Rohr v. Crime Victims Compensation Commission
Filing
34
ORDER DENYING DEFENDANT'S MOTION TO DISMISS AMENDED COMPLAINT FILED ON JUNE 6, 2016 re 17 MOTION to Dismiss Plaintiff's Amended Complaint filed June 6, 2016.. Signed by JUDGE LESLIE E. KOBAYASHI on 11/23/2016. < br> (eps, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications served by first class mail on November 25, 2016
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CLAUDIA ROHR,
)
)
Plaintiff,
)
)
vs.
)
)
CRIME VICTIMS COMPENSATION
)
COMMISSION of the State of
)
Hawai`i,
)
)
)
Defendant.
_____________________________ )
CIVIL 16-00162 LEK-KSC
ORDER DENYING DEFENDANT’S MOTION TO
DISMISS AMENDED COMPLAINT FILED ON JUNE 6, 2016
On July 6, 2016, Defendant Crime Victim Compensation
Commission of the State of Hawaii (“Defendant” or “the
Commission”) filed its Motion to Dismiss Amended Complaint Filed
on June 6, 2016 (“Motion”).
[Dkt. no. 17.]
Pro se Plaintiff
Claudia Rohr (“Plaintiff”) filed her memorandum in opposition to
the Motion on September 12, 2016, and Defendant filed its reply
on September 19, 2016.
[Dkt. nos. 24, 25.]
On September 27,
2016, this Court issued an entering order finding this matter
suitable for disposition without a hearing pursuant to
Rule LR7.2(d) of the Local Rules of Practice of the United States
District Court for the District of Hawai`i (“Local Rules”).
[Dkt. no. 26.]
After careful consideration of the Motion,
supporting and opposing memoranda, and the relevant legal
authority, Defendant’s Motion is HEREBY DENIED for the reasons
set forth below.
BACKGROUND
Plaintiff filed this action on April 5, 2016.
She
filed her Amended Complaint on June 6, 2016, and an errata to the
Amended Complaint on August 10, 2016.
[Dkt. nos. 14, 21.]
Plaintiff states that she is bringing this action as the “sole
beneficiary and legal representative of Scott Andrews’ estate.”
[Amended Complaint at ¶ 1.]
at ¶ 9.]
Plaintiff is Andrews’s widow.
[Id.
Plaintiff brings this action pursuant to: Title II,
Part A of the Americans with Disabilities Act (“ADA”), as amended
by the Americans with Disabilities Amendments Act of 2008
(“ADAAA”), 42 U.S.C. §§ 12131-34; and its implementing
regulations, 28 C.F.R. Part 35.
[Id. at ¶ 1.]
According to the Amended Complaint, the Commission “was
created by the Hawai`i Legislature to alleviate the physical,
mental and financial hardships suffered by victims of violent
crime.
The Commission provides compensation to victims of
violent crimes for their crime-related injuries and losses.”
[Id. at ¶ 10 (internal quotation marks omitted).]
Plaintiff
alleges that the Commission is a “public entity,” as defined in
42 U.S.C. § 12131(1) and 28 C.F.R. § 35.104, and therefore it is
subject to Title II of the ADA, and its implementing regulations.
[Id. at ¶ 11.]
Plaintiff alleges that Andrews was seriously injured
when he was the victim of criminal assaults on January 28, 2007,
2
April 21, 2008, and December 12, 2008.
He suffered a concussion
on January 27, 2007; a concussion, tachycardia, and “a
hypertensive episode” on April 21, 2008; and a “first degree
heart block” that “was documented [on] December 12, 2008.”
at ¶ 14.]
[Id.
According to the Amended Complaint, Andrews “suffered
psychological trauma from being a victim of crime with
posttraumatic stress (PTSD) issues.”
[Id. at ¶ 15.]
In
addition, he had a preexisting condition – “reoccurring major
depression or bipolar disorder and anxiety.”
[Id. at ¶ 13.]
a result of this combination of impairments,
Andrews experienced extreme emotional distress,
hypervigilance, nightmares, trouble sleeping, loss
of concentration, and he had to endure intense
anxiety when he left his house for any reason, as
compared to most people in the general population
– mental impairments which substantially limited
the major life activities of sleeping,
concentrating, thinking, working and interacting
with others.
