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Alba-Cruz v. Ard

United States District Court, M.D. Louisiana

December 7, 2018




         This matter comes before the Court on the Motion for Summary Judgment (Doc. 42) by Defendant Sheriff Jason Ard. Plaintiff Edison Jhon Alba-Cruz opposes the motion. (Doc. 48.) Defendant has filed a reply. (Doc. 56.) Oral argument is not necessary. The Court has carefully considered the law, the facts in the record, and the arguments and submissions of the parties and is prepared to rule.

         For the following reasons, Defendant's motion is granted in full. No. reasonable juror could conclude that Defendant intentionally discriminated against Plaintiff in violation of Title II of the Americans with Disabilities Act (“ADA”) or the Rehabilitation Act (“RA”). Plaintiff never requested an accommodation. Further, though requests are not required if the disability, limitation, and necessary reasonable accommodation are open, obvious, and apparent, here the necessary reasonable accommodation was not obvious. That is, Defendant's employees reasonably believed that Plaintiff could understand the written instructions provided to him, and they had no indication that Plaintiff could not understand these instructions. Without more, Plaintiff cannot establish that Defendant's conduct rose to something more than deliberate indifference. As a result, Defendant is entitled to summary judgment, and Plaintiff's claims will be dismissed with prejudice.

         I. Relevant Factual Background

         A. Plaintiff's Background

         Plaintiff Alba-Cruz is a profoundly deaf individual. (Pl. Ex. A 2, Doc. 51.) According to a September 20, 2011, Re-Evaluation conducted by the Louisiana School for the Deaf (“LSD”), the language Plaintiff most often uses at home is sign/American Sign Language (“ASL”). (Pl. Ex. A 4., Doc. 51.) Plaintiff also uses ASL to communicate with other students. (Pl. Ex. A. 4, Doc. 51.) The LSD noted Plaintiff's “limited exposure to English” and stated that Plaintiff's “inability to write coherently in English with his limited vocabulary inhibited his ability to respond to text through constructed response items.” (Pl. Ex. A. 5, Doc. 51.) In summarizing the Re-Evaluation, LSD stated, “It is evident that Jhon's poor educational foundation continues to influence his educational performance, and it is questionable if he will be able to overcome years of substandard education in order to obtain a high school diploma.” (Pl. Ex. A. 6-7, Doc. 51.) Plaintiff's strengths included, among other things, “[b]enefits from signed communication”; his “Curricular Adaptations/Modifications and Instructional Methods” listed, inter alia, “[p]rovide instruction via signed communication.” (Pl. Ex. A. 7, Doc. 51.)

         Plaintiff also submits the expert report of Nicky Gillies, an ASL interpreter and instructor. (Pl. Ex. G., Doc. 48-10; Pl. Ex. D, Doc. 48-7.) Gillies opines that ASL is not derived from English “but is in fact an entirely separate and equally complex language with its own unique grammar, syntax, and structure, as well as its own historical development.” (Pl. Ex. D. 4, Doc. 48-7.) For example, “English often uses the basic sentence structure of ‘subject, verb, object” while “ASL, in contract, typically uses the structure of ‘object, subject, verb.' ” (Pl. Ex. D 5, Doc. 48-7.) “A qualified ASL interpreter takes a message in one language, processes it for understanding, and decides on a highly accurate, equally detailed equivalent to that message in a different language . . . Additionally, facial expressions in ASL serve a grammatical function, unlike English where they typically only express emotion.” (Pl. Ex. D 5, Doc. 58-7.) The report also explains how:

Often, Deaf or Hard of Hearing individuals will nod when spoken to . . . in order to appear polite or compliant, or to expedite the frustrating interaction, even if they do not understand what's being said to them. In addition to this phenomenon, in Deaf culture the person who is receiving communication (the listener we might call them in another context) often nods frequently or constantly throughout the communication event. This typically signifies that the person is paying attention or trying to understand. However, in mainstream, hearing culture, head nodding is often understood to mean agreement, understanding, or consent. . . . With a qualified interpreter present, the Deaf or Hard of Hearing individual can directly indicate their understanding or lack of understanding, and the interpreter can also make adjustments in signing style or vocabulary in order to better match the individual's own signing style and vocabulary.

