ELLEN LIPTON HOLLANDER, District Judge.
In July 2009, Joette Paulone, plaintiff, sued the Board of County Commissioners of Frederick County (the "County"), and the State of Maryland (the "State"), defendants,
The parties have filed cross-motions for summary judgment, and have extensively briefed the issues. No hearing is necessary. See Local Rule 105.6. For the reasons that follow, the Court will grant the County's motion, and will grant in part and deny in part the summary judgment motions filed by plaintiff and the State.
At approximately 11:48 p.m. on July 31, 2008, City Officer Scott McGregor stopped plaintiff on suspicion of DWI. Affidavit of Scott McGregor at 1 ("McGregor Aff.") (ECF 60-1); see also Memorandum in Support of Plaintiff's Motion for Summary Judgment at 1 ("Pl. MSJ") (ECF 52-1); County's Memorandum in Support of Summary Judgment at 2-3 ("County MSJ") (ECF 51-1). After administering field sobriety tests to Paulone, McGregor arrested her and transported her to Frederick Police Headquarters. See McGregor Aff. at 2; Pl. MSJ at 2; County MSJ at 2-3. Then, at approximately 2:30 a.m., McGregor transported Paulone to the Frederick County Adult Detention Center (the "Detention Center" or "FCADC"), operated by the Frederick County Sheriff's Office. See McGregor Aff. at 2; Pl. MSJ at 2; County MSJ at 3.
Plaintiff was in custody at the Detention Center from approximately 2:30 a.m. until approximately 7:00 to 8:00 a.m. on August 1, 2008. The parties agree that an interpreter was not provided to plaintiff during her detention, and that any communication between plaintiff and Detention Center personnel took place by means of written notes.
In this case, the district court commissioners' office was located next to the Central Booking Unit at the Detention Center. County MSJ at 3. Riggin recounts in her affidavit that unsuccessful attempts were made to procure an American Sign Language ("ASL") interpreter for Paulone's initial appearance. See Affidavit of Maryanne Riggin ("Riggin Aff.") ¶¶ 3-4, Ex. 2 to Memorandum in Support of State of Maryland's Motion for Summary Judgment ("State MSJ") (ECF 53-3). In any event, the parties agree that plaintiff's initial appearance before Commissioner Riggin was not facilitated by use of an ASL interpreter, and that communication between Commissioner Riggin and plaintiff occurred by means of handwritten notes. Commissioner Riggin released plaintiff on her own recognizance at approximately 7:23 a.m., and plaintiff left the Detention Center by taxicab. See Pl. MSJ at 3; County MSJ at 5-6.
On October 7, 2008, plaintiff appeared with counsel in the District Court of Maryland for Frederick County. Pl. MSJ at 3; State of Maryland's Mem. in Support of Its Opp. to Pl. MSJ ("State Opp.") at 7. The hearing was facilitated by use of an ASL interpreter. State Opp. at 7. Plaintiff pleaded guilty to DWI, and was sentenced to probation before judgment, pursuant to Md.Code (2008 Repl. Vol., 2010 Supp.), § 6-220 of the Criminal Procedure Article.
Plaintiff was evaluated by Laura Dreany-Pyles, BSW, CAC-AD,
Plaintiff sought unsuccessfully to locate a course in the Frederick area with an interpreter. She tried to contact several course providers, who either did not call her back, did not accept her insurance, or would not provide an interpreter. Pl. MSJ at 4. On March 31, 2009, DDMP filed a violation of probation ("VOP") charge against plaintiff for failure to enroll in the alcohol education class. See Statement of Charges, Ex. 5A to Pl. MSJ (ECF 52-9).
Prior to the VOP hearing, plaintiff learned that Ms. Dreany-Pyles (of DASAM) could conduct the alcohol education course in sign language, via videophone, and she enrolled in the class. Pl. MSJ at 5. At the VOP hearing on June 2, 2009, the court granted DDMP's request to dismiss the VOP charge and terminate supervision. See Tr. of VOP Hearing, Ex. 3 to State Opp. (ECF 62-4).
As noted, plaintiff filed suit in July 2009. In September 2009, the State filed a Motion to Dismiss or, in the Alternative, for Summary Judgment ("State's Motion") (ECF 22). In a reported Memorandum Opinion and Order entered February 17, 2010 (ECF 33 & 34), Judge Quarles granted the State's Motion, in part, and denied it, in part. Paulone v. City of Frederick, 718 F.Supp.2d 626 (D.Md.2010).
As to plaintiff's ADA claim against the State (Count V), Judge Quarles reviewed plaintiff's contentions regarding the discrete events alleged in the Complaint. First, with respect to plaintiff's post-arrest detention and processing, Judge Quarles
Judge Quarles also denied the State's Motion with respect to plaintiff's negligent training and supervision claim (Count IX), reasoning that Paulone had complied with the notice requirements of the Maryland Tort Claims Act ("MTCA"), codified at Md.Code (2009 Repl. Vol., 2010 Supp.), § 12-106(b) of the State Government Article ("S.G."), and had adequately stated a claim for negligence. Id. at 636-38. However, Judge Quarles dismissed plaintiff's Rehabilitation Act claim (Count VI), on the ground that the Rehabilitation Act applies only to a "program or activity" that receives "federal financial assistance." Id. at 634. According to Judge Quarles, "[b]ecause Paulone failed to allege that any program or activity implicated by the complaint received federal funds, her Rehabilitation Act claims against Maryland must be dismissed." Id.
On March 3, 2010, the State filed a Motion for Reconsideration (ECF 37). As to plaintiff's negligent training and supervision claim, the State argued that it was immune from suit under the Eleventh Amendment to the United States Constitution. Although plaintiff had complied with the prerequisites of suit under the MTCA, the State contended that the MTCA's waiver of sovereign immunity applies only to suits brought in state court, not federal court. With regard to plaintiff's ADA claim concerning the alcohol education classes, the State submitted a listing of the available classes, showing one that was taught in sign language, offered by DASAM.
Judge Quarles issued an unreported Memorandum and Order (ECF 46 & 47) on July 26, 2010, 2010 WL 3000989, granting in part and denying in part the State's Motion for Reconsideration. Judge Quarles dismissed plaintiff's negligence claim against the State (Count IX) on the ground of sovereign immunity. However, he declined to reconsider his ruling regarding the alcohol education classes, stating that the "Court does not reconsider its previous decisions based on evidence that was available but not provided with the original motion." Mem. at 8 (ECF 46). He added: "[A]lthough this evidence
Therefore, Counts I, II, VI, VII, VIII (with respect to Sheriff Jenkins only), and IX have been dismissed, and plaintiff's ADA claims against the State (Count V) have been dismissed in part. The following claims remain: (1) the balance of plaintiff's ADA claims against the State (Count V), which concern her post-arrest detention and processing, including her initial appearance before District Court Commissioner Riggin, and her attendance at the MADD victim impact panel and alcohol education classes; and (2) plaintiff's claims against the County, alleging violations of the ADA and Rehabilitation Act, as well as negligent training and supervision (Counts III, IV, and VIII), all concerning her post-arrest detention at the FCADC.
Rule 56 of the Federal Rules of Civil Procedure governs motions for summary judgment.
When, as here, the parties have filed cross-motions for summary judgment, the court must consider "each motion separately on its own merits `to determine whether either of the parties deserves judgment as a matter of law.'" Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (citation omitted), cert. denied, 540 U.S. 822, 124 S.Ct. 135, 157 L.Ed.2d 41 (2003). "Both motions must be denied if the court finds that there is a genuine issue of material fact. But if there is no genuine issue and one or the other party is entitled to prevail as a matter of law, the
The ADA was enacted in 1990 "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities," 42 U.S.C. § 12101(b)(1), and "to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities." Id. § 12101(b)(2). Title II of the ADA, which is at issue here, prohibits public entities, including "any State or local government" and "any department, agency, special purpose district, or other instrumentality of a State or States or local government," id. § 12131(1), from discriminating "by reason of" disability against a "qualified individual with a disability." Id. § 12132.
For purposes of Title II, a "qualified individual with a disability" is defined as an individual with a disability "who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." 42 U.S.C. § 12131(2). There is no dispute that plaintiff is a qualified individual with a disability, and that defendants are public entities subject to Title II of the ADA.
The Rehabilitation Act was enacted some seventeen years before the ADA. Title II of the ADA and § 504 of the Rehabilitation Act are closely related, and to "the extent possible, [courts] construe similar provisions in the two statutes consistently." Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205, 214 (4th Cir. 2002). See Rogers v. Dept. of Health & Environmental Control, 174 F.3d 431, 433-34 (4th Cir.1999) (stating that courts may apply Rehabilitation Act precedent in interpreting the ADA, and vice versa). Indeed, the statutes "share the same definitions of disability," id. at 433, and Title II of the ADA explicitly provides that "[t]he remedies, procedures, and rights" provided under § 504 of the Rehabilitation Act "shall be the remedies, procedures, and rights [that Title II of the ADA] provides to any person alleging discrimination on the basis of disability...." 42 U.S.C. § 12133.
Despite the general congruence of Title II of the ADA and § 504 of the Rehabilitation Act, there are at least two statutory differences. First, a plaintiff must show a different "causative link between discrimination and adverse action" under the two statutes. Baird ex rel. Baird v. Rose, 192 F.3d 462, 469 (4th Cir.1999). Under Title II, a plaintiff need only prove discrimination "by reason of" disability. 42 U.S.C. § 12132. But, a successful Rehabilitation Act claim requires a showing of discrimination "solely by reason of" disability. 29
The second significant difference between Title II and the Rehabilitation Act is that, as noted, Title II applies to any "public entity," while § 504 of the Rehabilitation Act applies only to federal agencies or to "any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). Thus, to show a violation of the Rehabilitation Act by a state, local, or private entity, a plaintiff must demonstrate that the "program or activity" at issue receives federal funding.
The ADA and the Rehabilitation Act do not expressly provide for a private right of action. But, it is well established that private parties may sue to enforce Title II of the ADA and the Rehabilitation Act. Barnes v. Gorman, 536 U.S. 181, 184-85, 122 S.Ct. 2097, 153 L.Ed.2d 230 (2002); Pandazides v. Virginia Bd. of Educ., 13 F.3d 823, 828 (4th Cir.1994); Davis v. Southeastern Community Coll., 574 F.2d 1158, 1159 (4th Cir.1978), rev'd on other grounds, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979). Cf. Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983) (establishing that Title VI of the Civil Rights Act of 1964 supports a private right of action).
To prevail under an ADA Title II or Rehabilitation Act § 504 claim, "a plaintiff must show that she was excluded from participation in, or denied the benefits of, a program or service offered by a public entity, or subjected to discrimination by that entity." Constantine, 411 F.3d at 499 (emphasis omitted). To that end, the Fourth Circuit has recognized "three distinct grounds for relief: (1) intentional discrimination or disparate treatment; (2) disparate impact; and (3) failure to make reasonable accommodations." Helping Hand, 515 F.3d at 362.
Notably, although the Fourth Circuit has held that Title II and the Rehabilitation Act require public entities to make reasonable accommodations for persons with disabilities, see id.; see also Waller ex rel. Estate of Hunt v. City of Danville, 556 F.3d 171, 174-75 (4th Cir.2009); Constantine, 411 F.3d at 488, the phrase "reasonable accommodation" does not appear in the text of either statute.
"Auxiliary aids or services" are defined by both statute and regulation. See 42 U.S.C. § 12103(1); 28 C.F.R. § 35.104. The regulation, which is more exhaustive, provides:
28 C.F.R. § 35.104 (italics added to show language appearing in the regulation but not in the statute). Notably, "[i]n determining what type of auxiliary aid and service is necessary, a public entity shall give primary consideration to the requests of the individual with disabilities." Id. § 35.160(b)(2).
The regulations interpreting the Rehabilitation Act are also relevant. They require that recipients of federal funding "shall insure that communications with their applicants, employees and beneficiaries are effectively conveyed to those having impaired vision and hearing." Id. § 42.503(e). Moreover, a "recipient that employs fifteen or more persons shall provide appropriate auxiliary aids to qualified handicapped persons with impaired sensory, manual, or speaking skills where a refusal to make such provision would discriminatorily impair or exclude the participation of such persons in a program or activities receiving Federal financial assistance." Id. § 42.503(f).
Both Title II of the ADA and § 504 of the Rehabilitation Act contemplate respondeat superior liability. The Fourth Circuit has said: "Under the ADA and similar statutes, liability may be imposed on a principal for the statutory violations of its agent," rather than only for an official "policy of discrimination." Rosen v. Montgomery County, 121 F.3d 154, 157 n. 3 (4th Cir.1997) (emphasis in original). See also T.W. ex rel. Wilson v. School Bd. of Seminole County, 610 F.3d 588, 604 (11th Cir.2010) (stating that the ADA "permits an employer to be held liable for the actions of its agents," and assuming, arguendo, that the Rehabilitation Act also
A successful plaintiff in a suit under Title II of the ADA or § 504 of the Rehabilitation Act is generally entitled to a "full panoply" of legal and equitable remedies. Pandazides, supra, 13 F.3d at 829-32. There are some limits to the availability of relief, however. Punitive damages "may not be awarded in suits brought under [Title II] of the ADA and § 504 of the Rehabilitation Act." Barnes, supra, 536 U.S. at 189, 122 S.Ct. 2097. Moreover, compensatory damages are available only upon proof of intentional discrimination or disparate treatment, rather than mere disparate impact. Pandazides, 13 F.3d at 829-30 & n. 9. However, "intentional discrimination" and "disparate treatment" in this context are "synonymous," id. at 830 n. 9; a plaintiff need not show "discriminatory animus" to prevail on a claim for damages under Title II of the ADA or § 504 of the Rehabilitation Act. Id.
It does not appear that the Fourth Circuit has specifically addressed whether compensatory damages are available for failure to provide a reasonable accommodation under Title II of the ADA or § 504 of the Rehabilitation Act. However, the majority of circuits that have resolved the question have held that damages may be awarded if a public entity "intentionally or with deliberate indifference fails to provide meaningful access or reasonable accommodation to disabled persons." Mark H. v. Lemahieu, 513 F.3d 922, 938 (9th Cir. 2008). See Barber ex rel. Barber v. Colorado, 562 F.3d 1222, 1229 (10th Cir.2009) (applying "deliberate indifference" standard to reasonable accommodation claim under ADA and § 504); Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 275 (2d Cir.2009) (applying "deliberate indifference" standard to compensatory damages claim based on allegation that federally-funded hospital violated § 504 of the Rehabilitation Act in failing to provide ASL interpreter for deaf patient). See also M.P. ex rel. K. v. Indep. School Dist. No. 721, 439 F.3d 865, 867 (8th Cir.2006) (applying standard of "bad faith or gross misjudgment" to determine eligibility for compensatory damages under § 504 for failure to reasonably accommodate disability). But see Delano-Pyle, supra, 302 F.3d at 575 ("There is no `deliberate indifference' standard applicable to public entities for purposes of the ADA or the [Rehabilitation Act]" in the Fifth Circuit.); T.W., supra, 610 F.3d at 604 (noting that the Eleventh Circuit "has not decided whether to evaluate claims of intentional discrimination under section 504 under a standard of deliberate indifference or a more stringent standard of discriminatory animus.").
Case law in this district endorses the deliberate indifference standard. Writing for this Court in Proctor v. Prince George's Hospital Center, 32 F.Supp.2d 820 (D.Md.1998), Judge Chasanow held that compensatory damages were available to a deaf plaintiff who brought Title II and § 504 claims against a hospital for its failure to provide ASL interpreters. According to Proctor, even if the violations resulted from mere "`thoughtlessness and indifference' rather than because of any intent to deny Plaintiff's rights," the plaintiff
Proctor, 32 F.Supp.2d at 829 (quoting Bartlett).
The Proctor Court endorsed the proposition that "the level of proof necessary for finding intentional discrimination under [the] Rehabilitation Act means a deliberate indifference to a strong likelihood that a violation of federal rights would result." Id. at 829 n. 6 (citation omitted). As Judge Chasanow observed, it is "not enough merely to believe that one's actions do not constitute a violation of the law if such a belief represents a `miscalculation.'" Id. at 829 (citation omitted). Where the hospital was "on notice that its failure to provide an accommodation [might] violate the Rehabilitation Act and intentionally opt[ed] to provide a lesser accommodation" by relying "on methods of communication other than a sign language interpreter on numerous occasions," the hospital was liable for compensatory damages. Id.
In this case, Paulone's remaining claims pertain to four discrete events: (1) her detention at the Frederick County Adult Detention Center; (2) her initial appearance before Commissioner Riggin; (3) her mandatory attendance at the MADD victim impact panel; and (4) her attempts to enroll in a compulsory alcohol education class. Before addressing each claim, there are two preliminary matters: whether the State or the County is the proper defendant with respect to plaintiff's detention center claims; and the continuing vitality of Rosen v. Montgomery County, supra, 121 F.3d 154 (4th Cir.1997), a case that, due to its factual similarity to the case at bar, is relevant to virtually all of plaintiff's claims.
The County's banner argument is that the State, and not the County, is liable for any violation of plaintiff's rights by Sheriff's Office personnel managing the Frederick County Adult Detention Center. The State agrees with the County that the State is the proper defendant. However, it asserts that, despite the State's status as the proper nominal defendant, under Maryland law the County would be "responsible for paying any judgment against the State related to the Sheriff's performance of detention center functions." State MSJ at 5 n. 4. In contrast, plaintiff contends that the County is the proper defendant (but she notes that, if she is wrong, the State is also a party to the case). Mem. in
Under Maryland's Constitution, county sheriffs are constitutional officers. See Md. Const., Art. 4, § 44. It is well settled under Maryland law that, as a general rule, county sheriffs and their deputies are "officials and/or employees of the State of Maryland," rather than their county. Rucker v. Harford County, 316 Md. 275, 281, 558 A.2d 399, 402 (1989). However, the Maryland Court of Appeals has allowed that, "for some purposes and in some contexts, a sheriff may ... be treated as a local government employee," such as for issues involving "local funding of sheriff's offices" or a sheriff's entitlement to local government employee benefits. Id. at 289, 558 A.2d at 406.
For purposes of civil liability, Maryland courts ordinarily treat sheriffs as state officials. See, e.g., Barbre v. Pope, 402 Md. 157, 173, 935 A.2d 699, 709 (2007); Lee v. Cline, 384 Md. 245, 265-66, 863 A.2d 297, 309 (2004); Wolfe v. Anne Arundel County, 374 Md. 20, 33-34 & n. 6, 821 A.2d 52, 60 & n. 6 (2003); Prince George's County v. Aluisi, 354 Md. 422, 434, 731 A.2d 888, 895 (1999); Ritchie v. Donnelly, 324 Md. 344, 357, 597 A.2d 432, 438 (1991); Boyer v. State, 323 Md. 558, 572-73, 594 A.2d 121, 128 (1991); Penhollow v. Bd. of Comm'rs for Cecil County, 116 Md.App. 265, 296, 695 A.2d 1268, 1284-85 (1997); State v. Card, 104 Md.App. 439, 441-47, 656 A.2d 400, 401-04, cert. denied, 339 Md. 643, 664 A.2d 886 (1995). Moreover, this Court has consistently taken the view that Maryland sheriffs are State, not county, actors. See, e.g., Rossignol v. Voorhaar, 321 F.Supp.2d 642, 649-51 (D.Md.2004); Willey v. Ward, 197 F.Supp.2d 384, 387-88 (D.Md.2002); see also Lindsey v. Jenkins, Civ. No. RDB-10-1030, 2011 WL 453475, at *3 (D.Md. Feb. 3, 2011); Jiggets v. Forever 21, Civ. No. AW-08-1473, 2010 WL 5148429, at *2 (D.Md. Dec. 13, 2010); D'Alessandro v. Montgomery County, Civ. No. PJM-08-2841, 2009 WL 2596479, at *2 (D.Md. Aug. 14, 2009); Hayat v. Fairely, Civ. No. WMN-08-3029, 2009 WL 2426011, at *10 (D.Md. Aug. 5, 2009).