16. April 21, 2008 Andrews developed
reoccurring, episodic physical impairments –
hypertension, vertigo, and breathing problems that
substantially limited the major life activities of
breathing, walking, taking care of the house,
working, concentrating, and driving a car, among
others, as compared to most people in the general
population. Andrews had a series of falls and
injuries often hitting his head and receiving
gashes to his legs. Andrews’ mental/emotional
impairments interacted with his physical
impairments synergistically.
[Id. at ¶¶ 15-16.]
Plaintiff alleges that, at all relevant
times, Andrews was an “individual with disabilities” under ADA
Title II and its implementing regulations.
3
[Id. at ¶ 19.]
As
Plaintiff asserts that “Andrews met all the formal
legal eligibility requirements to qualify for participation in
the [Commission]’s program, with reasonable accommodations.”
[Id. at ¶ 21 (citing 42 U.S.C. § 12131(2)).]
On December 7,
2009, Andrews submitted an application for victim compensation
for the April 21, 2008 assault (“Case No. 09-0857”), and another
application for the December 12, 2008 assault (“Case No. 090858”).
According to Plaintiff, both applications were complete,
but only the application for Case No. 09-0858 was timely.
She
asserts that the application for Case No. 09-0857 was “untimely
due to PTSD,” because his “ability to think and communicate about
the assault incidents and the steps needed to apply for crime
victim compensation was substantially limited by posttraumatic
stress issues, reoccurring major depression and anxiety.”
at ¶¶ 21-22.]
[Id.
Both applications noted that Andrews “was disabled
by posttraumatic stress.”
[Id. at ¶ 22.]
Andrews submitted
letters, dated February 15, 2010 and March 22, 2010, from his
treating psychiatrist, explaining his condition and that he was
unable to apply earlier.
I.
[Id. at ¶ 23.]
Case No. 09-0857
A Commission investigator screened Andrews’s
application to determine if he qualified to participate in the
program.
[Id. at ¶¶ 25, 28.]
Plaintiff alleges that the
qualifying criteria the investigator used “tended to screen out
4
applicants with posttraumatic stress issues from crime
victimization that would substantially limit the applicant’s
ability to think about and communicate about the traumatic
incident and take the steps needed to fill out an application and
file within 18 months from the traumatic incident.”
¶ 28.]
[Id. at
Plaintiff argues that the Commission’s rules, policies,
practices, and procedures regarding an applicant’s proof of
disability “subjected Andrews to greater scrutiny than others,
public stigmatization, and loss of psychiatric information
privacy rights, thereby subjecting Andrews to discrimination on
the basis of disability in violation of the ADAAA.”
[Id. (citing
28 C.F.R. § 35.130(b)(3), (7), (8)).]
The Commission has a good cause exception for the
application deadline, which applies if the applicant could not
file the application within the eighteen-month period “‘due to a
mental, physical, or legal impairment.’”
Haw. Admin. R. § 23-605-2).]
[Id. at ¶ 29 (quoting
Plaintiff argues that this standard
does not provide the protections for disabled persons that the
ADA and Section 504 of the Rehabilitation Act (“Section 504”)
require.
[Id.]
The psychologist who evaluated Andrews’s
materials for the Commission opined that there was not enough
information to determine whether Andrews’s preexisting mental
impairment would cause him to be unable to submit a timely
application.
The psychologist recommended that the Commission
5
require Andrews’s treating psychiatrist to submit all of
Andrews’s psychiatric records, including the psychiatrist’s
notes, for the previous two years.
The Commission’s executive
director and investigator requested these materials from
Andrews’s psychiatrist without notifying Andrews or obtaining a
privacy waiver.
His psychiatrist refused to comply with the
request, invoking the Health Information Portability and
Accountability Act.
[Id. at ¶¶ 30-34.]
In a July 8, 2010 Administrative Decision and Order
(“Case No. 09-0857 Decision”), the Commission’s executive
director adopted the investigator’s findings.
The Case No. 09-
0857 Decision found that Andrews’s application was untimely and
that, without his psychiatrist’s notes, Andrews failed to
establish good cause.
application.
The decision therefore denied Andrews’s
Plaintiff argues that the Case No. 09-0857 Decision
failed to consider whether Andrews established that he had a
disability under the ADA and whether waiving the application
deadline was a necessary and reasonable accommodation for his
disability.
In addition, Plaintiff alleges that the Commission
investigator failed to serve the Case No. 09-0857 Decision on
Andrews, even after Andrews informed the Commission by letter
that he never received the decision.
