Haab v. Bossier City

Filing 27

MEMORANDUM RULING denying 18 Motion for Class Certification. Signed by Magistrate Judge Mark L Hornsby on 3/8/2018. (crt,Williams, L)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION

WILLIAM EDWARD HAAB

CIVIL ACTION NO. 16-cv-1663

VERSUS

MAGISTRATE JUDGE HORNSBY

CITY OF BOSSIER CITY

MEMORANDUM RULING
Introduction
William Edward Haab (“Plaintiff”) is a deaf resident of Bossier City who primarily
communicates using American Sign Language (“ASL”). His status as a sex offender
requires that he register with law enforcement agencies including the Bossier City Police
Department. Plaintiff alleges that the Department violates the Americans with Disabilities
Act because it does not provide adequate access to an ASL interpreter.
Plaintiff filed this action against the City of Bossier City and requested class action
status. Before the court is Plaintiff’s Motion for Class Certification (Doc. 18) that proposes
the certification of a class defined as:
All deaf or hard of hearing persons who communicate in American Sign
Language and have interacted with, or have cause to interact with, the Bossier
City Police Department in a non-emergency setting.

Plaintiff seeks only declaratory and injunctive relief. No damages are at issue. The
City opposes class certification on several grounds. For the reasons that follow, the
motion for class certification is denied.1
Class Action Requirements
The class action is “an exception to the usual rule that litigation is conducted by and
on behalf of the individual named parties only.” Califano v. Yamasaki, 99 S.Ct. 2545
(1979). To come within the exception, the party seeking to maintain a class action “must
affirmatively demonstrate his compliance” with Rule 23. Wal-Mart Stores, Inc. v. Dukes,
131 S.Ct. 2541, 2551-52 (2011).
A class action is proper only if all requirements of Rule 23(a) are met and one of the
provisions of Rule 23(b) is satisfied. Rule 23(a) states that a class is proper only if: (1) the
class is so numerous that joinder of all members is impracticable; (2) there are questions
of law or fact common to the class; (3) the claims or defenses of the representative parties
are typical of the claims or defenses of the class; and (4) the representative parties will
fairly and adequately protect the interests of the class. These requirements are not mere
pleading standards, and the party seeking certification must be able to prove that there are
in fact numerous parties, common questions, etc. Comcast Corp. v. Behrend, 133 S.Ct.
1426, 1431 (2013), citing Dukes.

1

Plaintiff filed suit against the Bossier Parish sheriff and asserted claims similar to those
in this suit in Haab v. Sheriff Julian Whittington, 17-cv-0673. Plaintiff also sued a local
hospital and alleged that it failed to provide adequate video interpreting services for the
deaf. That case settled. Haab v. Willis-Knighton Medical Center, 16-cv-1722. Plaintiff
did not request class certification in either of those cases.
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With respect to Rule 23(b), Plaintiff relies on Rule 23(b)(2). That rule allows
certification of a class if the court finds that “the party opposing the class has acted or
refused to act on grounds that apply generally to the class, so that final injunctive relief or
corresponding declaratory relief is appropriate respecting the class as a whole.”
To determine whether certification is appropriate, the court “must conduct intense
factual investigation.” Robinson v. Texas Auto Dealers Assn., 387 F.3d 416, 420 (5th Cir.
2004). A court must rigorously analyze Rule 23’s requirements, and that requires an
understanding of the relevant claims, defenses, facts, and substantive law presented in the
case. Funeral Consumers Alliance, Inc. v. Service Corporation International, 695 F.3d 330,
345 (5th Cir. 2012). The analysis will often overlap with the merits of the plaintiff’s
underlying claim because class determination “generally involves considerations that are
enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.”
Comcast, 133 S.Ct. at 1432, quoting Dukes, 131 S.Ct. at 2551.
Relevant Facts
Plaintiff was convicted of molestation of a juvenile in the 1990s and served a term
in prison. After his release, he was required to register as a sex offender, and he testified
at his deposition that he will have to continue to register until 2023. He is a resident of
Bossier City, and he registers twice a year with the Bossier Parish sheriff and once a year
with the Bossier City police. He has a job in Shreveport (Caddo Parish), so he also registers
in that jurisdiction.
Plaintiff stated in a declaration under penalty of perjury that he is deaf and
communicates primarily using ASL. Plaintiff said that he is “not great at reading and
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writing” and needs an ASL interpreter to understand what is being communicated to him
by police officers, doctors, lawyers, and others. Plaintiff stated that he has asked the
Bossier City police “many times” for an ASL interpreter during his scheduled meetings so
that he can ask questions and understand everything that is happening. But, before filing
this lawsuit, the Bossier police never provided him with an ASL interpreter. Plaintiff stated
that, as a result, he was never able to communicate effectively with the police or understand
everything they were saying to him. He also cited an instance from several years ago when
he had an issue with his roommate, contacted the Bossier police for help, and asked for an
ASL interpreter. The interpreter was not provided.
Bossier City responded to the allegations by pointing to its General Order No. 1305. Doc. 18, Exhibit E. It provides that “an interpreter/translator will be obtained,
whenever a hearing-impaired person is arrested or is to be interviewed relative to an
incident.” It adds that the officer involved shall notify the communications division to call
for an interpreter/translator, and a referral list will be maintained in the communications
division. The policy also notes that the Deaf Action Center of Northwest Louisiana
(located in Shreveport) maintains a 24-hour list of certified interpreters for the hearing
impaired. Plaintiff points out that the policy is limited to interaction with arrestees and
persons interviewed relative to an “incident,” and he contends that interpreters are not
actually provided despite the provisions of the policy.
The City submitted a declaration from Kevin Humphrey, an employee of the police
department whose responsibilities include verifying the registration of sex offenders.
Humphrey explained that the registration process requires the offender to pay a small fee,
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provide fingerprints, and nothing else. Plaintiff has been registered with the City since
2005. In April 2016, Plaintiff submitted for the first time a written request that the City
provide an ASL interpreter in connection with his 2016 registration.
Humphrey testified that he contacted the Clerk of the City Court and asked for
references and contact information for interpreters. He received two contacts, reached out
to both, but did not receive a response. He also contacted the Deaf Action Center in
Shreveport, but again he did not receive a response.
According to Humphrey, when Plaintiff visited the police department in May 2016
to complete his registration Humphrey and another officer communicated with Plaintiff by
writing notes in a notebook. The officers told Plaintiff that they had tried to contact three
different interpreters, but without success. They asked Plaintiff what questions he had. He
asked about a past incident where he was arrested for failing to register, and they directed
him to an appropriate employee with the sheriff to address that matter. Plaintiff also asked
about the number of times he was required to register, and that information was provided.
The officers asked Plaintiff if he wanted to complete his registration that day. He answered
yes, and he successfully completed the process.
Plaintiff was directed to contact Mr. Humphrey or Kevin Little if he had questions
during future registrations, and he was told that the Department would try to make an
interpreter available if requested. The officers offered to make an interpreter available later
if Plaintiff had additional questions, but Plaintiff did not make any request and appeared
satisfied with the meeting.