In Dotson v. Chester, 937 F.2d 920 (4th Cir.1991), however, the Fourth Circuit upheld liability of a Maryland county for a judgment against a sheriff. Dotson involved an action brought under 42 U.S.C. § 1983 by inmates regarding conditions of confinement at the county jail in Dorchester County, Maryland (which, like Frederick County here, is subject to the county commissioner form of government). Id. at 921. The suit was resolved by a settlement agreement that, among other provisions, allocated the legal fees and costs incurred by the inmates between the county commissioners of Dorchester County and the county's sheriff. Id. at 922. After the sheriff failed to pay his share of the judgment, the inmates sought to garnish the county's bank account to satisfy the sheriff's portion of the judgment. Id. This Court ruled that the county was liable for the sheriff's portion, as well as its own, because the sheriff was "`a policymaker for the county when operating the Dorchester County Jail.'" Id. (quoting district court).
On appeal, the Fourth Circuit observed that, under the Supreme Court's decision in Monell v. Dept. of Social Services of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), counties (unlike states) can be liable under § 1983, but only for violations that "bear some relation to the county's `policy or custom.'" Dotson, 937 F.2d at 924 (quoting Monell, 436
The Dotson Court then embarked on a lengthy survey of Maryland case law. See Dotson, 937 F.2d at 925-32. Distinguishing Rucker and other "Maryland cases discussing the employment status of the sheriff," the Court reasoned that Rucker "does not compel the conclusion that the Sheriff, when managing the County Jail, is a state policymaker." Id. at 926. The Court said: "The Sheriff's activities which we investigate — operating the County Jail which houses county prisoners, pursuant to county regulations, and funded by the County — differ from `the statewide nature' of the Sheriff's duties involved in Rucker." Id. at 927 (quoting Rucker, 316 Md. at 287-88, 558 A.2d at 405). The Court also recognized that "although the Sheriff ... now has custody of the County Jail, the County Jail remains a county institution and the County merely has placed final policymaking authority in the Sheriff." Dotson, 937 F.2d at 928. It added: "Indeed, from the day the County built the County Jail, the County has been responsible for its conditions and operation." Id.
Additionally, the Dotson Court observed that, in the wake of Rucker, Maryland's General Assembly enacted a statute, codified at Md.Code (2009 Repl. Vol., 2010 Supp.), § 9-108 of the State Finance & Procurement Article ("S.F.P."), which provides that Maryland's counties must either maintain insurance to provide "coverage and defense" of certain tort claims against sheriffs and their deputies or reimburse the State for the cost of the claims. See Dotson, 937 F.2d at 927. The statute specifically requires the counties to provide coverage for claims arising from "activities relating to performing law enforcement functions or detention center functions." S.F.P. § 9-108(a)(6). The State has cited S.F.P. § 9-108 for the proposition that, although it is the proper nominal defendant, the County is responsible for payment of any monetary judgment awarded to Paulone. See also S.G. §§ 12-405 & 12-501 (specifying procedure for State payment of judgments and settlements against sheriffs concerning "law enforcement functions or detention center functions" from county funds).
Although plaintiff does not cite Dotson, she argues that the County is liable for ADA violations at the detention center because "the obligation imposed by Title II of the ADA to ensure effective communication is not a law enforcement issue." Pl. Opp. to County MSJ at 6 (emphasis omitted). She contends that ADA compliance "is an obligation of all departments of government, not only law enforcement, just like bookkeeping standards or facility maintenance." Id. (emphasis in original).
Second, and perhaps more important, Dotson was a § 1983 case, while this case arises under the ADA and the Rehabilitation Act. There "is no respondeat superior liability under § 1983." Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir.), cert. denied, 543 U.S. 813, 125 S.Ct. 49, 68, 160 L.Ed.2d 18 (2004). A local government entity can only be liable under § 1983 for a violation of federal rights by its employees or agents if the violation arises from a policy of the entity. Therefore, the task of the appellate court in Dotson was to determine whether, under the Supreme Court's Monell doctrine, the county had vested with the sheriff the "final policymaking authority" regarding the county jail. See Dotson, 937 F.2d at 924.
In contrast, public entities are liable under principles of respondeat superior for their employees' violations of the ADA and Rehabilitation Act. Rosen, supra, 121 F.3d at 157 n. 3. The Maryland Court of Appeals has made clear that sheriffs and their deputies are employees of the State, and that "counties and municipalities in Maryland are generally not liable under the doctrine of respondeat superior for the tortious acts of State officials or State employees acting in the scope of their employment." Rucker, 316 Md. at 292, 558 A.2d at 407. Moreover, Maryland's high court has analyzed S.F.P. § 9-108 and its related statutory provisions, which impose upon counties the ultimate responsibility to pay judgments based on sheriffs' management of county detention centers, and has held that "[t]hese provisions regarding the payment of judgments... do not authorize tort actions against counties based on the negligence of State personnel acting within the scope of employment." Boyer, supra, 323 Md. at 573 n. 10, 594 A.2d at 128 n. 10. Accordingly, the "final policymaking authority" analysis applied in Dotson under § 1983 is inapt in the ADA and Rehabilitation Act context. See Delano-Pyle, supra, 302 F.3d at 575.
For the foregoing reasons, I conclude that, because the Sheriff and his deputies who operate the detention center are State employees, the State is the proper defendant for plaintiff's claims regarding her treatment at the detention center.
Additionally, the County is entitled to summary judgment as to plaintiff's claim for negligent training and supervision (Count VIII). Under Maryland law, counties enjoy governmental immunity from tort liability with respect to "nonconstitutional torts based on activity categorized as `governmental.'" Housing Auth. of Balt. City v. Bennett, 359 Md. 356, 361, 754 A.2d 367, 370 (2000); see generally id. at 358-61, 754 A.2d at 368-70 (discussing history of governmental immunity for local governments under Maryland law). Maryland law does not waive the counties' governmental immunity from tort liability; rather, it requires each county to provide limited indemnity to county employees for non-malicious tortious acts or omissions committed in the employees' scope of employment. See C.J. §§ 5-301 et seq. (Maryland Local Government Tort Claims Act); see, e.g., Livesay v. Baltimore County, 384 Md. 1, 20, 862 A.2d 33, 43 (2004). See also Martino v. Bell, 40 F.Supp.2d 719, 722 (D.Md.1999); Dawson v. Prince George's County, 896 F.Supp. 537, 539 (D.Md.1995). Thus, any state law tort claim would have to proceed against individual County employees, not the County itself. See Livesay, 384 Md. at 20, 862 A.2d at 43. Yet, plaintiff has not named any individual County employee as a defendant.
Moreover, even if the County were not immune, the Fourth Circuit has yet to recognize a cause of action for failure to train under the ADA. Rather, it has opined that, if such liability exists, at a minimum, "the failure to train must have caused some violation" of the ADA. Waller ex rel. Estate of Hunt v. City of Danville, 556 F.3d 171, 177 n. 3 (4th Cir.2009). Because the State, and not the County, is liable for any ADA violation by the Sheriff's personnel, it follows that the State, and not the County, would be liable for any failure to train.
The Court next considers Rosen v. Montgomery County, supra, 121 F.3d 154 (4th Cir.1997), a case that is factually similar to this case in many respects, and on which defendants rely heavily. Rosen involved ADA and Rehabilitation Act claims arising out of the DWI arrest of a deaf motorist. After the motorist failed field sobriety tests and a breath test, he was arrested and taken to the police station, where he failed a chemical test. Id. at 156. Rosen claimed "that the police made no attempt to communicate in writing and that they ignored his requests for an interpreter and for a TTY telephone so he
In the Rosen Court's view, the "most obvious problem" with Rosen's claim was that his arrest and the ensuing events were not covered by the ADA and Rehabilitation Act at all. Id. at 157. The Court explained: "Rosen clearly has a disability, but calling a drunk driving arrest a `program or activity' of the County, the `essential eligibility requirements' of which (in this case) are weaving in traffic and being intoxicated, strikes us as a stretch of the statutory language and of the underlying legislative intent." Id. (quoting ADA Title II). In support of that proposition, the Court relied on its earlier case, Torcasio v. Murray, 57 F.3d 1340 (4th Cir.1995), cert. denied, 516 U.S. 1071, 116 S.Ct. 772, 133 L.Ed.2d 724 (1996), in which the Fourth Circuit held that Title II of the ADA and § 504 of the Rehabilitation Act did not apply to state prisons, because "[t]he terms `eligible' and `participate' imply voluntariness on the part of an applicant who seeks a benefit from the state; they do not bring to mind prisoners who are being held against their will." Id. at 1347 (quoting ADA Title II); see Rosen, 121 F.3d at 157 (quoting Torcasio).
At first blush, Rosen would appear to be dispositive of most, if not all, of plaintiff's claims. However, Rosen's continued vitality is uncertain; one year after that decision, the Supreme Court decided Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998), in which it invalidated the reasoning of both Rosen and Torcasio.
In Yeskey, a unanimous Supreme Court held that "the plain text of Title II of the ADA unambiguously extends to state prison inmates." Id. at 213, 118 S.Ct. 1952. The Court expressly rejected the argument that "the words `eligibility' and `participation' imply voluntariness on the part of an applicant who seeks a benefit from the State, and thus do not connote prisoners who are being held against their will." Id. at 211, 118 S.Ct. 1952. The Court explained that "the words do not connote voluntariness," because "[w]hile `eligible' individuals `participate' voluntarily in many programs, services, and activities, there are others for which they are `eligible' in which `participation' is mandatory." Id. As an example, the Court observed: "A drug addict convicted of drug possession... might, as part of his sentence, be required to `participate' in a drug treatment
To my knowledge, the Fourth Circuit has never cited Rosen in a subsequent decision. Indeed, in Waller, supra, 556 F.3d 171, the Fourth Circuit analyzed an ADA claim regarding alleged failure to reasonably accommodate a deaf suspect, without mentioning Rosen. The Waller Court observed that "courts have recognized" reasonable accommodation claims under Title II of the ADA in "the context of arrests," id. at 174, and "assume[d]" the applicability of the reasonable accommodation requirement to arrests. Id. at 175. But, the Court stopped short of expressly confirming a reasonable accommodation requirement in the arrest context, concluding that any duty to reasonably accommodate was met in the case before it. Id. at 176.
