Black v. Social Security Admin. et al

Filing 109

ORDER denying 69 Motion for Summary Judgment; denying as moot 71 Motion; denying as moot 72 Motion; denying as moot 73 Motion to Quash; granting 81 Motion for Summary Judgment; denying as moot 103 Motion for Reconsideration; denying as moot 104 Motion to Dismiss. Signed by U.S. District Judge Jeffrey L. Viken on 7/29/22. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
JACOB A. BLACK,

CIV. 20-5083-JLV
Plaintiff,
ORDER

vs.
HECTOR URCELAY, in his official
capacity,
Defendant.
INTRODUCTION

Plaintiff Jacob Black, appearing pro se, filed a complaint alleging a
violation of the Rehabilitation Act, 29 U.S.C. § 794. (Docket 1). Defendant
Hector Urcelay 1 timely filed an answer. (Docket 29). Mr. Black filed a motion
for summary judgment together with one exhibit and an affidavit. (Dockets
69, 69-1 & 70). Mr. Urcelay filed a motion for summary judgment together
with a legal memorandum, a statement of undisputed material facts, six
declarations, a supplement and 20 exhibits. (Docket 81, 82, 83, 83-1, 84, 841, 85, 85-1, 86, 87, 87-1 through 87-17, 88, 89, & 90). Mr. Black filed a
response to the defendant’s motion for summary judgment. (Docket 93). Mr.

1

Mr. Urcelay is a Supplemental Security Income Claims Specialist with
the Social Security Administration in its Rapid City, South Dakota, field office.
(Docket 83 ¶ 12).

Urcelay filed a reply brief in support of his motion for summary judgment
together with a supplemental statement of material facts, a declaration and two
exhibits. (Dockets 97, 98, 99, 99-1 & 91-2). Mr. Black filed a supplemental
statement of material facts and reply brief in support of his motion for
summary judgment together with four exhibits. (Docket 102 & 102-1).
For the reasons stated in this order, plaintiff’s motion for summary
judgment is denied and defendant’s motion for summary judgment is granted.
STANDARD OF REVIEW
Under Fed. R. Civ. P. 56(a), a movant is entitled to summary judgment if
the movant can “show 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). Once the moving party meets its burden, the nonmoving party may not
rest on the allegations or denials in the pleadings, but rather must produce
affirmative evidence setting forth specific facts showing that a genuine issue of
material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
See also Thomas v. Corwin, 483 F.3d 516, 527 (8th Cir. 2007) (mere
allegations, unsupported by specific facts or evidence beyond a nonmoving
party’s own conclusions, are insufficient to withstand a motion for summary
judgment); Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011)
(en banc) (“The nonmovant must do more than simply show that there is some
metaphysical doubt as to the material facts, and must come forward with
specific facts showing that there is a genuine issue for trial. Where the record
taken as a whole could not lead a rational trier of fact to find for the nonmoving
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party, there is no genuine issue for trial.”) (internal quotation marks and
citation omitted).
Only disputes over facts that might affect the outcome of the case under
the governing substantive law will properly preclude summary judgment. Id. at
p. 248. “[T]he mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact.”
Id. at 247-48 (emphasis in original).
If a dispute about a material fact is genuine, that is, if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party,
then summary judgment is not appropriate. Id. However, the moving party is
entitled to judgment as a matter of law if the nonmoving party failed to “make a
sufficient showing on an essential element of [his] case with respect to which
[he] has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). In such a case, “there can be ‘no genuine issue as to any material fact,’
since a complete failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts immaterial.” Id. at
p. 323.
In determining whether summary judgment should issue, the facts and
inferences from those facts must be viewed in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587-88 (1986). The key inquiry is “whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one3

sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at
pp. 251-52.
PRELIMINARY MATTERS
Mr. Black is appearing pro se. While pro se pleadings are to be
construed liberally, pro se litigants are still expected to comply with procedural
and substantive law. Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir. 1984).
“While a court generally affords pro se filings a liberal construction, a litigant’s
pro se status does not excuse [him] from reading the Federal Rules of Civil
Procedure.” Reints v. City of Rapid City, No. CIV. 13-0543, 2014 WL 4782934,
at *2 (D.S.D. Sept. 24, 2014) (quoting Jiricko v. Moser fis Marsalek. P.C., 184
F.R.D. 611, 615 (E.D. Mo. 1999), affd, 187 F.3d 641 (8th Cir. 1999)); see
McNeil v. United States, 508 U.S. 106, 113 (1993) (“[W]e have never suggested
that procedural rules in ordinary civil litigation should be interpreted so as to
excuse mistakes by those who proceed without counsel.”).
Like the Federal Rules of Civil Procedure, a pro se litigant must be
familiar with the Local Rules of Practice of the District of South Dakota. These
rules are available online. See https://www.sdd.uscourts.gov/content/localrules-civil. The local rule addressing motions for summary judgment requires:
All motions for summary judgment must be accompanied by a
separate, short, and concise statement of the material facts as to
which the moving party contends there is no genuine issue to be
tried. Each material fact must be presented in a separate numbered
statement with an appropriate citation to the record in the case.
D.S.D. Civ. LR 56.1(A).

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Mr. Black was advised of these principals and obligations as a pro se
litigant when the court struck his first motion for summary judgment. See
Docket 40 at p. 3 (“No good cause appearing for Mr. Black’s failure to comply
with [Fed. R. Civ. P.] 56 and the local rules, both documents must be stricken
from the record in CM/ECF.”
ANALYSIS
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Mr. Black’s motion for summary judgment under the Rehabilitation Act
asserts he is a “qualified individual with a . . . hearing impairment [and has]
been a qualified individual for 15 years or more, with heart problems.” (Docket
69 at p. 2) (emphasis omitted). In addition to a hearing impairment, Mr. Black
asserts he has “a learning disability.” Id. As a result of these disabilities, Mr.
Black argues he was denied Social Security Administration benefits through
administrative actions summarized as follows:
No SSA 789 form;
No proof of certified mail receipt on all appointments with SSA;
No receipts on all scheduled meeting appointments―only one showing
August 14 by Ms. Fischer; and
Conflicting dates for hearings scheduled.
Id. at pp. 2-4. Mr. Black’s supporting documentation appears to be three
pages of his Social Security Administrative record. See Docket 69-1.
Page one captioned “Case Development Sheet” contains a listing of
activities all appearing to have occurred on March 14, 2018. Id. at p. 1. On
this page Mr. Black appears to have written the following:
5

Id.

Mrs. Adams;
Teachers had microphones; and
Why are all the dates 3/14.
Page two of Mr. Black’s submission also captioned “Case Development

