McDonald v. Weissenborn et al

Filing 38

MEMORANDUM AND ORDER re: 29 MOTION for Summary Judgment filed by Defendant City of St. Charles, Missouri motion is GRANTED. An appropriate judgment will accompany this memorandum and order.. Signed by Magistrate Judge Shirley P. Mensah on 1/9/13. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

RYAN MCDONALD,
Plaintiff,
vs.
DAVE WEISSENBORN, et al,
Defendants.

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Case No. 4:11-CV-768-SPM

MEMORANDUM AND ORDER
After his arrest, guilty plea, and incarceration, Plaintiff Ryan McDonald (“Plaintiff”),
who is deaf, brought this action against Defendant City of St. Charles (“Defendant” or the
“City”) and several of its police officers under 42 U.S.C. § 1983 and Section 504 of the
Rehabilitation Act, claiming that the defendants violated his rights when they arrested and
interrogated him without a sign language interpreter present. (Doc. 1). The Court previously
dismissed all of Plaintiff’s claims other than his Rehabilitation Act claim against the City.
(Docs. 4, 5, 19). The City has moved for summary judgment on Plaintiff’s Rehabilitation Act
claim. (Doc. 29). After review, the Court finds that the City has demonstrated that it established
effective communication with Plaintiff that resulted in meaningful access to the City’s services
and therefore that it did not violate § 504 of the Rehabilitation Act. In addition, Plaintiff has
failed to introduce any evidence showing that a question of material fact exists with respect to his
claim. Accordingly, the Court will enter judgment in favor of the City.1

1

The parties have consented to the jurisdiction of the undersigned United States Magistrate
Judge pursuant to 28 U.S.C. ' 636(c)(1). (Doc. 36).
1

I.

LEGAL STANDARD

The court shall grant a motion for summary judgment “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The moving party always bears the initial responsibility of
informing the court of the basis of its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Once the moving party discharges this burden, the nonmoving party must set forth
affirmative evidence from which a jury might return a verdict in his favor. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 257 (1986). The nonmoving party may not rest on the allegations in
its pleadings, but must set forth specific facts showing that a genuine issue of material fact exists.
Anderson, 477 U.S. at 256. A party asserting that a fact is genuinely disputed must support the
assertion by “citing to particular parts of materials in the record,” “showing that the materials
cited do not establish the absence or presence of a genuine dispute,” or showing “that an adverse
party cannot produce admissible evidence to support that fact.” Fed. R. Civ. P. 56(c)(1)(A)-(B).
The court “‘is not required to speculate on which portion of the record the nonmoving party
relies, nor is it obligated to wade through and search the entire record for some specific facts that
might support the nonmoving party’s claim.’” Gilbert v. Des Moines Area Cmty. Coll., 495 F.3d
906, 915 (8th Cir. 2007) (quoting White v. McDonnell Douglas Corp., 904 F.2d 456, 458 (8th
Cir. 1990)).
In considering a motion for summary judgment, the court must view the facts in the light
most favorable to the nonmoving party, and all justifiable inferences are to be drawn in the
nonmovant’s favor. Peebles v. Potter, 354 F.3d 761, 765 (8th Cir. 2004). The court’s function is
not to weigh the evidence, but to determine whether there is a genuine issue for trial. Anderson,
477 U.S. at 249. Summary judgment is not proper if the evidence is such that a reasonable jury

2

could return a verdict for the nonmoving party. Id. at 248. However, “[t]he mere existence of a
scintilla of evidence in support of the [nonmoving party’s] position will be insufficient.” Id. at
252.
II.

FACTUAL BACKGROUND

Defendant filed its motion for summary judgment on Plaintiff’s Rehabilitation Act claim
on August 31, 2012, along with a Statement of Uncontroverted Material Facts in support of its
motion. (Docs. 29-30). Plaintiff filed a response in opposition to the motion on September 26,
2012. (Doc. 35). In contravention of Local Rule 7-4.01(E), Plaintiff’s opposition did not include
a statement of material facts as to which Plaintiff contends a genuine issue exists, and Plaintiff
did not otherwise note which of Defendant’s listed facts, if any, were in dispute.2 Plaintiff did,
however, file an affidavit in opposition to Defendant’s motion. (Doc. 35). Even when Plaintiff’s
pro se pleadings and affidavit are construed broadly, Plaintiff has failed to rebut the assertions in
Defendants’ Statement of Uncontroverted Material Facts.

