292 F.Supp.3d 1254 (W.D.Okl. 2017), CIV-16-1241-D, Reininger v. State

• Citation: 292 F.Supp.3d 1254
• Opinion Judge: TIMOTHY D. DeGIUSTI, UNITED STATES DISTRICT JUDGE
• Party Name: Johnny REININGER, Jr., Plaintiff, v. State of OKLAHOMA, et al., Defendants.
• Attorney: No. CIV-16-1241-D Kayla A. Bower, Gary A. Taylor, Joy J. Turner, Oklahoma Disability Law Ctr, Oklahoma City, OK, Melissa K. Sublett, Oklahoma Disability Law Ctr, Tulsa, OK, Debra J. Patkin, National Association of the Deaf, Silver Spring, MD, Martha M. Lafferty, Mary C. Vargas, Pro Hac Vice, Mich...
• Case Date: November 09, 2017
• Court: United States District Courts, 10th Circuit, U.S. District Court — Western District of Oklahoma

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292 F.Supp.3d 1254 (W.D.Okl. 2017)

Johnny REININGER, Jr., Plaintiff,

v.

State of OKLAHOMA, et al., Defendants.

No. CIV-16-1241-D

United States District Court, W.D. Oklahoma

November 9, 2017

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Kayla A. Bower, Gary A. Taylor, Joy J. Turner, Oklahoma Disability Law Ctr, Oklahoma City, OK, Melissa K. Sublett, Oklahoma Disability Law Ctr, Tulsa, OK, Debra J. Patkin, National Association of the Deaf, Silver Spring, MD, Martha M. Lafferty, Mary C. Vargas, Pro Hac Vice, Michael S. Stein, Stein & Vargas LLP, Marc Charmatz, Washington, DC, for Plaintiff.

Desiree D. Singer, Devan A. Pederson, M. Daniel Weitman, Attorney General’s Office, Justin P. Grose, Samuel R. Fulkerson, Ogletree Deakins Nash Smoak & Stewart, Oklahoma City, OK, James M. Paul, Ogletree Deakins Nash Smoak & Stewart, St. Louis, MO, for Defendants.

ORDER

TIMOTHY D. DeGIUSTI, UNITED STATES DISTRICT JUDGE

Before the Court is Defendants’ Motion to Dismiss [Doc. No. 26], filed pursuant to Fed.R.Civ.P. 12(b)(1). Plaintiff has filed a response [Doc. No. 28], and Defendants have replied [Doc. No. 29]. Thus, the Motion is fully briefed.

Background

Plaintiff Johnny Reininger, Jr. is deaf. He resides in Oklahoma and tracks the status of state legislative bills, particularly ones that affect disabled individuals. Defendants State of Oklahoma, Oklahoma State Senate, Oklahoma House of Representatives, and their respective leaders— President Pro Tempore Mike Shulz and Speaker Charles A. McCall— maintain internet websites that show live feeds of legislative hearings and proceedings. Plaintiff claims he does not have meaningful access to this information because the audio content of the online broadcasts is not captioned and he cannot understand what is being said. Plaintiff has contacted both legislative bodies about the lack of captioning and has asked them to bring the websites into compliance with federal

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disability discrimination laws. Plaintiff alleges that despite an admission of noncompliance, captioning has not been provided due to budgetary constraints. Defendants state in their Motions that captioning would be cost prohibitive and technologically difficult and, as an alternative, they have offered to provide interpretive services if Plaintiff gives advance notice that he wants to attend a proceeding.

Plaintiff brings suit claiming that Defendants have violated and are violating Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, by failing to provide captioning for internet broadcasts of the Oklahoma Legislature’s proceedings. Title II of the ADA prohibits the exclusion of a qualified individual with a disability from participation in the services, programs, or activities of a public entity, and implementing regulations require that a public entity "furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities, including ... members of the public, an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity." See 28 C.F.R. § 35.160(b)(1). The Rehabilitation Act extends similar requirements to programs that receive federal financial assistance. Plaintiff alleges that as a result of Defendants’ failure to caption, he has been unable to access legislative information that is available to hearing persons, and he has suffered mental anguish and other nonpecuniary losses. Plaintiff seeks a declaratory judgment, compensatory damages, and injunctive relief, to include a mandatory injunction compelling Defendants "to make accessible to individuals who are deaf or hard of hearing all audio and video content on their websites, including by displaying simultaneous captioning." See Compl. [Doc. No. 1] at 7 (Relief, ¶ e).