[Id. at ¶¶ 35-36, 38.]
Although Andrews did not receive the decision, he
received a letter from the Commission informing him of his right
6
to appeal to the Board of Commissioners.
Plaintiff argues that
the fact that Andrews was not informed of the facts and details
of the Case No. 09-0857 Decision violated Andrews’s right to due
process.
[Id. at ¶ 38.]
On June 23, 2011, Andrews had a hearing
before the Board of Commissioners, which limited the scope of
review to the issue of whether there was more evidence of good
cause.
Andrews participated in the hearing by phone, and
Plaintiff apparently also participated.
[Id. at ¶¶ 39-40.]
Andrews told the Board of Commissioners that
during the application period he was so
traumatized, anxious and hypervigilant that he
stayed in the house all the time, that he was so
depressed that he gained 70 lbs., and his blood
pressure and breathing problems were poorly
controlled and life threatening, that his doctor
had told him he was dying of congestive heart
failure, that he avoided thinking about the
traumatic events and could not endure thinking
about taking the necessary steps to file an
application earlier.
[Id. at ¶ 40.]
The Board of Commissioners found that there was
insufficient evidence that Andrews was incapable of submitting a
timely application.
The Board of Commissioners adopted the
decision that the Commission investigator drafted, and it became
the Commission Decision and Order on July 30, 2011 (“Case No. 090857 Commission Decision”).
It was served on Andrews on
August 5, 2011, and Andrews timely appealed to the State of
Hawai`i Third Circuit Court (“State Court”).
7
[Id. at ¶¶ 41-43.]
The State Court dismissed the case for lack of subject
matter jurisdiction, and Andrews appealed.
On April 5, 2016, the
Intermediate Court of Appeals (“ICA”) affirmed the State Court.
[Id. at ¶ 44.]
Plaintiff argues that the Commission initially
filed the record on appeal in the State Court under seal from
Andrews.
According to the Amended Complaint, Andrews did not
have access to the un-redacated record until it was transmitted
to the ICA, at some point after February 12, 2013.
[Id. at
¶ 37.]
II.
Case No. 09-0858
According to the Amended Complaint, the Commission
chair and the two commissioners voted to find that Plaintiff was
a victim of a crime and voted in favor of paying his medical
bills for the assault that occurred on December 12, 2008.
According to the Amended Complaint, although this vote was noted
in the Commission’s minutes, it was not provided to Andrews until
April 24, 2013 because the Commission sealed the record for Case
No. 09-0858 until the record on appeal in the consolidated cases
was provided to the ICA on appeal on February 12, 2013.
Plaintiff alleges that the draft decision and order that the
Commission investigator prepared did not reflect the actual
decision.
According to Plaintiff, the investigator instead
questioned whether Andrews was a victim of one of the crimes
enumerated in Haw. Rev. Stat. § 351-32 and reduced the award to
8
partial payment of medical bills.
[Id. at ¶¶ 45-49.]
The
Commission chair adopted the draft decision on July 30, 2011
(“Case No. 09-0858 Decision”).
[Id. at ¶ 52.]
Plaintiff alleges
that the investigator’s actions had a discriminatory intent.
They had a punitive motivation for “Andrews’ and Rohr’s protected
activity – a civil rights lawsuit against the police and
disagreement with prosecutors about the prosecution of the
criminal case,” in violation of the eligibility requirements for
the Victims of Crime Act of 1984 (“VOCA”), 42 U.S.C. § 10601, et
seq.1
[Id. at ¶ 50 (citing 42 U.S.C. § 10603(b)(1)(F)).]
Plaintiff alleges that the investigator’s actions “ridiculed and
harassed, and caused the Commission’s counsel . . . to ridicule
and harass Andrews without regards to his known disabilities
which is overt discrimination.”2
[Id. at ¶ 51.]
Plaintiff also
alleges that Andrews was discriminated against in the
administration of the Commission’s program and services.
[Id. at
¶ 52 (citing 42 U.S.C. § 12132; 28 C.F.R. § 35.130(b)(1)(i),
(ii), (iii), (v)).]
Plaintiff alleges that all of these actions
“caus[ed] Andrews and Rohr loss of reputation, public
1
Plaintiff alleges that the Commission receives federal
grants under VOCA. [Amended Complaint at ¶ 12.]
