Scheffler v. Lee et al

Filing 68

MEMORANDUM OPINION signed by Senior Judge Charles R. Simpson, III on 3/7/2016, re 51 MOTION for Judgment on the Pleadings filed by Louisville Jefferson County Metro Government. A separate Order will be entered.cc: Counsel (RLK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
TROY K. SHEFFLER

PLAINTIFF

CIVIL ACTION NO. 3:14-CV-373-CRS

v.

ALEX LEE, et al.

DEFENDANTS
MEMORANDUM OPINION

This matter is before the court on motion of defendant Louisville/Jefferson County Metro
Government (“Metro”) for judgment on the pleadings as to the claims against it, pursuant to
Fed.R.Civ.P. 12(c).
1. Legal Standard
In considering a Rule 12(c) motion for judgment on the pleadings, “all well-pleaded
material allegations of the pleadings of the opposing party must be taken as true, and the
motion may be granted only if the moving party is nevertheless clearly entitled to judgment.”
Southern Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 479 F.2d 478, 480 (6th
Cir. 1973).

Although the court’s decision rests primarily upon the allegations of the

complaint, “matters of public record, orders, items appearing in the record of the case, and
exhibits attached to the complaint may also be taken into account. Amin v. Oberlin College,
259 F.3d 493, 502 (6th Cir. 2001), quoting Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir.
1997).

But the court “need not accept as true legal conclusions or unwarranted factual

inferences.” Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir. 1999). To withstand a motion for
judgment on the pleadings herein, a sufficient claim will “contain direct or inferential

allegations respecting all the material elements under some viable legal theory.” Commercial
Money Center, Inc. v. Illinois Union Insurance Company, 508 F.3d 327 (6th Cir. 2007).

2. Factual Allegations
This action arose from an incident which occurred on May 17, 2013 initially in the lobby
of the Galt House Hotel in Louisville. The encounter continued on the street outside the hotel,
and ultimately resulted in the transportation of the plaintiff, Troy K. Sheffler, by ambulance for
evaluation and possible treatment at a local hospital.
Sheffler’s First Amended Complaint (DN 35) alleges, in part, the following facts:
Sheffler, a resident of Coon Rapids, Minnesota, was staying at the Galt House Hotel on
May 17, 2013. On that evening, after patronizing 4th Street Live! venues with a friend, Sheffler
headed to the Galt House intending to return to his hotel room. At approximately 1:00 a.m.,
Sheffler entered the lobby and asked for directions to room 1005. He was told by security officer
Jordan Keister that the room was in the tower across the street. Keister followed Sheffler as he
headed toward his room. As this disturbed Sheffler, he stated to Keister that he wanted to speak
to Keister’s supervisor about being followed and whether this was hotel policy. The two men
returned to the front desk lobby at approximately 1:06 a.m. and Sheffler waited while Keister
contacted a supervisor.
Louisville Metro Police Officer Alex Lee was in the vicinity of Sheffler near the
concierge desk. He inquired why Sheffler had returned to the lobby and asked to see Sheffler’s
identification.

Lee refused to produce his identification and stated that his complaint was

2

between himself and the hotel staff.

Lee stated that if Sheffler refused to produce his

identification he would take him to jail.
At approximately 1:08 a.m. hotel supervisor Tim Howard arrived and spoke with
Sheffler. Lee interrupted the conversation between Howard and Sheffler and again stated that if
Sheffler did not cooperate and produce identification he would be arrested.
At approximately 1:12 a.m. Sheffler asked Lee if he was being detained, and Lee
affirmed that he was not free to leave. Sheffler then called 911 from his cell phone and
requested that someone be sent to mediate the situation, as he was being illegally detained by a
Louisville Police Officer.

Sheffler read Lee’s badge number to the dispatcher.

