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Schreiber v. Pima County

United States District Court, D. Arizona

August 9, 2017

Nicholas Schreiber, Plaintiff,
Pima County, et al., Defendants.

          FINAL ORDER

          Hon. David C. Bury United Slated District Judge

         Defendants' Motion for Summary Judgment/Partial Summary Judgment is before the Court. The Court previously entered an Order dismissing several Defendants, leaving Pima County, Pima County Sheriff's Department, and the Pima County Public Defenders Office as the remaining Defendants.[1] A Second Amended Complaint was filed on June 18, 2015 alleging violations of the ADA, Rehabilitation Act, Arizona Civil Rights Act, and Arizonans with Disabilities Act. The motion for summary judgment was filed in February 2017 and the parties requested oral argument. Oral argument was conducted on August 1, 2017.

         During oral argument, the Court ruled from the bench that the motion for summary judgment (Doc. 52) is granted and this written order clarifies and expands on that ruling. In addition, the Court ruled that the motion to strike the audio CD (Doc. 53) is granted and the Court indicated for the record that it had never listened to the audio CD (which will be returned to Defendants) and it does not constitute any basis for the Court's ruling on the motion for summary judgment.


         Schreiber is deaf. He was arrested by the Pima County Sheriff's Office, and appeared in the Superior Court in Pima County. Plaintiff's ADA/RA civil rights action focuses on the arrest (Sheriff's Department), the prosecution (Public Defenders Office) and the incarceration (Pima County Jail) as not having accommodated his disability and for treating him differently to his detriment than people with hearing.


         Summary judgment is proper where the pleadings, discovery and affidavits demonstrate that there is “no genuine dispute as to any material fact and [that] the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Material facts are those that may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). On an issue where the nonmoving party will bear the burden of proof at trial, the moving party can prevail merely by pointing out to the district court that there is an absence of evidence to support the nonmoving party's case. Celotex, 477 U.S. at 324-25.

         If the moving party meets its initial burden, the opposing party must then set forth specific facts showing that there is some genuine issue for trial in order to defeat the motion. Fed.R.Civ.P. 56(c); Anderson, 477 U.S. at 250. All reasonable inferences must be drawn in the light most favorable to the nonmoving party. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). However, it is not the task of the Court to scour the record in search of a genuine issue of triable fact. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The Court “rel[ies] on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment.” Id.; see also Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). Thus, “[t]he district court need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found.” Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). If the nonmoving party fails to make this showing, the moving party is entitled to a judgment. See Celotex, 477 U.S. at 323.


         A. General ADA/RA Law

         To establish a claim under the ADA, a plaintiff must show that he or she: (1) is an individual with a disability; (2) is otherwise qualified to participate in or receive the benefit of some public entity's services, programs, or activities; (3) was either excluded from participation in or denied the benefits of the public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (4) such exclusion, denial of benefits, or discrimination was by reason of his or her disability. Americans with Disabilities Act of 1990, § 202, 42 U.S.C.A. § 12132.

         To establish a claim under the Rehabilitation Act, a plaintiff must show that he or she: (1) is handicapped within the meaning of the Act; (2) is otherwise qualified for the benefits or services sought; (3) was denied the benefit or services solely by reason of his or her handicap; and (4) that the program providing the benefit or services receives federal financial assistance. Rehabilitation Act of 1973, § 504, 29 U.S.C.A. § 794. In claims for compensatory damages under either the ADA or the Rehabilitation Act, the law in the Ninth Circuit requires that a plaintiff show that a defendant had discriminatory intent. Id.

         A defendant must act with deliberate indifference; plaintiff is required to show discriminatory intent toward the plaintiff because of his or her disability, permitting an award of compensatory damages, only if: (1) the defendant has knowledge from which an inference could be drawn that a harm to a federally protected right is substantially likely, and (2) the defendant actually draws that inference and fails to act upon the likelihood. Id. To show that a public entity had knowledge from which an inference could be drawn that a harm to a federally protected right was substantially likely, as required to demonstrate that the entity acted with deliberate indifference toward a plaintiff because of his or her disability in violation of the ADA and Rehabilitation Act, permitting award of compensatory damages, plaintiff must identify a specific, reasonable, and necessary accommodation that the entity failed to provide, and that the plaintiff notified the entity of the need for accommodation. Id.