Rosen has also been criticized by other courts. See, e.g., Thompson v. Davis, 295 F.3d 890, 897 (9th Cir.2002) (Rosen's "reasoning has now been discredited by the Supreme Court"), cert. denied, 538 U.S. 921, 123 S.Ct. 1570, 155 L.Ed.2d 311 (2003); Calloway v. Boro of Glassboro Dept. of Police, 89 F.Supp.2d 543, 556 (D.N.J.2000) (Rosen's reasoning is "now discredited"). It is also noteworthy that, after Rosen, the Fourth Circuit joined other federal circuits in holding that, under the plain language of "the disability discrimination statutes, a plaintiff must show that she was excluded from participation in, or denied the benefits of, a program or service offered by a public entity, or subjected to discrimination by that entity." Constantine, supra, 411 F.3d at 499 (emphasis in original); see, e.g., Bircoll v. Miami-Dade County, 480 F.3d 1072, 1084-85 (11th Cir.2007) ("[T]he final clause of [42 U.S.C.] § 12132 protects qualified individuals with a disability from being `subjected to discrimination by any such entity,' and is not tied directly to the `services, programs, or activities' of the public entity.... [It] `is a catch-all phrase that prohibits all discrimination by a public entity, regardless of the context.'") (internal citations and some internal quote marks omitted); Barden v. City of Sacramento, 292 F.3d 1073, 1076 (9th Cir.2002) ("Rather than determining whether each function of a city can be characterized as a service, program, or activity for purposes of Title II, ... we have construed `the ADA's broad language [as] bring[ing] within its scope "anything a public entity does."'") (citations omitted), cert. denied, 539 U.S. 958, 123 S.Ct. 2639, 156 L.Ed.2d 656 (2003); Regional Economic Cmty. Action Program v. City of Middletown, 294 F.3d 35, 45 (2d Cir.) ("The ADA and the Rehabilitation Act ... prohibit all discrimination based on disability by public entities."),
I recognize that Rosen has not been expressly overruled and that "arguing that a precedent has been overruled through a court's silence is a disfavored enterprise within this circuit." In re Morrissey, 168 F.3d 134, 139-40 (4th Cir.), cert. denied, 527 U.S. 1036, 119 S.Ct. 2394, 144 L.Ed.2d 794 (1999). Nevertheless, the weight of subsequent authority, in the Supreme Court as well the Fourth Circuit and other courts, calls into question the reliance on Rosen for the broad proposition that the ADA and the Rehabilitation Act are inapplicable to arrests. I will consider the applicability of Rosen's other holdings and dicta in the context of the parties' particular claims, to which I now turn.
As noted, the parties dispute the facts with respect to Paulone's detention. Therefore, the Court must identify the parties' factual disagreements and determine whether they are material, which would necessarily prevent entry of summary judgment.
Plaintiff was held at the detention center in the early morning hours of August 1, 2008, from approximately 2:30 a.m. until her appearance before the district court commissioner at around 7:00 a.m. Defendants
Corporal Cave was on duty at the detention center from 8:00 p.m. on July 31, 2008, until 8:00 a.m. on August 1, 2008. Cave Aff. ¶ 3. He "assisted in the processing" of Ms. Paulone, "who was booked into the ADC facility at 2:53 a.m. on August 1, 2008." Id. ¶ 4. Cave claims that he "immediately acknowledged that Ms. Paulone was hearing-impaired and informed the District Court Commissioner of that circumstance once processing was completed." Id. ¶ 5. He also claims that he "communicated with Ms. Paulone by way of written notes of [sic] numerous occasions
Cave also states that he "retrieved an Ultratec Minicom IV T.T.Y. machine from the shift supervisor's office and hooked it up on a staff line in the Central Booking Unit ... for [plaintiff's] use." Id. ¶ 7. He claims that he "observed Ms. Paulone use the T.T.Y. machine on at least three separate occasions during her detention," but that "Ms. Paulone informed [him] by written note that her roommate, who she was attempting to contact via the T.T.Y., was also deaf, apparently sleeping and unaware that she was calling." Id. ¶ 8-9. Cave asserts: "The T.T.Y. device was working, and I do not recall Ms. Paulone complaining that it was malfunctioning in any way." Id. ¶ 10.
Defendants also submitted an affidavit of Lieutenant Timothy Selin, who is the "Commander of Technology" at the FCADC. Affidavit of Timothy Selin ("Selin Aff.") ¶ 2, Ex. F to County MSJ (ECF 51-19). Selin states that since "early July 2008" (i.e., less than a month before plaintiff's arrest and detention), the Central Booking Unit at the detention center maintained three TTY devices "for the convenience of the hearing-impaired." Id. ¶ 3. Selin avers that he has "personally operated T.T.Y. devices on several occasions to assist deaf or hearing-impaired detainees," although he does not allege that he was present at the detention center on the night of Paulone's detention. Id. ¶ 4. He claims that the TTYs used at the detention center "become[ ] operable as soon as [they are] plugged into an electrical socket," and do not "require the use of batteries." Id. ¶ 6.
As an attachment to Selin's affidavit, defendants submitted a log of calls to and from the telephone extension to which the TTY was connected on August 1, 2008. Ex. F2 to County MSJ (ECF 51-21). The log shows four outgoing calls to the phone number for Paulone and her housemate, Virginia Borggaard (who is also deaf), at 4:37 a.m., 4:44 a.m., 6:59 a.m., and 7:02 a.m. The duration of each call was less than a minute (the first call was half a minute, the latter three were each ninetenths of a minute).
As another attachment to Selin's affidavit, the defendants submitted the manual for the Ultratec Minicom IV, the particular model of TTY used at the detention center. See Ultratec Manual, Ex. F1 to County MSJ (ECF 51-20). Defendants note that the manual does not indicate that the TTY's batteries need to be charged before the TTY can be used with AC power from a wall outlet. Indeed, they point out that the manual states that the "Minicom IV uses batteries when you unplug the AC adapter or the power fails," id. at 16 (emphasis added), and also instructs: "All you need to do to set up the Minicom IV is plug it in!" Id. at 6.
Plaintiff's version of events is significantly different. According to Paulone, she was placed in a cell upon her arrival at the detention center, and "it took hours" until she was able to get the attention of detention center officers, and for them give her a piece of paper, such that she was able to ask to use a TTY. Paulone 7/9 Dep. at 50. Paulone claims, id. at 58:
Paulone maintains: "I didn't get that piece of paper until several hours after I was brought in," id. at 98, and "after I had made those requests, then they took that paper. They didn't leave it with me...." Id. at 58. Paulone's written communication was also hindered by the fact that she required reading glasses, which were in her purse when she was arrested. Id. at 36-37. They were not returned to her until she was released from the detention center after her appearance before the district court commissioner. Id.
With respect to the TTY, Paulone recalls: "[When] they finally opened up the cell ... we went looking for a TTY." Id. at 50. She states: "There wasn't one set up anywhere in the station but one of the officers apparently finally remembered that it was in a drawer somewhere .... It was still in the box. But we weren't able to get it set up so that it would work." Id.
According to Paulone, "typically when a TTY hasn't been used before it requires up to eight hours of being plugged in to actually
Paulone claims that she "came back to the TTY at least three times to attempt the call because they had unplugged it and so I plugged it back in to get more charge in the TTY but ... it was during a short amount of time." Paulone 7/9 Dep. at 63. It appeared to Paulone that the TTY "still didn't have enough juice in the battery." Id. at 66. She believes that Borggaard "received the call but not ... my responses or that there wasn't enough power for me to see that she was responding ... and then be able to respond myself." Id. at 63. Paulone denies Cave's assertion that she wrote him a note suggesting that Borggaard was likely asleep. Id. at 60.
In Borggaard's affidavit, submitted by Paulone, Borggaard asserts that she was awakened at around 4:00 a.m. on August 1, 2008, by a "house light alerting system" that sends "a signal to all lamps when the phone or doorbell ring." Affidavit of Virginia Borggaard ("Borggaard Aff.") at 1, Ex. 7 to Pl. MSJ (ECF 52-11). The bedroom lamp alerted Borggaard to an incoming call, which Borggaard attempted to answer via her TTY. Id. Borggaard recounts, id.:
Borggaard provided plaintiff with her "TTY tape," which is a log of activity on Borggaard's TTY, similar in appearance to an adding machine tape. See TTY Tape, Ex. N to Mem. in Opp. to Pl. Mot. for Summ. J. ("County Opp.") (ECF 61-2). It shows three successive calls, dated August 2, 2008,
It is also pertinent that, as the parties agree, the detention center is subject to a contract between the County and Maryland Interpreting Services, Inc. (d/b/a "WeInterpret") for the provision of ASL interpreting services. See "County of Frederick Contract Services Agreement for Interpreting Services for the Deaf and Hard of Hearing" ("Contract"), Ex. G to County MSJ (ECF 51-22). Under the Contract, WeInterpret provides ASL interpreters in a variety of circumstances, including: "Incidents handled by the Sheriff's Office, including situations involving a witness to an incident or a potential suspect of a crime"; "Emergency situations"; "Citizen communication with County departments and agencies"; and "Citizen participation in County programs and services." Contract, Exhibit A, § 8.1. The Contract anticipates availability of WeInterpret on a "[t]wenty-four (24) hour seven (7) days per week" basis, id. § 8.7, and provides that the "request for services could be at any time of the day or night and could occur on any day of the week." Id. § 8.8. The contract sets a premium rate for interpreting services provided "[a]t site immediately, no more than 1 hour from request," of $175 per hour, with a two-hour minimum. Contract, Exhibit C, Items # 2-3.