Sheet,” contains a listing of activities occurring between April 9, 2018, and
April 11, 2018. Id. at p. 2. On April 9 appears the following entry after Mr.
Black’s name and address apparently made by “BFS.”
more information needed regarding if you still would like to have a
meeting with a disability hearing officer regarding your disability.
I’m going to schedule a disability hearing and you should get the
letter shortly with the date and time. If you do not want to meet
with a disability hearing officer please call me and I will cancel the
hearing and then make a decision with all your medical records on
file.
Id. Mr. Black appears to have written on this exhibit the following:
False statement disputable fact
Where is form SSA789
Date?
Id.
Page three of plaintiff’s exhibits appears to be an overlay of three
different pages of Social Security Administration (“SSA”) documentation. Id. at
p. 3. The top portion of the exhibit is a notice of hearing from the SSA directed
to Mr. Black scheduling a hearing for November 8, 2018, at 3 p.m. Mountain
Time. Id. The top of the page has a “Refer to” and the next line is redacted.
Id. Mr. Black apparently wrote “Refered [sic] to who?” Id. The middle section
focuses on item 6, which states: “Fisher, Cyndi, ASL. Ms. Fisher has
knowledge regarding Plaintiff’s failure to appear at a scheduled meeting on
August 14, 2018, at the SSA Rapid City Field Officer.” Id. On the top of this
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portion of the exhibit, Mr. Black apparently wrote “other parts of records show
different hearing dates.” Id.
The bottom portion contains entries 3 through 9, with part of 10 also
included. Id. Mr. Black highlighted item 7 by boxing in the date of April 16,
2018, relating to a “Request for Hearing by Administrative Law Judge” and a
reference to “United States #000029.” Id. Mr. Black also highlighted item
8 which referenced a “Handwritten note by Jacob Black dated April 16, 2018.
United States #0000030.” Id. Mr. Black circled the number. Id.
Accompanying Mr. Black’s submission was a document he captioned
“Affidavit in support of Plaintiff’s Motion for Summary Judgement.” (Docket 70
at p. 1). The totality of the affidavit declares: “I Jacob Black the movant
declares [sic] all is true to the best of my knowledge for motion for summary
judgment.” Id.
Filed the same day as Mr. Black’s motion for summary judgment were a
motion for judicial notice and a motion for declared emergency. (Dockets 71 &
72). The judicial notice motion, in Mr. Black’s handwriting stated:
Notice to this court: This court is a judicial, & not an administrative
proceeding & is governed by equity jurisprudence. Is commonly
known that a hearing impairment is considered a disability under
the Americans with disabilities Act & Rehabilitations Act. See
Muller vs. Oregon – Brandeis brief.
(Docket 71). The motion for declared emergency, in Mr. Black’s handwriting
without editing, stated:
I Jacob Black the Plaintiff seeks a motion for declared emergency for
getting assistance with my hearing aids and for the court to act
immediately on my MSJ. The judge is aware of my right aid falling
in Kool-Aid, & it having problems. My left aid is now broken and I
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cant afford to get it fixed. Prayer for relief on declared emergency.
Soon I’ll have no hearing aids.
(Docket 72).
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Defendant’s brief acknowledges the “Rehabilitation Act prohibits
discrimination based on disability in programs receiving federal assistance.”
(Docket 82 at p. 7) (referencing 29 U.S.C. 794(a)). Defendant’s motion begins
by “assum[ing] that Mr. Black is an individual with a disability under the
Rehabilitation Act.” Id. at p. 8. Defendant also “concedes that the SSA
receives federal funding.” Id. Defendant submits “SSA furnished several aids
to facilitate effective communication with Mr. Black and there is no evidence
that Mr. Black was unable to effectively communicate with SSA employees.” Id.
at p. 10. Defendant argues “[t]here also is no evidence . . . that SSA ignored or
refused a specific request from Mr. Black for a sign language interpreter, and
Mr. Black has not identified any harm he suffered as a result of the agency’s
alleged failure to provide an interpreter (which the agency categorically
denies).” Id. at pp. 10-11. “On these facts,” defendant submits “the SSA
properly discharged its duty to provide effective communication to Mr. Black.”
Id. at p. 11. Additionally, defendant contends “Mr. Black was provided with an
‘equal opportunity’ to access the SSA programs and services and to ‘gain the
same benefit’ as his hearing-abled peers, he simply chose not to do so.” Id. at
pp. 12-13 (citing Argenyi v. Creighton University, 703 F.3d 441, 449 (8th Cir.
2013)).

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UNDISPUTED MATERIAL FACTS
Mr. Ureclay’s statement of material facts asserts it “is made in support of
the Defendant’s motion for summary judgment and in opposition to Mr. Black’s
motion for summary judgment.” (Docket 83 at p. 1) (italics omitted).
Defendant contends Mr. Black “failed to present a statement of material facts”
in support of plaintiff’s motion for summary judgment as required by D.S.D.
Civ. LR 56.1(A). Id.
Defendant’s statement of undisputed material facts provides the
following. With profound hearing loss in both ears, Mr. Black has difficulty
hearing without hearing aids. (Docket 83 ¶ 1). Although having undergone
heart surgery shortly after birth, Mr. Black denied any serious illnesses or
injuries. Id. ¶ 15. As a child, Mr. Black was diagnosed with a hearing
impairment and uses hearing aids throughout his life. Id. ¶ 3.
In March 2012, Mr. Black was approved to receive Supplemental
Security Income (“SSI”) for hearing loss not treated with cochlear implant and
attention-deficit hyperactivity disorder (“ADHD”). Id. ¶ 16. Mr. Black
graduated from Southeast Valley High School in Gowrie, Iowa. Id. ¶ 6.
When he reached 18 years of age, the Social Security Administration
initiated an age-based disability review. Id. ¶ 17. A Continuing Disability
Review Report, Form SSA-454-BK, was sent to Mr. Black. He completed the
form and returned to it to SSA but failed to attend consultative examinations
scheduled by the SSA. Id. ¶ 18. On June 12, 2017, due to insufficient

