United States District Court, E.D. Virginia, Alexandria Division
JAMES C. CACHERIS, District Judge.
Plaintiff Abreham Zemedagegehu ("Plaintiff"), a deaf man who communicates using American Sign Language ("ASL"), brought this action under Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-12165 ("Title II"), and Section 504 of the Rehabilitation Act of 1972, 29 U.S.C. § 794 ("Section 504"), based on the collective Defendants' alleged failure to provide Plaintiff with auxiliary aids and services necessary to communication, and their alleged failure to make reasonable accommodations of their policies and procedures, during Plaintiff's temporary incarceration at the Arlington County Detention Facility (the "jail").
This matter is before the Court on two separately filed motions to dismiss. Defendant Elizabeth F. Arthur, the Arlington County Sheriff, in her official capacity (the "Sheriff") filed a motion to dismiss the Title II ADA claim against her. (Sheriff's Mot. to Dismiss [Dkt. 30]; Sheriff's Mem. in Supp. [Dkt. 31].) Defendants Virginia Department of Corrections ("VDOC"), Harold W. Clarke, VDOC Director, in his official capacity (the "VDOC Director"), Virginia Board of Corrections (the "Board"), and Carl R. Peed, Chairman of the Board, in his official capacity (collectively the "State Defendants") filed a motion to dismiss the amended complaint against them in its entirety. (State Defs.' Mot. to Dismiss [Dkt. 36]; State Defs.' Mem. in Supp. [Dkt. 37].) For the following reasons, the Court will deny the Sheriff's motion and grant the State Defendants' motion.
At the motion to dismiss stage, the Court must read the complaint as a whole, construe the complaint in a light most favorable to the plaintiff, and accept the facts alleged in the complaint as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plaintiff is deaf and has no functional ability to speak English or to read lips. (Am. Compl. [Dkt. 21] ¶¶ 12, 15.) Plaintiff was born and raised in Ethiopia but became a United States citizen in 2008. (Id. at ¶ 11.) He does know limited English through courses he took at Gallaudet University, but he "struggles" to read, write, and understand even basic English sentences. (Id. at ¶ 15.) Plaintiff's primary language is ASL and his employment history is limited to manual labor jobs that do not require proficiency in spoken or written English. (Id. at ¶¶ 14, 16.)
On February 2, 2014, Plaintiff was arrested at Ronald Reagan Washington National Airport ("National Airport") after he went there to find somewhere warm to sleep. (Am. Compl. ¶¶ 18-19.) Shortly after his arrest, in the early morning hours of February 3, 2014, Plaintiff was transported to the jail where he started the booking process. (Id. at ¶ 25.) Plaintiff attempted to communicate with the National Airport police officers and jail personnel using gestures and in writing. (Id. at ¶¶ 20, 26.) Plaintiff also requested an ASL interpreter but one was not provided. (Id.) Consequently, Plaintiff did not know why he had been arrested nor did he understand why he was being detained in the jail. (Id. at ¶ 27.) Plaintiff also appeared in front of a judge via video conference, but he could not signal to the judge that he was deaf because jail personnel instructed him to remain still. (Id. at ¶ 28.)
As part of the booking process, Plaintiff underwent a medical evaluation, where he made additional requests for assistance. (Am. Compl. ¶¶ 26-36.) His requests were again denied. (Id.) Without an ASL interpreter, Plaintiff did not understand the medical evaluation process and refused to sign a consent form that he could not read. (Id. at ¶¶ 37-39.) Jail personnel then forced a needle into Plaintiff's arm without his consent and placed him in isolation. (Id. at ¶¶ 40-43.) Scared and confused, Plaintiff banged on the cell door and repeatedly gestured for assistance, still unaware as to why he was being incarcerated. (Id. at ¶ 43.) Plaintiff had a negative skin reaction to the forced medical procedure and underwent an additional medical procedure, but still did not understand what was happening. (Id. at ¶ 44.)
Approximately 24 hours after his arrest, on February 4, 2014, Plaintiff was arraigned in Arlington County General District Court through the assistance of an ASL interpreter. (Am. Compl. ¶¶ 32-33.) At his arraignment, Plaintiff first learned he had been arrested and incarcerated for allegedly stealing an iPad. (Id.) Plaintiff returned to the jail after his arraignment and remained incarcerated for nearly six weeks. (Id. at ¶ 23.) During his period of incarceration, Defendants refused to provide effective means for Plaintiff to communicate, and consequently, Plaintiff was deprived of meals (id. at ¶¶ 46-48), recreation (id. at ¶¶ 70-75), and rehabilitative services at various times (id. at ¶¶ 76-83).
During Plaintiff's incarceration, the jail also failed to provide Plaintiff with an adequate accommodation for telephone access. (Am. Compl. ¶¶ 49-65.) The jail offered to provide Plaintiff with a teletypewriter ("TTY") to make phone calls. (Id. at ¶ 56.) However, Plaintiff could not communicate effectively using TTY because TTY requires proficiency in English. (Id. at ¶ 57.) The jail does not have a videophone or any device equipped with videophone software that Plaintiff could have used to make telephone calls. (Id. at ¶¶ 50-52.) Plaintiff attempted to place a telephone call to a friend using TTY, but was unsuccessful. (Id. at ¶¶ 59-60.) Subsequently, an officer at the jail placed a call to Plaintiff's friend, who eventually visited Plaintiff at the jail. (Id. at ¶¶ 62-63.) Because of the lack of a videophone, Plaintiff was unable to place telephone calls for the duration of his incarceration at the jail. (Id. at ¶ 64.) Plaintiff also could not regularly communicate with his court-appointed attorney via telephone, unlike other inmates, and instead relied on in-person visits made on the attorney's own accord. (Id. at ¶¶ 66-69.)
Plaintiff claims that Defendants violated Title II of the ADA and Section 504 of the Rehabilitation Act by knowingly and intentionally failing to provide him with an ASL interpreter or other auxiliary aids and accommodations, which denied him the same benefits and services available to non-deaf inmates. (Am. Compl. at ¶¶ 108, 121.) Specifically, as a result of these violations, Plaintiff claims that he was unable to communicate with jail personnel during the booking process and medical procedures, that he was unable to effectively communicate his dietary needs, and that he was deprived access to telephone calls, access to counsel, meals and recreation, and rehabilitative services. (Id.) Plaintiff seeks declaratory and compensatory relief. (Id. at 27.)
In her motion to dismiss the Title II claim in count one, the Sheriff argues that she is immune from suit under the Eleventh Amendment and that Title II does not abrogate her sovereign immunity. (Sheriff's Mem. at 4-8.) The Sheriff does not contest the Section 504 claim in count two. The State Defendants present two arguments in their motion to dismiss. First, the State Defendants argue that they are not liable on either count one or count two for the actions of the Sheriff, who is solely responsible for operation of the jail. (State Defs.' Mem. at 3-7.) Second, the State Defendants argue that they are also immune from suit under the Eleventh Amendment and ask that the Title II claim in count one be dismissed. (Id. at 8-10.) Both motions have been fully briefed and are ripe for disposition.
II. Legal Standard
All Defendants filed their motion to dismiss based on sovereign immunity under the Eleventh Amendment, at least in part. The United States Court of Appeals for the Fourth Circuit has not resolved "whether a dismissal on Eleventh Amendment immunity grounds is a dismissal for failure to state a claim under Rule 12(b)(6) or a dismissal for lack of subject matter jurisdiction under Rule 12(b)(1)." Andrews v. Dew, 201 F.3d 521, 525 n.2 (4th Cir. 2000) (citations omitted). "The recent trend, however, appears to treat Eleventh Amendment immunity motions under Rule 12(b)(1)." Skaggs v. W. Reg'l Jail, Civ. A. No. 3:13-3293, 2014 WL 66645, at *4 (S.D. W.Va. Jan. 8, 2014) (citations omitted); see also Roach v. W.Va. Reg'l Jail & Corr. Auth., 74 F.3d 46, 48 (4th Cir. 1996) ("[T]he Eleventh Amendment limits the ability of a federal district court to exercise its subject-matter jurisdiction over an action brought against a state or one of its entities.").
Whether the Court evaluates the pending motions to dismiss with respect to the Eleventh Amendment immunity issue under Rule 12(b)(1) or Rule 12(b)(6) makes little practical difference, however. See Beckham v. Nat'l R.R. Passenger Corp., 569 F.Supp.2d 542, 547 (D. Md. 2008) (citation omitted). "A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction may contend either (1) that the complaint fails to allege facts sufficient to establish subject matter jurisdiction or (2) the alleged jurisdictional facts are untrue." Id. (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). Defendants contend the factual allegations are insufficient and do not establish the abrogation of their sovereign immunity under the Eleventh Amendment. Thus, the Court must accept the allegations in the amended complaint as true and construe them in a light most favorable to Plaintiff, just as it would under a motion pursuant to Rule 12(b)(6). Id.
The Sheriff and the State Defendants argue that under the Eleventh Amendment, they are immune from Plaintiff's Title II claim in Count One. The State Defendants additionally argue that Plaintiff has failed to plead sufficient facts to establish supervisory liability between the jail, its employees, and the State ...