Innes v. Bd. of Regents of the Univ. Sys. of Md.

Decision Date01 July 2014
Docket NumberCivil Action No. DKC 13–2800.
CourtU.S. District Court — District of Maryland


Motion granted in part and denied in part. Caroline Jackson, National Association of the Deaf, Silver Spring, MD, Joseph B. Espo, Brooke E. Lierman, Brown Goldstein and Levy LLP, Baltimore, MD, for Joseph Innes, et al.

Paul D. Raschke, Stephanie Wright Shea, Office of the Attorney General, Baltimore, MD, for The Board of Regents of the University System of Maryland, et al.


DEBORAH K. CHASANOW, District Judge.

Presently pending and ready for resolution in this disability discrimination case is the motion to dismiss Plaintiffs' second amended complaint, filed by Defendants Board of Regents of the University System of Maryland (“the Board of Regents), the University of Maryland College Park (“the University of Maryland”), and Wallace D. Loh (“President Loh” or “Dr. Loh”). (ECF No. 34). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motion to dismiss will be granted in part and denied in part.

I. Background1

Plaintiffs Dr. Joseph Innes (“Dr. Innes”), Daniel Rinas (“Mr. Rinas”) and Sean Markel (“Mr. Markel”) are deaf. They regularly attend sporting events—including football and basketball games—at the Capital One Field at Byrd Stadium (“Byrd Stadium”) and the Comcast Center. (ECF No. 33 ¶¶ 2–4). The Board of Regents is the governing body for all University of Maryland campuses, of which the University of Maryland, College Park is the “flagship” campus. ( Id. ¶ 5). Plaintiffs assert that Byrd Stadium and the Comcast Center are located on the University of Maryland's main campus in College Park. ( Id . ¶ 10). Dr. Wallace Loh is the President of the University of Maryland. All three Plaintiffs also regularly access Defendants' athletics website—TerpsTV—and attempt to watch videos on this website. ( Id. ¶ 12). The website contains videos presented with speaking individuals discussing game highlights and interviews with players. ( Id. ¶ 16). The narrated web content also includes complete games for some teams. For instance, Plaintiffs assert that during the week of October 4, 2013, TerpsTV streamed a women's soccer game against North Carolina State with audio commentary by two individuals. On October 12, 2013 TerpsTV streamed audio commentary for a live football game. ( Id. ¶ 17). None of the audio was captioned.

Defendants' venues at Byrd Stadium and the Comcast Center have public address systems and other systems in the stadium bowls and concourse areas that project information aurally, including referee calls, play-by-play commentary, song lyrics, and safety and emergency information. ( Id. ¶ 13). Plaintiffs cannot hear these announcements. Plaintiffs also cannot hear the aural content on Defendants' website. ( Id. ¶ 14). Defendants' venues also have visible electronic scoreboards and ribbon boards, and the Comcast Center has a four-sided visual display hanging over center court, which Plaintiffs believe to be a Sony Jumbotron. ( Id. ¶ 15). Plaintiffs assert that captioning can be—but is not—displayed on Jumbotrons, LED ribbon boards, and scoreboards located throughout Defendants' venues. ( Id. ¶ 20). Plaintiffs state that [t]hrough captioning, spoken and other auditory/aural information is made accessible to individuals who are deaf or hard of hearing.” ( Id. ¶ 19). Captioning can also be placed on video displayed on the University of Maryland athletic websites. Plaintiffs assert that Defendants do not display captioning on Jumbotrons, LED ribbon boards, or scoreboards, nor is streaming web content captioned. ( Id. ¶¶ 16, 22).

Dr. Innes contacted the University of Maryland “Terrapin Club” on numerous occasions, including prior to 2007, to request that Defendants provide captioning for football and basketball games. ( Id. ¶ 25). Defendants renovated Byrd Stadium in 2007, but, despite repeated requests from Dr. Innes, did not upgrade the scoreboards to provide captioning for referee calls, play-by-play commentary, song lyrics, safety and emergency information, half-time entertainment, post-game conferences, or any other aural information projected into the stadium bowls or concourse areas before, during, or after the games. ( Id. ¶ 27). On February 18, 2013, Plaintiffs sent a letter to Defendants again requesting captions for announcements made on public address systems, the scoreboards, LED ribbon boards, and/or Jumbotron at Byrd Stadium and the Comcast Center and for those captions to be visible from all seats in each venue. ( Id. ¶ 28).