Moreover, the Sheriff's Office has a "General Order" dated May 1, 2006, setting Sheriff's Office policy for "Communicating with Deaf or Hearing Impaired Persons." Ex. L to County MSJ (ECF 51-27). The General Order recognizes that the "Sheriff's Office has, and will comply with, specific legal obligations under the Americans with Disabilities Act and the Rehabilitation Act." Id. at 1. Moreover, it sets forth a list of "auxiliary aids" to be used "when available, to communicate effectively," id. at 3, as follows:
The General Order also provides: "The type of aid that will be required for effective communication will depend on the individual's usual method of communication, and the nature, importance, and duration of the communication at issue." Id. at 2. Further, it states that "primary consideration should be given to the communication aid or service that works best for [a given] person." Id. It also requires deputies to "ask persons who are deaf or hard of hearing what type of auxiliary aid or service they need," and to "defer to those expressed choices, unless there is another equally effective way of communicating, given the circumstances, length, complexity, and importance of the communication, as well as the communication skills of the person who is deaf or hard of hearing." Id. According to the General Order, "[i]n many circumstances, oral communication supplemented by gestures and visual aids, an exchange of written notes, use of a computer or typewriter, or use of an assistive listening device may be effective." Id. However, it recognizes that, in other circumstances, ASL interpreters "are needed to communicate effectively." Id. The General Order indicates that, the "more lengthy, complex, and important the communication, the more likely it is that a qualified interpreter will be required for
The General Order also states that the "P.I.S.[
Defendants claim that they are entitled to summary judgment with respect to the events at the detention center because, even in the light most favorable to plaintiff, she "was simply not `discriminated against' merely because she could not follow everything that Detention Center personnel were saying or communicate as clearly as she would wish." County MSJ at 14 (quoting Rosen, 121 F.3d at 158). They argue: "In this case the Sheriff's Office personnel monitoring Plaintiff's detention did not, as a matter of undisputed fact, discriminate against Plaintiff on the basis of her disability, but rather they gave her special treatment in light of it." County MSJ at 15.
Defendants note that the Sheriff's Office policy provides for three accommodations for hearing impaired prisoners: "1) use of written notes; 2) an open contract with a local interpreting service; and 3) the availability of state-of-the-art auxiliary telecommunications aids." Id. As to the use of written notes, defendants maintain that Corporal Cave was "in frequent written communication with Plaintiff throughout her detention." Id. With respect to an ASL interpreter, defendants acknowledge that, despite the Sheriff's Office's contract with Maryland Interpreting Services, an interpreter was not provided to plaintiff. However, they claim that the fact that "the Detention Center did not have an ASL interpreter on hand is, from Plaintiff's perspective, arguably unfortunate but that one could not be located and summoned in the middle of the night is neither surprising nor evidence of discrimination under Title II." Id. at 15-16. Finally, defendants claim that plaintiff's assertion that the TTY "was defective for want of sufficient battery charge ... is speculation at best and, on the summary judgment record, demonstrably incorrect." Id. Defendants point to Lieutenant Selin's assertions and the manual for the Ultratec Minicom IV TTY, claiming that the particular model of TTY used at the detention center does not require the use of batteries when it is receiving a direct electrical current from a wall socket. Id. at 17. They also rely on the call records showing calls from the detention center to plaintiff's home phone number on the night of plaintiff's arrest. Id. "Under these facts," defendants assert, "Plaintiff's failure to reach anyone ... is due purely to the fact that the only person she attempted to call was her deaf roommate in the middle of the night. No failure of the Detention Center staff or equipment is implicated." Id.
But, even if detention center personnel failed to provide accommodations to plaintiff, defendants insist that they are still entitled to judgment because "neither an
In contrast, plaintiff maintains that she is entitled to summary judgment with respect to her detention center claim, because "the FCADC failed to accommodate her disability." Pl. MSJ at 10. Noting that it is undisputed that the detention center staff were aware of her disability when she arrived at the detention center, Paulone contends that the facts "support a claim of intentional discrimination," because she "was never provided an interpreter"; she "was not provided a functional TTY device"; and her "request for paper and pen were ignored for hours." Id. at 10-11.
As to the lack of an interpreter, Paulone notes that the contract with Maryland Interpreting Services provides for an interpreter to arrive within an hour in emergency situations. Id. at 10. Nevertheless, she points out that defendants raise "no contention that the corrections officers [in contrast to the district court commissioner, discussed infra] ever attempted to secure interpreting services at any time during Ms. Paulone's detention." Id. Regarding the TTY, Paulone suggests that, by making a TTY available to her, the detention staff implicitly recognized her need for a reasonable accommodation. Pl. MSJ at 11. But, she argues that the TTY was not functional because the batteries were not charged. According to Paulone, "simply having a TTY stashed away somewhere does not fulfill the public entity's obligation to ensure effective communication." Pl. MSJ at 7. In her view, keeping a TTY "in its original packaging," Pl. MSJ at 8, without a charge, fails to satisfy the requirement of reasonable accommodation. As she puts it: "An inaccessible accommodation is no accommodation at all." Id. at 9. She cites the ADA regulations, which require public entities to "maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities." 28 C.F.R. § 35.133. Paulone also "denies that anyone communicated with her in writing until several hours after she arrived at the FCADC." Id.
Accordingly, Paulone maintains that the facts establish the detention center personnel's deliberate indifference to her rights under the ADA, thus meeting the standard of intentional discrimination and entitling her to damages. Id. at 11. She contends that, by failing to maintain the TTY in operable condition and by "ignor[ing] Ms. Paulone's repeated requests for communication access accommodations," the detention center staff displayed "deliberate indifference to her rights as secured by the ADA, and thus intentional discrimination based on her deafness." Id. at 12.
Plainly, the facts with respect to the detention center claim are hotly contested. As indicated, plaintiff claims that the detention center officers did not establish communication with her, even via paper and pen, for several hours, and that the TTY device was inoperable.
Given that the parties agree that the officers were aware throughout Paulone's detention that she was deaf, and that Sheriff's Office policy calls for reasonable accommodations to be made for deaf detainees, Paulone's allegations that the detention center personnel refused to communicate with her for hours, taken in the light most favorable to her (as they must be in considering the State's motion for summary judgment), are sufficient to state a claim of deliberate indifference to Paulone's right to reasonable accommodation under the ADA. See Proctor, supra, 32 F.Supp.2d at 829 (stating that deliberate indifference standard for failure to provide reasonable accommodations requires that defendants "`had notice of the potential risk of their decision, and clearly refused the accommodation knowingly'") (citation omitted).
On the other hand, when the alleged facts are taken in the light most favorable to the State, Paulone is not entitled to summary judgment. In the State's version of events, Paulone was provided with written communication throughout her detention, and afforded multiple opportunities to use a working TTY. This cannot support a determination that, as a matter of law, the State violated the ADA.
Even assuming that reasonable accommodations were not provided to Paulone, defendants argue that the State is entitled to summary judgment. Relying on Rosen, defendants claim that "the alleged discrimination caused no real injury" to Paulone. County MSJ at 17.
As noted, when confronted with similar facts, the Fourth Circuit in Rosen opined that the "most obvious problem" with a deaf motorist's claim of an ADA violation in the context of arrest and post-arrest detention was that, in the Rosen Court's view, the ADA did not apply to arrest and
The Rosen Court proceeded to "assume... that the police were required to provide auxiliary aids at some point in the process" after "the arrival at the stationhouse." Id. at 158. Nevertheless, the Court affirmed the district court's grant of summary judgment against Rosen on his ADA claim, "based on an even more fundamental infirmity: the lack of any discernible injury." Id. The Court explained, id. (emphasis in original):
Defendants contend that the foregoing passage from Rosen stands for the proposition that, in order to survive summary judgment on an ADA claim, a plaintiff must demonstrate some form of actual injury, over and above the denial of reasonable accommodations or disparate treatment that the ADA prohibits. They argue that plaintiff has not shown any such injury, other than humiliation and embarrassment, which they claim Rosen rejects as a basis for ADA liability.
The Rosen Court did not cite any authority for the proposition that a plaintiff must be "damaged by [defendants'] failure to communicate" in order to "invoke the ADA's protections."
In Stachura, the Supreme Court held that "damages based on the abstract `value' or `importance'" of civil rights "are not a permissible element of compensatory damages." Id. at 310, 106 S.Ct. 2537. See also Gregory v. Otac, Inc., 247 F.Supp.2d 764, 769-70 (D.Md.2003) ("The mere violation of the ADA does not alone establish injury. A plaintiff is obligated to show, by competent evidence, that a defendant's violation of the ADA caused him actual injury before such plaintiff can recover.") (citations omitted); Levy v. Mote, 104 F.Supp.2d 538, 544 (D.Md.2000) (same). Nevertheless, the Fourth Circuit has held that, "in a case in which a plaintiff's civil rights are found to have been violated, it is appropriate to award nominal damages," even if injuries sufficient to support a compensatory damage award are not present. Park v. Shiflett, 250 F.3d 843, 854 (4th Cir.2001) (citing Carey, supra, 435 U.S. 247, 98 S.Ct. 1042). Ordinarily, the availability of nominal damages "suffice[s] to defeat an entry of summary judgment." Arebaugh v. Dalton, 730 F.2d 970, 972 (4th Cir.1984).
Although the Fourth Circuit has not specifically considered whether nominal damages are available in a claim under the ADA, at least one other circuit has held that nominal damages are available under that statute. See, e.g., Flowers v. S. Regional Physician Servs., Inc., 247 F.3d 229, 239 (5th Cir.2001) (remanding for entry of award of nominal damages where plaintiff demonstrated ADA violation but no compensable "injury stemming from the harassment"). See also Tolbert v. Queens College, 242 F.3d 58, 74 (2d Cir. 2001) (holding, in Title VI discrimination suit, that "a plaintiff who has proven a civil rights violation, but has not proven actual compensable injury, is entitled as a matter of law to an award of nominal damages," and "the defendant who committed the violation is not entitled to judgment as a matter of law").
Moreover, other circuits have recognized that the discrimination prohibited by the ADA is an injury in itself, and have rejected a requirement that a plaintiff show a further injury beyond the discrimination as a predicate to liability (as opposed to eligibility for compensatory damages). For instance, in Robertson v. Las Animas County Sheriff's Dept., 500 F.3d 1185 (10th Cir.2007), involving an ADA claim by a deaf arrestee concerning the defendants' failure to provide an auxiliary aid at the arrestee's post-arrest probable cause hearing, the Tenth Circuit reversed entry of summary judgment in favor of public entity defendants. The Robertson Court rejected the argument that "the charges against Mr. Robertson were dismissed,
Similarly, in Camarillo v. Carrols Corp., 518 F.3d 153 (2d Cir.2008), the Second Circuit reversed a district court's grant of summary judgment in favor of a restaurant on a vision-impaired patron's ADA claim regarding the restaurant's inaccessible menus. The district court had agreed with the restaurant that "on every occasion [the plaintiff] `was permitted to eat,'" and therefore she had not alleged "facts to show injury under the ADA." Id. at 155 (quoting district court). The appellate court held that the plaintiff had "alleged past injury under the ADA (namely, defendants' discriminatory failure to ensure effective communication of their menu items)." Id. at 158. See also Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1069 (9th Cir.2009) (Gould, J., concurring) (stating that the ADA does "not expressly require a showing of injury or adverse effect from the discrimination" to establish liability) (emphasis added); Armstrong v. Davis, 275 F.3d 849, 865 (9th Cir.2001) (holding that parole board's "failure to make accommodations that would enable [disabled prisoners and parolees] to attend or comprehend parole and parole revocation hearings... in itself, constitutes `actual injury'" under the ADA and Rehabilitation Act), cert. denied, 537 U.S. 812, 123 S.Ct. 72, 154 L.Ed.2d 14 (2002).
It would seem that, in referring to Rosen's failure to demonstrate an injury (beyond his conclusory assertions of humiliation and embarrassment), the Rosen Court meant that Rosen could not establish any entitlement to recover compensatory damages.
In Feldman v. Pro Football, Inc., No. 09-1021, 419 Fed.Appx. 381, 2011 WL 1097549 (4th Cir.Mar. 25, 2011) (unreported), the Fourth Circuit affirmed a grant of summary judgment in favor of deaf plaintiffs,
Plaintiff's allegations with respect to injury are scant. But, plaintiff has produced evidence that Sheriff's Office personnel denied her a reasonable accommodation with deliberate indifference, and defendants have produced evidence to the contrary. Given the lack of clarity as to whether Rosen permits summary judgment on the ground that a plaintiff has not demonstrated injury stemming from the denial of a reasonable accommodation, the Court will exercise its discretion "to deny summary judgment motions even when the standard [might] appear[] to have been met." Andrew v. Clark, supra, 561 F.3d at 271; see also Forest Hills Early Learning Ctr., Inc. v. Lukhard, 728 F.2d 230, 245 (4th Cir.1984) ("Even where summary judgment is appropriate on the record so far made in a case, a court may properly decline, for a variety of reasons, to grant it.").
The parties do not dispute the relevant facts with respect to Paulone's initial appearance before Maryanne Riggin, the district court commissioner. They are drawn from an affidavit of Riggin; plaintiff's deposition testimony; and various documentary exhibits, including the handwritten notes exchanged between Riggin and Paulone during the initial appearance. However, the parties dispute whether it can be inferred from the underlying facts that Riggin achieved effective communication with Paulone.
As noted, under Maryland Rule 4-212(f)(1), "[w]hen a defendant is arrested without a warrant," as in this case, the defendant must be presented for an initial appearance before a judicial officer (i.e., a judge or a district court commissioner) "without unnecessary delay and in no event later than 24 hours after arrest." Maryland law requires that, in each of its counties, one or more commissioners shall be available "at all times," id. § 2-607(c)(3), including times when the courts are not open. In Maryland, district court commissioners are empowered to "receive applications and determine probable cause for the issuance of charging documents"; to "advise arrested persons of their constitutional rights"; and to "set bond or commit persons to jail in default of bond or release them on personal recognizance if circumstances warrant[.]" C.J. § 2-607(c)(1)-(2).
At the initial appearance, the judicial officer must inform the criminal defendant of the charges, including the allowable and/or mandatory penalties, and must provide the defendant with a copy of the charging document. Md. Rule 4-213(a)(1).
In her affidavit, Riggin recounts that she "came on duty" at the detention center at approximately 6:00 a.m. on August 1, 2008. Riggin Aff. ¶ 3. Further, she avers, id.:
According to Paulone, Riggin "was a very pleasant lady, but the first thing I did was grab a piece of paper and ask for an interpreter because she starts handing me all this stuff, it's all these legal documents with all this legalese on it. I don't have my glasses. I can't read it. I can't understand it." Paulone 7/9 Dep. at 74. Claiming that she "needed an interpreter at that point," id., Paulone explains: "[W]hen I asked for the interpreter they[
Paulone explains that she "can write in some English" but her "grammar is not
As noted, the parties have submitted the written notes exchanged between Riggin and Paulone, the content of which is set forth below. Ex. 2A to State MSJ (ECF 53-4).
The "Initial Appearance Questionnaire," which Paulone completed and Riggin signed, and the "Initial Appearance Report," which Riggin completed and both Riggin and Paulone signed, have also been submitted. See Ex. 2B & Ex. 2C to State MSJ (ECF 53-5 & 53-6). The Questionnaire contains only personal information regarding Paulone, such as addresses, place of birth, occupation, and employer. The Report contains a certification by Riggin that she "INFORMED [Paulone] of each offense charged and of the allowable penalties, including mandatory penalties, if any"; that she "REQUIRED [Paulone] to read the Notice of Advice of Right to Counsel"; and that she "ADVISED" Paulone of the consequences of "appearance for trial without a lawyer." The Report also contains Riggin's "Pre-Trial Release Determination," which was that Paulone "may be released on personal recognizance because it will reasonably assure [Paulone]'s appearance," subject to the conditions that Paulone "[b]e of good behavior & maintain the peace, [n]otify the court of any address change," and, of particular note, "[m]inimally, do not drive for 12 hrs." At the bottom of the Report is a "Receipt" section, signed by Paulone, which states: "I have [] read [x] had read to me the offense(s) for which I am charged, the conditions of release, the penalty for violation of the conditions of release, [and] the Notice of Advice of Right to Counsel."
After the conclusion of the initial appearance, a staff member of the FCADC called a cab for Paulone. Paulone 7/9 Dep. at 82. Paulone recounts: "The cab took me to my car.... And I drove my car home from there. When I got home, I was talking to my house-mate and my son and my son, good thing, thought to ask me about my license and whether or not I had it. And I said well of course I had my license with me and I went to look in my purse to find it ...." Id. As it turned out, Paulone's license had been confiscated at the detention center, but Paulone claims she "had no idea that [her] license was taken," because no one had communicated that fact to her. Id. Paulone states: "[T]o not even have my driver's license when I drove away ... was ... very scary and that made me realize that I should've had an interpreter so that I could've understood everything and had everything explained to me before I even left." Id. at 98.
Quoting the Eleventh Circuit's discussion in Bircoll v. Miami-Dade County, supra, 480 F.3d 1072, the State concedes the obligation to "take the steps `reasonably
In contrast, plaintiff maintains that even a "cursory review of the notes would indicate that Ms. Paulone did not in fact understand why she was before the Commissioner." Mem. in Support of Pl. Response to Mot. for Summ. J. of Def. State of Md. ("Pl. Opp. to State MSJ") at 2. Pointing out that, "like many deaf people," she "has serious deficiencies in her comprehension of English," and that "English is [her] second language,"
The Justice Department's regulations implementing Title II of the ADA are instructive. As noted, they require public entities to "take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others." 28 C.F.R. § 35.160(a). Moreover, the regulations
Of import here, the commentary also states:
It is undisputed that the State did not provide an ASL interpreter, which was the auxiliary aid or service requested by Paulone. Therefore, the burden is on the State to "demonstrate that another effective means of communication" was provided.
In Bircoll, supra, 480 F.3d 1072, on which the State relies, the Eleventh Circuit affirmed a grant of summary judgment in favor of county police on a deaf arrestee's ADA claim. Bircoll, who was arrested for DWI, alleged that the police failed to obtain an interpreter to read a consent warning to him prior to administration of an "Intoxilyzer test that accurately measured Bircol's impairment, or lack thereof." Id. at 1087. The court recognized that the ADA required the police to "take appropriate steps to ensure that ... communication with Bircoll was as effective as with other individuals arrested for DUI." Id. However, based on the Justice Department's regulations, the court stated: "In many circumstances, oral communication plus gestures and visual aids or note writing will achieve effective communication. In other circumstances, an interpreter will be needed. There is no bright-line rule, and the inquiry is highly fact specific." Id. Upon examination of the factual circumstances before it, the Bircoll Court concluded that effective communication was achieved, and thus there was no ADA violation.
However, Bircoll is factually distinguishable from the case at bar. In contrast to Paulone, Bircoll was not entirely deaf, but had "a twenty percent hearing capacity when using his hearing aid," and could "understand about half of what is said
This case is also distinguishable from Ryan v. Vermont State Police, 667 F.Supp.2d 378 (D.Vt.2009), in which, by summary judgment, the court rejected a deaf arrestee's claim of an ADA violation in connection with his post-arrest "booking." In Ryan, the booking process was videotaped and submitted in evidence on the summary judgment motion. Id. at 389. The court explained, id. at 390:
The Ryan Court also observed that "Ryan did not request to use a TTY telephone nor any other electronic aid," and commented: "This is perhaps because, as the tape reveals, communication between Ryan and the booking officer was effective." Id.
Here, plaintiff's command of written English is more limited than that of the plaintiffs in either Bircoll or Ryan. Moreover, the information generally communicated at an initial appearance in Maryland (see page 52, supra), including notification of the charges against a defendant, the minimum penalties, the right to counsel, and the conditions of release, is much more substantial than the limited information apparently conveyed in Bircoll or Ryan.
As noted, whether an accommodation is reasonable is ultimately a question of fact. Pandazides, supra, 13 F.3d at 833. See also Center v. City of West Carrollton, 227 F.Supp.2d 863, 870 (S.D.Ohio 2002) (denying summary judgment on deaf complainant's ADA claim, where police officer used handwritten notes, rather than an ASL interpreter, to communicate with complainant, finding "a genuine issue of material fact as to whether communication through handwritten notes constituted an effective auxiliary aid"). Although the parties agree as to the underlying facts, I cannot conclude that either party is entitled to summary judgment with respect to the ultimate factual question of whether the written notes exchanged between Riggin and Paulone ensured effective communication, and therefore constituted reasonable accommodation under the ADA.
