Crawford v. University of North Carolina
| Decision Date | 01 November 1977 |
| Docket Number | No. C-77-173-D.,C-77-173-D. |
| Citation | 440 F. Supp. 1047 |
| Court | U.S. District Court — Middle District of North Carolina |
| Parties | Jimmie R. CRAWFORD, Plaintiff v. UNIVERSITY OF NORTH CAROLINA et al., Defendants. |
Jonathan R. Harkavy and Norman B. Smith of Smith, Patterson, Follin, Curtis & James, Greensboro, N. C., Seymour DuBow and Marc P. Charmatz, National Center for Law and the Deaf Legal Defense Fund, Washington, D. C., for plaintiff.
Elizabeth C. Bunting, Staff Atty., State of North Carolina, Raleigh, N. C., for defendants.
ORDER ADOPTING THE MAGISTRATE'S FINDINGS AND RECOMMENDATION AND ISSUANCE OF PRELIMINARY INJUNCTION
On September 1, 1977, the United States Magistrate's Findings and Recommendation was filed and notice was served on the parties pursuant to 28 U.S.C. § 636. In this action plaintiff sought a preliminary injunction, claiming that his rights under the Civil Rights Act of 1871, 42 U.S.C. § 1983, and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, were being violated. The Magistrate recommended, inter alia, that a preliminary injunction issue but would condition such issuance on plaintiff's initiating a complaint with the Department of Health, Education, and Welfare, that raised the grounds for relief sought in this court's action. For the reasons set out below, this Court accepts and adopts as its own the Magistrate's Findings and Recommendation.
Both parties filed objections to the Magistrate's Findings and Recommendation. Defendants objected to the Magistrate's Finding no. 12 which stated that plaintiff had made an attempt to secure funds for an interpreter but had not been successful. The Court does not find that objection material to the decision in this action. More importantly, the defendants have failed to comply with Local Rule 50(c)(2) of this Court in that they have not submitted a transcript of the proceedings before the Magistrate for this Court to review. The Court, therefore, rejects the objection. Defendants' second objection is to the Magistrate's Finding no. 17 where the Magistrate found that the regulations issued to implement the Rehabilitation Act of 1973 stated that their effective date was June 3, 1977. Defendants contend that the regulation was not effective until a one-year evaluation period had passed, citing 45 C.F.R. § 84.6(c). Contrary to defendants' contention, the Magistrate fully considered this argument, but declined to rule on the contention, stating that a resolution of the question should be reserved for initial agency review. Magistrate's Findings and Recommendation n. 5. Defendants' other objections concern issues of law. Specifically, defendants object to the Magistrate's recommendation of the issuance of a preliminary injunction. (Defendants did not object to the Magistrate's recommendation that the matter be stayed until plaintiff had initiated a complaint with the Department of Health, Education, and Welfare.) Inasmuch as the Court adopts the Magistrate's Findings and Recommendation, it rejects these objections.
The plaintiff also filed objections to the Magistrate's Findings and Recommendation. Plaintiff did not object to either the recommendation for a preliminary injunction or the amount of the bond to be posted. Instead, plaintiff objected to the recommendation that he be required to initiate a complaint with the Department of Health, Education, and Welfare. Inasmuch as the Court adopts the Magistrate's Findings and Recommendation, it rejects plaintiff's objection.
Plaintiff further objected to the Magistrate's Finding no. 10. The basis of this objection is that the Magistrate found that plaintiff intended to attend the University during the Fall and Winter sessions. Plaintiff now states that he also intends to take graduate courses at the University during the Summer of 1978. In effect, plaintiff seeks to introduce additional evidence which was not before the Magistrate at the hearing on his motion for preliminary injunction. Local Rule 50(c)(2) of this Court states that a Judge of this Court shall make a de novo determination of those portions of the Magistrate's Findings and Recommendation to which an objection is filed. It further states that the Judge will normally not conduct a new hearing. However, the Court does have the power to receive further evidence or to recommit the matter to the Magistrate with instructions. Plaintiff has not made a motion to reopen the hearing to receive additional evidence, or to recommit the matter to the Magistrate. Therefore, the Court will not decide whether the injunction in this case should be extended to cover any graduate courses which the plaintiff may take at the University during the Summer of 1978. (In light of this Court's ruling adopting the Magistrate's Findings and Recommendation, it seems that the parties themselves could work out an arrangement concerning the plaintiff's taking additional courses which extend beyond the time period covered by this preliminary injunction.)
