Taylor et al v. City of Mason et al
Filing
23
ORDER denying 8 Motion to Dismiss. Plaintiffs shall submit the proper dismissal of its false imprisonment claim in accordance with its representations in its response 18 within 14 days of the Opinion and Order. Signed by Judge Michael R. Barrett on 9/11/13. (sct1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Joseph G. Taylor, et al,
Case No. 1:12cv890
Plaintiffs,
Judge Michael R. Barrett
v.
City of Mason, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on the Motion to Dismiss of Defendants City of
Mason and City of Mason Police Department (collectively "Defendants").
(Doc. 8).
Plaintiffs Joseph Taylor and Miya Wilkinson have filed a Memorandum in Opposition
(Doc. 18), and Defendants have filed a Reply (Doc. 20). For the reasons explained
below, the Court denies the Motion to Dismiss.
I.
BACKGROUND
Plaintiffs allege that Defendants have violated the American with Disabilities Act
("ADA") and the Federal Rehabilitation Act ("Rehabilitation Act"), and that Defendants
falsely imprisoned Taylor. Plaintiffs rely on the following factual allegations in support of
those claims:
Joseph Taylor ("Taylor") is a deaf person whose primary language is American
Sign Language ("ASL"). (Doc. 3, ¶ 14). He has been completely deaf since birth. (Id.)
Taylor's girlfriend, Miya Wilkinson ("Wilkinson"), also is deaf. (Id., ¶ 15). Taylor and
Wilkinson reside together with their two children in an apartment in Mason, Ohio. (Id.)
Jessica Vissing ("Vissing"), who is partially deaf, occasionally babysat the children of
Taylor and Wilkinson. (Id., ¶ 16). Vissing speaks and understands ASL. (Id.)
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On November 18, 2010, an incident occurred between Taylor and Vissing. (Doc.
3, ¶ 17). Taylor contends Vissing physically assaulted him after she took his keys away
from him while engaging in light "horseplay." (Id., ¶ 18). Vissing contends that Taylor
tickled her, and then shoved her into the bedroom and forcefully tried to rape her. (Id., ¶
19).
Immediately after the incident, Taylor called the Mason Police Department to
report the assault by Vissing, using the phone company's TDD system that provides an
interpreter to read the caller's typed communications to a third party.
(Id., ¶ 20).
Vissing did not call the police, but later claimed she was the victim of gross sexual
assault. (Id., ¶ 21).
When the Mason police showed up at the apartment, they discovered Taylor and
Wilkinson were deaf and could not effectively communicate with them except through
ASL. (Id., ¶ 22). Taylor requested an ASL interpreter. (Id., ¶ 23). Although the police
called an interpreter, they did not wait for the interpreter before they began their
questioning and their investigation of the incident. (Id., ¶ 24). Instead, the police used
Vissing to interpret Taylor's and Wilkinson's version of the events and to otherwise
investigate the incident. (Id., ¶¶ 26, 30).
Taylor was arrested at the scene and taken to the Mason jail. (Id., ¶ 30). Once
at the jail, Taylor requested an interpreter. (Id., ¶ 32). Although he was provided an
interpreter, the interpreter was not ASL certified. (Id., ¶ 33). Taylor expressed his
dissatisfaction with the interpreter, but the police proceeded to communicate to Taylor
his Miranda rights through the uncertified ASL interpreter. (Id.) Taylor initialed the form
he was told to sign, but did not fully understand his Miranda rights. (Id.) Taylor later
was told he was under arrest for gross sexual imposition. (Id., ¶ 34). Taylor accepted
2
plea deal for a lesser charge. (Id., ¶ 37). 1
II.
MOTION TO DISMISS STANDARD
Defendants move for dismissal for failure to state a claim for relief under Federal
Rule of Civil Procedure 12(b)(6). In reviewing a motion to dismiss for failure to state a
claim under Rule 12(b)(6), this Court must "'construe the complaint in the light most
favorable to the plaintiff, accept its allegations as true, and draw all reasonable
inferences in favor of the plaintiff.'" Bassett v. NCAA, 528 F.3d 426, 430 (6th Cir. 2008)
(quoting Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)). "[T]o survive a
motion to dismiss[,] a complaint must contain (1) 'enough facts to state a claim to relief
that is plausible,' (2) more than 'a formulaic recitation of a cause of action's elements,'
and (3) allegations that suggest a 'right to relief above a speculative level.'" Tackett v.
M&G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955 (2007)).