(Pl. Ex. D 6-7, Doc. 58-7.) Lastly, Gillies stated, “Nationally, Deaf and Hard of Hearing high school graduates have been proven to have extremely low levels of English literacy”, so, “[f]or this reason, written communication in English is not and should not be assumed to be equivalent to signed communication in ASL through a qualified interpreter.” (Pl. Ex. D 6, Doc. 58-8.)

         B. Plaintiff's Arrest and the Parish's Temporary Booking Facility

         This case arises from Plaintiff's arrest and subsequent processing at a temporary facility in Livingston Parish. This incident is the first and only time Plaintiff has been arrested. (Pl. Dep. 84:9-14, Doc. 48-2.)

         Specifically, on September 3, 2016, Livingston Parish Sheriff's Deputy Christian Williams was dispatched to the scene of a domestic disturbance. (Defendant's Local Rule 56(a) Statement of Undisputed Material Facts (“DSUMF”) ¶ 1, Doc. 42-2; Plaintiff's Statement of Contested / Uncontested Facts (“PSCUF”) ¶ 1(a), Doc. 48-1.) Williams testified that, upon arrival, he made contact with Jonathan Merritt, who informed him that he was hit several times by his son, the Plaintiff, and that Plaintiff had also hit his sister, Vanessa Alba-Cruz, in the eye. (Williams Decl. ¶ 3, Doc. 42-3.) Williams stated that Merritt informed him that Plaintiff is deaf. (Williams Decl. ¶ 3, Doc. 42-3.)

         Williams made contact with Plaintiff, placed him in handcuffs, and then put him in Williams' patrol car without incident. (Williams Decl. ¶ 4, Doc. 42-3.) Williams took a voluntary statement from Merritt, who said that he saw Plaintiff pushing Vanessa Alba-Cruz and then punch her in the face. (Williams Decl. ¶ 5, Doc. 42-3.) Williams also said that, when Plaintiff went to punch Vanessa again, Merritt grabbed Plaintiff's hand, at which time Plaintiff hit Merritt in the face. (Williams Decl. ¶ 5, Doc. 42-3.) Williams observed “a fresh and bloody scratch mark on the right side of Mr. Merritt's face.” (Williams Decl. ¶ 5, Doc. 42-3.) Williams next spoke to Vanessa, who said that she and her brother (the Plaintiff) “had an altercation via sing (sic) language at which time he became increasingly mad” and “starting pushing her and punched her in the eye.” (Williams Decl. ¶ 6, Doc. 42-3.) Williams observed bruises to Vanessa's eye. (Williams Decl. ¶ 6, Doc. 42-3.)

         William attests that he then talked with Merritt again and informed him that Plaintiff was being arrested for domestic abuse battery, which required that a temporary restraining order be issued against Plaintiff that would prevent him from living at the residence. (Williams Decl. ¶ 7, Doc. 42-3.) Merritt expressed his understanding. (Williams Decl. ¶ 7, Doc. 42-3.)

         Plaintiff, on the other hand, testified that he gestured to Williams that he was deaf and that some of the family told Williams he was deaf, but, “What they all talked about, I have no clue.” (Pl. Dep. 28:16-21, Doc. 48-2.) Plaintiff stated that he “couldn't communicate at all.” (Pl. Dep. 29:6-8.)

         According to Williams, after his investigation into the incident, he transported Plaintiff to the Livingston Parish Courthouse, where he was charged with simple battery and domestic abuse battery. (Williams Decl. ¶¶ 4-8, Doc. 42-3.) The Livingston Parish Courthouse was operating as a temporary booking facility for individuals arrested by the Livingston Parish Sheriff's Office due to the unavailability of the Livingston Parish Detention Center. (DSUMF ¶ 3, Doc. 42-2; PSCUF ¶ 3(a), Doc. 48-1.) Specifically, at the time of Plaintiff's arrest, the Livingston Parish Detention Center had experienced substantial damage during the floods that inundated Livingston Parish in August of 2016. (DSUMF ¶ 3, Doc. 42-2; PSCUF ¶ 3(b), Doc. 48-1.) Accordingly, the Detention Center was not housing inmates. (DSUMF ¶ 3, Doc. 42-2; PSCUF ¶ 3(c), Doc. 48-1.) Williams testified that all arrestees were transported to the temporary booking facility at the Livingston Parish Courthouse for processing, and were placed in temporary holding cells for a short time before being transported to another detention facility for housing. (Williams Decl. ¶ 10, Doc. 42-3.)