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After Plaintiff filed this suit, his attorney advised the court that he intended to file a
motion for preliminary injunction before the next registration date in May 2017. The
matter was resolved when the court directed counsel for Plaintiff to contact defense counsel
regarding the accommodations needed by Plaintiff and ordered the parties to cooperate in
good faith so that Plaintiff could successfully register by the deadline. Doc. 10. Humphrey
testified that Plaintiff did complete his registration in May 2017.
Humphrey stated that he reviewed incident reports regarding instances where the
Bossier City police have interacted with Plaintiff.

Not including his sex offender

registrations, Plaintiff has interacted with the Department 12 times since 2004. According
to the reports, Plaintiff requested an interpreter only once, in January 2017, in connection
with a disagreement with his ex-girlfriend. Plaintiff testified at his deposition that he called
the police regarding that incident, insisted on an interpreter because both parties were deaf,
and an interpreter was made available and assisted in resolving the conflict to Plaintiff’s
satisfaction.
Numerosity
Rule 23(a)(1) provides that a member of a class may sue as a representative party
on behalf of all members only if “the class is so numerous that joinder of all members is
impracticable.” The mere number of members in a proposed class is not determinative of
whether joinder is impracticable. Courts must obviously look to the numbers, but they
should also consider the geographical dispersion of the class, the ease with which members
may be identified, the nature of the action, the size of each claim, and the judicial economy
arising from avoiding multiple actions. In Re: TWL Corp., 712 F.3d 886 (5th Cir. 2013).
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With that said, the Fifth Circuit has recognized that a putative class of 100 to 150
members is within the range that generally satisfies the numerosity requirement. Mullen
v. Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir. 1999). A treatise has noted
that as a “general guideline” a class with fewer than 20 members “will likely not be certified
absent other indications of impracticability of joinder, while a class of 40 or more members
raises a presumption of impracticability of joinder based on numbers alone.” 1 Newberg
on Class Actions, § 3:12 (5th ed.). The numbers are relevant, but really only to determine
whether the court should overlook the preference that litigation be conducted by present,
joined litigants, rather than by class representatives, because the members of the class are
so numerous that joinder of the individuals in one suit is impracticable and makes judicial
economy weigh in favor of representative litigation. 1 Newberg on Class Actions, § 3:11
(5th ed.).
Plaintiff stated in his declaration that he was “aware of other people in the deaf and
hard-of-hearing community that had difficulties with the Bossier City Police not providing
them an ASL interpreter.” He also said that he was aware of other people in the deaf and
hard-of-hearing community who are afraid to interact with the Bossier police for fear of
not being able to communicate or get the help they need. Plaintiff was asked at his
deposition if he knew how many deaf or hard-of-hearing individuals lived in Bossier City.
Plaintiff said he was not sure, but he knew of three deaf sex offenders in the
Bossier/Shreveport area. He was one of them, and the other two lived in Shreveport,
leaving Plaintiff as the only deaf sex offender who lived in Bossier City. Plaintiff was not