Although

Sheffler requested that a supervisor be sent so that he could file a complaint against Lee, Lee
spoke over his radio to a supervisor and canceled the call.
Sheffler then proceeded out the front door of the hotel where he was surrounded by Lee
and other hotel security officers. He was informed that he was still on private property to which
Sheffler responded that he would walk a little further down the sidewalk. Lee again asked
Sheffler to produce identification and told him he would be arrested on a charge of Alcohol
Intoxication if he did not cooperate. Lee then assaulted him, threw him against a car, and
handcuffed him. Sheffler was then placed in the back of a squad car and deprived of his wallet
and anxiety medication.
Sheffler informed Lee that he suffered from panic disorder and that he needed to have his
medication returned to him. Lee refused. Lee turned on the surveillance camera in the squad car
and gave a false narrative of the incident to which Sheffler objected. At 1:27 a.m. Sheffler
suffered a panic attack and asked to be taken to the hospital. Lee responded that he would be
3

going to the hospital, and at 1:29 a.m. informed dispatch that Sheffler was complaining of a
panic and/or heart attack.
At 1:35 a.m. Emergency Medical Service ambulance arrived. Sheffler complained that
his arms were going numb, he was having a panic attack, and felt that he might be having a heart
attack. Paramedic Michael A. Carroll stated that Sheffler was hyperventilating and needed to
slow down his breathing. Lee told Carroll that Sheffler had previously been belligerent and
combative. Carroll told Lee that Sheffler was not having a panic attack. Paramedic Stephanie
M. Albertson then asked Sheffler for identification and told him that the hospital would not treat
him unless he cooperated and provided information concerning his identity. Sheffler continued
to refuse to provide the information. He was allowed out of the squad car at 1:44 a.m. Sheffler
was transported to the hospital by ambulance and was admitted to the emergency room at 2:05
a.m.
Lee demanded that Sheffler provide a urine sample. Sheffler refused. Lee told Sheffler
that he would be catheterized to obtain the sample if he did not give them one. Sheffler
continued to refuse. At 2:15 a.m. Sheffler was placed on a security hold, and at approximately
3:00 a.m. Sheffler was released from the security hold and discharged by the emergency room
physician, Dr. Raymond Orthober. At 3:22 a.m. Sheffler signed “under protest” the discharge
instructions indicating that he had been evaluated for “Acute Alcohol Intoxication.” At 3:30
a.m. Sheffler urinated in his pants, was given clean socks, and was transported to jail by Lee
under charges of Disorderly Conduct and Alcohol Intoxication. Sheffler was released from jail
on the evening if May 18, 2013. Sheffler was denied his anxiety medication from the point of
his arrest until his release from jail, despite Sheffler’s repeated demands for it.

4

Sheffler was prosecuted and was ultimately acquitted of the charges.
Sheffler filed suit against:
(1) Lee, indicating that he is employed by the City of Louisville, Kentucky, as a
Louisville Metro Police Officer and is employed by Frederick Asset Protection LLC. The
Amended Complaint states that “Lee is sued in his individual capacity for actions under color of
law as a Louisville/Jefferson County Metro Police Officer.” (DN 35, ¶ 8).
(2) Carroll, indicating that he is employed by the City of Louisville as a
Louisville/Jefferson County EMT. The Amended Complaint states that “Carroll is sued in his
individual capacity for actions under color of law as a Louisville/ Jefferson County EMT.” (DN
35, ¶ 13).
(3) Frederick Asset Protection, Louisville, Kentucky. The Amended Complaint states
that

“Frederick Asset Protection shall answer to claims made in [sic] the acts [sic] their

employee and Defendant Alex Lee per respondeat superior.” (DN 35, ¶ 11).
(4) Louisville/Jefferson County Metro Government. The Amended Complaint states that
“Louisville Metro shall answer to claims made in [sic] the acts [sic] their employees and
Defendants Alex Lee and Michael Carroll per respondeat superior. (DN 35, ¶ 16). The
Amended Complaint further alleges that “Louisville Metro is amenable to suit under § 504 of the
Rehabilitation Act of 1973 (“RA”), Title II of the Americans with Disabilities Act, as amended
(“ADA”), and the supporting regulations, in accordance with U.S. Const amend. XIV § 5, in
abrogation of any sovereign immunity or immunity derived through U.S. Const. amend. XI.”
(DN 35, ¶ 17).