Thus, all facts in Defendants’

Statement of Uncontroverted Material Facts are deemed admitted by the Court. Local Rule 74.01(E) (“All matters set forth in the statement of the movant shall be deemed admitted for
purposes of summary judgment unless specifically controverted by the opposing party.”); see
also Naugles v. Dollar General, Inc., No. 4:08CV01943 ERW, 2010 WL 1254645, at *1 (E.D.
2

Local Rule 7-4.01(E) provides:
A memorandum in support of a motion for summary judgment shall have attached
a statement of uncontroverted material facts, set forth in a separately numbered
paragraph for each fact, indicating whether each fact is established by the record,
and, if so, the appropriate citations. Every memorandum in opposition shall
include a statement of material facts as to which the party contends a genuine
issue exists. Those matters in dispute shall be set forth with specific references to
portions of the record, where available, upon which the opposing party relies.
The opposing party also shall note for all disputed facts the paragraph number
from movant’s listing of facts. All matters set forth in the statement of the
movant shall be deemed admitted for purposes of summary judgment unless
specifically controverted by the opposing party.
3

Mo. Mar. 24, 2010) (deeming facts in defendant’s statement of material facts admitted where a
pro se plaintiff failed to file a statement of material facts in accordance with Local Rule 74.01(E)). Unless otherwise indicated, the facts below are taken from Defendants’ Statement of
Uncontroverted Material Facts.
Plaintiff is an individual currently incarcerated at the Northeast Correctional Center in
Bowling Green, Missouri.

He is hearing impaired and speaks American Sign Language

(“ASL”). He graduated from high school and college. Before his arrest, he held the same job
with a furniture manufacturer for ten years. He has no learning disabilities unrelated to his
hearing impairment. Plaintiff can read and understand written English. He can speak, type, and
hand-write English, though he has some limitations with vocabulary, syntax, grammar, and
spelling. With individuals who do not speak ASL, the clearest form of communication for
Plaintiff is written communication in English.
In 2002, Plaintiff was arrested for driving under the influence (DUI). During that arrest,
he communicated with the police through written notes, which he admitted he understood. He
was later arrested for another DUI, and again he communicated with the police through written
notes. Around the time of the arrest that is the subject of this lawsuit, Plaintiff regularly watched
television using closed captioning, read internet articles and sometimes books, and
communicated by text messaging and sometimes email.

(Doc. 30; Pl’s. Dep. at 36-40).3

Plaintiff communicates with his fellow inmate, Brian Francks, who does not speak ASL and is
not hearing impaired, through handwritten notes.

Francks assisted in preparing Plaintiff’s

responses to Defendant’s Interrogatories, Requests for Admissions, and Requests for Production.
On May 25, 2008, two City police officers responded to Plaintiff’s residence to
3

Excerpts from Plaintiff’s July 10, 2012 deposition were filed as an attachment to Defendant’s
Statement of Uncontroverted Material Facts. (Doc. No. 30, Attachment 1).
4

investigate a report of domestic violence. When the officers arrived, Plaintiff, his girlfriend, and
his girlfriend’s five-year-old daughter were standing outside the residence, and the daughter told
one of the officers that Plaintiff had had sexual contact with her. At the scene, the officers
communicated with Plaintiff verbally and through written notes. At his deposition, Plaintiff
stated, “The victim was telling [the police] what was going on. The police asked me did you do
it, and I said I did it. Then they arrested me and I was put in the back of the car.” Plaintiff knew
at the time why he was being arrested. Plaintiff did not request an interpreter before speaking to
the police officers, being arrested, or being taken to the police station.
After Plaintiff was arrested, the officers took Plaintiff to the City police station, where
Detective Dave Weissenborn met with Plaintiff in an interview room. At the station, Plaintiff
told Detective Weissenborn that he needed an interpreter.

(Pl’s. Aff. ¶ 1).

Detective

Weissenborn told Plaintiff that there were no interpreters available at that time. (Pl’s. Aff. ¶ 2).
Detective Weissenborn observed that Plaintiff was hearing impaired but could form words and
sentences. Detective Weissenborn asked Plaintiff if he could read and write, and Plaintiff
nodded his head up and down and verbally stated yes.

Detective Weissenborn persuaded

Plaintiff to continue with the interview. (Pl’s. Aff. ¶ 3).
Detective Weissenborn gave Plaintiff a form titled, “Your Constitutional Rights”
(“Miranda Form 1”) and directed him to fill it out. (Pl’s. Aff. ¶ 3). Plaintiff read and signed
Miranda Form 1. The detective asked Plaintiff if he had any questions, and he did not ask any
questions. At Plaintiff’s deposition, Plaintiff testified that he did not understand what the
statements on the form meant. (Pl’s. Dep. at 57).
Detective Weissenborn then gave Plaintiff a form titled, “Rights of a Deaf Person” and
helped him fill it out. This form stated:

5

As a deaf person, in addition to your constitutional rights, you have the
right to the appointment of a qualified and impartial interpreter, at no cost to you,
who meets your needs and wishes, prior to any questioning, to assist in the
interpretation of questions and answers. If you understand this right please place
your initials: _____.
(Doc. 30, Attachment 1, at 108). The completed form contains Plaintiff’s initials in the space
provided. (Id.) The completed form also contains an “X” in the space provided next to the
statement, “No, I do not want an interpreter at this time” and nothing in the space provided next
to the statement, “Yes, I desire to have an interpreter.” (Id.) The form also stated:
WAIVER
I understand that I have the right to an appointed interpreter, at no cost to
me and who meets my needs and wishes, to assist in interpreting questions and
answers and I wish to waive or give up that right. I have been given a reasonable
opportunity to confer privately with a qualified and impartial interpreter and I do
not wish to do so at this time. I am able to read and write and I believe I can
understand questions and communicate my answers without the assistance of an
interpreter. No promises or threats of any kind have been made to coerce me into
giving up my rights.
(Id.) Plaintiff read and signed the Rights of a Deaf Person form and did not ask any questions
about it. Initially, Detective Weissenborn directed Plaintiff to sign on the wrong line; Detective
Weissenborn asked Plaintiff to re-sign on the appropriate line, and he did so. (Pl’s. Aff. ¶ 4,
Weissenborn Aff. ¶ 124). At his deposition, Plaintiff stated that he did not understand everything
in the form completely. (Pl’s. Dep. at 61).
In the interview room, Detective Weissenborn initially communicated with Plaintiff
through gestures, handwritten notes, and verbal communications.

Plaintiff later agreed to

communicate with Detective Weissenborn using a laptop computer. Detective Weissenborn
typed questions onto the laptop while Plaintiff read along, then typed Plaintiff’s answers to the

4

Detective Weissenborn’s affidavit was filed as an attachment to Defendant’s Statement of
Uncontroverted Material Facts. (Doc. 30, Attachment 2).
6

questions and showed Plaintiff what he had typed. Any time Plaintiff did not understand a word,
Detective Weissenborn explained it to him.

Those communications were recorded in the

“Laptop Record.” Through the laptop communication, Plaintiff and Detective Weissenborn
discussed the facts of Plaintiff’s crimes in detail. Detective Weissenborn would type a question
and turn the laptop to Plaintiff for him to read it, Plaintiff would answer, Detective Weissenborn
would type the answer, and then Detective Weissenborn would show Plaintiff what he wrote for
the answer. At his deposition, Plaintiff admitted that everything in the Laptop Record was true
and that he would not add anything to it, even with the benefit of hindsight.
After speaking with Detective Weissenborn through the laptop, Plaintiff agreed to write
out a statement about what had happened in his own words (the “Written Statement”). Plaintiff
understood everything he wrote in the Written Statement. At his deposition, Plaintiff admitted
that everything in the Written Statement was true and that he would not add anything to it, even
with the benefit of hindsight.
On May 26, 2008, Detective Weissenborn wrote a “Probable Cause Statement” in which
he recounted his understanding of what Plaintiff had told him about his crimes.

At his

deposition, Plaintiff confirmed that everything in the Probable Cause Statement was true.
The police later transferred Plaintiff to the St. Charles County Correctional Facility.5 On
May 28, 2008, Detective Weissenborn met with Plaintiff at the St. Charles County Correctional
Facility, where the two were separated by a glass partition. Detective Weissenborn provided
Plaintiff with another form titled, “Your Constitutional Rights” (“Miranda Form 2”), which
Plaintiff read, initialed, and signed. Plaintiff did not have any questions about the form and did
not indicate to Detective Weissenborn that he did not understand the form. During the meeting,
5

The St. Charles County Correctional facility is not a defendant in this case and is not controlled
by the City.
7

Detective Weissenborn asked Plaintiff questions through written notes. Plaintiff responded to
the “yes or no” questions through gestures, and to other questions by speaking verbally.
Detective Weissenborn wrote down Plaintiff’s answers on the “Written Questions Record” after
Plaintiff read each question.