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aware of whether either of the Shreveport residents had to register in Bossier City for work
or other reasons.
Plaintiff was shown his declaration where he stated he was aware of other people
who had difficulty communicating with the Bossier police. He was asked to list the people
he was referring to when he made that statement. Plaintiff referred to his earlier testimony
about the other two sex offenders. One of them had lived in Benton (which is in Bossier
Parish), but had moved to Shreveport. Plaintiff knew the other man only by a nickname,
and he also lived in Shreveport.
Defense counsel asked Plaintiff to list every person, not limited to sex offenders, he
was aware of who had difficulties with the Bossier City police due to lack of an ASL
interpreter. Plaintiff was able to name two sisters, both deaf, who had “been in trouble
with the law and experienced the same thing.” Plaintiff said he knew there were more,
“probably three or four people,” but he could not think of any other names. He said, “There
may be more, I don’t know.” But he conceded that it was “a small community.” He said
there were more deaf residents in nearby Shreveport, maybe eight to 12 persons, but he did
not know if any of them ever had any interaction with the Bossier City police.
Plaintiff’s counsel argues the courts have relied on statistical evidence, census data,
and common sense to assess numerosity when members of a class may be difficult to
identify. He suggests that census data from 2016 shows approximately 64,484 people
living in Bossier City. He cites publications for the contention that somewhere between
0.2% and 2.8% of Americans are deaf or have a hearing disability. That would result in an
estimated 128 to 1,805 residents of Bossier City who are likely deaf or have difficulty
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hearing. As for how many of those people communicate in ASL, counsel says that
estimates of ASL users are “notoriously unreliable” because federal surveys do not ask
about ASL usage. He cites a study from 1972 for the suggestion that at least 0.14 to 0.19%
(90 to 123 people) of Bossier residents are both deaf and use ASL at home. Neither
statistics nor evidence is offered with respect to how many of those persons have occasion
to interact with the city police on a non-emergency basis, or how often they may have such
interaction.
The number of known persons with potentially similar claims is small, but Plaintiff
testified that there could be additional deaf citizens in the future who would reside in
Bossier City or otherwise encounter the Bossier City Police. Some courts have relaxed the
numerosity requirement where the putative class seeks injunctive and declaratory relief
pursuant to Rule 23(b)(2) and future claimants were possible. The Fifth Circuit has stated,
“[s]maller classes are less objectionable where … the plaintiff is seeking injunctive relief
on behalf of future class members as well as past and present members.” Jones v. Diamond,
519 F.2d 1090, 1100 (5th Cir. 1975). See also Jackson v. Danberg, 240 F.R.D. 145, 14748 (D. Del. 2007)(finding numerosity where proposed class consisted of only 16 members,
but membership in the death row group regularly changed as members were added or
executed). That does not mean, however, that any claim for injunctive relief merits class
action status without a suitable showing that members of the potential class are so
numerous that their joinder is impracticable.
As noted, the law prefers that litigation be conducted by parties who are actually
present in the case. But if the number of persons who have similar claims is so numerous
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that it is impractical to join them, or if the court would be overrun with several individual
suits, a class action may be a proper vehicle to litigate the claims. Certifying a case as a
class action is no light matter, because it imposes a substantial burden on the parties and
the court to properly administer it. For example, even in an injunction-only suit such as
this, where plaintiffs are not afforded notice and opportunity to opt out, Rule 23(e) requires
that the court give notice to all class members of a proposed settlement or dismissal, the
court must conduct a fairness hearing, and class members may object to the proposal.
Furthermore, Rule 23(h) requires that (b)(2) class members receive notice of any claim for
an attorney’s fees award, and they may voice their objections. 2 Newberg on Class Actions,
§ 4:36. An individual claim may be resolved without notice to or the potential involvement
of other persons who may object to the decisions made by the parties and their counsel.
Plaintiff has not met his burden of showing that there are sufficient number of
persons, current or future, who are members of the class he proposes. Plaintiff offers
speculation based on statistics, but there is no actual evidence to suggest that those statistics
result in real claimants in this situation that warrant an expensive and resource-demanding
class action proceeding. If there are three, or eight, or ten such persons in Bossier, the court
can accommodate their claims by joining them in this suit or entertaining their individual
suits. There is no meaningful showing that there are enough interested claimants to allow
Plaintiff to litigate their claims on their behalf rather than allowing them to pursue their
own claims. Furthermore, a win by Plaintiff in an ordinary civil action will likely result in
an injunction that will, for practical purposes, equally benefit the other members of the
community whether they are parties, non-parties, or members of a class. Accordingly, the
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Motion for Class Certification (Doc. 18) is denied. The court need not address the other
objections raised by the City.
THUS DONE AND SIGNED in Shreveport, Louisiana, this 8th day of March,
2018.

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