Salinas v. City of New Braunfels

557 F.Supp.2d 771

Maria SALINAS, Plaintiff, v. CITY OF NEW BRAUNFELS, Defendant.

Civil Action No. SA-06-CA-729-XR.

United States District Court, W.D. Texas, San Antonio Division.

December 18, 2006.

Lucy D. Wood, Advocacy, Inc., Austin, TX, Thomas Joseph Crane, Law Office of Thomas J. Crane, San Antonio, TX, for Plaintiff.

Charles Straith Frigerio, Attorney at Law, Hector Xavier Saenz, Law, Ofcs. of Chas. S. Frigerio, San Antonio, TX, for Defendant.

ORDER

XAVIER RODRIGUEZ, District Judge.

On this date, the Court considered Defendant City of New Braunfels' Motion to Dismiss. For the reasons discussed below, the motion is DENIED (Docket No. 4).

I. Factual and Procedural Background

Plaintiff Maria Salinas filed this civil action for declaratory, injunctive, and monetary relief against Defendant City of New Braunfels ("the City") for alleged unlawful discrimination based on Plaintiffs hearing disability. Plaintiff asserted that Defendant discriminated against her in violation of Section 504 of the Rehabilitation Act of 1973 ("Section 504") and Title II of the Americans with Disabilities Act of 1990 ("ADA").

Plaintiff has bilateral, profound hearing loss, is deaf, and relies on the use of American Sign Language ("ASL") to communicate. She relies on ASL interpreters to communicate with people who do not sign. Plaintiff alleges that the City failed to provide her with appropriate auxiliary aids and services, failed to provide her with the opportunity for effective communication, and failed to ensure the reasonable accommodation of her disability during her interaction with the New Braunfels police and other city personnel after she called "911" to report an emergency.

On September 23, 2004, Plaintiff returned home to her apartment after work and found her boyfriend, Ed Spencer, lying motionless on her couch. It was later determined that Mr. Spencer was deceased. Unable to rouse him, Plaintiff went to her neighbor's apartment for assistance, who returned with her to her apartment and called 911 to request emergency assistance and the services of a qualified ASL interpreter. Plaintiff alleges that although the police knew from the 911 call that Plaintiff was deaf and needed interpreter services, the police did not attempt to locate an interpreter and failed to assign this task to another City employee. As a consequence, none of the responding officers were able to communicate effectively with Plaintiff.

After the police arrived at the scene and determined that Plaintiff needed interpreter services, Plaintiff alleges that the police refused to attempt to locate two interpreters whose names were given to them. Apparently, one of those two interpreters contacted the police at the scene by phone and informed an officer that Plaintiff would need an interpreter in order to communicate. This interpreter allegedly told the officer the phone number to call to obtain paid interpreter services because the interpreter speaking on the phone was unable to leave her work and interpret at the scene. The officer allegedly refused to seek paid interpreter services after being given that phone number.

Without an interpreter present, Plaintiff was unable to understand what was going on in her apartment, did not know what functions the police were performing, remained unsure about Mr. Spencer's prognosis, and became increasingly distraught as she was left out of the many communications taking place around her.

Not having succeeded in obtaining free interpreter services, the officer next attempted to communicate with Plaintiff by going to the manager of the apartment complex to learn if anyone on the premises knew sign language. The manager was familiar with the sign language alphabet, but was not able to communicate in ASL. The assistant manager's knowledge of the alphabet was so limited that she could not communicate effectively with Plaintiff, who became frustrated from being unable to communicate with the police.

Plaintiff alleges that the officer relied on the apartment manager's minimal knowledge of the alphabet in order to obtain her permission to conduct a search of her home and to ask her questions about her boyfriend's illness and use of medications. Instead of obtaining an interpreter, the officer allegedly directed Plaintiff to her bedroom and motioned for her to wait there. A police officer eventually came back into the room and indicated on a written note that he needed to search her bedroom.

