Belton et al v. State of Georgia et al

Filing 198

ORDER denying Defendants' 184 Motion to Strike Affidavits, Defendants' 139 Motion to De-Certify Class and to Dismiss for Lack of Standing is DENIED, and Plaintiff's 195 Motion to Expedite the Response to Plaintiffs' Motio n to Refer the Stay Request to the Monitor for Review and Evaluation is GRANTED. Defendants shall file their response to Plaintiffs' 194 Motion to Refer the Stay Request not later than August 19, 2013. Signed by Judge Richard W. Story on 8/13/2013. (cem)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
RENITA BELTON and
MATTHEW ERICKSON on
behalf of themselves and all those
similarly situated,
Plaintiffs,
v.
STATE OF GEORGIA, et al.,
Defendants.

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CIVIL ACTION NO.
1:10-CV-0583-RWS

ORDER
This case comes before the Court on Defendants’ Motion to De-Certify
Class and to Dismiss for Lack of Standing [139], Defendants’ Motion to Strike
Affidavits [184], and Plaintiffs’ Motion to Expedite Response [195]. After
reviewing the record, the Court enters the following Order.
Background
On March 3, 2010, Plaintiffs Renita Belton and Matthew Erickson, on
behalf of themselves and all those similarly situated, brought this action
pursuant to Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§ 12101 et seq., and Section 504 of the Rehabilitation Act (“Section 504”), 29

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U.S.C. § 701 et seq., alleging that Defendants failed to provide Deaf Georgians
access to state-provided behavioral health and developmental disability services
equal to that afforded to non-Deaf Georgians. (Compl., Dkt. [1].) On March
14, 2011, the Court certified this case as a class action on behalf of “[a]ll Deaf
Georgia citizens who are, or will be in need of public mental health services,
but who cannot receive therapeutic benefit from said services due to the
Georgia Department of Behavioral Health and Development Disabilities’ lack
of accommodations for the Deaf.” (Order, Dkt. [82] at 1.) Plaintiffs
subsequently filed a Motion for Summary Judgment on the issue of Defendants’
liability under Title II of the ADA and Section 504 (Dkt. [88]), which the Court
granted by Order dated March 30, 2012 (Dkt. [115]).
In the Court’s Order granting Plaintiffs summary judgment, the Court
found that the State of Georgia failed to provide Deaf Georgians with
meaningful access to the mental health care services provided to the general
public. In particular, the Court found that the named Plaintiffs, because of their
deafness, had been denied access to group home living, a mental health care
service provided by the State to the general public. (Order, Dkt. [115] at 2131.) The Court held,
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In short, Defendants have presented no evidence to rebut Plaintiffs’
showing that despite their efforts, neither [named Plaintiff] could
find a State-provided group home that could accommodate a Deaf
consumer’s need to communicate with those around him or her
using ASL [American Sign Language]. Absent the ability to
communicate with others, the evidence shows that neither Belton
nor Erickson would be able to realize the therapeutic benefit of
group home living. Thus, the named Plaintiffs have proven that,
because of their deafness, they have been denied meaningful
access to a mental health care service provided by the State to the
general public.
(Id. at 30.) The Court also found that “the Plaintiff Class has been denied
meaningful access to the State’s mental health services as a result of multiple
failures on the part of Defendants to reasonably accommodate the needs of the
Deaf.” (Id. at 31.) In particular, the Court found that the State has failed to
provide Deaf-appropriate group home care to the Plaintiff Class, faces a severe
shortage of ASL-fluent mental health care practitioners, and fails to reimburse
health care providers for the cost of interpreters. (Id. at 31-41.) The Court
concluded, “In sum, Plaintiffs have . . . prove[n] as a matter of law that Deaf
consumers, because of their Deafness, and as a result of several institutional
failures on the part of the State, are denied meaningful access to the mental
health care services provided by the State to the general public.” (Id. at 41.)