5

3. Legal Analysis
The essential premise of Sheffler’s case is that Lee and Carroll violated his constitutional
rights by assaulting him, detaining him, arresting him, and prosecuting him on trumped-up
charges. Sheffler claims that he was within his rights to refuse to provide personal identification,
and that the wrongful treatment he received was in retaliation for his refusal to cooperate with
Lee’s demands that Sheffler identify himself.
Sheffler asserts nine claims in his Amended Complaint:
(1) Common law battery against Lee, Carroll, and Metro.
(2) Common law false imprisonment against Lee and Metro.
(3) Common law malicious prosecution against Lee and Metro.
(4) Violation of 42 U.S.C. § 1983 for infringement of I and XIV Amendment rights against Lee.
(5) Violation of 42 U.S.C. § 1983 for infringement of IV and XIV Amendment rights against
Lee.
(6) Violation of 42 U.S.C. § 1983 for infringement of XIV Amendment rights against Lee and
Carroll.
(7) Violation of Title II of the American with Disabilities Act (“ADA”) against Metro.
(8) Violation of § 504 of the Rehabilitation Act of 1973 (“RA”) against Metro.
(9) “Monell Claim” against Metro.

The sole motion presently before the court is Metro’s motion for judgment on the
pleadings. Sheffler concedes that the common law claims must be dismissed as to Metro.
Counts I, II, and III will be dismissed as against Metro.
6

Sheffler has alleged violations of his constitutional rights by Lee and Carroll, and seeks
damages from Metro therefore under a so-called “Monell claim,” asserting that Monell v. New
York Dep’t of Social Serv., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) authorizes the
imposition of liability against a local government entity for § 1983 violations where the entity’s
official policy or custom actually serves to deprive an individual of his constitutional rights. As
noted in Gregory v. City of Louisville, 444 F.3d 725, 753 (6th Cir. 2006),
A city’s custom or policy can be unconstitutional in two ways: 1) facially
unconstitutional as written or articulated, or 2) facially constitutional but
consistently implemented to result in constitutional violations with explicit or
implicit ratification by city policymakers.
Gregory, supra., citing Monell, 436 U.S. at 692-94.
The Amended Complaint alleges nothing more than the conclusory phrases “systematic
failure to train” and “systematic failure to conduct meaningful investigations.”

The court

explained in Weathers v. Anderson, No. 3:11CV-683-H, 2012 WL 1593136, *3 (W.D.Ky. May
4, 2012) why such bare conclusions are insufficient to survive a motion for judgment on the
pleadings:
Plaintiff merely states in his complaint that “[f]ailure to properly train officials led
to these deprivations against the Constitution of the United States.” This is
insufficient to impose liability on the city. See Stanley v. Landers, No. 09-cv-52PB, 2009 WL 3757389, at *1 (D.N.H. Nov. 9, 2009)(finding conclusory assertion
that guard was not adequately trained insufficient to survive a motion to dismiss
after Iqbal). Plaintiff does not attribute this failure to train to any individual or
entity. He fails to provide any facts regarding the alleged training that was
omitted or how the lack of training led to his injury. Moreover, Plaintiff has
failed to allege any prior allegedly unconstitutional conduct which would have
placed the city on notice that its training was inadequate, Connick, 131 S.Ct. at
1360 (“Without notice that a course of training is deficient in a particular respect,
decisionmakers can hardly be said to have deliberately chosen a training program
that will cause violations of constitutional rights”), or to allege that his injury was
a “’patently obvious’ consequence of the deficiency in the training program.”
Siler v. Webber, 443 F.App’x 50, 55 (6th Cir. 2011)(quoting Connick, 131 S.Ct. at
1361).

7

A sufficient claim must “contain direct or inferential allegations respecting all the
material elements under some viable legal theory,” Commercial Money Center, Inc. v. Illinois
Union Insurance Company, 508 F.3d 327 (6th Cir. 2007), The “Monell claim” (Count IX) herein
does not. It contains nothing more than conclusory statements of failure to train and failure to
investigate.