Plaintiff further requests the Court to modify the Magistrate's Finding no. 17 to reflect the fact that the Magistrate admitted into evidence an affidavit of John Wodatch, Acting Director of the Office of New Programs, Office for Civil Rights, Department of Health, Education, and Welfare, which indicates that the effective date of the Rehabilitation Act regulations upon which plaintiff relies is June 3, 1977. Since the Magistrate did not definitively decide the effective date of the regulations, the Court finds no reason to modify the Magistrate's finding of fact. The Magistrate admitted the affidavit into evidence, and the exhibit speaks for itself. It does not modify the substance of the Magistrate's Findings and Recommendation.
The Court hereby accepts the Findings and Recommendation of the Magistrate and adopts it as its own.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the defendants William C. Friday, William A. Johnson, and Harold F. Robinson, in their official capacities as agents and officers for the University of North Carolina, and those persons in active concert or participation with them be, and the same hereby are, ordered to procure an interpreter or other effective method of making orally delivered materials available to the plaintiff for his attendance of graduate courses at the Western Carolina University for the Fall, 1977 classes and the Winter, 1977-78 classes.
As a condition of such relief, plaintiff shall post a security bond in the amount of $3,000.00 pending the final outcome of this litigation pursuant to Rule 65(c), F.R.Civ.P.
IT IS FURTHER ORDERED that this action be stayed, and that as a condition of preliminary injunctive relief, the plaintiff is required to immediately initiate a complaint with the Department of Health, Education, and Welfare requesting the relief sought in this action, in accordance with the regulations issued to implement the Rehabilitation Act of 1973, as set out in 45 C.F.R. § 84.1 et seq.
IT IS FURTHER ORDERED that the plaintiff shall consider the advisability of adding the Secretary of Health, Education, and Welfare as a party to this action, or taking steps to request that he become a part of this action as amicus curiae. Therefore, the plaintiff shall forward a copy of this Order to the Secretary of Health, Education, and Welfare and report to the Court any communications received as result of taking such action.
On July 18, 1977, this matter came before the Court on plaintiff's motion for a preliminary injunction. Plaintiff filed a complaint seeking declaratory and injunctive relief claiming that his rights were violated under the Civil Rights Act of 1871, 42 U.S.C. § 1983, and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. The latter Act prohibits discrimination against handicapped persons by recipients of federal financial assistance. Jurisdiction was premised under 28 U.S.C. § 1343(3) and (4).
Plaintiff is a deaf-handicapped individual taking graduate courses at Western Carolina University, a part of the University of North Carolina. His complaint claimed that while attending the university as a student he was denied interpreter services. The defendants are the University of North Carolina and the Western Carolina University as well as the President of the University of North Carolina, the Chairman of the Board of Governors of the University of North Carolina, and the Chancellor of Western Carolina University. The individuals are sued in their individual and official capacities. Plaintiff claims that the policy and practice of the defendants violates the Equal Protection Clause of the Fourteenth Amendment and the Rehabilitation Act of 1973. For relief, plaintiff seeks to enjoin defendants from enforcing the policy and practice which allegedly operates to deny plaintiff interpreter services. Further, plaintiff seeks an order requiring defendant to provide an interpreter service. Defendants answered admitting and denying certain portions of the complaint. Defendants assert that this Court is without jurisdiction over the subject matter and that the complaint fails to state a cause of action upon which relief can be granted. Defendants state that mandatory injunctive relief is barred by the Eleventh Amendment of the United States Constitution because they are agencies or officials of the State and have not given their consent to this action.
Upon considering the testimony of the witnesses and the exhibits admitted into evidence, the Court makes the following findings of fact:
1. Plaintiff is a deaf graduate student at Western Carolina University, a constituent institution of the University of North Carolina, having enrolled in the graduate program in June of 1976.
2. The defendant University of North Carolina is a state-supported institution of higher education which receives federal financial assistance.
3. Defendant William...
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