"A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft
v. Iqbal, 556 U.S. 662, 678 129 S. Ct. 1937, 1949 (2009). Although the plausibility
standard is not equivalent to a "'probability requirement,' . . . it asks for more than a
sheer possibility that a defendant has acted unlawfully." Id. at 1949 (quoting Twombly,
550 U.S. at 556).
III.
ANALYSIS
A. ADA and Rehabilitation Act Claims
Section 504 of the Rehabilitation Act prohibits entities receiving federal funds
1
Defendants contend that the plea deal occurred after Taylor had obtained counsel.
3
from discriminating against individuals with disabilities. It provides, in relevant part: "No
otherwise qualified individual with a disability in the United States . . . 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 or under any program or activity conducted by any
Executive agency or by the United States Postal Service." 29 U.S.C. § 794(a). See
also 28 C.F.R. § 42.503.
Title II of the ADA similarly 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.
Both Congress and the Sixth Circuit have dictated that Title II of the ADA be interpreted
in a manner consistent with Section 504 of the Rehabilitation Act.
42 U.S.C. §§
12134(b), 12201(a); Zibbell v. Mich. Dep't of Human Servs., 313 F. App'x 843, 849 (6th
Cir. 2009) (citing Jones v. Potter, 488 F.3d 397, 403 (6th Cir. 2007); Doe v. Salvation
Army in the United States, 531 F.3d 355, 357 (6th Cir. 2008)).
As such, cases
construing one statute are instructive in construing the other statute. Center v. City of
West Carrollton, 227 F. Supp. 2d 863, 867 (S.D. Ohio 2002) (citing McPherson v. Mich.
High Sch. Ath. Ass'n, 119 F.3d 453, 460 (6th Cir. 1997) (en banc)).
To make out a prima facie case under Section 504 of the Rehabilitation Act or
Title II of the ADA, a plaintiff must establish that (1) he has a disability; (2) he is
otherwise qualified; and (3) he is being excluded from participation in, being denied the
benefits of, or being subjected to discrimination under the program solely because of his
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disability. Dillery v. City of Sandusky, 398 F.3d 562, 567 (6th Cir. 2005) (citing Jones v.
City of Monroe, 341 F.3d 474, 477 (6th Cir. 2003)); see also Center, 227 F. Supp. 2d at
867. At this stage of the litigation, the parties dispute only the third element of the prima
facie case. Specifically, the parties dispute whether, prior to Taylor's arrest or at the
Mason jail, Taylor was excluded from participating in or denied the benefits of a service,
activity or program solely because of a disability.
Before discussing the particular arguments of the parties, the Court finds it
helpful to set forth the applicable regulations. Under 28 C.F.R. § 35.160, a regulation
promulgated by the Department of Justice to implement Title II of the ADA, 2 a public
entity has the following responsibilities in terms of communication and auxiliary aids:
(a)(1) A public entity shall take appropriate steps to ensure that
communications with applicants, participants, members of the public,
and companions with disabilities are as effective as communications
with others.
(2) For purposes of this section, "companion" means a family
member, friend, or associate of an individual seeking access to a
service, program, or activity of a public entity, who, along with such
individual, is an appropriate person with whom the public entity
should communicate.
(b)(1) A public entity shall furnish appropriate auxiliary aids and
services where necessary to afford individuals with disabilities,
including applicants, participants, companions, and members of the
public, an equal opportunity to participate in, and enjoy the benefits
of, a service, program, or activity of a public entity.
(2) 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
2
28 C.F.R. § 35.101 provides: "The purpose of this part is to effectuate subtitle A of title II of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12131), which prohibits discrimination on the basis of disability by public
entities."
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the communication is taking place. 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.
In order to be effective, auxiliary aids and services must be provided
in accessible formats, in a timely manner, and in such a way as to
protect the privacy and independence of the individual with a
disability.
(c) . . .
(2) A public entity shall not rely on an adult accompanying an
individual with a disability to interpret or facilitate communication
except –
(i) In an emergency involving an imminent threat to the safety or
welfare of an individual or the public where there is no interpreter
available; or
(ii) Where the individual with a disability specifically requests that
the accompanying adult interpret or facilitate communication, the
accompanying adult agrees to provide such assistance, and reliance
on that adult for such assistance is appropriate under the
circumstances.
28 C.F.R. § 35.160(a)-(c). With respect to the deaf and hearing impaired, auxiliary aids
and services include:
Qualified interpreters on-site or through video remote interpreting
(VRI) services; notetakers; real-time computer-aided transcription
services; written materials; exchange of written notes; telephone
handset amplifiers; assistive listening devices; assistive listening
systems; telephones compatible with hearing aids; closed caption
decoders; open and closed captioning, including real-time
captioning; voice, text, and video-based telecommunications
products and systems, including text telephones (TTYs),
videophones, and captioned telephones, or equally effective
telecommunications devices; videotext displays; accessible
electronic and information technology; or other effective methods of
making aurally delivered information available to individuals who are
deaf or hard of hearing.