Using the Written Questions Record, Plaintiff and Detective

Weissenborn further discussed the facts surrounding Plaintiff’s crimes.

At his deposition,

Plaintiff admitted that everything in the Written Questions Record was true, and that he would
not add to it or say anything different in it, even with the benefit of hindsight.
On February 11, 2009, Plaintiff pled guilty to two counts of First Degree Statutory
Sodomy. Plaintiff admitted at his deposition that, even with an interpreter, he would have told
Detective Weissenborn the same information, would have given a written statement, and would
have pled guilty to his crimes:
Q.

How would things have been different if you had been provided an
interpreter?

A.

It would be much different.

Q.

Describe how it would have been different.

A.

It would be a good thing to have the interpreter. The communication
would be better. I was – it was my right to have an interpreter. That was
my preference.

Q.

What would you have said – or what – strike that. What would you have
had the interpreter say on your behalf?

A.

It would be easier to understand everything, all of the words and what they
meant. Just like today. I have an interpreter here.

Q.

But you still would have told the detective the same things that you told
him by yourself, right?
Mr. McDonald: Yes. [6]

6

Plaintiff apparently stated this answer aloud rather than simply signing it for the interpreter.
8

A.

Yes. Yeah, I would admit it.

Q.

And you still would have given a written statement?

A.

Yes.

Q.

And you still would have pled guilty in front of the judge?

A.

Yes. I was sorry for my crime. I also told the victim’s family I was sorry.
I said I made a mistake. My crime was a mistake.

(Pl’s. Dep.88-89).
During the interviews, Detective Weissenborn often had to explain words and terms to
him because he did not understand them. (Pl’s. Aff. ¶ 6). For much of the interviews, Plaintiff
was simply responding to Detective Weissenborn’s prompts and facial expressions, trying to
sense his attitude, and trying to please him. (Pl’s. Aff. ¶ 6.) After he talked to a lawyer, he
found out that the police personnel did not have his best interest at heart. (Pl’s. Aff. ¶ 7). Had
he understood that the police were not his friends, he would not have talked to them without a
lawyer and an interpreter present to protect himself. (Pl’s. Aff. ¶ 9). In addition, had an
interpreter been present, he might have consented to talk with the police, but had he understood
“what was really going on,” he does not believe he would have spoken to them without a lawyer,
who would likely have advised him to stay silent. (Pl’s. Aff. ¶ 9).
Plaintiff seeks damages for lost wages for the time he has missed work since his arrest
and for emotional distress.

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III.

DISCUSSION

Section 504 of the Rehabilitation Act provides, in relevant part, as follows:
No otherwise qualified individual with a disability in the United States, as defined
in section 705(20) of this title, shall, solely by reason of her or his disability, be
excluded from the participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial
assistance . . . .
29 U.S.C. § 794(a). To state a prima facie claim under the Rehabilitation Act, a plaintiff must
show that (1) he is a person with a disability as defined by statute; (2) he is otherwise qualified
for the benefit in question; (3) he was excluded from the benefit due to discrimination based
upon disability; and (4) the program or activity from which he is excluded receives federal
financial assistance. Randolph v. Rodgers, 170 F.3d 850, 858 (8th Cir. 1999). For purposes of
the motion under consideration, the City does not dispute that Plaintiff is a qualified individual
with a disability who was otherwise qualified for the benefit in question or that it is a public
entity receiving federal funds. Thus, the question before the Court is whether Plaintiff was
excluded from a benefit due to discrimination based upon his disability.
In determining whether hearing impaired individuals have been excluded from a benefit
and discriminated against by reason of such disability, the legal standard is whether the
individuals “receive[d] effective communication that result[ed] in meaningful access to a public
entity’s services.” Bahl v. County of Ramsey, 695 F.3d 778, 784 (8th Cir. 2012); see also Loye v.
County of Dakota, 625 F.3d 494, 500 (8th Cir. 2010) (“[T]he legal standard is effective
communication that results in meaningful access to government services.”).7 “Depending on the