The court “need not accept as true legal conclusions or unwarranted factual

inferences,” Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir. 1999), Count IX will therefore be
dismissed.
Metro also seeks judgment on the pleadings on the ADA and RA claims (Counts VIII and
IX). These claims are asserted only against Metro for the purported acts of Lee and Carroll. For
the reasons stated below, Sheffler fails to state a claim against Metro for violations of the ADA
or RA.
There is a narrow body of federal law which has developed in the context of arrests of
individuals with disabilities. It has been noted as recently as June, 2015 that “[W]hether Title II
applies to arrests is an open question in [the Sixth] Circuit…” Jones v. Lacey, 108 F.Supp.3d
573, n. 1 (E.D.Mich. 2015), quoting Everson v. Leis, 412 Fed.Appx. 771, 774 (6th Cir. 2011).
We assume for purposes of this analysis, however, that Title II ADA claims and an RA claims
arising in the context of an arrest are viable in this circuit.
To withstand a motion for judgment on the pleadings herein, a sufficient claim will
“contain direct or inferential allegations respecting all the material elements under some viable
legal theory.” Commercial Money Center, Inc. v. Illinois Union Insurance Company, 508 F.3d
327 (6th Cir. 2007).
As explained in Gorman v. Bartch, 152 F.3d 907 (8th Cir. 1998),
The ADA consists of three titles addressing discrimination against the disabled in
different contexts. Title I prohibits employment discrimination, 42 U.S.C. §
8

12112, Title II prohibits discrimination in the services of public entities, 42
U.S.C. § 12132, and Title III prohibits discrimination by public accommodations
involved in interstate commerce such as hotels, restaurants, and privately operated
transportation services, 42 U.S.C. §§ 12182, 12184. Title II took effect in January
of 1992 and provides that “no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity, or be subjected
to discrimination by any such entity.” 42 U.S.C. § 12132…The ADA has no
federal funding requirement, but it is otherwise similar in substance to the
Rehabilitation Act, and “cases interpreting either are applicable and
interchangeable.” [citation omitted].
Gorman, 152 F.3d at 911-12.1
To establish a prima facie case of intentional discrimination under Title II of the
ADA, a plaintiff must show that: (1) [ ]he has a disability; (2) [ ]he is otherwise
qualified; and (3) [ ]he was being excluded from participation in, denied the
benefits of, or subjected to discrimination under the program because of [his]
disability.
Anderson v. City of Blue Ash, 798 F.3d 338, 357, n. 1 (6th Cir. 2015)(citing Tucker v. Tennessee,
539 Fed.3d 526 (6th Cir. 2008) and Dillery v. City of Sandusky, 398 F.3d 562 (6th Cir. 2005), but
eliminating the requirement that discrimination be “solely” because of plaintiff’s disability,
finding that in Title II claims, discrimination must be shown to have been “because of” the
individual’s disability). A prima facie case requires a plaintiff to show that the “discrimination
was intentionally directed toward him or her in particular.” Tucker, 539 F.3d at 532 (emphasis in
original).
In arrest cases, there are two theories under which a plaintiff can establish an ADA claim:
(1) where the police wrongfully arrest an individual with a disability because they misperceive
the effects of that disability as criminal activity, and (2) where police fail reasonably to
accommodate an individual’s disability during an investigation or arrest, causing that individual

1

Sheffler has alleged and Metro has admitted that Metro receives federal funds for its operations. Therefore, our
analysis will encompass the virtually identical claims asserted under the RA.

9

to suffer greater injury than otherwise would occur. Montae v. American Airlines, Inc., 757
F.Supp.2d 47 (D.Mass. 2010).
By way of illustration, the plaintiff in that case, Mariyah Montae, presumably suffered
from Post-Traumatic Stress Disorder (“PTSD”) which rendered her disabled. In her complaint
she claimed that the police officers who arrested her at the airport for disorderly conduct and
assault and battery, charges which were later dropped, were “fully aware of her disability
because she had vocalized [it] to them,” and that she was neither “drunk” nor “disorderly,” and
that her “mental faculties were completely intact.” Id. at 52-53. The court found that “because
the plaintiff does not connect her arrest to any symptoms of PTSD, she does not allege sufficient
facts to support a finding of ADA liability under the first theory of wrongful arrest.” Id at 53.
Notably, the court went on to find that Montae also failed to state a claim under the
second theory. The court held that “Even if the officers were aware that she self-identified as
being disabled, that knowledge must have been coupled with a failure on their part to
accommodate her disability. The plaintiff alleges that the MSP officers’ actions caused her to
suffer “fear and trauma” but she makes no claim that she was injured to any greater extent than a
non-disabled arrestee would have been.” Id.
We find the Montae case to be instructive. First, similar to Montae, Sheffler does not
allege an ADA or RA violation on the ground that he was arrested based upon a misperception of
the effect of his disability as criminal activity. According to the Amended Complaint, Sheffler
did not begin to experience the self-described2 panic attack until at some point after his arrest and
placement in the back of the police vehicle. (DN 35, ¶83).

