Bircoll v. Miami-Dade County

• Decision Date: 18 January 2006
• Docket Number: No. 05-20954-CIV.,05-20954-CIV.
• Citation: 410 F.Supp.2d 1280
• Court: U.S. District Court — Southern District of Florida
• Parties: Steven M. BIRCOLL, Plaintiff, v. MIAMI-DADE COUNTY, a political subdivision of the State of Florida, Defendant.

410 F.Supp.2d 1280

Steven M. BIRCOLL, Plaintiff, v. MIAMI-DADE COUNTY, a political subdivision of the State of Florida, Defendant.

No. 05-20954-CIV.

United States District Court, S.D. Florida, Miami Division.

January 18, 2006.

Jay Mitchell Levy, Jay M. Levy, P.A., Miami, FL, for Plaintiff.

Eric Alexander Hernandez, Dade County Attorney's Office, Miami, FL, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON COUNTS I AND III OF THE COMPLAINT

MORENO, District Judge.

THIS CAUSE came before the Court upon Defendant's Motion for Summary Judgment on Counts I and III of the Complaint (D.E. No. 50), filed on October 17, 2005.

THE COURT has considered the motion, the response, and the pertinent portions of the record, and being otherwise fully advised in the premises, it is

ADJUDGED that the motion is GRANTED.

I. Factual Background

In this matter, Plaintiff Bircoll, a deaf man, filed suit against Defendant Miami-Dade County alleging that Defendant violated Plaintiff's rights under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 and the Rehabilitation Act of 1973, 29 U.S.C. § 794 during a stop, arrest, and brief detention on Driving Under the Influence (DUI) charges. In sum, Plaintiff alleges that throughout the arrest process, Defendant failed to establish effective communication because it did not provide Plaintiff with any auxiliary aids as are required by the ADA and RA. Defendant files this Motion for Summary Judgment arguing that Plaintiff has not alleged cognizable ADA and RA claims and that Defendant is entitled to judgment as a matter of law. The relevant facts are as follows:

On April 7, 2001, Plaintiff was stopped by police officers around 3:00 a.m. after a Miami-Dade police officer observed Plaintiff commit several traffic infractions. At the outset of the stop, Plaintiff informed the officer that he could not understand him because Plaintiff is deaf. Plaintiff can. however, read lips. The officer asked Plaintiff to get out of the car so that they could speak face to face. Outside of the car, the officer smelled the odor of alcohol on Plaintiff's breath and saw that Plaintiff had red and watery eyes. See Officer Trask Aff. at ¶ 5. The officer then offered to use American Sign Language, but Plaintiff responded that he did not understand.

Once outside, the officer asked Plaintiff to perform a roadside sobriety test. The officer and Plaintiff communicated verbally during the test though Plaintiff alleges that the could not understand the officer. At the conclusion of the test, the officer found that Plaintiff was too impaired to drive. The officer arrested Plaintiff for DUI and transported him to the Substation around 3:30 a.m. No interpreter or other auxiliary aid was used at the scene of the DUI arrest.

At the Substation, Plaintiff met with another officer, who was made aware of Plaintiff's hearing impaired disability. This officer and the Plaintiff communicated verbally as the officer read aloud to Plaintiff the contents of the implied consent form for the Breath Test. No interpreter was used. The consent form was in written form and Plaintiff can read and write in English. Plaintiff refused to consent to the Breath Test and Plaintiff now alleges that he did not understand the officer who was reading the consent form to him.

Plaintiff was then transported to the Correctional Facility around 9:15 a.m., where he went through the intake process and the Facility's personnel were informed of Plaintiff's disability. Plaintiff was placed in a cell separate from the other inmates due to his disability until he could be classified for the general population. However, Plaintiff was released on bond at 2:16 p.m. before he could be moved into the general population. Plaintiff's total detention time from the time of his DUI arrest to his release was less than eleven hours.¹

II. Standard of Law

Summary judgment is authorized when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A court's focus in reviewing a motion for summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997). The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The burden then shifts to the party opposing the motion, who must set forth specific facts and establish the essential elements of his case on which he will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-moving party must present more than a scintilla of evidence for his position and may not simply rest upon mere allegations or denials of the pleadings. Anderson v Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Lastly, a jury must be able reasonably to find for the non-movant. Id.