7

As the Eighth Circuit has noted, § 504 of the Rehabilitation Act is “similar in substance” to
Title II of the Americans with Disabilities Act, and, with the exception of the Rehabilitation
Act’s federal funding requirement, “‘cases interpreting either are applicable and
interchangeable’” for analytical purposes. Bahl, 695 F.3d at 783 (quoting Randolph v. Rodgers,
170 F.3d 860, 858 (8th Cir. 1999)). Thus, in this opinion, the Court will not distinguish between
10

circumstances, this may require the use of auxiliary aids and services, such as interpreters for the
hearing impaired.” Loye, 625 F.3d at 496-97 (internal quotation marks omitted). “The type of
auxiliary aid or service necessary to ensure effective communication will vary in accordance
with the method of communication used by the individual; the nature, length, and complexity of
the communication involved; and the context in which the communication is taking place.” 28
C.F.R. § 35.160(b)(2). In addition, “In determining what types of auxiliary aids and services are
necessary, a public entity shall give primary consideration to the requests of individuals with
disabilities.” Id. The services provided “are not required to produce the identical result or level
of achievement” for disabled and nondisabled persons, but must afford the disabled persons
“equal opportunity to . . . gain the same benefit.” Loye, 625 F.3d at 499 (internal quotation
marks omitted).
Reading Plaintiff’s pro se pleadings broadly, Plaintiff identifies three possible events
during which the City denied him effective communication and thus violated the Rehabilitation
Act: (1) his arrest on May 25, 2008; (2) his interview with Detective Weissenborn at the police
station on May 25, 2008; and (3) his interview with Detective Weissenborn at the St. Charles
County Correctional Facility on May 28, 2008. The Court will consider whether, as to each of
these events, there is a genuine issue of material fact with regard to whether Plaintiff was
provided with effective communication that resulted in meaningful access to the City’s services.
A. ARREST ON MAY 25, 2008
Defendants first argue that the arrest of a suspected criminal is not the type of “program”
or “activity” that is contemplated by the Rehabilitation Act. (Doc. 31 at 5 n.4). The Eighth
Circuit has not yet addressed this issue. See Bahl, 695 F.3d at 784 (declining to decide the

cases interpreting Title II of the ADA and those interpreting § 504 of the Rehabilitation Act.
11

question of whether the ADA applied to an officer’s pre-arrest actions during a traffic stop
because even if it did apply, no violation had occurred). Here, as in Bahl, the Court need not
decide whether the act of a law enforcement officer effecting an arrest is an activity covered by §
504 of the Rehabilitation Act, because even if it is, no violation occurred.
The undisputed facts establish that communication with Plaintiff at the time of his arrest
was effective. When the officers arrived at Plaintiff’s residence to investigate a report of
domestic violence, the officers communicated with Plaintiff verbally and through written notes,
and Plaintiff did not request an interpreter.

At his deposition, Plaintiff described the

communications at the time of his arrest as follows: “The victim was telling [the police] what
was going on. The police asked me did you do it, and I said I did it. Then they arrested me and I
was put in the back of the car.” Plaintiff also testified that he knew, at the time, why he was
being arrested.
Plaintiff’s opposition to Defendants’ motion for summary judgment does not discuss his
arrest or the events leading up to it. Plaintiff does not offer evidence or argument to suggest that
he misunderstood anything that the victim told the police or that the police told him, nor does he
suggest that there was any information he would have communicated (or not communicated) to
the police officers had an interpreter or other auxiliary aid been provided. Thus, the Court finds
that the uncontroverted facts demonstrate that Plaintiff received effective communication during
his May 25th arrest and that Plaintiff has failed to set forth specific facts showing a genuine issue
for trial. Accordingly, the Court finds that summary judgment is appropriate with respect to this
portion of Plaintiff’s claim. See Abbott v. Town of Salem, New Hampshire, No. 05-cv-127-SM,
2008 WL 163043, at *6 (D.N.H. Jan. 16, 2008) (granting summary judgment to the defendant
and holding that police officers were under no obligation to provide additional accommodations

12

related to an arrestee’s hearing impairment during her arrest where the facts showed that the
arrestee possessed sufficient information to understand why she was being arrested and the
officer “had no reason to think that he was not communicating effectively with her”).
B. CUSTODIAL INTERVIEWS OF PLAINTIFF
Defendant argues that custodial interrogation is not the type of program or activity that is
covered by the Rehabilitation Act. (Doc. 31, at 5 n.4). That argument is foreclosed by a recent
Eighth Circuit decision holding that a post-arrest interview is service covered by the ADA (and,
by extension, the Rehabilitation Act), at least where the police have told arrestee that he will be
investigated, have begun the process, and have advised the arrestee of his Miranda rights. See
Bahl, 695 F.3d at 788.8

As the Eighth Circuit noted, “a custodial interrogation with an

interpreter [affords an arrestee] certain benefits, including the right to ask questions and tell his
side of the story, which arguably could . . . affect[] the charging decision.” Id. Here, after
Plaintiff was in custody, the police officers advised him of his Miranda rights and conducted two
interrogations. Thus, the Court finds that the Rehabilitation Act does apply to the custodial
interrogations at issue in this case and will next consider whether the City established effective
communication with Plaintiff that resulted in meaningful access to the benefits of those
interrogations.
1. Interview At The Police Station On May 25, 2008.
In support of its argument that the City established effective communication with
Plaintiff, Defendant points to evidence showing that Plaintiff regularly communicates using
written English; that Plaintiff and Detective Weissenborn communicated through speech, printed
forms that Plaintiff read and signed, typed notes on a laptop, and handwritten notes; that Plaintiff
8

The Eighth Circuit’s decision in Bahl was released after Defendant filed its Motion for
Summary Judgment.
13

admitted that the written records of his statements to Detective Weissenborn were accurate and
complete; and that Plaintiff admitted that he would have made the same statements to Detective
Weissenborn had an interpreter been present.
In opposition to Defendants’ motion, Plaintiff first points out that he requested an ASL
interpreter and no interpreter was provided.

The Court notes that the City’s decision to

communicate with a deaf individual without an interpreter does not, standing alone, establish a
lack of effective communication or a violation of the Rehabilitation Act. See Bahl, 695 F.3d at
786-87 (upholding summary judgment in favor of a defendant where the police provided a deaf
arrestee with a typewritten statement informing him of the charges against him but did not
provide an ASL interpreter); Loye, 625 F.3d at 500 (upholding summary judgment in favor of the
defendant where a nurse assigned to provide services to deaf individuals communicated via
writing and email rather than through an ASL interpreter).
The Court acknowledges that here, in contrast to the relevant situations in Bahl and Loye,
Plaintiff did ask for an interpreter.9 Nevertheless, the failure to accommodate a request for a
particular auxiliary aid is not a per se violation of the ADA or § 504 of the Rehabilitation Act.
As the Sixth Circuit has stated:
[W]hile a public entity should take a disabled person’s requests into account when
providing alternative communications, it is not required to meet those exact
requests. What is required by the ADA—and what the state court provided in this
case—is an alternative which allows disabled persons to communicate as
effectively as a non-disabled person.
Tucker v. Tennessee, 539 F.3d 526, 541 (6th Cir. 2008). The court also noted that to “require the
provision of the specific accommodation [mentioned in a regulation] . . . undermines any

9

Although the Plaintiff in Bahl made requests for an interpreter later, he had not requested one
from the relevant defendant at the time the typewritten statement was provided to him. Bahl, 695
F.3d at 786.
14

consideration of the ‘reasonableness’ or ‘effectiveness’ of the actual communication provided in
a given circumstance . . . .” Id. at 539. See also Bircoll v. Miami-Dade County, 480 F.3d 1072,
1088 (11th Cir. 2007) (granting summary judgment in favor of the defendant despite factual
issues about whether an arrestee had requested an interpreter at the police station, because the
facts showed that the officer established effective communication through writing and thus there
was no ADA violation). Thus, the Court considers the circumstances as a whole to determine
whether there is a genuine issue of material fact regarding whether communication was effective.
The Court finds that given all of the uncontroverted facts in this case, no reasonable jury
could find that Detective Weissenborn failed to establish effective communication with Plaintiff.
First, the evidence demonstrates that Plaintiff can, and has regularly been able to,
communicate using written English. Plaintiff does not dispute that he can read and understand
written English. He also does not dispute that he can speak, type, and hand-write English,
though he has some limitations with vocabulary, syntax, grammar, and spelling. He does not
dispute that he regularly watches television using closed captioning, reads internet articles, and
communicates by text messaging. He has testified that he communicates through handwritten
notes with a fellow inmate who does not know ASL, and that that inmate assisted Plaintiff in
preparing his responses to Defendant’s discovery requests.
Second, the evidence consistently demonstrates that Detective Weissenborn did establish
accurate and complete communication with Plaintiff through a combination of written materials,
speech, and gestures, even without an ASL interpreter. Detective Weissenborn questioned
Plaintiff about his crimes by questioning him via notes typed on a laptop, and Plaintiff admitted
that everything in the Laptop Record was true and that he would not add anything to it even with
the benefit of hindsight. Furthermore, Plaintiff handwrote a Written Statement the same day, and

15

he admitted that everything in that statement was true and that he would not add anything to it,
even with the benefit of hindsight. In addition, Detective Weissenborn wrote a Probable Cause
Statement describing his own understanding of what Plaintiff had told him about the crime,
including details about Plaintiff’s state of mind, and Plaintiff admits that everything in the
Probable Cause Statement is true.
Plaintiff does not explain how, if communication between himself and Detective
Weissenborn was ineffective, the records of the communication produced an admittedly
complete and accurate account of his crimes, including details regarding his state of mind.
Given that Plaintiff has nothing to add to or change about the records of his communications
with Detective Weissenborn, it is clear that Plaintiff was able to understand Detective
Weissenborn’s questions and to accurately communicate everything he wished to communicate.
He was certainly not denied “the right to ask questions and tell his side of the story.” Bahl, 695
F.3d at 788.
Plaintiff’s vague assertion in his affidavit that “for much of the interviews [he] was
simply responding to [Detective Weissenborn’s] prompts and facial expressions, trying to sense
his attitude and trying to please him” does not create a genuine issue of material fact. Regardless
of whether Plaintiff as “trying to please” Detective Weissenborn during the interview, Plaintiff
has admitted that the information he gave Detective Weissenborn was accurate and complete,
demonstrating that communication was effective.
Plaintiff’s suggestion in his affidavit that he would not have talked to the police without a
lawyer had he understood “what was really going on” also fails to create a genuine issue of
material fact. Both in his affidavit and deposition testimony, Plaintiff indicated that, even with
an interpreter present, he would have “consented to talk to the police,” “still would have given a

16

written statement,” “still would have told the detective the same things that [he] told [the
detective] by [him]self,” and “still would have pled guilty in front of the judge.” (Pl’s. Aff. ¶ 9;
Dep. 88-89). Plaintiff’s seemingly contradictory statements do not create a genuine issue of
material fact that precludes summary judgment. See Connolly v. Clark, 457 F.3d 872, 876 (8th
Cir. 2006) (“[A] properly supported motion for summary judgment is not defeated by selfserving affidavits.”).
Plaintiff also asserts in his affidavit that he did not know that “the Police personnel
involved did not have [his] best interest at heart” and that he did not understand that “the Police
were not [his] friend.” These assertions do not raise a genuine issue of material fact concerning
whether Detective Weissenborn’s communications with him were effective.

Detective

Weissenborn informed Plaintiff of his constitutional rights using Miranda Form 1, and Plaintiff
read and signed the form.10 As discussed above, Plaintiff can read and understand written
English, regularly uses it in his daily life, and used it during his interviews with Detective
Weissenborn to create detailed records of his crimes that he admits are accurate and complete.
Although he claims in his complaint that he did not understand the form, he did not ask any
questions about it at the time, and there is no evidence suggesting that he indicated to Detective
Weissenborn that he did not understand it. Plaintiff offers no reason to suggest that, had an
interpreter been present, Detective Weissenborn would have done more to communicate to
Plaintiff that he was not Plaintiff’s “friend” or did not have Plaintiff’s best interests at heart.
Similarly, Plaintiff’s after-the-fact statement in his deposition that he did not completely
understand the “Rights of a Deaf Person” form waiving his right to an interpreter does not create

10

The Court notes that Plaintiff’s claim that his constitutional rights were violated due to the
City’s handling of his Miranda warnings is not currently before the Court; it was dismissed
because of Plaintiff’s guilty plea. (Doc. No. 4, at 5).
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a genuine issue of material fact.