2
Plaintiff points to a statement in the Commission’s
answering brief in the appeal before the ICA in which counsel
wrote that “‘Andrews was fortunate to get any award.’” [Amended
Complaint at ¶ 51.]
9
humiliation, frustration, anger, depression, emotional and
physical distress, and loss of health.”
[Id. at ¶ 51.]
Andrews timely appealed the Case No. 09-0858 Decision.
The Case No. 09-0587 Decision and the Case No. 09-0858 Decision
became conclusive on April 5, 2016, when the ICA’s decision
affirming the circuit court’s judgment following the dismissal of
the consolidated cases became final.
[Id. at ¶ 53.]
Plaintiff argues that she and Andrews did not discover
the discriminatory acts that occurred in the administration of
Case No. 09-0857 and Case No. 09-0858 until they finally gained
access to the un-redacted record on appeal.
Before the Case No.
09-0857 Decision and the Case No. 09-0858 Decision became final,
Rohr submitted a complaint to various Commission personnel
alleging that Andrews had been discriminated against in the
administration of the Commission’s program and services, in
violation of ADA Title II, Section 504, and the VOCA.
¶¶ 54-55.]
[Id. at
Plaintiff emphasizes that from March 14 to April 1,
2006,3 she wrote letters to the Commission requesting
accommodation for Andrews’s disability, including waiving the
application deadline, a de novo hearing in Case No. 09-0857, and
a correction to the Case No. 09-0858 Decision restoring the
result reflected in the minutes.
3
She argues that these
The year is apparently an error, it may have been intended
to refer to 2013 or 2016.
10
modifications were reasonable and necessary to avoid denial of
Andrews’s access to the Commission’s program and services based
on his disability.
Plaintiff argues that the Commission could
have taken action to avoid the discrimination because the
decisions were not final yet.
On April 5, 2016, the Commission’s
executive director sent a letter acknowledging receipt of
Plaintiff’s letters but stating that no action would be taken.
[Id. at ¶¶ 56-58.]
Plaintiff argues that the discrimination
against Andrews was intentional because the Commission
investigator, executive director, chairperson, commissioners, and
attorney knew that it was substantially likely that Andrews’s
federally protected rights had been harmed, and they failed to
act.
[Id. at ¶ 60.]
The Amended Complaint alleges a single claim –
violation of 42 U.S.C. §§ 12132-34, and the implementing
regulations, 28 C.F.R. Part 35.
[Id. at ¶¶ 61-65.]
Plaintiff
alleges that, as a result of the Commission’s actions and
omissions, she and Andrews incurred expenses, suffered “loss of
reputation, stigmatization, public humiliation, frustration,
psychological trauma, emotional and physical distress, and loss
of opportunity.”
[Id. at ¶ 65.]
Further, Plaintiff alleges that
the psychological trauma Andrews experienced caused him
“emotional and physical distress [and] hastened his cancer and
early death.”
[Id.]
11
Plaintiff seeks the following relief: a declaratory
judgment that the Commission’s actions violated §§ 12131-34 and
its implementing regulations; an order requiring the Commission
to comply with the requirements of §§ 12131-34 and its
implementing regulations; an order requiring the Commission to
provide a new hearing in Case No. 09-0857; an order requiring the
Commission to correct the Case No. 09-0858 Decision; an order
requiring the Commission to develop a formal process to handle
discrimination complaints; an award of compensatory damages; and
any other appropriate relief.
[Id. at pgs. 28-31.]
DISCUSSION
In the instant Motion, Defendant argues that this Court
should dismiss the Amended Complaint because Plaintiff’s claim is
time-barred.
In Sharkey v. O’Neal, the Ninth Circuit recognized
that “Title II of the ADA does not contain an express statute of
limitations,” and courts are not required to apply the same
statute of limitations period to all parts of the ADA.
767, 770 (9th Cir. 2015).
778 F.3d
Further, the Ninth Circuit stated:
The four-year catchall statute of limitations for
actions arising under federal statutes enacted
after December 1, 1990 is inapplicable, as the ADA
was enacted on July 26, 1990 . . . . Instead, we
borrow the statute of limitations applicable to
the most analogous state-law claim, so long as “it
is not inconsistent with federal law or policy to
do so.” Wilson v. Garcia, 471 U.S. 261, 266–67,
105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985),
partially superseded by statute as stated in
Jones [v. R.R. Donnelley & Sons Co.], 541 U.S.
[369,] 377-80, 124 S. Ct. 1836[, 158 L. Ed. 2d 645
12
(2004)]. See also 42 U.S.C. § 1988; Goodman v.
Lukens Steel Co., 482 U.S. 656, 660, 107 S. Ct.
2617, 96 L. Ed. 2d 572 (1987).
Id.
It therefore held that the three-year limitations period
that was applicable to the state counterpart of ADA Title II –
Cal. Gov. Code § 11135 – applied to claims under Title II.
Id.
at 772-73.
However, Hawai`i does not have a state counterpart to
ADA Title II.
This district court has recognized that “the
state’s general statute of limitations for personal injury
actions governs claims brought pursuant to . . . Title II of the
ADA.”
Imamoto v. Soc. Sec. Admin., Civil No. 08–00137 JMS/KSC,
2008 WL 4657811, at *4 (D. Hawai`i Oct. 21, 2008) (some citations
omitted) (citing Nieves–Marquez v. P.R., 353 F.3d 108, 118 (1st
Cir. 2003)).
Haw. Rev. Stat. § 657-7 states: “Actions for the
recovery of compensation for damage or injury to persons or
property shall be instituted within two years after the cause of
action accrued, and not after, except as provided in section
657-13.”4
Thus, this Court CONCLUDES that a two-year statute of
limitations period applies to Plaintiff’s ADA Title II claim.
4
One of the exceptions in Haw. Rev. Stat. § 657-13 is if
the plaintiff was “insane” when the cause of action accrued.
§ 657-13(2). However, Plaintiff has not alleged that Andrews’s
mental impairments rose to the level of insanity for purposes of
§ 657-13.
13
This district court has stated that:
Federal Rule of Civil Procedure 12(b)(6)
permits a motion to dismiss a claim for “failure
to state a claim upon which relief can be
granted[.]” A Rule 12(b)(6) dismissal is proper
when there is either a “‘lack of a cognizable
legal theory or the absence of sufficient facts
alleged.’” UMG Recordings, Inc. v. Shelter
Capital Partners, LLC, 718 F.3d 1006, 1014 (9th
Cir. 2013) (quoting Balistreri v. Pacifica Police
Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)).
“A statute-of-limitations defense, if
‘apparent from the face of the complaint,’ may
properly be raised in a motion to dismiss.” Seven
Arts Filmed Entm’t Ltd. v. Content Media Corp.,
733 F.3d 1251, 1254 (9th Cir. 2013) (quoting
Conerly v. Westinghouse Elec. Corp., 623 F.2d 117,
119 (9th Cir. 1980)); see also Rivera v. Peri &
Sons Farms, Inc., 735 F.3d 892, 902 (9th Cir.
2013) (“When an affirmative defense is obvious on
the face of a complaint, however, a defendant can
raise that defense in a motion to dismiss.”)
(citing Cedars–Sinai Med. Ctr. v. Shalala, 177
F.3d 1126, 1128–29 (9th Cir. 1999)).
Reynolds v. Merrill Lynch Basic Long Term Disability Plan, Civ.
No. 15–00109 JMS–RLP, 2015 WL 3822319, at *1 (D. Hawai`i June 19,
2015).
This Court agrees with Defendant that a possible
statute-of-limitations defense is apparent on the face of the
Amended Complaint.
However, based on the allegations in the
Amended Complaint, it is also apparent that there are issues of
fact as to Plaintiff’s and Andrews’s diligence and the timing of
their discovery of the cause of action, particularly in light of
Plaintiff’s allegation that they were denied access to the
records for the cases before the Commission.
14
See, e.g., Sheppard
v. Monsanto Co., CIV. NO. 16-00043 JMS-RLP, 2016 WL 3629074, at
*6 (D. Hawai`i June 29, 2016).
This Court therefore CONCLUDES
that Defendant is not entitled to a Rule 12(b)(6) dismissal of
the Amended Complaint.
CONCLUSION
On the basis of the foregoing, Defendant’s July 6, 2016
Motion to Dismiss Amended Complaint Filed on June 6, 2016 is
HEREBY DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, November 23, 2016.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
CLAUDIA ROHR V. CRIME VICTIM COMPENSATION COMMISSION; CIVIL NO.
16-00162 LEK-KSC; ORDER DENYING DEFENDANT’S MOTION TO DISMISS
AMENDED COMPLAINT FILED ON JUNE 6, 2016
15
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?