III. Analysis

A. Count I

In Count I, Plaintiff alleges that Defendant violated Plaintiff's ADA rights by failing to provide him with an interpreter to assist him in communicating with Miami-Dade police and corrections officers and by failing to provide Plaintiff with a telephonic device for the deaf. Under Title II of the ADA, "not 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. Therefore, to state a Title II ADA claim, "a plaintiff must allege: (1) that he is a `qualified individual with a disability;' (2) that he was `excluded from participation in or ... denied the benefits of the services, programs, or activities of a public entity' or otherwise `discriminated [against] by such entity;' (3) `by reason of such disability.'" Shotz v. Cates, 256 F.3d 1077, 1079 (11th Cir.2001).

Defendant does not contest that Plaintiff is a "qualified individual with a disability," nor does Defendant contest that Miami-Dade County is a "public entity" under the ADA. Defendant does, however, argue that the DUI arrest in question was not a "service, program, or activity" covered by the ADA. The Eleventh Circuit has not specifically addressed whether an arrest fits within the parameters of the ADA and the numerous circuit and district courts that have answered the question have come to different conclusions. In reconciling these different conclusions, one court noted, "the common thread that runs through all the decisions is that the determination is fact-specific." Catlett v. Jefferson County Corrections Dept., 2000 U.S. Dist. LEXIS 21662, *17 (W.D.Ky.2000).

This Court, confirming the above observation, will follow the reasoning of the Fourth Circuit in Rosen v. Montgomery County, 121 F.3d 154 (4th Cir.1997), a case with strikingly similar facts to the case at bar.² In Rosen, a deaf plaintiff sued the County alleging ADA violations as a result of a DUI stop, arrest, and stationhouse detention. Id. at 156. Specifically, as in this case, the plaintiff alleged that "the police made no attempt to communicate in writing and that they ignored his requests for an interpreter and for a TTY telephone so he could call a lawyer." Id. The Rosen Court held, however, that the DUI arrest was not covered by the ADA and that "calling a drunk driving arrest a `program or activity' of the County" was a stretch of the statutory language and the underlying legislative intent." Id. at 157. Furthermore, the Court reasoned, "the police do not have to get an interpreter before they can stop and shackle a fleeing bank robber, and they do not have to do so to stop a suspected drunk driver, conduct a filed sobriety test, and make an arrest." Id. at 158.

This logic has been echoed by other courts. In Patrice v. Murphy, 43 F.Supp.2d 1156 (W.D.Wash.1999), the court held that the arrest of a deaf woman on domestic violence charges was not subject to the provisions of the ADA. Id. at 1160. The court concluded that at the time of an arrest, "forestalling all police activity until an interpreter can be located to aid communication with the deaf protagonist would be impractical and could jeopardize the police's ability to act in time to stop a fleeing suspect, physically control the situation, or interview witnesses on the scene." Id. Using the same rationale, in Hainze v. Richards, 207 F.3d 795 (5th Cir.2000), the Fifth Circuit held that "Title II does not apply to an officer's on-the-street response to reported disturbances or other similar incidents ... prior to the officer's securing the scene and ensuring that there is no threat to human life." Id. at 801.

Based on this caselaw and the rationale behind it, it is clear that the ADA does not apply to on-the-street DUI arrest; however, Plaintiff points to the second part of the Hainze holding and argues that the on-the-street arrest and the subsequent detention, which is in a secure environment, should be analyzed separately. Further reading of Hainze, though, shows that Plaintiff's reliance is misplaced. The Hainze court explains that after the area was secured, the duty to accommodate the plaintiff's disability was only in "handling and transporting" the plaintiff following the arrest. Id. at 802; see also Gorman v. Bartch, 152 F.3d 907, 909 (8th Cir.1998) (holding that the ADA applies to transporting an arrestee because in § 12202(a), "Congress noted that `discrimination against individuals with disabilities persists in such critical areas as ... transportation'"). In this case, in contrast, ...