Fry v. City of Northglenn, Colorado, The et al
ORDER by Magistrate Judge Kristen L. Mix on 10/5/17. Motion in Limine and/or for Protective Order 46 is DENIED. (lgale, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-02318-PAB-KLM
CITY OF NORTHGLENN, COLORADO,
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion in Limine and/or for Protective
Order [#46]1 (the “Motion”). Defendant filed a Response [#52] in opposition to the Motion,
and Plaintiff filed a Reply [#60]. The Court has reviewed the Motion [#46], the entire case
file, and the applicable law, and is sufficiently advised in the premises. For the reasons set
forth below, the Motion [#46] is DENIED.
Defendant City of Northglenn, Colorado (“Northglenn”) is a home rule municipality
pursuant to Article XX, § 6 of the Colorado Constitution, and the Northglenn Police
Department (“NPD”) is an agency of Defendant Northglenn. Compl. [#1] at 3. As a home
rule municipality, Northglenn is a “public entity” as used in Title II of the Americans with
“[#46]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.
Disabilities Act (“ADA”). See 42 U.S.C. § 12131 (2012). Plaintiff is deaf and her primary
language is American Sign Language (“ASL”). Compl. [#1] at 1. Plaintiff was kidnapped
and raped on September 20, 2014. Id. An ensuing police investigation was conducted by
the NPD, in which Defendant did not provide Plaintiff with an ASL interpreter, in spite of her
requests for an interpreter. Id. As a result of Defendant’s unwillingness to provide Plaintiff
with an ASL interpreter during the police investigation, Plaintiff filed this action pursuant to
Title II of the ADA (42 U.S.C. § 12131), Section 503 of the Rehabilitation Act (29 U.S.C. §
794), and the Colorado Anti-Discrimination Act (Colo. Rev. Stat. § 24–34–601). Id. at 9-11.
Plaintiff seeks injunctive relief and compensatory damages. Id. at 13.
Defendant disclosed Plaintiff’s thirteen-year-old son (“DF”) as a potential witness on
May 10, 2017, to seek testimony regarding Plaintiff’s communication capacities. Response
[#52] at 1. Plaintiff’s Motion [#46] seeks a ruling by this Court or a Fed. R. Civ. P. 26(c)(1)
protective order to prevent Defendant from obtaining DF’s testimony. Motion [#46] at 1.
In support of Plaintiff’s Motion [#46], Plaintiff first asserts that disclosing DF as a witness
runs contrary to the intent of the ADA Implementing Regulations and the Department of
Justice’s guidance thereto. Id. at 5. Second, Plaintiff asserts that “DF should be excluded
as a witness because he can offer no relevant evidence.” Id. at 7. Finally, Plaintiff
contends that it would be appropriate for the Court issue a protective order forbidding the
disclosure of DF, as Defendant’s disclosure of DF is “annoying, embarrassing, oppressive,
harassing, and deeply traumatic for both DF and Plaintiff.” Id. at 8. In response, Defendant
asserts that the ADA Implementing Regulations do not forbid DF’s testimony, that DF’s
testimony is highly relevant to resolving the issues in this lawsuit, and that Plaintiff has
failed to provide factual or legal authority to support the issuance of a protective order.
Response [#52] at 11.
Title II Implementing Regulations
Plaintiff contends that it would be inappropriate for DF to testify in his mother’s case
pursuant to 28 C.F.R. § 35.160(c)(3). See Motion [#46] at 6. 28 C.F.R. § 35.160(c)(3)
explicitly prohibits a minor child from being used by a public entity to facilitate
communication with a disabled individual. Id. at 6 (quoting 28 C.F.R. § 35.160(c)(3)).
Plaintiff acknowledges that “NPD is not asking DF to interpret for his mother, it is asking
him to testify against her about [her] communications preferences and abilities.” Id.
