Wortham v. City of Benton
| Decision Date | 13 September 2021 |
| Docket Number | 4:19-cv-00069-KGB |
| Parties | BRANDI WORTHAM PLAINTIFF v. CITY OF BENTON, ARKANSAS DEFENDANT |
| Court | U.S. District Court — Eastern District of Arkansas |
Plaintiff Brandi Wortham brings this action against defendant City of Benton, Arkansas, alleging violations of the Americans with Disabilities Act (“ADA”), 42 § U.S.A. § 12131 et seq., and its implementing regulations, 28 C.F.R. Part 35; Section 504 of the Rehabilitation Act of 1973 (“RA”), 29 U.S.C. § 791; and the Arkansas Civil Rights Act (“ACRA”), Arkansas Code Annotated § 16-123-107 (Dkt. No. 24). Both Ms. Wortham and the City of Benton have filed motions for summary judgment (Dkt. Nos. 33, 38). Both parties have responded in opposition to the other's motion for summary judgment (Dkt. Nos. 43, 46). For the reasons discussed below, the Court denies the City of Benton and Ms. Wortham's motions for summary judgment.
The City of Benton moves for summary judgment asserting that Ms Wortham received effective communication during her actions with the Benton Police Department (“BPD”), that Ms. Wortham was not denied meaningful access to any service provided by the City of Benton, and that Ms. Wortham purportedly has not demonstrated deliberate indifference on the part of the City of Benton (Dkt. No. 39, at 2). Ms. Wortham argues that BPD's repeated reliance on her minor children to interpret was a per se violation of law, that BPD's reliance on Ms. Wortham's friends failed to comply with the legal standards for an accompanying adult, that BPD's written communication with Ms. Wortham was ineffective, and that no exigent circumstances justified BPD's actions (Dkt. No. 33, at 1-2). Further, Ms. Wortham argues that the City of Benton acted with deliberate indifference in violation of her civil rights (Id.).
Plaintiff Brandi Wortham was born deaf, and her primary and preferred method of communication is American Sign Language (“ASL”) (Dkt. No. 45, ¶ 1). Ms. Wortham has four children. Three of her children lived with her during the relevant time periods: Landon “Dave” Morrow, Chloe Wortham, and Cameron Wortham (Id., ¶ 2). Ms. Wortham communicates with her children through American Sign Language, and she primarily communicates with Chloe through American Sign Language (Dkt. Nos. 40, ¶¶ 3-4; 44, ¶¶ 3-4).
Ms. Wortham attended high school at the Arkansas School for the Deaf (Dkt. No. 45, ¶ 4). She graduated from high school and did not obtain any additional education thereafter (Id., ¶ 5). Ms. Wortham has difficulty reading and writing in the English language to communicate complex information (Id., ¶ 6). Ms. Wortham considers herself capable of reading at only a fourth or fifth grade level (Id., ¶ 7). Ms. Wortham cannot read lips (Id., ¶ 8). Her children's school provides her with an interpreter so that she can communicate with the school about her children's education (Id., ¶ 9).
According to Ms. Wortham, her claims against the City of Benton stem from 13 interactions with the BPD occurring on: March 11, 2017; March 1, 2018; April 7, 2018; May 21, 2018; July 2, 2018; July 5, 2018; September 25, 2018; November 24, 2018; November 27, 2018; March 26, 2019; June 5, 2019; September 27, 2019; and September 30, 2019 (Id., ¶ 11).
On or about March 11, 2017, at or about 1:30 p.m., Ms. Wortham hosted a birthday party for her youngest son, Cameron Wortham, at her home (Id., ¶ 14). Chloe Wortham, plaintiff's daughter, who attended the birthday party, told two relatives, Tammy Townsend and Candace Benham who were both present for the party, that Chloe's older brother Dave attempted to touch her inappropriately the evening prior (Id., ¶ 15). Chris Benham is a detective at the BPD and was present for the party (Id., ¶ 16). Detective Benham called the BPD and reported a possible sexual assault (Id., ¶ 17; see also Dkt. Nos. 40, ¶¶ 9-10; 44, ¶¶ 9-10)
Subsequently, Seth Hopkins, a police officer from the BPD, responded to the report and arrived at Ms. Wortham's residence (Dkt. No. 45, ¶ 18). During Officer Hopkins' investigation, Officer Hopkins interviewed Chloe in the presence of her mother Ms. Wortham in her home (Id., ¶ 19). Chloe wanted her mother to be present for her interview and wanted her mother to understand what was being said during the interview (Id., ¶ 20). Despite becoming aware that Ms. Wortham was deaf, Officer Hopkins did not obtain a qualified ASL interpreter to come to the scene (Id., ¶ 21). Ms. Wortham requested Officer Hopkins provide an ASL interpreter (Id., ¶ 22). Despite this request, Officer Hopkins failed and/or refused to obtain and ASL interpreter (Id., ¶ 23).
To communicate with Ms. Wortham, Officer Hopkins wrote notes in English with Ms. Wortham and used Chloe as an interpreter for Ms. Wortham (Id., ¶ 24). Ms. Wortham did not want Chloe to interpret and did not want to write notes; rather Ms. Wortham wanted to utilize a qualified interpreter (Id., ¶ 25). Chloe did not feel comfortable acting as a translator for Ms. Wortham and was not able to communicate effectively everything Officer Hopkins said to Ms. Wortham (Id., ¶ 26).
Subsequently, Ms. Wortham, Chloe, Dave, Dave's friend Johnny, Tammy Townsend, Candace Benham, and Detective Benham went to the BPD to continue the investigation (Id., ¶ 29). Ms. Wortham transported Dave and Johnny, and Detective Benham transported Chloe to the police station for further interviewing; no one was transported to the police station by the BPD, either as a courtesy or in custody ((Dkt. Nos. 40, ¶¶ 12-13; 44, ¶¶ 12-13). Ms. Wortham and her son, Dave, were instructed to go inside a room to be interviewed (Dkt. No. 45, ¶ 30). Sergeant Dustin Hamm who was a detective at the time of the incident, conducted two interviews with Dave about the potential sexual assault in the presence of Ms. Wortham (Id., ¶ 31). To communicate with Ms. Wortham at the police station, Sergeant Hamm wrote written and typed notes with Ms. Wortham in English and used Dave as an interpreter for Ms. Wortham; Dave and Ms. Wortham communicated by signing (Id., ¶ 34; see also (Dkt. Nos. 40, ¶¶ 15-16; 44, ¶¶ 15-16)).
At the time of this incident, Chloe was only 12 years old (Dkt. No. 45, ¶ 38). At the time of the incident, Dave was a juvenile (Id., ¶ 39).
Detective Benham never received any training from the City of Benton on how to accommodate people with disabilities (Id., ¶ 40). Detective Benham has never utilized a professional sign language interpreter (Id., ¶ 41). Detective Benham has never been informed or trained that, if a deaf person requests an interpreter from a police officer, the officer should take reasonable steps to obtain that interpreter as soon as possible (Id., ¶ 42). Sergeant Hamm never asked Ms. Wortham if she wanted an interpreter to communicate on March 11, 2017 (Id., ¶ 43). Sergeant Hamm has never received any training from the City of Benton on how to accommodate individuals with disabilities (Id., ¶ 44). Prior to March 11, 2017, Sergeant Hamm does not recall ever providing an interpreter to anyone for any language (Id., ¶ 45). Officer Hopkins has never received any training from the City of Benton on how to obtain interpreters for people speak foreign languages (Id., ¶ 46).
On March 1, 2018, Ms. Wortham reported to the BPD that her son Dave had stolen her phone. When BPD responded to the call, Dave stated that he had permission to use the phone but returned it to Ms. Wortham; Ms. Wortham declined to file a report (Dkt. No. 40, ¶¶ 20-21; Dkt. No. 44, ¶¶ 20-21).
On April 7, 2018, Ms. Wortham reported a disturbance of two people at her home. When BPD responded to the call, BPD advised two individuals to leave and that they should not return to the property or they could be arrested for criminal trespass (Dkt. No. 40, ¶¶ 22-23; Dkt. No. 44, ¶¶ 22-23).
On or about May 21, 2018, Ms. Wortham reported a theft to the BPD (Dkt. No. 45, ¶ 50). Officer Matthew Kuntz took Ms. Wortham's report (Id., ¶ 51). Officer Corey Green responded to Ms. Wortham's home to investigate a report of theft (Id., ¶ 59). Officer Green relied on Chloe, a minor, to act as an interpreter for Ms. Wortham (Id., ¶ 60; see also Dkt. No. 40, ¶¶ 26-29; Dkt. No. 44, ¶¶ 26-29).
Ms. Wortham reported to police that an individual on April 27 had stolen two PlayStation 4 games, shoes, shirts, a jacket, and an iPhone 7 Plus. Ms. Wortham was asked to report the serial number of the phone to the police when she figured out what it was (Dkt. No. 40, ¶ 32; Dkt. No. 44, ¶ 32).
On or about July 5, 2018, Officer Turner followed up on this investigation (Dkt. No. 40, ¶¶ 34-35; Dkt. No. 44, ¶¶ 34-35). Ms. Wortham reported that the individual could be reached in the Saline County Jail. She did not have the serial number to the phone and did not know the passcode to the phone as well. She was advised to report the serial number of the phone so that the police could proceed with the investigation (Id.).
Ms. Wortham called the BPD in order to report someone unwelcome in her home. BPD reported that because the owner was “hearing impaired” officers had to “type” communications; Ms. Wortham was not provided a sign language interpreter (Dkt. No. 45, ¶ 62). On or about September 25, 2018, Ms. Wortham reported to the BPD that she wanted two persons removed from her property ((Dkt. No. 40, ¶¶ 37-38; Dkt. No. 44, ¶¶ 37-38). Police advised the individuals to leave the property or they would be arrested for trespassing. Police supplemented that, as of November 24, 2018, one individual about whom Ms. Wortham complained lived at the residence (Id.).
On or about November 24, 2018, Ms. Wortham was questioned in response to a theft reported by another individual (Dkt. No 40, ¶¶ 40-41; ...
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