         C. Beginning of Plaintiff's Booking And the Initial Arrest Report and Prisoner Booking and Property Record

         In his deposition, Warden Perry Rushing, who testified as a corporate deponent on behalf of Sheriff Ard and his office (Rushing Dep. 5:17-21, Doc. 48-3), explained that, at various points after the flood, parts of the booking process were implemented which included filling out booking sheets and property sheets (with the collection of property). (Rushing Dep. 15:2-17:25, Doc. 48-3.)

         Williams testified that, upon his arrival at the temporary booking facility, he notified the deputies working in the booking station and the nurse that Plaintiff was deaf. (Williams Decl. ¶ 11, Doc. 42-3.)

         During the booking of Plaintiff, Deputy Williams completed an Initial Arrest Report and Prisoner Booking and Property Record. (DSUMF ¶ 5, Doc. 42-2; PSCUF ¶ 5(a), Doc. 48-1.) This form is generally filled out by the arresting officer. (Rushing Dep. 12:17-18, Doc. 48-3.) This document has space to write in the arrestee's name and the charges against him and lists several rights, including a prisoner's Miranda rights and the following: “You have the right to one telephone call, after you have completed the Booking Procedure.” (Pl. Ex. H, Doc. 48-11.) At the bottom is also a signature block, above which is the statement, “I CERTIFY THAT I HAVE READ AND FULLY UNDERSTAND THE ABOVE INSTURCTIONS AND MY RIGHTS.” (Pl. Ex. H, Doc. 48-11.)

         Williams testified that he was able to obtain all of the information needed to complete the Initial Arrest Report and Prisoner Booking form by using hand gestures (such as pointing) and written notes with Plaintiff. (Williams Decl. ¶ 12, Doc. 42-3.) Williams elaborated that he was specifically able to obtain Plaintiff's social security number and emergency contact information by pointing to those sections of the form, and Plaintiff wrote down the information for Williams. (Williams Decl. ¶ 12, Doc. 42-3.) Williams testified: “As a general practice, I do not ask for any person arrested by me to sign the initial Arrest Report and Prisoner Booking and Property Record, and I did not ask [Plaintiff] to do so.” (Williams Decl. ¶ 13, Doc. 42-3.)

         Further, Williams also stated that he believed plaintiff was able to read and understand written English since he provided appropriate responses. (Williams Decl. ¶ 14, Doc. 42-3.) Plaintiff disputes this, and this issue will be explored further below. Defendant also points to some of Plaintiff's testimony in support of his position. Plaintiff was asked if the deputy “ever tried to force him to read his lips or understand him without an interpreter, ” and Plaintiff responded, “No.” (Pl. Dep. 30:19-22, Doc. 48-2.) Plaintiff further testified:

Q. Did you ever write anything to the deputies? . . . . All of the questions I'm asking right now, I'm asking about when you were brought to Livingston immediately after your arrest, before you were brought anywhere else. At that time, did you write any notes or questions to the deputies?
A. Really, I would say they asked me for my phone number. . . . The police asked me for my phone number, and I gave it to them. Second, they just asked me, like, little simple things - police. It was short, like not elaborate, like Social Security number, SSN, and I wrote that down. How old are you? Age - they put ‘age,' and I told them my age; and then they asked me about medicine, and it was a whole paragraph there. I really wasn't too sure about what they were asking, so - and that was it.
Q. Did you ever tell them that you could not read?
A: No. I don't know if I told them. I just said, “IDK, ” I don't know. They'd show me something, and I'd say, “IDK, ” I don't know.
Q. Did you ever tell them, “I don't understand”?
A. Really not. I mean, I just put, “IDK, ” and “I don't know.” I don't know what - I don't know how to read. I mean, I don't know how to read. I don't know.

(Pl. Dep. 37:5-38:22, Doc. 48-2.)