Defendants’ Motion

Defendants seek dismissal on grounds of sovereign immunity under the Eleventh Amendment of the United States Constitution and States’ immunity from federal control under the Tenth Amendment. Although Defendants do not designate their Motion as one for partial dismissal, it is clear upon closer inspection that Defendants do not challenge Plaintiff’s action in its entirety. Defendants state that while they do not concede the Rehabilitation Act abrogates sovereign immunity, they "believe this argument is best left for summary judgment." See Defs.’ Mot. Dismiss [Doc. No. 26] at 2, n.2. The Motion addresses the issues of sovereign immunity and States’ rights only as they pertain to Plaintiff’s ADA claim. See id. at 2 ("Defendants assert that they are immune from suit under the ADA and further that application of the ADA in the manner asserted by Plaintiff would be ... impermissible under the Tenth Amendment." ).

Further, Defendants assert that the individuals sued in their official capacities, President Pro Tempore Shulz and Speaker McCall, enjoy sovereign immunity only from an ADA suit for money damages. They admit the Tenth Circuit has authorized an action for prospective injunctive relief against a state official for a violation of the ADA under the Ex parte Young ¹ doctrine. See Defs.’ Mot. Dismiss [Doc. No. 26] at 10 (citing Guttman v. Khalsa, 669 F.3d 1101, 1127-28 (10th Cir. 2012) ). Thus, Defendants Shulz and McCall seek a dismissal based on sovereign immunity only of Plaintiff’s ADA claim for damages. See Defs.’ Mot. Dismiss [Doc. No. 26] at 3, 10, 12; Defs.’ Reply Br. [Doc. No. 29] at 5. However, all other defendants— the State,

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the Senate, and the House of Representatives— seek dismissal of the ADA action in its entirety. See Defs.’ Mot. Dismiss [Doc. No. 26] at 3, 9, 12; Defs.’ Reply Br. [Doc. No. 29] at 4-5.

Regarding the Tenth Amendment, Defendants do not contend the ADA is unconstitutional as applied to them generally; they assert only that the mandatory injunction Plaintiff seeks would violate the Tenth Amendment. As framed by Defendants, "[t]he issue presented for decision is whether Title II of the ADA commandeers the Oklahoma Legislature if the Court finds that [the legislature] must close caption its floor sessions." See Defs.’ Mot. Dismiss [Doc. No. 26] at 10; see also Defs.’ Reply Br. [Doc. No. 29] at 6 ("Because of the type of relief sought the Tenth Amendment acts as a bar." ).

Standard of Decision

Defendants move for dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction. As agreed by all parties, there are two types of challenges to subject matter jurisdiction: (1) facial attacks on the sufficiency of the allegations contained in the complaint; and (2) challenges to the actual facts upon which subject matter jurisdiction is based. See Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). Here, Defendants make a facial attack on the sufficiency of the allegations contained in the Complaint. Therefore, all well-pleaded factual allegations of the Complaint are accepted as true. Id. ; see also Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002).

Discussion

I. Eleventh Amendment Immunity

The Eleventh Amendment grants immunity to the States from "any suit in law or equity, commenced or prosecuted ... by Citizens of another State" or by their own citizens. U.S. Const. amend. XI; see Bd. of Trs. v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) ("The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal court." ). There are three exceptions: First, a state may consent to suit in federal court. Second, Congress may abrogate a state’s sovereign immunity by appropriate legislation when it acts under Section 5 of the Fourteenth Amendment. Finally, under Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), a plaintiff may bring suit against individual state officers acting in their official capacities if the complaint alleges an ongoing violation of federal law and the plaintiff seeks prospective relief.

Levy v. Kansas Dep’t of Soc. & Rehab. Servs., 789 F.3d 1164, 1168-69 (10th Cir. 2015) (quoting Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1166 (10th Cir. 2012) ). In this case, Defendants have not consented to Plaintiff’s suit and, as discussed above, they do not oppose an Ex parte Young action. Thus, only the second exception is pertinent to the consideration of Defendants’ Motion.

Before reaching the issue of whether Congress has abrogated the State’s sovereign immunity from Plaintiff’s ADA action, it is necessary to determine: "‘(1) which aspects of the State’s alleged conduct violated Title II; (2) to what extent such misconduct also violated the Fourteenth Amendment; and (3) insofar as such misconduct violated Title II but did not violate the Fourteenth Amendment, whether Congress’s purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid.’ "Guttman v. Khalsa, 669 F.3d 1101, 1113 (10th Cir. 2012) (quoting United States v. Georgia, 546 U.S. 151, 159, 126 S.Ct. 877, 163 L.Ed.2d 650 (2006) ).

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For purposes of the Motion, Defendants concede that Plaintiff has stated a Title II claim based on their "failure to caption streaming video of legislative sessions." See Defs.’ Mot. Dismiss [Doc. No. 26] at 5 & n.3. The next step of the analysis also presents no issue for decision; Plaintiff does not allege a violation of the Fourteenth Amendment in the Complaint.² See, e.g.,

Bearden v. Okla. ex rel. Bd. of Regents, 234 F.Supp.3d 1148, 1151 (W.D. Okla. 2017) (where plaintiff does not assert a Fourteenth Amendment claim "there is nothing to assess" )....