Nevertheless, even in the light most favorable to Paulone, there is no evidence of an intentional violation of the ADA. Rather, the undisputed evidence is that Riggin attempted to procure an ASL interpreter, albeit without success, and that Paulone did not want to wait any longer. It is also undisputed that the detention center (apparently including the district court commissioner's office) is subject to a contract that provides for interpretive services to be provided on an hour's notice. To be sure, Riggin commented
The facts concerning Paulone's required attendance at the MADD victim impact panel and the alcohol education class are largely undisputed. They are drawn from documentary evidence (including the records of the District Court of Maryland from Paulone's DWI case; "case note" records of DDMP; and correspondence between Paulone, her counsel, her DDMP monitors, and various service providers),
The State has provided a true test copy of the entire docket for Paulone's DWI case in the District Court of Maryland. DWI Case Docket, Ex. 2 to State Opp. (ECF 62-3). It reflects that on August 1, 2008, Paulone filed with the district court a "Request for Accommodation by Persons with Disabilities," on a form provided by the court, indicating that she requested an ASL interpreter.
The parties agree that, when the case was called for trial on October 7, 2008, id. at 10, plaintiff was provided with an ASL interpreter, and was represented by counsel. As noted, the district court granted Paulone probation before judgment ("PBJ") with respect to the DWI charge. The district court ordered supervised probation by DDMP and, as "special conditions" of Paulone's probation, ordered her to "[s]ubmit to alcohol and drug evaluation, testing, and treatment
Paulone reported to DDMP for intake on October 8, 2008, and met with intake reviewer Krissie Smith-Alvey. DDMP's case notes for that date indicate that Paulone was assigned to DDMP monitor Lorraine Halpin, and was instructed to meet with Halpin within 48 hours. See DDMP Case Notes at 7, Ex. 3C to State MSJ (ECF 53-10). Smith-Alvey's notes also state, in large, bold letters:
At some point, Paulone received an "Addendum to Order of Probation," which required, "as a condition of probation," that Paulone attend a MADD victim impact panel for intoxicated drivers on February 4, 2009, at the Evangelical Reformed Church of Christ in Frederick. Ex. 13 to Pl. MSJ (ECF 52-17). The Addendum also instructed Paulone to bring "a copy of this referral form," along with a "$30.00 money order payable to MADD."
On January 23, 2009, Halpin wrote to Paulone via email, rescheduling their January appointment to February, due to difficulty in arranging an interpreter. DDMP Case Notes at 6. Halpin also stated:
As noted, Paulone received an initial substance abuse evaluation in January 2009 from Laura Dreany-Pyles of DASAM. On January 29, 2009, Dreany-Pyles wrote to Halpin, stating: "Based on what Ms. Paulone has reported and the results of this evaluation it is not evident that this person is in need of treatment. It is my clinical impression that she does not have an alcohol abuse or dependence problem." Ex. 2 to Pl. MSJ (ECF 52-5). Dreany-Pyles also commented: "Ms. Paulone has shown me the court papers regarding the class and meetings she may have to attend. It is important that a sign language interpreter be there so she can get the full understanding of what is being taught." Id.
Paulone attended the MADD victim impact panel on February 4, 2009. No interpreter was present and, according to Paulone's deposition testimony, she "didn't understand a thing that was being said." Paulone 7/9 Dep. at 28.
On February 19, 2009, Paulone met with DDMP monitor Mark Lucas (Halpin was out sick that day). DDMP Case Notes at 5. The meeting was facilitated by an interpreter. Id. In his notes of the meeting, Lucas recorded that Paulone confirmed that she had attended the MADD panel;
Lucas directed Paulone to enroll in a "6 week or 12 hour alcohol education class," no later than March 17, 2009. Id. (emphasis omitted). He also gave her a printed list of class providers. Id.; see also Provider List, Ex. 19 to Pl. MSJ (ECF 52-23). The list enumerates approximately ten providers, including DASAM (at its Baltimore City address), along with contact information for other resources. See Provider List. In his affidavit, Lucas explains that an "offender is not required to attend a specific program on the list;" rather, "an offender is simply required to go to a program that is certified by the State." Lucas Aff. ¶ 16, Ex. 3 to State MSJ (ECF 53-7). According to Lucas, the list "represents what DDMP believes to be all of the State-certified addictions programs offered in Frederick County, and the monitors provide the list to offenders as a courtesy." Id.
On Paulone's copy of the list, DASAM was circled and marked with an asterisk, by hand. See Provider List. In paragraph 18 of his affidavit, Lucas explains:
On February 26, 2009, Paulone's attorney, Laura Venezia, wrote to Halpin, seeking "to clarify some of the information Ms. Paulone was provided during the meeting" with Lucas. Venezia Letter, Ex. 4 to Pl. MSJ (ECF 52-7). Venezia stated, id.:
Further, Venezia remarked that "Ms. Paulone was told that she would need to secure the services of an interpreter for the course. If this is a requirement of her probation, your office should be providing the interpreter." Id. Venezia concluded: "Finally, regardless of who provides the interpreter, I would imagine that with the additional scheduling overlay, Ms. Paulone may need a little more time to complete the requirement." Id. Venezia asked whether Halpin "would be willing to be flexible on this point, so long as Ms. Paulone can demonstrate adequate progress toward scheduling." Id.
DDMP's case notes indicate that Venezia's letter was "forwarded to the State's Attorney General's office for a response." DDMP Case Notes at 4. The case notes also reflect that Halpin spoke with Paulone via telephone relay on March 11, 2009. Id. at 3. In response to Halpin's query whether Paulone had enrolled in the alcohol education class, Paulone responded that
On March 17, 2009, Paulone met with Halpin in person; the meeting was facilitated by an interpreter. Id. Paulone brought with her a letter from an addictions counselor at Crossroads Centers ("Crossroads"), which was one of the course providers on the list that Lucas had given Paulone. The letter, dated March 17, 2009, stated that Paulone had come to Crossroads earlier that day for a "scheduled evaluation," but that Crossroads had been "unable to evaluate her," because she "showed up without an interpreter." Ex. 17 to Pl. MSJ (ECF 52-21). In her case notes, Halpin expressed surprise that Paulone went to Crossroads only "THAT MORNING FOR AN EVALUATION," DDMP Case Notes at 3 (capitalization in original), and observed that "it was a month ago that Mr. Lucas told her she needed to be in [the class] by the 17th of this month." Id. Halpin also noted: "A violation will have to be sent to the courts stating that [Paulone] is still not in compliance...." Id.
Venezia emailed Halpin on March 18, indicating that Venezia had spoken with an attorney in the Office of the Attorney General, and that "we are now pretty much on the same page about interpreters; that is, you all provide them for meetings with you, but the provider of services off site is required to provide them there." Id. Venezia asked Halpin: "[W]hat will likely happen if the interpreter issue slows down Joette's compliance?" Id. Halpin commented in the case notes that Paulone "can't afford [an] interpreter and she runs to her attorney after each visit." Id.
On March 27, 2009, Halpin prepared a "Statement of Charges" and "Request for Summons" for violation of probation, which Lucas approved on March 31. DWI Case Docket at 3. The Statement of Charges stated, id. at 4:
The Statement of Charges did not mention Paulone's attendance at the MADD panel without an interpreter. The district court issued a summons on April 3, 2009. Id. at 5.
Thereafter, Paulone arranged to take the alcohol education course with Dreany-Pyles, the deaf addiction counselor at DASAM who had performed her evaluation.
Paulone met with Lucas on May 29, 2009, and indicated that she was on schedule
On June 2, 2009, Paulone attended the district court hearing with counsel. Halpin requested dismissal of the violation of probation charge, as well as termination of the supervision of Paulone's probation. The court granted both requests. See Tr. of VOP Hearing, Ex. 3 to State Opp. (ECF 62-4).
Paulone contends that she is entitled to summary judgment with respect to the State's failure to provide an interpreter at the victim impact panel. She asserts that victim impact panels are a component of State court-ordered probation. She points out that "one must be court ordered to attend a Victim Impact Panel Meeting," and "one must also bring one's court paperwork to the meeting to gain admittance." Pl. MSJ at 13. Citing 28 C.F.R. § 35.130(b), which provides that a public entity may not discriminate on the basis of disability, either "directly or through contractual, licensing, or other arrangements,"
The State addresses the victim impact panel in its Opposition to Paulone's summary judgment motion, but not in its own summary judgment motion. Nevertheless, it contends that it is entitled to summary judgment on this point. See State Opp. to Pl. MSJ at 4. The State does not argue that Title II of the ADA is inapplicable to court-ordered attendance at a victim impact panel. But, it advances three grounds to support its position. In my view, each lacks merit.
First, quoting Kiman v. New Hampshire Department of Corrections, 451 F.3d 274, 283 (1st Cir.2006), the State argues: "The reasonable accommodation component of the ADA `usually does not apply unless triggered by a request.'" State Opp. to Pl. MSJ at 4-5 (quoting Kiman). The State asserts that there is no evidence that Paulone requested an interpreter at the MADD panel. It maintains that the DDMP case notes "reflect simply that Ms. Paulone's monitor instructed her to take an interpreter with her to the MADD meeting." State Opp. to Pl. MSJ at 5.
This argument is not persuasive. As the Kiman Court pointed out, the "request requirement," which "usually" applies, is a function of the fact that "a person's `disability and concomitant need for accommodation are not always known ... until the [person] requests an accommodation.'" Kiman, 451 F.3d at 283 (citation omitted). In some cases, however, a person's "`need for an accommodation will be obvious; and in such cases, different rules may apply.'" Id. (citation omitted). Accord Robertson, supra, 500 F.3d at 1197-98 ("[A] public
Here, plaintiff's DDMP monitors were well aware that Paulone required an ASL interpreter. She had specifically requested one, both at her court appearance and at her intake meeting with DDMP. Indeed, DDMP provided an interpreter at every meeting plaintiff had with her DDMP monitors. And, the State admits, as it must, that Halpin explicitly told Paulone that DDMP would not provide an interpreter for the MADD panel. Even assuming that Halpin's statement was not triggered by an affirmative request from Paulone in regard to the MADD panel, the State can hardly avoid liability for failure to provide an interpreter simply by anticipating Paulone's request for reasonable accommodation and denying it preemptively.
Second, the State argues that, "[e]ven if Ms. Paulone had asked [DDMP] to provide an interpreter for the MADD meeting," it would still be entitled to summary judgment, because the "state district court, not [DDMP], was required to provide an interpreter in connection with Ms. Paulone's court-ordered attendance at victim impact meetings." State Opp. to Pl. MSJ at 6. In this regard, the State once again cites Rosen, supra, 121 F.3d 154.