         Meanwhile, Plaintiff points to other testimony. Specifically, Plaintiff testified that, when he got to the facility in Livingston, “they started talking to [him] and then [he] [thought] probably - then the police talked amongst themselves.” (Pl. Dep. 32:14-16, Doc. 48-2.) Plaintiff continued: “I think they may have told them that I was deaf or something like that because I was just kind of sitting there. They asked me to write, and I showed them the cuffs. And then they asked me, like, my Social Security number and, like, if I had any medications or allergies, and I just put, I don't know; I don't know. I didn't know my Social Security number.” (Pl. Dep. 32:14-23, Doc. 48-2.) According to Plaintiff, Williams brought in a little note and wrote, “You're deaf, ” and showed it to Plaintiff, as a question, “Are you deaf?” (Pl. Dep. 43:14-17, Doc. 48-2.) Plaintiff “shook [his] head, ‘Yes, deaf,' okay?” (Pl. Dep. 43:18-21, Doc. 48-2.)

         Plaintiff contends that he was unable to write his Social Security number and refers to certain testimony in which Plaintiff indicated that he did not know and the deputies “had a facial expression and went off, didn't say anything more.” (Pl. Dep. 40:10-15, Doc. 48-2.) But Plaintiff testified shortly thereafter that a deputy “asked for [Plaintiff's] Social Security number, so [Plaintiff] wrote that[.]” (Pl. Dep. 43:23-44:11, Doc. 48-2.)

         Plaintiff also responds by submitting a document titled “Initial Arrest Report and Prisoner Booking and Property Record” which has an “X” by the signature line. (Pl. Ex. C., Doc. 48-6.) In response to Williams' statement that he did not ask Plaintiff to sign the document, Plaintiff focuses on Warden Rushing's testimony in which he said it was the “official position of Sheriff Jason Ard” that it was “best practice” for the form to be signed. (Rushing Dep. 32:22-33:2, Doc. 48-3.) However, as Defendant correctly argues, “plaintiff has no evidence to establish where this ‘x' came from or who wrote it. He cannot prove that a Sheriff's Deputy put the “'x' on the form or for what purpose. Nor does he submit any evidence to establish that this form was ever even shown to plaintiff.” (Defendant's Reply Memorandum in Support of Motion for Summary Judgment, Doc. 56 at 5.).

         Plaintiff also states in his affidavit that certain things were not explained to him during booking, including a “brief statement of the charges against me”, his Miranda rights, his right to a preliminary examination, his “right to make one telephone call after I complete the booking process”, and his ability to authorize Ard to release his medical records. (Pl. Aff. ¶ 5, Doc. 48-9.) Plaintiff further said: “To the extent a Sheriff deputy attempted to explain the above information [(regarding his rights on the booking form)], said hand gestures were not in American Sign Language and did not provide me with any explanation of my rights.” (Pl. Aff. ¶ 6, Doc. 48-9.)

         D. Booking and Plaintiff's Property

         Additionally, Livingston Parish Sheriff's Deputy Jean Hotard received and cataloged Plaintiff's personal property upon booking. (DSUMF ¶ 8, Doc. 42-2; PSCUF ¶ 8(a), Doc. 48-1.) Hotard testified that this process involves preparing an Arrestee Property Transfer Inventory form, which documents the personal property taken from all arrestees during booking. (Hotard Decl. ¶ 5, Doc. 42-4.) While performing this process with Plaintiff, Hotard cataloged each item of person property taken from Plaintiff and documented it on the Arrestee Property Transfer Inventory form. (DSUMF ¶ 8, Doc. 42-2; PSCUF ¶ 8(c), Doc. 48-1.) As Hotard cataloged each item, he pointed to its description for Plaintiff to read. (Hotard Dec. ¶ 6, Doc. 42-4.) When Hotard completed the task of cataloging Plaintiff's personal property, Hotard signed the form near the bottom and gestured for Plaintiff to do the same. (DSUMF ¶ 8, Doc. 42-2; PSCUF ¶ 8(e), Doc. 48-1.) Hotard stated that Plaintiff “signed the form without indicating that he could not read or understand its contents or purpose.” (Hotard Decl. ¶ 6, Doc. 42-4.) Hotard then said: “When I completed the cataloging of Mr. Alba-Cruz's personal property, I signed the form near the bottom and gestured for Mr. Alba-Cruz to do the same. Mr. Alba-Cruz signed the form without indicating that he could not read or understand its content or purpose.” (Howard Decl. ¶ 7, Doc. 42-4.)