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evidence, the South Dakota Disability Determination Service found Mr. Black
no longer qualified for SSI benefits as an adult. Id. ¶ 19.
In the Fall of 2017, he attended Western Dakota Tech (“WDT”) in Rapid
City, South Dakota, and enrolled in the technical studies program. 2 Id. ¶¶ 7 &
8. Mr. Black communicated verbally without difficulty with Debbie Toms, the
WDT Student Success Director and Registrar. Id. ¶ 9. Lori Liebman,
Disabilities Services Coordinator and Student Success Coach, reported Mr.
Black stated he “hears just fine” and declined Americans with Disability Act
504 services. Id. ¶ 10. She had no difficulty communicating verbally with Mr.
Black. Id. Ms. Liebman advised Mr. Black’s WDT instructors he had declined
any accommodations and that no instructional adjustments were needed. Id.
Tyler Bowling is the Assistant District Manager at the SSA Rapid City,
South Dakota, field office. Id. ¶ 11. Mr. Bowling communicated verbally by
telephone with Mr. Black without the known use of special services and never
had difficulty communicating verbally with him. Id.
On September 13, 2017, Mr. Black submitted a Request for
Reconsideration, Form SSA-789, to the SSA. Id. ¶¶ 20 & 42. He asked to
appear at a disability hearing, indicating he needed a sign language interpreter.
Id. To the agency’s knowledge, Mr. Black was not known to communicate by
sign language and had never requested a sign language interpreter. Id.
2Mr.