Plaintiffs contend that Defendants started to provide captioning at some point during the 20132014 football season at Byrd Stadium “by providing captions that are supposed to be accessible on smart phones or tablet devices.” ( Id. ¶ 29). Plaintiffs assert that captioning on hand-held device or tablets does not provide effective communication. Specifically, Plaintiffs assert that individuals who are deaf and who communicate through the use of American Sign Language (“ASL”) must use their hands to speak. Plaintiffs argue:

[t]hey are, therefore, unable to speak with anyone while holding a device on which they would read captions. Thus, unlike hearing fans, deaf fans would not be able to comment to one another about the progress of a game. Also unlike hearing fans deaf fans would be unable to hold a snack and drink while reading captions. On information and belief, there are no cupholders or other stands on which to place food and beverages in the seating bowl of Byrd Stadium.

( Id. ¶ 30). Plaintiffs also maintain that many smart phone and tablet devices cannot be read in bright sunlight, thus deaf individuals would not be able to read captions if football games are played on sunny days. ( Id. ¶ 31). Streaming captions from a website to a smart phone or tablet requires a strong, uninterrupted internet signal; [t]he proximity of thousands of other fans using the internet on their smart phones and/or tablets during a football or basketball game weakens and interrupts the signal so that the captions do not appear on the devices in a timely fashion.” ( Id. ¶ 33). Plaintiffs maintain that the communication provided by a tablet or handheld device is not timely and does not ensure that deaf or hard of hearing fans have equal access to games. Moreover, [u]se of hand-held devices for captions would prevent deaf fans from observing what is being projected on a video board of Jumbotron while reading what the stadium announcer is saying.” ( Id. ¶ 36). Plaintiffs aver that use of hand-held devices also would require “difficult visual adjustments between observing live action at a distance and close vision for reading captions on a small screen.” ( Id.).

As an example of the shortcomings with using hand-held devices for captioning, Plaintiffs refer to an October 12, 2013 football game, which Dr. Innes and a number of deaf friends attended at the University of Maryland. Dr. Innes asserts that he went to fan assistance and asked for information about how to read captions on the handheld device. According to Dr. Innes, he “was given a note that said the web site was not working and captions would be unavailable.” ( Id. ¶ 34). Dr. Innes asserts that the individual who wrote the note never informed him about whether the site began to operate, although she said that she would.

Plaintiffs filed a complaint against the University of Maryland, the Board of Regents, and President Loh, in his official capacity, on September 24, 2013. (ECF No. 1). Plaintiffs later amended the complaint on October 16, 2013. (ECF No. 6). The University of Maryland answered the complaint on October 30, 2013 (ECF No. 8), and simultaneously joined in a motion to dismiss filed by the Board of Regents and President Loh (ECF No. 9). Plaintiffs filed an unopposed motion to file a second amended complaint, which the undersigned granted. (ECF No. 32). Plaintiffs submitted a second amended complaint against all Defendants on January 8, 2014. (ECF No. 33). Plaintiffs' second amended complaint asserts two claims against all Defendants: (1) discrimination under Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131; and (2) discrimination under the Rehabilitation Act, 29 U.S.C. § 794. (ECF No. 33, at 8–10). Plaintiffs assert that Defendants have failed to provide auxiliary aids and services to ensure effective communication with individuals who are deaf or hard of hearing concerning aural information: (1) available on Defendants' athletic websites; and (2) projected into the stadium bowls and concourse areas at Byrd Stadium and the Comcast Center. ( Id. at 9–10). Plaintiffs seek compensatory damages, declaratory judgment, injunctive relief, and “all other and further relief as this Court may deem just and proper.” ( Id. at 10–11). Defendants moved to dismiss on January 22, 2014, Plaintiffs opposed the motion, and Defendants replied. (ECF Nos. 34, 38, 39).

II. Standard of Review

The purpose of a motion to dismiss under Rule 12(b)(6) is to test the sufficiency of the complaint. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir.2006). A plaintiff's complaint need only satisfy the standard of Rule 8(a), which requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 n. 3, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). That showing must consist of more than “a formulaic recitation of the elements of a cause of action” or “naked assertion[s] devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal...

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