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Hans v. Board of Shawnee County Commissioners

United States District Court, D. Kansas

April 5, 2018

CAROLYN HANS, Plaintiff,
v.
BOARD OF SHAWNEE COUNTY COMMISSIONERS, et al., Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree, United States District Judge

         Plaintiff Carolyn Hans is deaf. On April 3, 2015, Shawnee County Sheriff Department officers arrested plaintiff for domestic battery and Shawnee County Department of Corrections (“DOC”) officers jailed her. She asserts that this conduct entitles her to relief under 28 U.S.C. § 1983, Title II of the Americans with Disabilities Act (“ADA”), and Kansas state law. Specifically, plaintiff asserts that defendants Board of Shawnee County Commissioners and Herman T. Jones, Shawnee County Sheriff, violated 42 U.S.C. § 1983 when their employees unlawfully arrested her and violated the Fourth Amendment. She also alleges that both defendants failed to accommodate her disability and thus violated Title II of the ADA. Finally, she asserts that both defendants violated Kansas state tort law because their employees falsely arrested her and intentionally inflicted emotional distress on her, and also because defendants negligently trained and supervised their employees.

         Defendants have moved for summary judgment against all plaintiff's claims. Doc. 64. For the reasons discussed below, the court grants summary judgment against all plaintiff's claims.

         I. Facts

         The following facts govern this motion. They are uncontroverted or, where controverted, are recited in the light most favorable to the plaintiff, the party opposing summary judgment. Scott v. Harris, 550 U.S. 372, 378 (2007).

         A. Plaintiff's Background

         Plaintiff Carolyn Hans has a hearing impairment and is a qualified individual with a disability under the ADA. She was born deaf and her parents are deaf. She first learned to communicate by American Sign Language (“ASL”). Because plaintiff's family and friends are deaf, ASL is plaintiff's primary form of communication and she uses it on a day-to-day basis. She also uses ASL with the general public when an interpreter is present. When no interpreter is present, she commonly communicates by writing notes. Typically, she communicated with her husband, Raymond Hans, through handwritten notes. Plaintiff can “lip read just a tiny, little bit.” Doc. 72-3 (Hans Dep. 25:3-4). She described it as being able to catch one or two words at a time, but she also said she misses most of what is said. To communicate by phone, plaintiff has used a video relay service on her phone for about three years.

         Plaintiff has designated Dr. Jean Andrews, a Ph.D. in speech and hearing, as an expert in this case. Dr. Andrews has provided an opinion that English is plaintiff's second language. Dr. Andrews also opines that plaintiff would have difficulty learning to read and understand English because it is an auditory-based language. Dr. Andrews explained, “You must hear the English [language] to learn to read it.” Doc. 72-13 at 8 (Andrews Report).

         Dr. Andrews believes that English language modes of communication, including “speech, lipreading, reading and writing do not constitute effective modes of communication for [plaintiff].” Id. at 5 (emphasis in original). Dr. Andrews tested plaintiff extensively and opines that lip reading is not an effective form of communication for plaintiff because she only understands short, superficial statements. Dr. Andrews opines that lip reading enables plaintiff to understand about 64% of what is being said. Based on extensive written testing, Dr. Andrews also opines that plaintiff is not fluent in English and does not have the skills to communicate in English in complicated situations with serious consequences.

         When she was deposed, plaintiff was employed as a part-time substitute teacher at the Arkansas School for the Deaf. Plaintiff previously had worked at the Topeka Independent Living Resource Center, where she had an interpreter available to her to help her communicate. Plaintiff also worked for Sprint for many years. While employed by Sprint, Sprint provided an ASL translator for meetings or other events requiring “important communication.” Doc. 72-3 (Hans Dep. 20:11-19).

         B. April 3, 2015 1. Dispatch

         On April 3, 2015, plaintiff called 911 emergency from her cellphone. Shawnee County 911 Dispatch answered the call. Shawnee County has an Emergency Communications Standard Operating Procedure (“SOP”) for handling 911 calls it receives from hearing-impaired callers. This SOP addresses calls placed from Telecommunications Device for the Deaf (“TDD”) phones and the Kansas Relay Service. Despite this SOP, plaintiff was unable to communicate with the dispatcher.

         Instead, plaintiff's husband, Raymond Hans, spoke in the background and told the dispatcher that his wife was the one who had dialed 911 and that she is deaf. Mr. Hans told the dispatcher that he and plaintiff were having a domestic argument and gave the dispatcher the address of their home. Mr. Hans also provided his name and plaintiff's name to the dispatcher. The call then was disconnected.

         Shawnee County has an Emergency Communications SOP for telephone procedures. This SOP instructs the person answering a 911 call that is disconnected to make one attempt to re-contact the dialing phone. Consistent with the SOP, the 911 dispatcher called the number plaintiff had used to call 911 emergency. The call was answered, and Mr. Hans, again speaking in the background, informed the dispatcher that plaintiff previously had hung up. Mr. Hans informed the 911 dispatcher that he and plaintiff were sitting in a tan Cadillac arguing, but that officers would find him outside the car when they arrived. This second call then disconnected.

