Calloway v. Boro of Glassboro Dept. of Police

• Decision Date: 08 February 2000
• Docket Number: No. CIV A 98-3139.,CIV A 98-3139.
• Citation: 89 F.Supp.2d 543
• Parties: Cora CALLOWAY, Plaintiff, v. BORO OF GLASSBORO DEPARTMENT OF POLICE, Det. Robert Best, Det. Ronald Massari, John Doe, and Melanie Powell, Defendants, and Boro of Glassboro Department of Police, Det. Ronald Massari, and Melanie Powell, Third-Party Plaintiffs, v. Det. Robert Best, Gloucester County Prosecutors Office, Andy Yurick, Esq., John Does 1-5, and Gloucester County, Third-Party Defendants.
• Court: U.S. District Court — District of New Jersey

89 F.Supp.2d 543

Cora CALLOWAY, Plaintiff, v. BORO OF GLASSBORO DEPARTMENT OF POLICE, Det. Robert Best, Det. Ronald Massari, John Doe, and Melanie Powell, Defendants, and Boro of Glassboro Department of Police, Det. Ronald Massari, and Melanie Powell, Third-Party Plaintiffs, v. Det. Robert Best, Gloucester County Prosecutors Office, Andy Yurick, Esq., John Does 1-5, and Gloucester County, Third-Party Defendants.

No. CIV A 98-3139.

United States District Court, D. New Jersey.

February 8, 2000.

COPYRIGHT MATERIAL OMITTED

James M. Shepard-Kegl, North Yarmouth, ME, for Plaintiff, Cora Calloway.

Allan E. Richardson, Law Offices of Allan E. Richardson, Woodbury, NJ, for Defendants and Third-Party Plaintiffs, Borough of Glassboro Department of Police, Ronald Massari, and Melaney Powell.

Robert M. Kaplan, Margolis Edelstein, Westmont, NJ, for Defendant Robert Best and Third-Party Defendants Robert Best, Andy Yurick, Gloucester County Prosecutor's Office, and Gloucester County.

OPINION

ORLOFSKY, District Judge:

This case presents two issues of first impression in this Circuit, namely, (1) whether a deaf arrestee may bring a claim under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131, et seq. ("Disability Act"),¹ and § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a)("Rehabilitation Act"),² for discrimination based on her disability after she was questioned at a police station, during the course of a criminal investigation, allegedly without the assistance of a qualified interpreter; and (2) whether individual defendants can be held liable under the Disability and Rehabilitation Acts. For the reasons set forth below, I find that the Disability and Rehabilitation Acts prohibit discrimination against the deaf in the context of a station-house investigative interview and that the Acts do not allow for the imposition of individual liability.

Plaintiff, Cora Calloway ("Calloway"), a deaf and functionally illiterate woman, brought this action alleging that the conduct of the Borough of Glassboro Department of Police ("Police Department"), Glassboro Police Detective Ronald Massari ("Massari"), Gloucester County Prosecutor's Office Sergeant Robert Best ("Best"), and Melaney Powell ("Powell") violated her rights under the Disability and Rehabilitation Acts. In her Complaint, Calloway also asserts a separate claim under 42 U.S.C. § 1983³ based solely upon the Disability and Rehabilitation Acts, as well as pendent state statutory and common law tort claims. The Police Department, Massari and Powell ("Third-Party Plaintiffs") in turn filed a third-party complaint, alleging negligence and vicarious liability, against Best,⁴ Prosecutor Andy Yurick, Esq., the Gloucester County Prosecutor's Office and Gloucester County.⁵ Before this Court are two separate motions for summary judgment, made pursuant to Federal Rule of Civil Procedure 56(c). This Court exercises jurisdiction pursuant to 28 U.S.C. §§ 1331,⁶ 1343,⁷ and 1367.⁸

I. BACKGROUND

On the afternoon of April 23, 1997, Plaintiff Cora Calloway, a deaf and functionally illiterate woman, was allegedly assaulted by a neighbor, Lori Seeler ("Seeler"), at the Hollybush Apartments in Glassboro, New Jersey. See Pl.'s Br. in Opp. to Mot. for Summ. J. by Det. Best and Third Party Def.'s ("Pl.'s Br. 1") at 1. Seeler told the responding police officer that Calloway, who had left the scene, had touched her six-year-old daughter in the chest and pelvic areas. See id.; see also Best and Third-Party Def.'s ("Third-Party Def.'s") Ex. C (Gallagher Police Report) at 1. Seeler was then instructed to report to the police station for further investigation of her complaint. See Third-Party Def.'s Ex. C at 1.

At the police station, Seeler told Defendant Massari and another investigator not a party to this suit that she assaulted Calloway after her daughter disclosed that Calloway had "touched her on her breasts, buttocks and vaginal area." See Third-Party Def.'s Ex. D (Massari Report) at 1. Massari and the other investigator then interviewed the alleged victim who confirmed Seeler's allegations that Calloway had improperly touched the girl while babysitting her sometime that year. See id. at 2; see also Third-Party Def.'s Ex. E (Victim's Taped Interview). Subsequently, Seeler filed criminal complaints against Calloway for criminal sexual contact and child endangerment pursuant to N.J.S.A. 2C:14-3(a) and 2C:24-4(a), respectively. See ThirdParty Def.'s Ex. F.