2

We have termed this “self-described,” as nowhere does Sheffler allege that anyone but himself characterized his
symptoms as a “panic attack.” In fact, Sheffler alleges that after being assessed on the scene by an EMT, Michael
Carroll, the EMT determined that he was not having a panic attack and informed Lee and the other EMT of this
opinion. Sheffler alleges that he has been adjudicated by the Social Security Administration as disabled due to

10

With respect to the second theory of ADA/RA liability in an arrest context, Sheffler fails
to allege that, with knowledge of his disability, the police and/or EMTs failed to accommodate
his disability.
Sheffler alleges that while under arrest and in the police vehicle, “Plaintiff informed Lee
that he suffered from a panic disorder and that he needed his medication back. Lee refused.”
This allegation states nothing more than that Sheffler self-reported that he suffered from a panic
disorder.

The allegation does not suggest that he was experiencing manifestations of the

disability at that time, that he requested any service, or that he was denied any service. Sheffler
has cited no authority, and we have found none, that a demand for the return of medication while
under arrest constitutes the discriminatory denial of a “service, program, or activity”
contemplated by the ADA or RA. Such a contention defies common sense, especially in light of
the fact that there is no allegation that he was suffering manifestations of the disability at the
time.
Sheffler alleges that “At 01:27 am, after continued interrogation by Lee, Plaintiff was
going through a full blown panic attack and pleaded to be brought to the hospital at which point
Lee said he would be going to the hospital.” (DN 35, ¶ 83). In this paragraph, Sheffler does
allege that he was experiencing manifestations of his disability -- a “panic attack” – and that he
requested a service -- to be transported to the hospital. Lee told him that he would be transported
to the hospital, and he was, in fact, transported to the hospital by ambulance. Sheffler alleges
that he next informed Lee that he “was having symptoms related to a heart attack,” (DN 35, ¶
84), and that “[a]t 1:28:54 a.m., in a lackadaisical manner, Lee finally informed dispatch that

“agoraphobia with panic disorder.” We take this statement as true for purposes of this motion. However, Sheffler
must allege that he suffered manifestations of this disability at the relevant time and for which he sought
accommodation.

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Plaintiff was complaining of panic vs. heart attack.” (DN 35, ¶ 85). 3

Sheffler’s allegations

indicate that one minute and fifty-four seconds after being informed that Lee was experiencing a
“panic attack” Lee called for medical services for Sheffler.4
Sheffler further faults Lee for declining his pleas to transport him in the police cruiser to
the hospital. (DN 35, ¶¶ 86, 87). Sheffler has offered no authority establishing an entitlement to
an accommodation of his choice.

Sheffler indicated to Lee that he was suffering from

manifestations of a disability, and requested medical treatment. He asked to be transported to the
hospital, and Lee assured him that he would be going to the hospital. Lee called for EMTs and
an ambulance. The EMTs arrived, assessed Sheffler, and transported him to the hospital.5 Thus
Sheffler has not alleged a failure to accommodate his disability.
Sheffler focuses on what he terms “delay” in transporting him to the hospital. We will
assume for the sake of argument that he is entitled to be taken to a hospital based upon the fact
that he requested it. As noted earlier, Sheffler has not cited any authority suggesting that he is
entitled to the accommodation of his choice.

Further, “Questioning the necessity and

reasonability of a requested disability accommodation does not, by itself, create the inference of
intentional discrimination. To hold otherwise would be to require public entities to grant any
requested accommodation and never revisit an accommodation once granted lest they subject
themselves to liability for intentional discrimination simply by questioning the reasonableness or
necessity of the request.” Anderson, 798 F.3d at 359.
3

Sheffler’s ADA and RA claims do not allege a “heart attack” or any heart-related condition as a “known disability.”
Rather, his claims are limited to “agoraphobia with panic disorder.” DN 35, ¶¶ 290, 294). Sheffler does not allege
that he indeed suffered a heart attack. We need not address the “heart attack” allegations further.
4
Whether Lee’s manner was “lackadaisical” is of no moment. Colorful verbiage does not a claim make. The
question at hand is whether services were rendered to accommodate Sheffler’s self-reported disability. By his own
indications, they were.
5
Paragraph 88 states that “Lee intentionally stopped his vehicle in motion which resulted in intentional and
extreme emotional and physical distress to Plaintiff.” (DN 35, ¶ 88). There is no allegation in the Amended
Complaint that Sheffler was ever in a moving police vehicle after his arrest. This is a random and unintelligible
allegation. In any event, it has no bearing on the claim of failure to accommodate Sheffler’s disability.