Black objects to the defendant obtaining plaintiff’s WDT records.
(Docket 93 at 1). Defendant’s response indicates plaintiff’s WDT “student
records were produced pursuant to a subpoena [and] Mr. Black was properly
served a notice and copy of the subpoena pursuant to federal Rule of Civil
Procedure 45(a)(4).” (Docket 98 ¶ 45). Plaintiff’s objection is overruled.
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As of January 2018, he was using Oticon BTE hearing aids in both ears.
Id. ¶ 2. As Mr. Black’s speech was adequate after his hearing was corrected
with hearing aids, he did not require speech therapy. Id. Mr. Black
communicates verbally. Id. ¶ 5.
On January 5, 2018, Norman N. Sorenson with Mountain Plains
Audiology, Inc., performed an audiological evaluation of Mr. Black in
connection with his disability claim. Id. ¶ 21. The evaluation reported Mr.
Black had severe to profound hearing loss in both ears and his level of
impairment would make it difficult to hear without hearing aids. Id. ¶ 22. Mr.
Sorensen noted Mr. Black used Oticon BTE hearing aids in both ears and was
able to understand and answer questions appropriately as long as the person
speaking was looking directly at Mr. Black. Id.
On March 7, 2018, in connection with Mr. Black’s SSA disability claim
Greg Swenson, Ph.D., performed a functional assessment, mental status exam
and psychological testing. Id. ¶ 23. Mr. Black reported he was diagnosed with
a hearing impairment during childhood, used hearing aids throughout his life
and did not require speech therapy as his speech was adequate upon
correction of his hearing. Id. ¶ 24. Dr. Swenson reported Mr. Black could
hear, had no difficulty communicating, understood the questions posed by Dr.
Swenson and that Mr. Black’s hearing was adequate for evaluation purposes.
Id. ¶ 25.
In a telephone call to the agency, Mr. Black requested SSA make a
decision on his file without a hearing. Id. ¶ 26. On April 11, 2018, based on
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the evidence of record, a Disability Hearing Officer found Mr. Black was not
disabled under the adult standards of the Social Security Act. Id.
On April 16, 2018, Mr. Black requested a hearing by an Administrative
Law Judge (“ALJ”). Id. ¶ 27. Mr. Black wished to appear in person at the
hearing and checked a box requesting an interpreter. Id. In an accompanying
handwritten letter of the same date, Mr. Black stated he wanted a sign
language interpreter “every time I come into the Rapid City office.” Id. ¶ 28.
On June 26, 2018, Mr. Bowling contacted Mr. Black by telephone to
schedule an appointment at the Rapid City SSA field office. Id. ¶ 29. Mr.
Bowling communicated verbally with Mr. Black without issue or known use of
special services. Id. Mr. Black agreed to meet on July 12, 2018, at 1 p.m. at
the Rapid City SSA office. Id. Mr. Bowling specifically asked whether Mr.
Black needed an interpreter. Id. Mr. Bowling repeated the question three
times because he thought Mr. Black seemed to avoid the question. Id. Finally,
Mr. Black stated: “Yes, I need an American Sign Language interpreter.” Id.
On June 27, 2018, a letter was sent to Mr. Black confirming the July 12,
2018, meeting at the Rapid City SSA office. Id. ¶ 30. On July 10, 2018, a
letter was sent to Mr. Black rescheduling the meeting to August 14, 2018, at
1 p.m. to review Mr. Black’s disability claim. Id. ¶ 31.
SSA policy provides for a certified and qualified sign language interpreter
for an interview if the client schedules an appointment and requests an
interpreter in advance. Id. ¶ 40. A purchase request for a sign language

12

interpreter is completed and submitted for approval by the SSA Budget Officer.
Id.
On August 14, 2018, a certified and qualified American Sign Language
interpreter was retained and present at the Rapid City SSA office. Id. ¶ 32.
Mr. Black was observed outside the SSA office but he failed to attend the
meeting scheduled for that day. Id. ¶ 33. By a letter dated August 23, 2018,
Mr. Black was notified by SSA letter that his SSI benefits would cease on
September 1, 2018. Id. ¶ 34.
A hearing was scheduled by the ALJ for November 8, 2018. Id. ¶¶ 35 &
44. The notice of hearing stated: “Your request for hearing may be dismissed if
you do not attend the hearing and cannot give a good reason for not attending.
The time or place of the hearing will be changed if you have a good reason for
your request.” Id. On September 2, 2018, Mr. Black acknowledged receipt of
the notice of hearing. Id. ¶¶ 35 & 44. Mr. Black failed to appear at the
scheduled time and place for the hearing before the ALJ. Id. ¶ 36. Finding no
good cause for Mr. Black’s failure to appear, the ALJ dismissed the request for
hearing. Id.
On November 15, 2018, the SSA Office of Hearings Operations mailed a
copy of an order of dismissal and a notice of dismissal to Mr. Black. Id. On
April 2, 2019, the SSA Office of Appellate Operations mailed to Mr. Black a
notice of the appeals council’s action denying review of the ALJ’s decision. Id.

