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)
1
2
WO
3
4
IN THE UNITED STATES DISTRICT COURT
5
FOR THE DISTRICT OF ARIZONA
6
7
Nicholas Schreiber,
8
9
10
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
21
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
25
26
27
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
22
23
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
25
26
27
28
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
-2-
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.
4
Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007).
5
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
8
nonmoving party's case. Celotex, 477 U.S. at 324-25.
9
10
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);
12
13
14
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
15
Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). However, it is not the
16
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
18
Court “rel[ies] on the nonmoving party to identify with reasonable
19
particularity the evidence that precludes summary judgment.” Id.; see
20
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
22
23
for evidence establishing a genuine issue of fact, where the evidence
is not set forth in the opposing papers with adequate references so
24
that it could conveniently be found.” Carmen v. S.F. Unified Sch.
25
26
27
28
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.
-3-
party
is
entitled
to
a
DISCUSSION
1
2
A.
General ADA/RA Law
3
To establish a claim under the ADA, a plaintiff must show that he
4
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
7
from participation in or denied the benefits of the public entity's
8
services,
9
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.
11
Americans with Disabilities Act of 1990, § 202, 42 U.S.C.A. § 12132.
12
13
14
To establish a claim under the Rehabilitation Act, a plaintiff
must show that he or she: (1) is handicapped within the meaning of the
15
Act; (2) is otherwise qualified for the benefits or services sought;
16
(3) was denied the benefit or services solely by reason of his or her
17
handicap; and (4) that the program providing the benefit or services
18
receives federal financial assistance. Rehabilitation Act of 1973, §
19
504, 29
20
either the ADA or the Rehabilitation Act, the law in the Ninth Circuit
21
requires that a plaintiff show that a defendant had discriminatory
22
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
25
26
27
28
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
-4-
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
7
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.
11
“To recover monetary damages under Title II of the ADA or the
12
13
14
Rehabilitation Act, a plaintiff must prove intentional discrimination
on the part of the defendant.” Duvall v. County of Kitsap, 260 F.3d
15
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
19
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
22
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
24
required
to
demonstrate
that
the
entity
acted
with
deliberate
25
26
27
28
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.
7
8
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,
11
where Plaintiff’s wife, children and step children reside. (DSOF 3 &
12
13
14
4). Plaintiff was not living at the residence because of a pending
child protection services investigation. (DSOF 5). Plaintiff had been
15
accused of sexually assaulting one of his step daughters. (DSOF 6).
16
Plaintiff was convicted of sexual abuse of a step daughter in June
17
2016. (DSOF 7). Plaintiff is currently in prison serving his sentence
18
for the conviction. (DSOF 8).
19
On October 4, 2013, Plaintiff showed up at the residence without
20
invitation or prior invite from his ex-wife, Cecilia Schreiber. (DSOF
21
9). At some point, there was an altercation between Plaintiff and his
22
23
wife. (DSOF 11). During the altercation, Plaintiff threw his cell
phone on the ground, which caused it to break into pieces. (DSOF 12).
24
The altercation continued and at some point, Plaintiff slammed his
25
26
27
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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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1
County Sheriff’s Department. (DSOF 14). Based upon Cecilia Schreiber’s
2
report
3
Sheriff’s Department determined that there appeared to be probable
4
cause to arrest Plaintiff for domestic violence/criminal damage and
5
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
7
Administrative Policies and Procedures require that when arresting a
8
hearing impaired individual, the arresting officer “shall procure a
9
10
qualified interpreter in order to properly do any of the following: 1.
Administer
Miranda
warnings;
2.
Interrogate
the
hearing
impaired
11
person; and 3. interpret the hearing impaired person’s statements.”
12
13
14
Exhibit C, Administrative Policies and Procedures.
placed
in
police
custody,
his
hands
were
When Plaintiff was
handcuffed
behind
him,
15
preventing him from signing or writing. Exhibit A, pg. 35, ln. 23-24;
16
pg.
17
investigation
18
Correction Sergeant Crystle Prosser, who was working as a housing
19
liaison at the time of Plaintiff’s incarceration, believed that the
20
TTY machine at the jail was “not working.” Exhibit D, Pima County
21
Sheriff’s Department Memorandum.
22
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
24
public defender, primarily by exchanging written notes back-and-forth
25
26
27
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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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1
Exhibit B, pg. 30, ln. 2-8; pg. 31, ln. 8-13; pg. 33, ln 2-17. Because
2
of this, Plaintiff alleges that he did not understand the plea deal
3
that was offered to him by the prosecutor. Exhibit A, pg. 82, ln. 1 –
4
pg. 83, ln. 14. Plaintiff felt pressured and rushed to sign the plea
5
agreement, despite not fully understanding it. Id. pg. 85, ln. 15 –
6
pg. 88, ln. 25.
7
8
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
12
13
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.
21
22
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
24
with
Plaintiff,
Deputy
Mitchell
showed
Plaintiff
his
Pima
County
25
26
27
28
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
-8-
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
12
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
24
his wife’s statements to them about what happened. CSOF ¶ 17. They
25
26
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
-9-
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
22
23
of harm contemplated by the ADA or RA. 2 “Disappointed state court
litigants sometimes attempt to overturn state court rulings in federal
24
25
2
26
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.
25
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.
- 12 -
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
16
Department and Pima County Public Defenders Office are both dismissed
17
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.
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IT IS FURTHER ORDERED that the documents delivered to chambers
4
(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
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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
11
be STRICKEN as such.
12
13
The
Dated this 9th day of August, 2017.
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