         “To recover monetary damages under Title II of the ADA or the Rehabilitation Act, a plaintiff must prove intentional discrimination on the part of the defendant.” Duvall v. County of Kitsap, 260 F.3d 1124, 1138 (9th Cir.2001). In order to show intentional discrimination in the Ninth Circuit, the plaintiff must show that the defendant acted with “deliberate indifference.” Id. at1138-39. “Deliberate indifference requires both knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that ... likelihood.” Id. at 1139.; Suarez v. Superior Court of California, 283 Fed.Appx. 470, 471 (9th Cir. 2008). To show that a public entity inferred that harm to a federally protected right was substantially likely and failed to act upon the likelihood, as required to demonstrate that the entity acted with deliberate indifference toward a plaintiff because of his or her disability in violation of the ADA and Rehabilitation Act, permitting award of compensatory damages, plaintiff must show that the entity deliberately failed to fulfill its duty to act in response to a request for accommodation. Duvall; Updike v. City of Gresham, 99 F.Supp.3d 1279 (D.Or. 2015)(failure to show deliberate indifference when preferred accommodation was not available, but alternative accommodation worked just as well).

         B. Arrest

         This lawsuit arises originally from Plaintiff's arrest and incarceration for domestic violence. (DSOF 1). Plaintiff ultimately plead guilty to the domestic violence charge. (DSOF 2).

         On October 4, 2013, Plaintiff was at 4129 Alexandrite Avenue, where Plaintiff's wife, children and step children reside. (DSOF 3 & 4). Plaintiff was not living at the residence because of a pending child protection services investigation. (DSOF 5). Plaintiff had been accused of sexually assaulting one of his step daughters. (DSOF 6). Plaintiff was convicted of sexual abuse of a step daughter in June 2016. (DSOF 7). Plaintiff is currently in prison serving his sentence for the conviction. (DSOF 8).

         On October 4, 2013, Plaintiff showed up at the residence without invitation or prior invite from his ex-wife, Cecilia Schreiber. (DSOF 9). At some point, there was an altercation between Plaintiff and his wife. (DSOF 11). During the altercation, Plaintiff threw his cell phone on the ground, which caused it to break into pieces. (DSOF 12). The altercation continued and at some point, Plaintiff slammed his wife against the wall, struck her and placed his hands around her throat causing red marks. (DSOF 13). These red marks were still visible 20-30 minutes after the incident, when viewed by the Pima County Sheriff's Department. (DSOF 14). Based upon Cecilia Schreiber's report and the physical evidence at the scene, the Pima County Sheriff's Department determined that there appeared to be probable cause to arrest Plaintiff for domestic violence/criminal damage and domestic violence/assault. (DSOF 17).

         Plaintiff argues that the Pima County Sheriff Department's Administrative Policies and Procedures require that when arresting a hearing impaired individual, the arresting officer “shall procure a qualified interpreter in order to properly do any of the following: 1. Administer Miranda warnings; 2. Interrogate the hearing impaired person; and 3. interpret the hearing impaired person's statements.” Exhibit C, Administrative Policies and Procedures. When Plaintiff was placed in police custody, his hands were handcuffed behind him, preventing him from signing or writing. Exhibit A, pg. 35, ln. 23-24; pg. 46, ln. 2-5. The Pima County Sheriff's Department's internal investigation into a complaint filed by Plaintiff found that Correction Sergeant Crystle Prosser, who was working as a housing liaison at the time of Plaintiff's incarceration, believed that the TTY machine at the jail was “not working.” Exhibit D, Pima County Sheriff's Department Memorandum. Plaintiff complained in writing on at least three separate occasions that the TTY machines were not working. Id. at pg. 3. Plaintiff communicated with Sean Bruner, his public defender, primarily by exchanging written notes back-and-forth on paper and on Mr. Bruner's iPad. Id. pg. 81, ln. 11-15. Plaintiff asked Mr. Bruner repeatedly to get an ASL interpreter for their meetings, but Mr. Bruner refused. Id. ln. 16-20; pg. 83, ln. 11-14; Exhibit B, pg. 30, ln. 2-8; pg. 31, ln. 8-13; pg. 33, ln 2-17. Because of this, Plaintiff alleges that he did not understand the plea deal that was offered to him by the prosecutor. Exhibit A, pg. 82, ln. 1 - pg. 83, ln. 14. Plaintiff felt pressured and rushed to sign the plea agreement, despite not fully understanding it. Id. pg. 85, ln. 15 - pg. 88, ln. 25.

