleged in the ADA and Rehabilitation Act allegations. The courts have
noted that analysis of the ARCA is the same as the standards under the

11
ADA and Rehabilitation Act, since the Arizona statutes are patterned

12
13
14

on the federal law and that federal law is persuasive. Matos v. City
of Phoenix, 176 Ariz. 125 (Ariz. App. 1993). Since the analysis and

15

standards are the same, Counts IV and V may be dismissed for the same

16

reasons as dismissal Count I, ADA, and Count III, Rehabilitation Act.

17

Further, a private cause of action does not exist under ARS §12-

18

242 since the statute does not provide a private cause of action and

19

that when a state creates rights for an individual against the state,

20

it is not bound to provide a remedy in the courts and may withhold a

21

remedy in its entirety. Guibault v. Pima County, 161 Ariz. 446 (Ariz.

22
23

App.

1989).

Plaintiff

does

not

address

or

distinguish

Guibault.

Instead, Plaintiff solely relies on Cort v. Ash, 422 U.S. 660 (1975).

24
However, the Arizona Supreme Court has expressly rejected Cort and the

25
26
27
28

federal standard for determining legislative intent in creating or
denying

a

private

right

of

action.

Guibault

at

157-58

(citing

Transamerica Financial Corp. v. Superior Court, 158 Ariz. 115, 761

- 27 -

1

P.2d 1019 (1988)). Plaintiff did not counter Defendants’ argument that

2

he waived any rights under the statute by waiving his Miranda rights

3

and agreeing to speak with Deputy Mitchell. Again any claims made in

4

lieu of a criminal appeal are barred by Rooker-Feldman.

5

RULING

6

Based on the foregoing,

7

IT IS ORDERED that the Defendants’ Motion for Summary Judgment

8
9
10

(Doc. 52) is GRANTED on all counts.

The Clerk’s Office is DIRECTED to

enter a Final Judgment in accordance with this Order in favor of
Defendants.

This action is dismissed with prejudice as to all claims,

11
but

for

the

claims

made

in

lieu

of

a

criminal

appeal

which

are

12
13
14

dismissed without prejudice as is required by Rooker-Feldman. This
action is terminated.
IT

15

IS

FURTHER

ORDERED

that

Defendants

Pima

County

Sheriff’s

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Department and Pima County Public Defenders Office are both dismissed

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with prejudice.

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IT IS FURTHER ORDERED that the Motion to Strike (Doc. 53) the

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audio CD is GRANTED.

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CD (Doc. 52, Ex. 3) (DSOF, Ex. 3, a hard copy of the audio CD marked

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Exhibit 3 to the Separate Statement of Facts in support of the Motion

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for

Summary

rendering

The Clerk’s Office is DIRECTED to HOLD the audio

Judgment.

this

Ruling)

Ex.
as

3

was

part

not

of

the

considered
record

in

by

the

this

Court

action

in
for

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purposes of appellate review.

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IT IS FURTHER ORDERED that the documents delivered to Chambers
for in camera review to resolve a discovery dispute as directed by a
Civil Minute Order (Doc. 48) are to be HELD by the Clerk’s Office as

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part of the record in this action for purposes of appellate review.
Those documents accompany this Order.

3

IT IS FURTHER ORDERED that the documents delivered to chambers

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(Doc. 47) for in camera review to resolve a discovery dispute as

5

directed by a Civil Minute Order (Doc. 49) are to be HELD by the

6

Clerk’s Office as part of the record in this action for purposes of

7

appellate review. Those documents accompany this Order.

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9
10

IT IS FURTHER ORDERED that the Motion to Strike (Doc. 64) the
supplemental

statement

of

facts

is

GRANTED.

supplemental

statement of facts (Doc. 61) was filed without leave of Court and will

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be STRICKEN as such.

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13

The

Dated this 9th day of August, 2017.

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