However, Plaintiff contends that because the communications at issue relate to the
investigation of Plaintiff’s kidnapping and rape, it is inappropriate for DF to testify regarding
Plaintiff’s communication preferences and abilities. Id. at 7. In response, Defendant
asserts that “these situations are inappropriate for children to the extent a child is ‘used to
provide effective communication’ for a deaf individual who recently suffered a traumatic
event . . . [but] [n]one of the authorities to which Plaintiff refers goes so far as to support
Plaintiff’s assertion that DF may not be called as a witness in this case.” Response [#52]
The language of 28 C.F.R. § 35.160(c)(3) requires that “[a] public entity shall not rely
on a minor child to interpret or facilitate communication, except in an emergency involving
an imminent threat to the safety or welfare of an individual or the public where there is no
interpreter available.” 28 C.F.R. § 35.160(c)(3). This language pertains to instances in
which a minor child is used to “interpret or facilitate communication,” but is silent regarding
instances in which a minor child is providing evidentiary testimony. 28 C.F.R. § 35.160.
Because 28 C.F.R. § 35.160(c)(3) simply does not pertain to child testimony regarding the
communications capacity of disabled individuals, it cannot be construed as forbidding such
testimony. Therefore, 28 C.F.R. § 35.160(c)(3) does not provide a basis to bar Defendant
from disclosing DF as a potential witness at trial.
Accordingly, the Court finds that 28 C.F.R. § 35.160 does not curtail Defendant’s
right to disclose DF as a potential witness, and therefore the Motion [#46] is denied with
respect to this argument.
Relevance of DF’s Testimony
Plaintiff also challenges the relevance of DF’s potential testimony. Motion [#46] at
7. Specifically, Plaintiff states that “[t]he way that DF communicates with his mother will
shed no light on the question of whether NPD’s communications with Plaintiff about her
rape and kidnapping and their investigation were ‘as effective as those with others.’” Id.
(quoting 28 C.F.R. § 35.160(a)(1)). In response, Defendant contends that DF’s testimony
would go to the “heart of these issues” by demonstrating whether DF is able to
communicate with his mother notwithstanding that he does not use ASL. Response [#52]
at 5. The testimony would, Defendant argues, have “at least minimal bearing on the issue
of whether NPD’s communication with Plaintiff without a certified ASL interpreter . . . was
as effective as it would have been if Plaintiff was not deaf.” Id.
“A public entity shall take appropriate steps to ensure that communications with
applicants, participants, members of the public, and companions with disabilities are as
effective as communications with others.” 28 C.F.R. § 35.160(a)(1). To do so, a public
entity should take steps to ensure that appropriate auxiliary aids and services are provided
when necessary. Ulibarri v. City & Cty. of Denver, 742 F. Supp. 2d 1192, 1214 (10th Cir.
2010). “In determining what type of auxiliary aid and service is necessary, a public entity
shall give primary consideration to the requests of the individuals with disabilities.” 28
C.F.R. § 35.160(b)(2). Plaintiff asserts that “Defendant had an obligation to communicate
effectively with [Plaintiff], no matter what methods of communication she may be forced to
use in her day-to-day life, and above all give ‘primary consideration’ in her requests for
auxiliary aids and services.” Reply [#60] at 6. By relying heavily on the language of 28
C.F.R. § 35.160, which states that “a public entity shall give primary consideration to the
requests of individuals with disabilities,” Plaintiff seemingly suggests that any failure to
provide an auxiliary aid when requested is a per se violation of the regulation. Motion [#46]
The Ulibarri court noted, however, that a disabled individual’s choice of
accommodation shall be honored unless defendant can show that another effective means
of communication exists. Ulibarri, 742 F. Supp. 2d at 1215. Therefore, the central question
is whether the methods of communication utilized by Defendant were “as effective as
[Plaintiff’s] communications with others,” and not whether Defendant granted Plaintiff’s
exact requests. Id. (quoting 28 C.F.R. § 35.160(a)(1)) (concluding that writing was an
effective means of communication between prison guards and a deaf inmate during the
Because the pertinent question is whether Plaintiff and Defendant communicated
as effectively as Defendant communicated with hearing individuals, DF’s testimony is
clearly relevant. Pursuant to Fed. R. Evid. 401, “[e]vidence is relevant if: (a) it has any
tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.” DF does not use ASL. Response
[#52] at 5. Therefore, the testimony of DF will likely have a tendency to make a fact at
issue more or less probable, as it may shed light on Plaintiff’s communication abilities with
individuals who do not use ASL. Because Plaintiff’s relative ability to communicate with
others is a fact of consequence in determining this action, the testimony evidence is clearly
relevant pursuant to Fed. R. Evid. 402.2
Accordingly, the Court finds that Defendant’s disclosure of DF may not be stricken
for lack of relevance, and therefore the Motion [#46] is denied with respect to this
Fed. R. Civ. P. 26(c)(1) Protection Order
Finally, Plaintiff contends that it would be appropriate for the Court to issue a
protective order “forbidding the disclosure of DF, forbidding the Defendant from contacting
him, and forbidding his appearance at trial.” Motion [#46] at 8-9. In support, Plaintiff states
that Defendant’s decision to disclose DF as a potential witness is “annoying, embarrassing,
oppressive, harassing, and deeply traumatic both for DF and Plaintiff.” Id. at 8. Defendant
Plaintiff further asserts that DF’s testimony “would amount to speculation and be
inadmissible” pursuant to Fed. R. Evid. 701(b). Fed. R. Evid. 701(b) requires that non-expert
“testimony in the form of opinions or inferences is limited to those opinions or inferences which are
. . . (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in
issue.” Plaintiff’s argument appears to be based on the assumption that DF will only be asked
about his mother’s communications with police during their encounters at issue in the case, where
DF was not present. Defendant suggests, instead, that DF can offer testimony on the general
ability of his mother to communicate with individuals who do not use ASL. Such testimony would
be “helpful...to the determination of a fact in issue,” which is whether Defendant’s communications
with Plaintiff were as effective as communications with others. Part of that concept necessarily
involves whether Plaintiff understood what Defendant was attempting to communicate, and whether
her conduct manifested such understanding. DF’s testimony about her general communications
patterns and skills will be helpful on that issue, and may also aid in the necessary assessment of
disputes the appropriateness of a protective order on a number of grounds, including
ambiguity regarding what portion of DF’s potential testimony requires protection, whether
Plaintiff has standing to evoke a protective order on DF’s behalf, and an insufficient
explanation for why the protective order is appropriate. Response [#52] at 8.
Pursuant to Fed. R. Civ. P. 26(c)(1), “[t]he Court may, for good cause, issue an order
to protect a party or person from annoyance, embarrassment, oppression, or undue burden
“However, [the good cause] standard is not satisfied by conclusory
statements. Rather, the party seeking a protective order must show that disclosure will
result in a clearly defined and serious injury to the moving party.” Klesh & Co. Ltd. v.
Liberty Media Corp., 217 F.R.D. 517, 524 (D. Colo. 2003). Because Plaintiff’s Motion [#46]
asserts only conclusory statements alleging that the Defendant’s use of DF as a witness
is “annoying, embarrassing, oppressive, harassing, and deeply traumatic for both DF and
Plaintiff,” but does not provide further justification, Plaintiff has failed to provide a sufficient
showing of good cause to justify the entrance of a protective order. Moreover, Defendant
has explicitly affirmed that it has no intention of eliciting testimony from DF about custody
matters or the criminal case that arose from Plaintiff’s kidnapping and rape, “unless Plaintiff
makes them relevant.” Response [#52] at 9-10. Under these circumstances, the need for
a protective order is particularly unlikely.
Accordingly, the Court finds that Plaintiff has provided an insufficient showing to
support a issuance of a protective order, and therefore the Motion [#46] is denied with
respect to this argument.
For the foregoing reasons, the Motion [#46] is DENIED. However,
IT IS HEREBY ORDERED that Defendant shall seek only limited testimony of DF
to ascertain how he communicates with his mother, whether he feels he can effectively
communicate with his mother, and his knowledge of whether his mother generally uses
ASL, another form of sign language, or some other form(s) altogether. See Response
[#52] at 4. Defendant shall not seek any other testimony from DF, or otherwise expose DF
to information regarding Plaintiff’s kidnapping and rape, unless otherwise permitted to do
so under the Federal Rules of Evidence.
Dated: October 5, 2017
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?