         On November 13, 2013, Plaintiff filed a complaint with the Pima County Sheriff's Department, complaining that he was arrested and jailed for 25 days without benefit of an ASL interpreter except in Court. Exhibit D. He complained that the TTY machines in the jail did not work. Id. pg. 2. He complained that his public defender attempted to meet with him over the jail's telephone/video system. Id. He complained that he should have been granted an interpreter for his statement to police and during the booking process. Id. He complained that he did not have access to a functioning TTY machine at the jail. Id. An investigation into Plaintiff's complaint determined that that Pima County Sheriff's Department employees involved in his case “took reasonable measures to communicate” with him. Exhibit E, December 24, 2013 letter from David Peru to Nicholaus Schreiber.

         Plaintiff alleges a violation occurred at the scene of the arrest when he was interviewed by Deputy Mitchell. Deputy Mitchell had asked to speak with Plaintiff (DSOF 31). At the start of the communication with Plaintiff, Deputy Mitchell showed Plaintiff his Pima County Sheriff Department Quick Reference Guide which contains the Miranda Rights. (DSOF 32). While Plaintiff was reading the Miranda Rights, Deputy Mitchell verbally went through each right with Plaintiff. (DSOF 33). When necessary Deputy Mitchell would explain or give examples to Plaintiff. (DSOF 34). Plaintiff told Deputy Mitchell that he understood his rights and was willing to speak with Deputy Mitchell. (DSOF 35). Deputy Mitchell was of the opinion that he was able to effectively communicate with Plaintiff while discussing the Miranda Rights. (DSOF 36). Deputy Mitchell noticed that Plaintiff had a hearing aid in his left ear (DSOF 21). Deputy Mitchell also noticed that during the conversation, Plaintiff would put his left ear toward Deputy Mitchell but was also concentrating on his face (DSOF 22). It was Deputy Mitchell's opinion that Plaintiff was reading lips and listening to him at the same time. (DSOF 23). Deputy Mitchell testifies that Plaintiff understood his statements and responded appropriately to those statements. (DSOF 37). At no time did Plaintiff ask for an interpreter or to communicate in any other manner. (DSOF 38). At no time did Plaintiff ask that his handcuffs be removed so he could use sign language. (DSOF 39). Plaintiff did ask that the air conditioning be turned off so he could hear better. (DSOF 40). Deputy Mitchell turned the vent off as requested by Plaintiff. (DSOF 41). It is Deputy Mitchell's opinion that during the entirety of the statement, he was able to effectively communicate with Plaintiff. (DSOF 42).

         Sheriff's deputies made a decision to arrest Plaintiff based on his wife's statements to them about what happened. CSOF ¶ 17. They went in search of Plaintiff, located him, took custody of him, and brought him back to the residence. SOF ¶¶ 18-19. They handcuffed his hands behind his back, such that he could neither communicate in his first language, American Sign Language (“ASL”), nor by way of written notes. AMF ¶ 138. He tried to communicate verbally with the officers, but he struggled to speak more than a few words. CSOF ¶ 20. He felt “really frustrated” with his inability to communicate with the officers. AMF ¶ 140. Sometime later, when he saw a transcript of his recorded conversation with officers, the words in the transcript attributed to him did not reflect what he tried to say. AMF ¶ 141. Plaintiff attempted to request an ASL interpreter during questioning. CSOF ¶ 25. Plaintiff did not understand his Miranda rights as they were explained to him in English by Deputy Mitchell. CSOF ¶¶ 32-34.

         Nonetheless, Pima County asserts that Plaintiff does not have any rights to auxiliary aids at the scene of the arrest. It has been held that police are not required to provide auxiliary aids prior to arrival at the stationhouse or prison. Rosen v. Montgomery County, 121 F.3d. 154 (4th Cir. 1997). It would be ...

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