The Court first notes that in Plaintiff’s opposition to

Defendant’s motion for summary judgment, Plaintiff does not argue that he did not understand
the Rights of a Deaf Person form and does not cite any evidence concerning his alleged
misunderstanding of this form. (Doc. 35). Plaintiff admits that he can read English, and the
form is short and not complex. Plaintiff read and signed the form without asking any questions
about it.
There is no evidence that Plaintiff could not read these forms or that he could not have
asked questions about them if he had not understood any of the words in them. To the contrary,
the record shows that later in the interview, when Detective Weissenborn typed a word Plaintiff
did not understand, Plaintiff let the detective know that he did not understand it, and Detective
Weissenborn explained what it meant. (Pl’s. Dep. 67). The Court finds no genuine issue of
material fact concerning whether the information in the form was effectively communicated. See
Bahl, 695 F.3d at 786-87 (finding on summary judgment that officers had effectively
communicated with a hearing-impaired individual who could read English by providing the
individual with a typewritten document covering a topic that was not complex, despite the
plaintiff’s claimed unfamiliarity with some of the legal terms used in the document); Bircoll, 480
F.3d at 1088 (“[The plaintiff] can read English, and [the officer] gave him a copy of the form to
read. [The officer] thus accommodated [the plaintiff] by giving him written material.”).
Plaintiff also argues that the City violated its own “Communications with Persons with
Hearing Impairments Procedure” policy (the “Policy”) by not providing an interpreter. Even
assuming, arguendo, that the City’s violation of its own policy could establish a violation of the
Rehabilitation Act, the Court finds no violation. The Policy states, “An officer seeking to
interrogate an arrestee with a hearing impairment must obtain the services of a qualified

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interpreter prior to any interrogation, whenever an interpreter is needed for effective
communication.” (Doc. 35 at 7). As discussed at length above, here, effective communication
was established even without an interpreter.
Finally, Plaintiff suggests that the City violated 28 C.F.R. §§ 36.203-204 and 206. The
regulations cited implement Title III of the ADA, which prohibits discrimination on the basis of
disability by public accommodations. See 28 C.F.R. § 36.101. These regulations are not
applicable to Plaintiff’s claim under § 504 of the Rehabilitation Act. Thus, the Court will not
consider them.
In sum, Defendant has demonstrated that its communications with Plaintiff during the
May 25, 2008 interview were effective, and Plaintiff has failed to point to any evidence from
which a reasonable jury could conclude otherwise. The Court notes that it is likely that in many
cases, a sign language interpreter will be necessary to establish effective communication with a
hearing-impaired arrestee during a custodial interrogation. However, on the specific facts before
the Court, where Plaintiff has admitted that the information communicated during the
interrogation was accurate and complete and that Plaintiff would have communicated the same
information even with an interpreter, and where Plaintiff has failed to point to a single fact in the
record showing a lack of effective communication, it is clear that effective communication
occurred and that Plaintiff had meaningful access to the benefits of a custodial interrogation.
Thus, the Court will grant Defendant’s motion for summary judgment as to the May 25, 2008
interview. See Ryan v. Vermont State Police, 667 F. Supp. 2d 378, 390 (D. Vt. 2009) (granting
summary judgment in favor of the defendant on a deaf arrestee’s ADA claim based on
communications during his booking process where the plaintiff could read, was observed reading
a document advising him of the reasons for his arrest, answered several simple questions orally,

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and was given written clarification of a word that he did not understand; noting that there was no
evidence that the provision of auxiliary aids would have changed the booking process in any
way).
2.

Interview At The St. Charles County Correctional Facility On May 28, 2008

Defendant’s and Plaintiff’s arguments with respect to the May 28th interview are
essentially the same as their arguments with respect to the May 25th interview, except that there
is no evidence Plaintiff repeated his request for an interpreter on May 28th. On May 28, 2008,
Plaintiff again read, initialed, and signed a form informing him of his Miranda rights, again
asking no questions about the form and giving no indication that he did not understand it. In the
interview that followed, Detective Weissenborn asked Plaintiff questions through written notes,
Plaintiff responded through gestures and speech, and the results were recorded in the Written
Questions Record. Plaintiff admitted in his deposition that everything in the Written Questions
Record was true and that he would not add to it or say anything different, even with the benefit
of hindsight.
For the reasons discussed above with respect to the May 25, 2008, interview, the Court
finds that Defendant has demonstrated that its communications with Plaintiff during the May
28th interview were effective and provided him with meaningful access to the benefits of
custodial interrogation, and Plaintiff has failed to point to any evidence from which a reasonable
jury could conclude otherwise. Thus, the Court will grant Defendant’s motion for summary
judgment as to Plaintiff’s claim with respect to the May 28, 2008 interview.

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IV.

CONCLUSION

Based on the foregoing, the Court finds that Plaintiff has not demonstrated a genuine
issue of material fact as to his claims against Defendant and that Defendant is entitled to
judgment as a matter of law.
Accordingly,
IT IS HEREBY ORDERED THAT Defendant City of St. Charles’s motion for
summary judgment (Doc. 29) is GRANTED.
An appropriate Judgment will accompany this Memorandum and Order.

/s/Shirley Padmore Mensah
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 9th day of January, 2013.

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