The deaf plaintiff in Rosen was court-ordered to attend Alcoholics Anonymous meetings, for which no interpreter was provided. The Fourth Circuit rejected Rosen's claim that Montgomery County was liable under the ADA for the failure to provide an interpreter, stating that Rosen's "claim would be against the court, an entity over which the County exercises no control whatsoever." Rosen, 121 F.3d at 159. Similarly, the State argues here that Paulone has no claim against DDMP, because Paulone's attendance at the MADD panel was ordered by the district court. Moreover, the State contends that Paulone has no viable claim against the district court, because she never asked the district court to provide an interpreter at the MADD panel. State Opp. at 6-7.
This argument also does not withstand scrutiny. As noted, the district court ordered Paulone to "[a]ttend Victim Impact Panel meetings when notified by DDMP." DWI Case Docket at 10 (italics indicate handwritten addition to printed form by district court). And, the "Addendum" that directed Paulone to go to the particular panel meeting that she attended apparently originated with Halpin, not the court. It is by no means clear that a request for an interpreter at the MADD panel would properly have been directed to the court, rather than DDMP, as the State suggests. In any event, regardless of whether plaintiff's claim is directed to the conduct of the district court or DDMP, both were on notice of plaintiff's need for accommodation. As indicated, plaintiff had specifically requested an interpreter at trial, and the court proceedings were facilitated by an ASL interpreter; DDMP was on notice after plaintiff's initial meeting.
Rosen is inapposite, because in that case the defendant was Montgomery County, which exercised no control over the requirements of probation imposed by the Maryland State court. In contrast, plaintiff's claim is directed against the State of
In Tennessee v. Lane, supra, 541 U.S. 509, 124 S.Ct. 1978, the Supreme Court upheld the State of Tennessee's liability for its courts' discrimination against persons with disabilities, making clear that the ADA prohibits "a State's failure to provide individuals [with disabilities] with a meaningful right of access to the courts." Id. at 533, 124 S.Ct. 1978. Here, the ADA required the State of Maryland to make reasonable accommodations for persons with disabilities who are subject to requirements of probation.
Finally, the State argues that Paulone "did not suffer any injury as the result of attending the MADD victim impact panel without an interpreter," because DDMP "did not notify the state district court that Ms. Paulone had attended the MADD victim impact panel without an interpreter and she was not charged with violating the condition of her probation that she attend." State Opp. at 7. But, this argument disregards the plain text of the ADA, which mandates 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 ...." 42 U.S.C. § 12132. Paulone was required by the State to attend the victim impact panel, but was unable to understand anything that transpired at the panel, due to her disability. The State's alleged refusal to provide a reasonable accommodation to enable Paulone to benefit from this "service, program or activity" of the State is precisely the sort of everyday discrimination against persons with disabilities that the ADA was enacted to address. Again, plaintiff's compensatory damages may be minimal, but they at least include the $30 that plaintiff paid to attend a panel at which she could understand nothing.
The undisputed material facts demonstrate that DDMP intentionally denied plaintiff the reasonable accommodation of an ASL interpreter at the MADD victim impact panel. Accordingly, plaintiff is entitled to summary judgment with respect to the matter of the victim impact panel.
Judge Quarles denied the State's earlier motion for summary judgment with respect to the alcohol education class, because at that juncture, the State had "provided no evidence that one of the eight DUI education class providers ... had a deaf accessible program." 718 F.Supp.2d at 636. Judge Quarles concluded that "Maryland may be liable if none of the programs Paulone was required to attend provided interpreters," id., reasoning:
Id. at 636 n. 30 (citations omitted).
The State points to the uncontested evidence, which it has now produced, that
In response, Paulone contends that "the State misconstrues the nature of Ms. Paulone's complaint." Paulone acknowledges that she "was ultimately able to secure accessible alcohol education classes," but "contends, rather, that because the process of doing so was hindered by her need to find accessibility because of her deafness, the State discriminated against her by not extending her deadline to comply." Pl. Opp. to State MSJ at 3.
Paulone notes that, in the letter of February 26, 2009, from her attorney to Halpin, her attorney asked DDMP to be "flexible" with the deadline for Paulone's enrollment in the alcohol education course, due to the "additional scheduling overlay" of obtaining an interpreter for the course. She contends that it would have been a reasonable accommodation "for the State to modify its time line to allow Ms. Paulone additional time to comply," and that it would "also have been a reasonable accommodation for the State to withdraw its show cause order soon after it received confirmation of Ms. Paulone's enrollment" in the course, before her hearing date on the VOP charge. Pl. Opp. to State MSJ at 4.
In support of her position, Paulone cites Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir.1996). In Crowder, the Ninth Circuit reversed a grant of summary judgment in favor of the State of Hawaii, in a suit by visually impaired persons who used guide dogs, seeking an exemption from Hawaii's 120-day quarantine on any carnivorous animal entering the state, which was imposed to protect against the importation of rabies into Hawaii. Id. at 1481. Noting that "the determination of what constitutes reasonable modification is highly fact-specific, requiring case-by-case inquiry," id. at 1486, the Crowder Court concluded: "Whether the plaintiffs' proposed alternatives to Hawaii's quarantine for guide dogs constitute reasonable modifications or fundamental alterations cannot be determined as a matter of law on the record before us." Id. at 1485. The court reasoned that "inquiry into reasonable modification would necessitate findings of fact regarding the nature of the rabies disease, the extent of the risk posed by the disease, and the probability that the infected animals would spread it," id. at 1486, and that there was "a genuine dispute of material fact as to whether the plaintiffs' proposed modifications to Hawaii's quarantine amount to `reasonable modifications' which should be implemented, or `fundamental[] alter[ations],' which the state may reject." Id. at 1485 (quoting ADA).
In Paulone's view, a "trier of fact must determine if the proposed accommodation" — in Paulone's case, an extension of the deadline to enroll in the course, or withdrawal of the VOP charge once Paulone was enrolled — "would constitute a reasonable modification." Pl. Opp. to State MSJ at 5. Therefore, she maintains that the "State is not entitled to Summary Judgment on this matter." Id. In her own motion for summary judgment, however, Paulone argues that she is entitled to summary judgment on this point, because there "is nothing in the record which indicates that an extension of time, under these circumstances, would fundamentally alter the nature of the probation program." Pl. MSJ at 16.
Moreover, Lucas and Halpin, apparently out of adherence to DDMP's policy of not "steering" offenders to particular course providers, did not facilitate Paulone's enrollment in the DASAM class, instead insisting (incorrectly) that it was entirely Paulone's responsibility to ensure that the class she took was deaf-accessible. Nor did Lucas or Halpin withdraw the VOP charge when they were informed, approximately a month in advance of the scheduled hearing on the charge, that Paulone had enrolled in the course. Under these circumstances, a reasonable fact finder could conclude that DDMP denied a reasonable accommodation to Paulone.
Nevertheless, a reasonable fact finder could also conclude that Paulone bears responsibility for her failure to meet the deadline. Paulone could have taken the course from Dreany-Pyles at DASAM in compliance with the deadline; instead, she sought to take the course through Crossroads, which did not have an interpreter available. The jury could conclude that Paulone did not timely explore the option of taking the course through DASAM (apparently because she assumed she would have to travel to Baltimore to do so).
Accordingly, summary judgment will be denied to both Paulone and the State.
In its opposition to Paulone's motion for summary judgment, the State contends that "there is a genuine dispute as to the amount of damages, if any, to which Ms. Paulone is entitled." State Opp. at 8. Indeed, the State argues: "Paulone has presented no evidence to this Court concerning her alleged damages, and she has not even suggested an appropriate amount of damages to award." Id. In response, plaintiff contends that she "has provided documentation of her financial damages," and has "provided support for her contention that she experienced a great deal of psychological stress and injury." Pl. MSJ at 16.
Even if plaintiff has provided such evidence in discovery, I agree with the State that Paulone has not placed it on the record at the summary judgment stage. Moreover, plaintiff seeks declaratory and injunctive relief, in addition to damages. Yet, plaintiff has not proposed a form for such relief to take, nor have the parties addressed the standards that govern whether such relief is appropriate. See, e.g., Pathways Psychosocial Support Ctr., Inc. v. Town of Leonardtown, 223 F.Supp.2d 699, 717 (D.Md.2002) (recognizing that, although "irreparable harm can be presumed from a violation of civil rights' statutes such as the ADA," plaintiffs must still "demonstrate[] that the ... injunction they request is necessary to prevent that harm").
Therefore, although the Court will grant plaintiff summary judgment as to liability with respect to one aspect of her claim (i.e., the victim impact panel, as discussed, supra), the Court cannot determine, at this juncture, the amount or nature of the relief to which Paulone is entitled.
For the foregoing reasons, the Court will grant the County's motion for summary judgment; will grant Paulone's motion for summary judgment, as to liability only, with respect to her ADA claim against the State in regard to the victim impact panel; will grant the State's motion for summary judgment, as to plaintiff's entitlement to monetary damages only, with respect to plaintiff's ADA claim concerning her initial appearance; and will deny summary judgment to both the State and Paulone in all other respects. An appropriate Order follows.
Not all agency interpretations merit Chevron deference, however. Rather, an administrative interpretation "qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority." United States v. Mead, 533 U.S. 218, 226-27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). An example of such an interpretation is one promulgated in the course of statutorily-authorized notice-and-comment rulemaking or formal agency adjudication. See id. at 229-31, 121 S.Ct. 2164.
In my view, it is not clear that the communications between Paulone and the officers during her detention were substantial or complex enough that an ASL interpreter was required as a matter of law. Determination of whether an ASL interpreter was necessary at the detention center will benefit from further factual development at trial, and therefore I decline to award summary judgment to Paulone on this basis. See generally Andrew v. Clark, 561 F.3d 261, 271 (4th Cir.2009) (observing that district courts have discretion to deny summary judgment, even where grant of summary judgment might be appropriate on the record so far made in the case).
The State does not contest Paulone's assertion that the MADD panels are not subject to Title III. Therefore, I assume, without deciding, that MADD was not obligated to provide reasonable accommodations for attendees with disabilities at the impact panels, and I need not consider whether an obligation to provide reasonable accommodations on the part of MADD would relieve the State of its obligation to provide reasonable accommodations to offenders with disabilities who are required by court order to attend the panels.