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After finding Defendants liable under the ADA and Section 504, the
Court referred the case to mediation concerning the issue of a remedy,
reasoning that an appropriate remedy would best be developed through a
collaborative effort by the Parties. (Order, Dkt. [115] at 41-42.) Mediation,
however, was not successful. Following the Parties’ failed attempts to craft a
remedy through mediation, the Court appointed Mr. Roger Williams to serve as
Monitor and Independent Expert (“Monitor”) to assist the Court and the Parties
in the development of a remedial order and its implementation. (Order, Dkt.
[166].) On April 18, 2013, the Monitor submitted to the Court and the Parties a
proposed remedial order, and the Parties submitted comments on the proposed
remedial order to the Court. The Court subsequently entered an Order, setting
out the actions Defendants must take to remedy their previously-found
violations of the ADA and Section 504. (See generally Order (the “Remedial
Order”), Dkt. [174].)
Following the Court’s entry of summary judgment in favor of Plaintiffs
on the issue of liability and prior to entry of the Remedial Order, Defendants
filed their Motion to De-Certify Class and to Dismiss for Lack of Standing.
Following the filing of Plaintiffs’ Response [176], Defendants filed a Motion to
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Strike Affidavits [184] seeking to strike the affidavits submitted as exhibits to
Plaintiffs’s Response.
Discussion
Federal Rule of Civil Procedure 12(f) states that a court “may strike from
a pleading an insufficient defense or any redundant, immaterial, or scandalous
mater . . . .” Generally, “[a]n affidavit is not a pleading subject to a motion to
strike.” Argonaut Midwest Ins. Co. v. McNeilus Truck and Mfg., Inc., No.
1:11-CV-3495-TWT, 2013 WL 489141, at *1 (N.D. Ga. Feb. 8, 2013); see also
Southard v. State Farm Fire and Cas. Co., No. 4:11-CV-243, 2013 WL 209224,
at *7 (S.D. Ga. Jan. 17, 2013) (“[A] motion to strike is not the proper
procedural vehicle to challenge affidavits. Affidavits are not pleadings.”
(internal citations omitted).
To the extent Defendants’ motion raises evidentiary objections to
Plaintiffs’ submissions, “[r]ather than striking a document or a portion thereof,
it is usually more appropriate to consider a party’s objections to affidavits
which are filed in support of a motion . . . when ruling on the merits of a
motion.” Haynes v. Twin Cedars Youth and Family Servs., No. 5:10-CV321(CAR), 2012 WL 895699, at *5 (M.D. Ga. March 15, 2012). When
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addressing the merits of a motion, “a court may strike or disregard the improper
portions of an affidavit submitted in connection with a motion . . . , and
consider the remainder of the testimony or statement.” Id. at *7 (citing Lee v.
Nat’l Life Assurance Co. of Canada, 632 F.2d 524, 529 (5th Cir. 1980).
Rather than strike the contested material, the Court has exercised its
discretion and disregarded any improper testimony in considering the merits of
Defendants’ motion. Accordingly, Defendants’ Motion to Strike Affidavits
[184] is DENIED.
In Defendants’ Motion to De-Certify Class and to Dismiss for Lack of
Standing [139], Defendants argue that Plaintiffs lack standing “as to the claim
of denial of access to interpreters due to cost” and therefore do not satisfy the
typicality requirement of Rule 23(a)(3):
Plaintiffs have pointed to no record evidence that either named
plaintiff has been denied access to an interpreter due to the related
cost. . . . As a result, neither named Plaintiff is an adequate class
representative as to the claim that the class is being denied access
to an “interpreter” due to cost and does not have standing to
represent the “class” with respect to the claim of denial of access to
interpreters due to cost. Thus, the “class” needs to either find
Plaintiffs who do have standing or it needs to be decertified as to
this claim, as under Rule 23(a)(3) the claims of the proposed class
representatives must be “typical of the class.”

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(Defs.’ Br. in Supp. of Mot. to De-Certify Class and to Dismiss for Lack of
Standing (“Defs.’ Br.”), Dkt. [139-1] at 4.)
As stated in the Court’s Order certifying the Plaintiff class (Dkt. [82] at
5-6), Plaintiffs seeking to certify a class must first show that they have standing
to bring their claim. Warth v. Seldin, 422 U.S. 490, 498 (1975). “Standing to
sue is an essential threshold which must be crossed before any determination as
to class representation under Rule 23 can be made.” Rhodes v. Cracker Barrel
Old Country Store, Inc., 213 F.R.D. 619, 672 (N.D. Ga. 2003) (internal
quotations and citation omitted). To have Article III standing, a plaintiff must
have an injury in fact, there must be a causal connection between the injury and
the defendant’s conduct, and the injury must be redressable by a court. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992).
The requirement of “typicality” comes from Federal Rule of Civil
Procedure (“Rule”) 23, which establishes the criteria for certifying a case as a
class action. Under Rule 23(a), an action may be maintained as a class action
only if, among other things, “the claims or defenses of the representative parties
are typical of the claims or the defenses of the class.” Fed. R. Civ. P. 23(a)(3).

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This requirement is commonly referred to as the requirement of “typicality.”
See, e.g., Franze v. Equitable Ins., 296 F.3d 1250, 1253 (11th Cir. 2002).
To satisfy the typicality requirement, a class representative must have the
same interest and injury as the class members. In Re Scientific Atlanta, Inc.
Securities Litigation, 571 F. Supp. 2d 1315, 1315 (N.D. Ga. 2007). This
requirement is satisfied where the named plaintiffs’ claims “arise from the same
event or pattern or practice and are based on the same legal theory” as the
claims of the class. Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332,
1337 (11th Cir. 1984). “It should be obvious that there cannot be adequate
typicality between a class and a named representative unless the named
representative has individual standing to raise legal claims.” Prado-Steinman
ex rel. Prado v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000).
The Court finds Defendants’ arguments to be without merit. As already
determined in the Court’s Order granting class certification (Dkt. [82]), the
named Plaintiffs have standing to assert the claims raised in this case—that
Defendants violated the ADA and Section 504 by depriving Deaf consumers of
equal access to the State’s mental health care services due to a lack of
accommodations for the Deaf. The named Plaintiffs have been deprived access
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to a State-provided mental health care service, in particular, group home living,
as a result of Defendants’ failure to make reasonable accommodations for the
Deaf. Thus, they have suffered an injury in fact as a result of Defendants’
conduct, and the injury is redressable by this Court. Accordingly, the named
Plaintiffs have standing to raise the ADA and Section 504 claims asserted in
this case.
The claims of the named Plaintiffs are also “typical” of the claims of the
Plaintiff Class. The claims of the named Plaintiffs and of the Plaintiff Class
arise from the same conduct—Defendants’ failure to make its mental health
care services meaningfully available to the Deaf—and are based on the same
legal theory—that this failure runs afoul of Title II of the ADA and Section 504.
It is immaterial that the named Plaintiffs and other members of the Plaintiff
Class may have been deprived of access to the State’s mental health care
services in different ways or through different means (e.g., through a lack of
deaf-appropriate group homes or ASL interpreters). See, e.g., Kornberg, 741
F.2d at 1337 (“Typicality, however, does not require identical claims or
defenses. A factual variation will not render a class representative’s claim
atypical unless the factual position of the representative markedly differs from
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that of other members of the class.”). The named Plaintiffs, like every other
member of the Plaintiff Class, have been unable to share in the mental health
care services provided by Defendants to the general public, as a result of
Defendants’ failure to make these services accessible to the Deaf. The
requirement of “typicality” therefore is satisfied. Defendants’ Motion to DeCertify Class and to Dismiss for Lack of Standing [139] is DENIED.
Defendants have also filed a Motion and Amended Motion to Stay
Implementation of Sections of Remedy Order during Appeal [187 & 191]. In
response, Plaintiffs filed a Motion to Refer the Stay Request to the Monitor for
Review and Evaluation [194] and a Motion to Expedite the Response to the
Motion to Refer [195]. The Court has advised the Monitor that a Motion to
Stay has been filed, but that it is not yet fully briefed. If the Court is to receive
meaningful input from the Monitor, that input is needed expeditiously.
Therefore, Plaintiffs’ Motion to Expedite Response [195] is GRANTED.
Defendants shall file their response to Plaintiffs’ Motion to Refer the Stay
Request to the Monitor for Review and Evaluation not later than August 19,
2013.

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Conclusion
In accordance with the foregoing, Defendants’ Motion to Strike
Affidavits [184] is DENIED, Defendants’ Motion to De-Certify Class and to
Dismiss for Lack of Standing [139] is DENIED, and Plaintiffs’ Motion to
Expedite the Response to Plaintiffs’ Motion to Refer the Stay Request to the
Monitor for Review and Evaluation [195] is GRANTED. Defendants shall file
their response to Plaintiffs’ Motion to Refer the Stay Request not later than
August 19, 2013.
SO ORDERED, this 13th day of August, 2013.

________________________________
RICHARD W. STORY
United States District Judge

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