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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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 -5- 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 28 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 -6- 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 28 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; -7- 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). - 10 - 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, ¶ - 11 - 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, - 13 - 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. 18 IT IS FURTHER ORDERED that the Motion to Strike (Doc. 53) the 19 audio CD is GRANTED. 20 CD (Doc. 52, Ex. 3) (DSOF, Ex. 3, a hard copy of the audio CD marked 21 Exhibit 3 to the Separate Statement of Facts in support of the Motion 22 23 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 24 purposes of appellate review. 25 26 27 28 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 - 28 - 1 2 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 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. 8 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 11 be STRICKEN as such. 12 13 The Dated this 9th day of August, 2017. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 29 -

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