28 C.F.R. § 35.104. Appendix A to Part 35 of the ADA regulations reemphasizes that:
The public entity shall honor the choice [of the individual with a
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disability] unless it can demonstrate that another effective means of
communication exists or that use of the means chosen would not be
required under § 35.164. Deference to the request of the individual
with a disability is desirable because of the range of disabilities, the
variety of auxiliary aids and services, and different circumstances
requiring effective communication.
28 C.F.R. Pt. 35, Appx. A (internal quotations omitted). Nevertheless, Section 35.164
provides limits on the duty to provide auxiliary aids:
This subpart does not require a public entity to take any action that it
can demonstrate would result in a fundamental alteration in the
nature of a service, program, or activity or in undue financial and
administrative burdens. In those circumstances where personnel of
the public entity believe that the proposed action would
fundamentally alter the service, program, or activity or would result in
undue financial and administrative burdens, a public entity has the
burden of proving that compliance with this subpart would result in
such alteration or burdens. The decision that compliance would
result in such alteration or burdens must be made by the head of the
public entity or his or her designee after considering all resources
available for use in the funding and operation of the service,
program, or activity and must be accompanied by a written statement
of the reasons for reaching that conclusion. If an action required to
comply with this subpart would result in such an alteration or such
burdens, a public entity shall take any other action that would not
result in such an alteration or such burdens but would nevertheless
ensure that, to the maximum extent possible, individuals with
disabilities receive the benefits or services provided by the public
entity.
28 C.F.R. § 35.164.
Having now set forth the applicable law and regulations, the Court turns to the
specific issues raised by Defendants' Motion to Dismiss.
1. Whether benefits were denied to Taylor prior to his arrest
In the Complaint, Plaintiffs assert that Defendants failed to provide an
appropriate auxiliary aid (i.e., an ASL interpreter) when it responded to Taylor's
telephone call to report the assault by Vissing, and instead, relied on Vissing to interpret
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for Taylor. Defendants contend that Taylor's claim does not fall within the ADA or
Rehabilitation Act because he had no right to communicate with police prior to his arrest
such that he was not entitled to an interpreter, and that all the police needed was
probable cause to arrest him, which they received from Vissing's report of the incident.
The Court disagrees with Defendants. Defendants' arguments fail to take into
account allegations that Taylor initiated the phone call to police and he did so because
Vissing had assaulted him. The Court finds those allegations are significant. In the
cases upon which Defendants rely, none of the individuals arrested had initiated the
phone call to police to seek their assistance; instead, in each of those cases, another
individual initiated the report of an alleged crime. See United States v. Lanier, 636 F.3d
228 (6th Cir. 2011) (management at hotel reported observation of drugs in a hotel room,
which led to investigation and development of probable cause); Klein v. Long, 275 F.3d
544, 552 (6th Cir. 2001), abrogated in par on other grounds by Pearson v. Callahan,
555 U.S. 223 (2009) (wife called 911 regarding domestic abuse and husband was then
arrested; failure to interview the suspect did not violate his constitutional rights because
probable cause supported his arrest); Fridley v. Horrighs, 291 F.3d 867, 872 (6th Cir.
2002) (tip from informant along with illegal sale sufficient for probable cause); Scott v.
City of Bexley, 11 F. App'x 514, 518-19 (6th Cir. 2001) (wife called 911 to report
domestic abuse, and husband was ultimately arrested); Estate of Dietrich v. Burrows,
167 F.3d 1007, 1010-11 (6th Cir. 1999) (tip from informant and corroborating evidence
gave officers probable cause for arrest); Ahlers v. Schebil, 188 F.3d 365, 371 (6th Cir.
1999) (allegations against officer by inmate followed by investigation); Criss v. City of
8
Kent, 867 F.2d 259, 262 (6th Cir. 1988) (officer observed city signs in apartment in
which suspect was co-tenant and developed probable cause for arrest). 3 Defendants
do not rely on any caselaw demonstrating that an individual who initiated contact with
police does not have a right to effectively communicate with those police when they
arrive on the scene. Notably, caselaw specifically addressing claims under the ADA
and Rehabilitation Act suggests that such a right may exist. See Center v. City of West
Carrollton, 227 F. Supp. 2d 863 (S.D. Ohio 2002) (denying summary judgment
regarding the effectiveness of auxiliary aids provided to a deaf 911 caller after the police
arrived on the scene); Salinas v. City of New Braunfels, 557 F. Supp. 2d 771, 776-77
(W.D. Tex. 2006) (motion to dismiss denied where deaf individual who called 911 after
finding boyfriend motionless in home given that municipality's 911 emergency response
services fell within those covered by ADA and Rehabilitation Act, the scene was secure
and there was no threat to human life and there was no evidence that she was a
suspect in the incident for which she had called 911); see also McCray v. City of
Dothan, 169 F. Supp. 2d 1260, 1275 (M.D. Ala. 2001), affirmed in part and reversed in
part without published opinion by, 67 F. App'x 582 (11th Cir. 2003) (finding deaf
individual should have been given interpreter during on-the-scene questioning).
Also factoring into the Court's analysis are the allegations that the police
specifically attempted to communicate with Taylor at the scene, and called an
interpreter to assist but did not wait on that interpreter. When initiating communication
with Taylor, the police should have provided him the opportunity to communicate as
effectively as a non-disabled person under the circumstances.
3
See Tucker v.
None of the cases relied upon by Defendants address claims under the ADA or Rehabilitation Act.
9
Tennessee, 539 F.3d 526, 534-36 (6th Cir. 2008); McCray, 169 F. Supp. 2d at 1275.
Here, the facts construed in favor of Plaintiffs suggest Defendants did not provide Taylor
such an opportunity. Defendants do not argue that they reasonably accommodated
Taylor's accommodation request through appropriate auxiliary aids.
Instead, the
allegations suggest that the only means of communication used was interpretation
through Vissing, who allegedly assaulted Taylor.
Taylor does not indicate that he
consented to having Vissing interpret for him, as is required under the regulations to use
an adult accompanying the deaf individual as the interpreter. Nor have Defendants
demonstrated that the use of Vissing as an interpreter was appropriate under the
circumstances, or that the provision of an interpreter under those circumstances would
fundamentally alter the nature of the police department's services or would constitute an
undue burden such that Taylor's request fell within the scope of 28 C.F.R. § 35.164.
Further, when the facts are construed in favor of Plaintiffs, they do not
demonstrate that the circumstances changed during the encounter with police such that
the police should not have been required to wait for the independent interpreter to arrive
at the scene. Specifically, the allegations do not show that Taylor posed a threat to the
health or safety of officers or others, or that exigent circumstances existed so as to
require a rushed investigation. See Tucker, 539 F.3d at 534-36; McCray, 169 F. Supp.
2d at 1275. Based on the allegations, the Court reasonably can infer that the situation
was under control and the police could have waited for the interpreter to arrive on the
scene. See Tucker, 539 F.3d at 534-36; McCray, 169 F. Supp. 2d at 1275.
Although Plaintiffs' allegations may ultimately be disproven or other facts may
10
come to light that alter the analysis, the Court finds that at this stage of the litigation
Plaintiffs' allegations, when accepted as true, are sufficient to withstand a motion to
dismiss Taylor's ADA and the Rehabilitation Act claims.
Accordingly, Defendants'
Motion to Dismiss is denied on this ground.
2. Whether Benefits Were Denied to Taylor at the Mason Jail
Plaintiffs contend that Taylor was denied benefits at the Mason jail because, after
he expressed dissatisfaction with the interpreter that had been provided to him, he was
not provided an ASL interpreter that satisfied the requirements of the ADA or
Rehabilitation Act. Defendants argue that Plaintiffs' allegations are insufficient to state a
plausible claim for relief because (1) Taylor had no right to communicate with police
officers, (2) he received an interpreter, and (3) he has alleged no facts that show the
interpreter provided was not ASL-certified or that show he could not understand that
interpreter.
Construing the facts in favor of Plaintiffs, the Court finds that they have stated a
plausible claim for relief in regards to whether Taylor was denied benefits at the Mason
jail. First, for the reasons explained above, the Court finds that Plaintiffs have stated a
plausible claim as to Taylor's denial of benefits during questioning, and finds that the
case becomes even more compelling during investigative questioning at the jail and
when being read his Miranda rights. See Tucker, 539 F.3d at 532 ("[W]e find that the
ADA applies to the post-arrest detention at the jail."); see also Calloway v. Boro of
Glassboro Dep't of Police, 89 F. Supp. 2d 543, 555-56 (D.N.J. 2000) (concluding that
deaf individual deprived of benefit of providing information to the police concerning
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commission of crimes, in witness or suspect capacity, if not provided an interpreter
during station-house questioning).
Second, Plaintiffs have alleged sufficient facts to plausibly show that the
interpreter provided to him at the Mason jail did not provide the same level of effective
communication that a non-disabled person would receive. Specifically, he has alleged
that his primary language is ASL, but the interpreter provided was not certified in ASL.
Although Plaintiffs have not shown that ASL certification is required, the issue of
whether an appropriate, effective auxiliary aid has been provided to an individual is a
fact-specific inquiry, and Plaintiffs' allegations plausibly lend support to an argument that
the interpreter provided was not sufficiently skilled in ASL to ensure effective, accurate
and impartial interpretation. See 28 C.F.R. § 35.104 (defining qualified interpreter).
Further, Taylor alleges that he expressed dissatisfaction with the interpreter and he did
not fully understand his Miranda rights. While it is unclear as to whether he did not
understand the Miranda rights themselves or was impeded in his understanding of
those rights by the interpreter, a reasonable inference in Taylor's favor is that he did not
understand the interpretation of those rights provided by the interpreter. As such, it is
plausible at this stage of the litigation that the accommodation provided was not
effective. While the Court recognizes that law enforcement does not always have to
provide the exact auxiliary aid requested, the regulations place the burden on law
enforcement to ensure that the communication with a deaf individual is as effective as
communications with other non-disabled individuals. 28 C.F.R. § 35.104. The law
enforcement agency should give primary consideration to the requests of the deaf
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individual in regards to auxiliary aids and generally give deference to the deaf
individual's requests, which may include requests for a different interpreter. Id.; 28
C.F.R. Pt. 35, Appx. A. If the law enforcement agency does not defer to the deaf
individual's request, then the burden is on it to demonstrate that another effective
means of communication exists or that the requested auxiliary aid would otherwise not
be required.
28 C.F.R. Pt. 35, Appx. A.
Further, if there are other limitations in
providing the requested auxiliary aid, then the burden is on the law enforcement agency
to demonstrate that those limitations exist. Id. Given those circumstances, dismissal at
this stage of the litigation is not appropriate.
Third and finally, the Court is not persuaded by Defendants' argument that
Plaintiffs have failed to show that the lack of an ASL-certified interpreter was the result
of discrimination directed specifically at Taylor. The Court assumes that Defendants
rely on Tucker for the statement that "the plaintiff must show that the discrimination was
intentionally directed toward him or her in particular" and that acts and omissions that
have only a disparate impact on disabled persons in general are not specific acts of
intentional discrimination against the plaintiff specifically. See Tucker, 539 F.3d at 532
(emphasis in original).
Considering that statement, the Court finds under the facts
alleged it is plausible that the lack of an effective interpreter was directed towards Taylor
in particular.
Unlike in Tucker where the plaintiff complained about a lack of TTY
telephones at the facility that generally impacted all deaf individuals who came to that
facility, the facts construed in favor of Taylor suggest that the lack of a skilled ASL
interpreter or other effective auxiliary aid was not a constant condition at the Mason jail
13
that affected all deaf individuals but was a specific lack of accommodation for Plaintiff
where such accommodation was available or could reasonably have been made
available to him. Further, the facts as alleged do not demonstrate that other effective
means of communication were provided to Taylor. Therefore, Plaintiffs have alleged
sufficient facts to plausibly suggest that reasonable accommodations were not provided
to Taylor to ensure communications that were as effective as those provided to nondisabled persons. See 42 U.S.C. § 12132; 28 U.S.C. § 794(a).
Accordingly, Defendants' Motion to Dismiss on this ground is denied.
3. Whether Taylor was Falsely Imprisoned
Defendants moved to dismiss Plaintiffs' false imprisonment claim. (Doc. 8, pp. 89). In response, Plaintiffs conceded that the false imprisonment claim was unsupported
by the facts in the case at the present time. Plaintiffs therefore agreed to "either dismiss
this claim" or "to agree to a joint dismissal of that claim." (Doc. 18, p. 5). Defendants
did not respond to Plaintiffs' purported agreement in the reply.
Given Plaintiffs'
response, the Court will not address the merits of the false imprisonment claim.
Instead, the Court will leave it to the parties to determine whether dismissal by Plaintiffs
or a joint dismissal is appropriate in this matter.
IV.
CONCLUSION
Based on the foregoing, Defendants' Motion to Dismiss (Doc. 8) is DENIED.
Plaintiffs shall submit the proper dismissal of its false imprisonment claim in accordance
with its representations in its response (Doc. 18) within 14 days of the Opinion and
Order.
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IT IS SO ORDERED.
s/ Michael R. Barrett
Michael R. Barrett, Judge
United States District Court
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