         Plaintiff points to other testimony from Rushing concerning booking and Plaintiff's property. Specifically, Rushing stated that property sheets were completed during a typical process. (Rushing Dep. 17:23-25, Doc. 48-3.) Rushing further testified, when asked what was explained to inmates about the purpose of the sheet, that he didn't “know if we explain anything to inmates about the purpose of a property sheet.” (Rushing Dep. 18:1-5, Doc. 48-3.) Rushing continued: “If they ask, they are told that those items are removed from them because they were prohibited from being kept in the facility.” (Rushing Dep. 18:6-8.) After explaining that certain property was taken from inmates, Rushing was asked if anything was told to the inmates about what would happen to the collected items, and Rushing said: “I'm not sure that each time a deputy says we are going to hold this until you get out of jail. Some of them understand that, I think, without being told. But I can't tell you each individual case if they do a detailed explanation that's going on with the property.” (Rushing Dep. 18:17-19:1, Doc. 48-3.) Rushing further said that he could not recall there being a policy that addresses what is supposed to be explained when items are taken. (Rushing Dep. 19:2-6, Doc. 48-3.) According to Plaintiff's argument, “[t]he natural inference from Jason Ard's corporate deposition . . . is that a segment of arrestees are provided with a detailed explanation [of] what's going on with the property.” (PSCUF, Doc. 48-1 ¶ 8(b).) Plaintiff also points to the lack of training, which will be discussed below.

         E. Completion of Plaintiff's Time in Custody and Plaintiff's Request for an Accommodation

         The parties agree that Plaintiff was held at the Livingston Parish Courthouse for only “a short time, ” which he estimated to be eight to nine hours. (DSUMF ¶ 10, Doc. 42-2; PSCUF ¶ 10, Doc. 48-1.) Further, both sides acknowledge that Plaintiff was then transferred to Tangipahoa Parish, then to Catahoula Parish for housing, since the Livingston Parish Detention Center was unavailable. (DSUMF ¶ 10, Doc. 42-2; PSCUF ¶ 10, Doc. 48-1.) The parties further agree that Plaintiff returned to Livingston Parish for a brief time to gather his property upon being released from custody and that Plaintiff was not asked to sign any paperwork at this time. (DSUMF ¶ 11, Doc. 42-2; PSCUF ¶ 11, Doc. 48-1.)

         And, importantly, both parties agree that “[a]t no time during his arrest, booking, or detention by the Livingston Parish Sheriff's Office did [Plaintiff] request a sign language interpreter (or any other auxiliary aid).” (DSUMF ¶ 12, Doc. 42-2; PSCUF ¶ 12, Doc. 48-1.)

         F. Plaintiff's Indication That He Could Not Understand the Deputies

         Equally critical, the parties dispute whether Alba-Cruz ever gave an indication that he could not read or whether it appeared that he was having difficulty communicating effectively. Specifically, Williams testified that, “At no time during [Plaintiff's] arrest or the booking process did Mr. Alba-Cruz make any indication to [Williams] or any other person that he could not read written English.” (Williams Decl. ¶ 14, Doc. 42-3.) Williams continued: “In fact . . ., [Williams'] interactions with [Plaintiff], and specifically his ability to read the information I needed on the Initial Arrest Report and Prisoner Booking and Property Record, caused [Williams] to believe that he was able to read and understand written English since [Plaintiff] provided appropriate responses.” (Williams Decl. ¶ 14, Doc. 42-3.) Williams also said that “At no time during his arrest or the booking process did [Plaintiff] make any indication to [him] or any other person that he did not understand why he was arrested or the booking process, nor did it appear to [Williams] that [Plaintiff] did not understand what was being communicated to him.” (Williams Decl. ¶ 15, Doc. 42-3.) Williams emphasizes that at no time did Plaintiff request a sign language interpreter, a specific auxiliary aid for communication, a telephone call, the use of a video phone, or the use of a TTY machine. (Williams Decl. ¶¶ 16-19, Doc. 42-3.) And, at no time during the arrest or booking process did Williams believe that Plaintiff did not understand the process or procedure, including the documents provided to him. (Williams Decl. ¶ 20, Doc. 42-3.) Further, “At all times during [Williams'] interactions with [Plaintiff], and during the interactions [Williams] witnessed between [Plaintiff] and other employees of the Livingston Parish Detention, [Williams] believed that [Plaintiff[ was able to effectively communicate through hand gestures and written words.” (Williams Decl. ¶ 21, Doc. 42-3.)