At some point in the afternoon, the Plaintiff, Cora Calloway, also arrived at the police station, accompanied by her two hearing siblings, allegedly in order to file a complaint for assault against Seeler. See Third-Party Def.'s Br. at 2; see also Pl.'s Ex. G (Kim Calloway Dep.) at 21. Instead of filing the complaint, however, at some point after their arrival at the station the police informed the trio that Seeler had reported that "Cora had touched her daughter in places she shouldn't be touched." Pl.'s Ex. G (Kim Calloway Dep.) at 21. The Plaintiff's sister, Kim Calloway, testified that, using her rudimentary American Sign Language⁹ skills, she signed the substance of Seeler's allegations to the Plaintiff who then became upset and started to cry. See id. Although Kim Calloway asserted that the Plaintiff understood the allegations against her, she believed that the Plaintiff was unaware that Seeler had formalized the charges in a criminal complaint. See id. at 29.

Aware that Calloway was present at the station, the police began to try to locate a sign language interpreter to aid in the investigation. According to police reports, after several failed attempts to obtain an interpreter, police personnel contacted Sergeant Eric Johnson¹⁰ of the Gloucester County Prosecutor's Office for assistance. See Third-Party Def.'s Ex. D at 2; Massari Aff. at ¶¶ 9-11. According to the affidavits filed in this case, Johnson then instructed Best, also of the Gloucester County Prosecutor's Office, to report to the police station to assist in the sexual assault investigation. See Third-Party Def.'s Ex. K (Best Certification) at ¶ 2. Additionally, Johnson contacted an acquaintance, Defendant Melaney Powell, an uncertified interpreter, and asked Powell to interpret for Calloway since "none of the interpreters known to the department or the prosecutor's office was [sic] available." Powell Aff. at ¶¶ 5-8. According to Powell's Affidavit, she told Johnson that she was not a certified interpreter. See id. at ¶ 9.

After Powell and Best arrived at the police station, they, along with Massari, escorted Calloway from the lobby of the police station, where she was sitting with her siblings, to the detective bureau for questioning concerning the alleged sexual assault of Seeler's daughter. See Third-Party Def.'s Ex. G at 2. During this videotaped interview, the officers repeatedly attempted, through Powell's interpretive services, to deliver the Miranda warnings to Calloway. See Def.'s Br. at 4; Pl.'s Br. 1 at 3. When Calloway indicated that she did not understand the word "lawyer," the officers suspended the interview. See Third-Party Def.'s Ex. K (Best Certif.) at ¶ 5; Powell Aff. at ¶ 16; see also Massari Aff. at ¶ 15. Subsequently, an attorney notified the officers that he represented Calloway in a civil matter and, after Powell interpreted a phone call from the attorney to Calloway, Calloway indicated that she no longer wished to speak to the police without her attorney present. See Pl.'s Br. 1 at 5; Powell Aff. at ¶¶ 20-21. Calloway was arrested, bail was set, and she was released the next day on her own recognizance. See Pl.'s Br. 1 at 5.¹¹

Calloway contends that throughout the "interrogation" she was distraught by her inability to understand Powell, whom she argues was unqualified to serve as her interpreter, and by Powell's incorrect interpretation of her signing communications to the police. See Pl.'s Br. 1 at 4. Calloway filed a Complaint against the Police Department, Best, Massari and Powell in the New Jersey Superior Court, Law Division alleging violations of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. (Count II) and the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Count III). Calloway also brought a claim pursuant to 42 U.S.C. § 1983 for alleged violations of the Disability and Rehabilitation Acts (Count IV), a claim for "mental and physical anguish" (Count V) and state law claims for lack of a qualified interpreter, in violation of N.J.S.A. 34:1-69.10(c)(Count I), false imprisonment (Count VI), and negligence against Powell (Count VII).¹² See Complaint (removed to the United States District Court for the District of New Jersey, July 2, 1998). On May 29, 1998, the Honorable John Holston of the New Jersey Superior Court, Law Division, Gloucester County, dismissed Calloway's state law and mental anguish claims against Defendant Best. See Pl.'s Br. 1 at 6; Third-Party Def.'s Ex. I. Subsequently, the Police Department, Massari and Powell ("Third-Party Plaintiffs") filed a Third-Party Complaint against Gloucester County, the Gloucester Prosecutor's Office, Andrew Yurick, Esq. and Best, claiming that they justifiably relied on the negligent advice of Best that Powell was lawfully permitted to translate for the deaf. See Third-Party Complaint (filed July 2, 1998). On July 2, 1998, the matter was removed to this Court. See Notice of Removal (filed July 2, 1998).¹³ On May 14, 1999, two motions for summary judgment were submitted to this Court: (1) by Best, in his capacity as both a defendant and third-party defendant, and third-party defendants Andy Yurick, Esq. and the Gloucester County Prosecutor's Office;¹⁴ and (2) by the Third-Party Plaintiffs.

II. LEGAL STANDARD GOVERNING A MOTION FOR SUMMARY JUDGMENT

"On a motion for summary judgment, the court must determine whether the evidence shows that `there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter...