Opinion
No. 4:00-CV-1871-A
January 8, 2002
MEMORANDUM OPINION and ORDER
Came on for consideration the motion of defendant Tarrant County, Texas, ("Tarrant County") for summary judgment. The court, having considered the motion, the response of plaintiff, Sheila Grady, the reply, the record, the summary judgment evidence, and applicable authorities, finds that the motion should be granted.
The court notes that plaintiff filed, on January 3, 2002, what appears to be a reply to Tarrant County's reply. That document was filed without leave of court and, as noted by Tarrant County in its motion to strike, is subject to being stricken. See Local Civil Rule 56.7. However, no purpose would be served by striking the document at this time. Accordingly, the court is denying the motion to strike.
I. Plaintiff's Claims
By order signed December 15, 2000, the Honorable Terry R. Means ordered that Case No. 4:00-CV-1652-Y, styled "Johnny Lee Fitzgerald Ganter, et al., v. City of Fort Worth, Texas," be severed into four separate actions with one plaintiff each. The claims asserted by plaintiff Sheila G. Grady were then assigned the above-referenced case number. On January 4, 2001, pursuant to Judge Means's order, plaintiff filed her amended complaint in this action. In it, she asserts: Plaintiff is profoundly deaf and communicates by American Sign Language ("ASL"). On June 22, 1999, she was involved in a dispute with her deaf roommate regarding an apartment lease. Ultimately, plaintiff was arrested and taken to the Tarrant County jail. Tarrant County personnel refused to provide plaintiff a sign language interpreter and denied her access to the "TTY," a telephone device that enables deaf people to communicate.
Plaintiff asserts claims for violation of § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, violation of Title II of the Americans With Disabilities Act, 42 U.S.C. § 12131-12165 ("ADA"), and violation of chapter 121 of the Texas Human Resources Code.
II. Grounds of the Motion
Defendant maintains that plaintiff cannot establish a violation of any of the provisions she asserts as the basis for her claims. Defendant additionally urges that: (1) because plaintiff's claims allegedly fall under the ADA, her claims under the Rehabilitation Act and Texas Human Resources Code are mere surplusage; (2) it is not subject to an award of punitive damages; (3) plaintiff is not entitled to injunctive or declaratory relief; and, (4) as for compensatory damages, plaintiff cannot show that any damages she suffered were the fault of Tarrant County.
III. Applicable Summary Judgment Principles
A party is entitled to summary judgment on all or any part of a claim as to which there is no genuine issue of material fact and as to which the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The moving party has the initial burden of showing that there is no genuine issue of material fact. Anderson, 477 U.S. at 256. The movant may discharge this burden by pointing out the absence of evidence to support one or more essential elements of the non-moving party's claim "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). Once the moving party has carried its burden under Rule 56(c), the non-moving party must do more than merely show that there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party opposing the motion may not rest on mere allegations or denials of pleading, but must set forth specific facts showing a genuine issue for trial. Anderson, 477 U.S. at 248, 256. To meet this burden, the nonmovant must "identify specific evidence in the record and articulate the `precise manner' in which that evidence support[s] [its] claim[s]." Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994). An issue is material only if its resolution could affect the outcome of the action. Anderson, 477 U.S. at 248. Unsupported allegations, conclusory in nature, are insufficient to defeat a proper motion for summary judgment. Simmons v. Lyons, 746 F.2d 265, 269 (5th Cir. 1984)
The standard for granting a summary judgment is the same as the standard for a directed verdict. Celotex Corp., 477 U.S. at 323. If the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.Matsushita, 475 U.S. at 597.
IV. Undisputed Facts
The undisputed summary judgment evidence establishes the following facts:
Plaintiff has been deaf since birth. Beginning at age five, she attended a school for the deaf at which she learned how to read lips and to speak and to write standard English. Plaintiff's parents were very supportive. Plaintiff attended both schools for the deaf and hearing schools. Plaintiff learned ASL when she went to college.
In June 1999, plaintiff was separated from her husband and in the process of getting a divorce. To help make ends meet, she took on a roommate, Christopher Oliver, with whom she became romantically involved. On June 22, plaintiff asked Oliver to move out of her apartment for a period of time while her divorce was finalized. During their various discussions on that day, plaintiff was cut with a pair of scissors and plaintiff kneed or kicked Oliver in the scrotum and tore his shirt. Ultimately, plaintiff was arrested and taken to the Tarrant County jail. While there, she repeatedly requested a sign language interpreter and asked to use the TTY telephone. Although Tarrant County did not provide an interpreter, its employees were able to effectively communicate with plaintiff as she was booked into the jail. Plaintiff noticed that some people who were brought into the jail after she was were allowed access to a telephone before she was.
Plaintiff was brought into the jail at approximately 4:30 p.m. An inventory was made of her property and various registration forms were completed. At 7:08 p.m., the charges against plaintiff were approved by the jail supervisor. At 7:30 p.m., plaintiff made a phone call on the TTY telephone. She was officially booked into the jail at 7:49 p.m. At 8:57 p.m., plaintiff's identification process began. At 9:29 p.m., plaintiff's bond was generated and, at 11:30 p.m., plaintiff was released.
On June 22, 1999, 149 prisoners were processed in and 161 prisoners were processed out of the Tarrant County jail, an average day. The booking process normally takes from six to eighteen hours, depending on the volume of prisoners being booked in and out and a host of other variables. Plaintiff was released from the jail before an interpreter would have been called to assist her during arraignment and the subsequent booking steps before being assigned to inmate housing. Pursuant to Tarrant County policy, if any of the officers in the booking area could not effectively communicate with plaintiff, an interpreter would have been called to assist. Plaintiff was processed and released from custody in a timely fashion, without any unreasonable delay or hindrance.
V. Law Applied to the Facts
Section 504 of the Rehabilitation Act provides, in pertinent part:
No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . .29 U.S.C. § 794(a). To establish a prima facie violation of § 504, plaintiff must prove that (1) she is a "handicapped person" as defined in the Rehabilitation Act; (2) she is "otherwise qualified" to participate in the offered activity or to enjoy its benefits; (3) she was excluded, denied benefits, or discriminated against solely by reason of her handicap; and, (4) the program denying plaintiff participation receives federal financial assistance. Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 253 (3d Cir. 1999); Grzan v. Charter Hosp. of Northwest Indiana, 104 F.3d 116, 119 (7th Cir. 1997)
The ADA similarly prohibits discrimination on the basis of disability. Title II of the statute prohibits discrimination by public entities. It provides:
Subject to the provisions of this subchapter, 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. The requirements for stating a claim under the ADA are virtually identical to those under § 504 of the Rehabilitation Act. Clarkson v. Coughlin, 898 F. Supp. 1019, 1037 (S.D.N.Y. 1995). The Rehabilitation Act requires that the discrimination be based solely on disability; the ADA only requires that the discrimination be by reason of the disability. Washington v. Indiana High Sch. Athletic Ass'n, Inc., 181 F.3d 840, 845 n. 6 (7th Cir. 1999)
The parties do not dispute that plaintiff is a qualified individual with a disability and that Tarrant County receives federal funds and is a public entity. The summary judgment evidence establishes that plaintiff was not excluded from or denied benefits of participating in any program, service, or activity. And, plaintiff has not raised a genuine fact issue as to whether she was discriminated against because of her disability. At most, plaintiff has shown that some people who were brought into the jail after she was were allowed to make telephone calls before she was. She has not shown that she had to wait an unreasonable period of time under the circumstances or that she had to wait longer than everyone else.
The court is satisfied that plaintiff likewise cannot establish a genuine fact issue as to the alleged violation of a state law. The Texas Human Resources Code provides, in pertinent part:
The court notes that in interpreting Texas antidiscrimination laws, Texas courts consider how federal statutes covering similar subjects are implemented. See Caballero v. Cent. Power Light Co., 858 S.W.2d 359, 361 (Tex. 1993) (noting that in interpreting the Texas Commission on Human Rights Act, Texas courts consider how Title VII is implemented).
Persons with disabilities have the same right as the able-bodied to the full use and enjoyment of any public facility in the state.
TEX. HUM. RES. CODE ANN. § 121.003(a) (Vernon 2001). Plaintiff has not shown that she was the only person denied use of the telephone for a particular length of time. Thus, she has not raised a genuine issue for trial. See Texas State Hotel, Inc. v. Heagy, 650 S.W.2d 503 (Tex.App. — Houston [14th Dist.] 1983, no writ).
Plaintiff does not address any of Tarrant County's alternative grounds of the motion. In particular, she does not dispute that punitive damages are not available. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 263 (1981). Nor does plaintiff dispute that injunctive and declaratory relief are not available. Since plaintiff has not established a genuine issue as to discrimination, there is no need to discuss the issue of damages.
VI. ORDER
For the reasons discussed herein,
The court ORDERS that Tarrant County's motion for summary judgment be, and is hereby, granted; that plaintiff take nothing on her claims against said defendant; and that such claims be, and are hereby, dismissed with prejudice. The court further ORDERS that Tarrant County's motion to strike be, and is hereby, denied.