         Hotard provided substantially similar testimony as Williams. (Hotard Decl. ¶¶ 8-14, Doc. 42-4.) This included the following specific statements:

At no time during the booking process did Mr. Alba-Cruz make any indication to me or any other person that he could not read written English. To the contrary, at all times it appeared to me that he understood the property inventor y process. Based on these interactions, I believed Mr. Alba-Cruz was capable of reading written English.
At no time during his arrest or the booking process did Mr. Alba-Cruz make any indication to me or any other person that he did not understand the booking process, nor did it appear to me that he did not understand what was being communicated to him.

         (Hotard Decl. ¶¶ 8-9, Doc. 42-4.)

         Defendant also points to Plaintiff's own testimony to support his argument that Plaintiff gave no indication that he could not read. Specifically, Plaintiff was asked, “Did you ever tell a deputy, ‘IDK'?”, and he responded, “No. To the doctor - to the doctor.” (Pl. Dep. 46:3-4.) Plaintiff was also asked, when he was with Livingston, “Never told anyone that you couldn't read at that time, right?”, and Plaintiff replied: “No.” (Pl. Dep. 52:17-53:7.) Similarly, he was asked elsewhere, “Did you ever tell any of the deputies in Livingston that you did not know how to read?”, and Plaintiff replied, “No.” (Pl. Dep. 45:14-16, Doc. 48-2.) Plaintiff testified further:

Q. So when you came back to Livingston, did you ever tell a deputy you couldn't read? I think you answered that question already.
A. No.
Q. When you came back to Livingston, did you have - were you given any paperwork that you didn't understand?
A. No.

(Pl. Dep. 54:11-18, Doc. 42-5.)

         Plaintiff maintains that he could not understand. In response to Williams and Hotard's statements that Plaintiff could understand, Plaintiff points to Warden Rushing's testimony that the LPSO had “[n]o specific training that [Rushing] can tell” about with respect to “assessing whether an individual who is deaf is able to read a document” (Rushing Dep. 48:22-49:2.)[1] Plaintiff also points to the unsigned form with the written “X” on it as evidence that he did not understand. Lastly, Plaintiff refers to the following testimony from his own deposition:

Q. You told us that they had forms with name, Social Security number, that they showed you. Did they ever write out any notes to you - the deputies?
A. No. Mostly, they just came in, left, came in and left, gave me that little piece of paper, found my name, asked me my Social Security number, came in, left again. Just my name and stuff, address.
Q. And the information that the deputies were asking, you understood that, correct?
A. Yes, I understood that. I mean, just simple -- you know, "S-S-N," "n-a-m-e," you know, name, those were very simple, basic words.
Q. And we're still talking about the time that you were brought to Livingston right after the arrest. During that time, did you ever ask for an interpreter?
A. I didn't know. I mean, I was just standing there. They left, and I didn't know. They brought me a little paper, and they told me to come sit. They came in and left, came in and left. And I should have maybe gotten paper, but I didn't have any way to do that and communicate. So I just sat there and slept.
Q. Did you ever write a note saying, "I need an interpreter"?
A. No. They didn't ever stay long enough, and they closed the door and left me there.

(Pl. Dep. 47:4-48:7, Doc. 48-2.)

         Plaintiff also points to certain other testimony from Rushing concerning the deputies' explanation of documents:

Q. What about asking for providing a basic explanation as to the document? Is that prohibited under the sheriff's policy? .. .
A. That could cover a lot of different topics.
Q. I guess what is in the sheriff's office the definition of providing legal advice?
A. Should I plead guilty to this charge? Should I get an attorney? I always recommend, yes, get an attorney. Don't ask me. Get an attorney. That's my position to encourage or the policy of the sheriff's office.
Q. I guess my next question is at what point would it be considered providing a general explanation about a document would it go into inappropriate legal advice, whether there is ...

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