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Lee’s allegations of “delay” consist of (1) the time it took Lee to call for emergency
medical service for Sheffler, and Lee’s refusal to transport Sheffler to the hospital in the police
cruiser (DN 35, ¶¶ 83-87), and (2) the time it took emergency medical services to evaluate and
transport Sheffler to the hospital. (DN 35, ¶ 116).
With respect to the allegations concerning Lee’s “delay” in calling for emergency
personnel, the Amended Complaint is devoid of allegations that this “delay” bore any relation to
Sheffler’s disability. In fact, Sheffler’s contention is that he was arrested and placed in the
vehicle for having asserted his right to refuse to provide identification to Lee. Sheffler alleges
that once placed in the police cruiser, Lee turned on the in-car camera and proceeded to bolster
the purported basis for the arrest by recording an untruthful narrative of the events. Thus
Sheffler alleges that he was placed in the vehicle and interrogated as a result of being wrongfully
arrested for refusing to cooperate. Lee continued in his attempt to elicit identifying information
from Sheffler. Sheffler’s rendition of the events indicates that once he informed Lee that he was
suffering symptoms of a “panic attack,” Lee stated that Sheffler would be going to the hospital,
and called for emergency medical service approximately two minutes later.
After Sheffler was evaluated by EMT Carroll, Lee was told by Carroll that Sheffler was
“not having a panic attack.” (DN 35, ¶ 97). Lee also stated to Carroll that Sheffler had been
“Belligerent and Combative” with him.

(DN 35, ¶ 96).

With respect to the allegations

concerning “delay” by the EMTs in transporting him to the hospital, Carroll determined, whether
correctly or incorrectly, that Sheffler was not having a panic attack.

Thus, according to

Sheffler’s allegations, any delay in transporting Sheffler to the hospital was not a knowing
failure to accommodate his disability. Rather, his symptoms were attributed to hyperventilating
which Carroll attempted to help Sheffler control.

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Sheffler’s allegations in the Amended

Complaint are consistent, in that, after talking with Lee, the EMTs attempted to gain the
identifying information from Sheffler that Lee had not been successful in obtaining before
transporting him to the hospital. EMT Albertson allegedly stated to Sheffler that “The hospital
won’t even take you unless you tell them your information;” “Unless you cooperate and give us
the information we need, we can’t get you out of the car;” and “The quicker you answer the
questions, the quicker you leave to the hospital.” (DN 35, ¶¶ 100, 101). Per these allegations,
delay, if any, is attributable to the EMTs’ efforts to garner Sheffler’s cooperation, and not in any
way connected to Sheffler’s purported disability, as he was not perceived to be suffering from a
panic attack. Additional allegations make this contention even more plain. Carroll is alleged to
have “refused to give Plaintiff his medication, in a manner to suggest retaliation for Plaintiff
being “uncooperative.” (DN 35, ¶ 108 (emphasis in original)).
In the case of Everson v. Leis, 412 Fed.Appx. 771 (6th Cir. 2011), a police officer
responded to an incident at a mall in which an individual was suffering from epileptic seizures.
When the officer arrived at the scene, he asked an EMS paramedic whether the individual’s
behavior was part of his medical condition to which the paramedic responded, “[n]o, he’s just
acting like a f___ing a__hole.” Id. at 775. In evaluating the claim that the officer intentionally
discriminated against the plaintiff, the court found that there was “insufficient evidence to
support a conclusion that [the officer] knew that [this individual]’s conduct was caused by his
disability or that [the officer] acted because of—rather than in spite of—[the individual]’s
disability.” The officer knew only that the individual had recently suffered a seizure, and the
court found significant that the officer had been told by an EMS professional that the
individual’s conduct was not related to a seizure. Id. at 778.

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To be clear, the Everson case was decided on summary judgment rather than on a motion
for judgment on the pleadings. However, the court is tasked here with determining whether the
claims “contain direct or inferential allegations respecting all the material elements under some
viable legal theory.” Commercial Money Center, Inc. v. Illinois Union Insurance Company, 508
F.3d 327 (6th Cir. 2007). The allegations, taken as true herein, not only fail to allege facts which
support a viable claim for intentional discrimination under the ADA or RA, but, in fact, work
against such an assertion. Similarly to Everson, an EMS professional stated to the arresting
officer that the arrestee was not evidencing symptoms of a disability and all proceeded
accordingly. Whether this was an accurate or inaccurate assessment by the EMT is immaterial.
The fact of the assessment and communication of the resulting opinion are the pertinent matters
for purposes of the ADA and RA claims.
In the 6th Circuit case of Jones v. Lacey, 108 F.Supp.3d 573, 591 (6th Cir. 2015), the
officer’s decision to ticket an HIV-positive driver, stopped initially for a malfunctioning brake
light, was found to be based upon her HIV status because the officer’s own testimony offered a
connection between his issuance of the ticket and HIV status. The officer had searched the
vehicle and the driver’s purse without donning any protective gear such as gloves before the
driver revealed that she was HIV positive. When she revealed her HIV status, the officer became
agitated and stated that “Honestly, if it wasn’t for that, I don’t think I would have wrote anybody
for anything, but that kind of really aggravated me, you know what I mean…” Id., (emphasis in
original).
In concluding that Jones made out a prima facie case of discrimination, the Court of
Appeals distinguished the case of Dillery v. Sandusky, 398 F.3d 562 (6th Cir. 2005) the facts did
not support an ADA claim. Dillery, a wheelchair bound individual, often chose to travel in her

15

wheelchair in the Sandusky streets, as many of the sidewalks were uneven. She was cited on
three occasions for this roadway travel, as motorists complained to the police that they had to
swerve to avoid hitting her. Dillery alleged that the officers discriminated against her under the
ADA by ticketing her for traveling in the street. The court rejected the claim, as the record
reflected that the police did not stop her because of her disability, but rather were investigating
citizen complaints and acting to keep the roadways and Dillery safe. Id.
Although Jones and Dillery were decided on summary judgment, we cite these cases to
illustrate that courts which recognized a prima facie case of discrimination under the ADA or
RA were able to identify specific facts which supported a connection between the disability and
the police conduct. We do not have allegations of fact in this complaint that would permit the
court to reasonably infer such a connection in Sheffler’s case. We reiterate that the court “need
not accept as true legal conclusions or unwarranted factual inferences,” Mixon v. Ohio, 193 F.3d
389, 400 (6th Cir. 1999).
Thus, all allegations in the Amended Complaint being taken as true, Sheffler alleges that
his treatment at the hands of Lee and Carroll was a result of his refusal to cooperate with Lee’s
demands for identifying information. The facts do not suggest that he was subjected to disability
discrimination. In Twombly, 127 S.Ct. at 1971, the United States Supreme Court noted that it
found a “few stray statements” in the complaint that appeared to speak directly to a necessary
element of the plaintiff’s claim but, upon closer analysis and under a “fair reading,” were
“merely legal conclusions resting on the prior allegations.”

127 S.Ct. 1970.

The court

concluded, “We think that nothing contained in the complaint invests either the action or inaction
alleged with a plausible suggestion of conspiracy.” 127 S.Ct. at 1971. We find the turn of
phrase “invests the action or inaction alleged with a plausible suggestion…” to invoke an apt

16

comparison here. With respect to the ADA and RA claims, we conclude that, taking all of the
allegations as true, nothing in the Amended Complaint invests the alleged actions and inactions
of Lee and Carroll with a plausible suggestion of intentional discrimination because of Sheffler’s
disability.
The Amended Complaint thus fails to sufficiently allege a factual foundation to support
an ADA or RA discrimination claim. Counts VII and VIII will therefore be dismissed.

For the reasons set forth herein, Counts I, II, and III will be dismissed as to Metro and
Counts VII, VIII, and IX will be dismissed, all by separate order entered this date.

IT IS SO ORDERED.

March 7, 2016

C al R Smpo I , ei J d e
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