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¶ 37. All SSA notices were mailed to Mr. Black’s address of record as there is
no SSA policy requiring notices and letters be mailed via USPS certified mail.
Id. ¶¶ 38 & 43.
An Options Card for Deaf and Hard of Hearing Customers (“Options
Card”), measuring 11 inches by 17 inches, is displayed at all times at the
interview windows in the common area of the SSA’s Rapid City field office. Id.
¶ 39. The Options Card facilitates communication with deaf and hard-ofhearing clients, by asking the client to choose how “you want to communicate
with Social Security today” and provides options including a certified and
qualified sign language interpreter, handwritten notes, lip reading or speech
reading, the UbiDuo face-to-face communicator, or another way. Id. The
UbiDuo is a communication device which enables the deaf, hard of hearing,
and hearing to communicate instantly with each other face-to-face. Id. The
UbiDuo has a real time, simultaneous split screen communication display and
generates speech from typed text. Id.
Lyle Tolsma is a Task Force Officer with the South Dakota Cooperative
Disability Investigations Unit. Id. ¶ 13. Mr. Tolsma communicated verbally by
telephone with Mr. Black without difficulty or known use of special services.
Id.
Defendant Hector Urcelay is a SSI Claims Specialist at the Rapid City
SSA field office. Id. ¶ 12. Between October 2017 and November 2019, Mr.
Urcelay worked with Mr. Black. Id. Mr. Urcelay never observed Mr. Black use
sign language to communicate. Id. Mr. Urcelay communicated verbally by
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telephone with Mr. Black without any difficulty or known use of special
services. Id. Mr. Urcelay had no difficulty communicating verbally with Mr.
Black. Id. Mr. Black was never denied the services of a sign language
interpreter. (Docket 82 ¶ 41).
Mr. Black moved the court to take judicial notice that sign language is
his “primary source of communication.” (Docket 92 at p. 1). In support of the
motion, he makes a number of statements relating to his hearing impairment.
Id. at pp. 1-7. A number of those statements are merely argument and the
remaining statements are not made under oath and do not otherwise qualify
under Fed. R. Civ. P. 56(c)(4) (A declaration is required to state that it is “made
on personal knowledge, set out facts that would be admissible in evidence, and
show that the . . . declarant is competent to testify to the matters stated.”). See
also 28 U.S.C. § 1746.
Plaintiff’s own conclusions, without supporting evidence, are insufficient
to create a genuine issue of material fact. Anderson, 477 U.S. at 256; Thomas,
483 F. 3d at 527; Torgerson, 643 F. 3d at 1042. The court denies plaintiff’s
motion for judicial notice.
Plaintiff’s response to defendant’s motion for summary judgment did not
include a statement in opposition to defendant’s statement of material facts
supported by evidence contained in the record. (Docket 93). See D.S.D. Civ.
LR 56.1(B) (“A party opposing a motion for summary judgment must respond to
each numbered paragraph in the moving party’s statement of material facts
with a separately numbered response and appropriate citations to the record.”).
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Mr. Black objects that the declaration made by Mr. Urcelay was not
“notarized or . . . in the form of an affidavit.” (Docket 93 at p. 1) (referencing
Docket 87). He makes a similar objection to the declarations of Mr. Bowling
and Mr. Sidel. Id. (referencing Dockets 88 & 90).
Each of the declarations objected to by plaintiff contain the statement
that the witness “declare[d] under penalty of perjury that the foregoing is true
and correct to the best of my knowledge and belief.” (Dockets 87 at p. 5; 88 at
p. 2; and 90 at p. 1). This statement satisfies Rule 56(c)(4). Mr. Black’s
objections to the court’s consideration of the declarations are overruled.
In response to defendant’s interrogatories, Mr. Black stated he uses
hearing aids, lip reads and that his primary mode of communication is “visual,
pictures, pointing, written communication, sign language, gestures, texting,
facial expressions, & body language.” (Docket 98 ¶ 46). Regarding the sign
language system he uses, Mr. Black stated he could sign the alphabet but
refused to provide further details claiming an “invasion of privacy & form.” Id.
Mr. Black stated he learned sign language from “family, teachers, friends, &
internet,” but refused to state his proficiency objecting on the basis of “invasion
of privacy.” Id. When asked to identify people who knew him to communicate
using sign language, Mr. Black responded only “lay witness[es].” Id.
In an earlier order, the court reminded Mr. Black that he was required
“to comply with Rule 56 and the local rules.” (Docket 40 at p. 3). Plaintiff’s
“filings are replete with conclusory allegations” without “any concise and
specific statements of material facts admissible” under the Federal Rules of
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Evidence. Northwest Bank & Trust Co. v. First Illinois National Bank, 354 F.3d
721, 725 (8th Cir. 2003). Plaintiff’s failure to submit a responding statement of
disputed material facts and the vague answers he provided to defendant’s
interrogatories require the court to conclude defendant’s statement of material
facts are deemed admitted. D.S.D. Civ. 56.1(D).
The Rehabilitation Act states:
No otherwise qualified individual with a disability in the United
States . . . shall, solely by reason of . . . 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[.]
29 U.S.C. § 794(a). To establish a prima facie claim under the Rehabilitation
Act, a plaintiff must show that “(1) he is a qualified individual with a disability;
(2) he was denied the benefits of a program or activity of a public entity which
receives federal funds, and (3) he was discriminated against based on his
disability.” Gorman v. Bartch, 152 F.3d 907, 911 (8th Cir. 1998) (referencing
29 U.S.C. § 794(a); other citation omitted). The Rehabilitation Act does not
allow for individual liability. Landman v. Kaemingk, No. 4:18-CV-04175, 2020
WL 3608288, at *2 (D.S.D. July 2, 2020); Lundahl v. Gross, 5:18-CV-05090,
2020 WL 927650, at *8 (D.S.D. Feb. 26, 2020). “To meet the meaningful access
standard, public entities . . . ‘are not required to produce the identical result or
level of achievement for handicapped and nonhandicapped persons, but must
afford handicapped persons equal opportunity to . . . gain the same benefit.’ ”
Segal v. Metro. Council, 29 F. 4th 399, 404 (8th Cir. 2022).