An ASL interpreter eventually arrived in response to Plaintiffs earlier communication via her pager. The police allegedly did not give this interpreter access to Plaintiff. The police eventually gave the interpreter access in order to facilitate communication, but the police did not pay her. Plaintiff alleges that prior to the interpreter arriving at the scene, no officers were successful in communicating any information concerning Mr. Spencer's condition or the purpose, phase, or results of their investigation.

Plaintiff alleges that as a result of the New Braunfels police and emergency personnel's actions and inactions and discriminatory conduct, she has sustained damages including but not limited to loss of self esteem, emotional distress, mistrust of the police, continued feelings of isolation, and segregation. Plaintiff alleges that the police never provided her with the name of their ADA or Section 504 Coordinator or information concerning how she could obtain appropriate auxiliary aids or services in order to follow-up on the results of their investigation. Furthermore, she alleges that the City's police department lacks a coherent policy for responding to the basic and consistent communication needs of deaf and hard of hearing residents, in violation of Section 504 and the ADA.

Plaintiff brought a claim against the City under Section 504, claiming that she is a qualified individual with a disability. She seeks to enjoin the City from committing further violations of Section 504, which she claims are likely to be repeated due to the City's alleged deficient police practices in servicing individuals who are deaf or hard of hearing. Plaintiff also brought a claim under the ADA, claiming that the city failed to ensure that communications with her were as effective as communications with non-disabled individuals, failed to provide auxiliary aids and services, failed to modify policies, practices and procedures to avoid discrimination, and failed to provide notice of the designated ADA Coordinator, all in violation of the ADA's implementing regulations.

In its motion to dismiss, the City argues that its officers did attempt to locate an interpreter but were unsuccessful. The City points out that an interpreter did eventually arrive on the scene in order to facilitate communication. Based on the Fifth Circuit case of Hainze v. Richards, the City argues that Plaintiffs ADA and Section 504 claims, which arose in the context of law enforcement activity, must be dismissed. Additionally, the City asserts that Plaintiffs reporting of an incident wherein she requested [that] police respond to her apartment does not fall in the category of "services, programs or activities of a public entity" of Title II as contemplated in Hainze.

II. Legal Analysis

A. Legal standard for motion to dismiss

In considering a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the Court must accept all well-pleaded facts as true and view them in the light most favorable to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.1996). The issue is not whether the plaintiff will prevail but whether the plaintiff is entitled to pursue his complaint and offer evidence in support of his claims. Doe v. Hillsboro Indep. Sch. Dist., 81 F.3d 1395, 1401 (5th Cir.1996). The Court may not look beyond the pleadings in ruling on the motion. Baker, 75 F.3d at 196. Motions to dismiss are disfavored and are rarely granted. Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 164 (5th Cir.1999). Dismissal should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. at 164 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). However, the Court does not accept conclusory allegations or unwarranted deductions of fact as true. Tuchman v. DSC Commc'ns Corp., 14 F.3d 1061, 1067 (5th Cir.1994).

B. The City's motion to dismiss Plaintiff s ADA and Section 504 claims is DENIED

Title II of the ADA provides 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, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. A "public entity" includes "any department, agency, special purpose district, or other instrumentality of a State or States or local government." 42 U.S.C. § 12131(1)(B). The language of Title II generally tracks the language of Section 504 of the Rehabilitation Act of 1973¹, and Congress' intent was that Title II extend the protections of the Rehabilitation Act "to cover all programs of state or local governments, regardless of the receipt of federal financial assistance" and that it "work in the same manner as Section 504." H.R.Rep. No. 101-485, pt. III at 49-50 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 472-73. In fact, the statute specifically provides that "[t]he remedies, procedures and rights" available under Section 504 shall be the same as those available under Title II. 42 U.S.C. § 12133. The Fifth Circuit has held that jurisprudence interpreting either section is applicable to both. Hainze v. Richards, 207 F.3d 795, 799 (5th Cir.2000). Title II further directs the Attorney General to promulgate regulations to effectuate the statute's purpose. 42 U.S.C. § 12134(a) (see 28 C.F.R. § 35, et seq.).

Courts have broadly construed the "services, programs, or...