United States District Court, M.D. Louisiana
RULING AND ORDER
W. DEGRAVELLES UNITED STATES DISTRICT COURT JUDGE
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.
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.
Relevant Factual Background
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,
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.
Plaintiff's Arrest and the Parish's Temporary Booking
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.)
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.)
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.)
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.)
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.
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.)
Beginning of Plaintiff's Booking And the Initial Arrest
Report and Prisoner Booking and Property Record
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.)
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.)
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.)
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.)
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
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
Q. Did you ever tell them, “I don't
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.)
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.
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.)
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.).
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.)
Booking and Plaintiff's Property
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.
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
Completion of Plaintiff's Time in Custody and
Plaintiff's Request for an Accommodation
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.)
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.)
Plaintiff's Indication That He Could Not Understand the
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,
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
Decl. ¶¶ 8-9, Doc. 42-4.)
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
Q. When you came back to Livingston, did you have - were you
given any paperwork that you didn't understand?
(Pl. Dep. 54:11-18, Doc. 42-5.)
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.) 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
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.)
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