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As a hearing-impaired individual, Mr. Black claims Mr. Urcelay changed
the dates of plaintiff’s appointments and refused to secure a sign language
interpreter for plaintiff in his contacts with SSA. (Docket 1 at pp. 4, 7 & 9).
Mr. Black asserts Mr. Urcelay inhibited plaintiff’s ability to get his social
security benefits restored because Mr. Urcelay “[r]efused to properly
communicate with my disability” and that this alleged discrimination was
“because of my disability.” Id. at pp. 4-5.
Plaintiff’s claims are not supported by the record. Mr. Black failed to
present any evidence he requested but was denied a sign language interpreter
at any scheduled SSA meeting or hearing. During briefing of the present
motions, Mr. Black asserted SSA refused him the option of using his own
interpreter. (Docket 93 at pp. 1-2). Yet, Mr. Black failed to present any
evidence as to the name or qualifications of his proposed personal American
Sign Language interpreter or when this individual was to assist Mr. Black
during a SSA meeting or hearing.
Mr. Black fails to cite any federal law or regulation which requires SSA to
communicate with its clients by certified mail or certified mail return receipt
requested. The undisputed evidence shows the SSA sent Mr. Black notice by
United States mail of every appointment and hearing related to his claim. Mr.
Black was provided adequate notice of each appointment, change of
appointment and administrative hearing associated with his disability claim.
Mr. Black “failed to show that [Mr. Urcelay] denied him meaningful
access to [SSA] services.” Gustafson v. Bi-State Development Agency of
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Missouri-Illinois Metropolitan District, 29 F. 4th 406, 412 (8th Cir. 2022).
Because Mr. Black “has not shown he was denied an opportunity to access the
same services as non-disabled [claimants],” the court must grant defendant’s
motion for summary judgment. Id.
ORDER
Based on the above analysis, it is
ORDERED that plaintiff’s motion for summary judgment (Docket 69) is
denied.
IT IS FURTHER ORDERED that defendant’s motion for summary
judgment (Docket 81) is granted.
IT IS FURTHER ORDERED that plaintiff’s complaint (Docket 1) is
dismissed with prejudice.
IT IS FURTHER ORDERED that plaintiff’s motion for judicial notice
(Docket 92) is denied.
IT IS FURTHER ORDERED that plaintiff’s motions (Dockets 71, 72, 73 &
103) are denied as moot.
IT IS FURTHER ORDERED that defendant’s motion (Docket 104) is
denied as moot.
Dated July 29, 2022.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE

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