         Plaintiff made several more calls to 911 on April 3, 2015. Reports from the Shawnee County dispatch department show that plaintiff placed four 911 calls-calling at 8:45 p.m., 8:47 p.m., 8:48 p.m., and 8:59 p.m. According to dispatch reports, Mr. Hans told the 911 dispatchers that his wife wanted to leave but he did not want her to leave because he wanted “to talk about it.” Doc. 72-4 at 2 (Dispatch Incident Report).

         Deputy Justin Dobler and Corporal Jace Beightel from the Shawnee Country Sheriff's Department were dispatched to the Hans's address at 8:56 p.m.

         2. Officers' Interaction

         Corporal Beightel arrived at the Hans's residence eight minutes later at 9:04 p.m. and Deputy Dobler arrived there separately about 10 minutes after Corporal Beightel. Dispatch had collected some information from the four 911 calls. But during their depositions, neither officer could remember if he had reviewed that information before interacting with plaintiff and Mr. Hans. Specifically, Corporal Beightel recalled that he had arrived on scene 10 minutes before Deputy Dobler, but he does not remember if he reviewed the information collected by dispatch while he waited.

         The dispatch reports established that: (1) Mr. Hans and plaintiff were married; (2) plaintiff was deaf; (3) plaintiff had called 911; (4) plaintiff wanted to leave the home and Mr. Hans would not let her leave because he wanted to “talk about it”; (5) Mr. Hans had been drinking; and (6) no weapons were present. Id.

         After Corporal Beightel and Deputy Dobler had arrived, they walked toward plaintiff's front door together. Corporal Beightel activated his body camera. Deputy Dobler did not have a body camera issued to him at that time because camera usage was still in its initial phases within the Sheriff's Department. Corporal Beightel's camera recorded footage of several interactions between the officers and plaintiff.[1]

         When he responded to this call, Corporal Beightel was suffering from an upset stomach. The first audio captured by Corporal Beightel's body camera recorded him telling Deputy Dobler, “If there's, if there's not charges, I wanna, I . . . we're getting this shit done. But by the book as well.” When asked what he meant by this, Corporal Beightel explained that “[his] stomach was upset and [he] didn't want to drag things out for longer than they needed to be.” Doc. 72-6 (Beightel Dep. 114:4-6).

         When the officers reached plaintiff's front door, plaintiff was walking through the entry way and her dogs were barking. Corporal Beightel opened the glass storm door, stepped inside, and asked plaintiff, “Are the dogs mean?” Plaintiff quickly turned to face Corporal Beightel and gestured up the stairs. She then said, “It's ok.” Corporal Beightel entered the house to speak with Mr. Hans, and Deputy Dobler motioned for plaintiff to step outside with him. Corporal Beightel's body camera footage suggests that Deputy Dobler interviewed plaintiff twice. Both times they were alone. After the two interviews, the officers conferred privately. And then Deputy Dobler interviewed plaintiff a third time. Again, they were alone. While Deputy Dobler spoke to plaintiff alone, Corporal Beightel spoke with Mr. Hans alone. Then both officers spoke with Mr. Hans and plaintiff, separately.

         Initially, Deputy Dobler asked, “What happened?” and plaintiff responded by gesturing that she had pushed Mr. Hans. Corporal Beightel's body camera footage shows that Deputy Dobler's initial interaction with plaintiff lasted about two minutes and 50 seconds. Deputy Dobler did not use written notes to communicate during this interaction, but at some point, he wrote at least one note to ask if plaintiff had some place else to go.

         Meanwhile, Corporal Beightel spoke with Mr. Hans inside the house. Right away, Corporal Beightel asked Mr. Hans whether the parties had gotten “physical.” Mr. Hans responded, “She pushed me down in the mud and stomped on my hand but other than that, no sir.” Then, he reported, he got into an argument with plaintiff. She became upset and left. When she returned, Mr. Hans reported that he tried to get in her car to leave. But plaintiff got in the car and called 911. Mr. Hans again stated, “When I got out, she stomped on my hand, threw me down in the mud.” Mr. Hans told Corporal Beightel several times that plaintiff had pushed him down in the mud and stomped on his hand. Mr. Hans had visible injuries on the top of his hand.

         Corporal Beightel asked Mr. Hans, “Do you wanna file a written statement of what happened?” Mr. Hans responded, “Uh, if that's what I . . . .” Corporal Beightel interrupted Mr.

         Hans and said, “If you do wanna press charges against her, then . . .” Corporal Beightel later told Mr. Hans, “You don't have to file a, a written statement is a voluntary statement.” After speaking with plaintiff the first time, Deputy Dobler interrupted Corporal Beightel's interview of Mr. Hans to ask if he had keys for the Cadillac. He responded that he did, and then Mr. Hans volunteered that plaintiff had the keys for his work truck. Corporal Beightel instructed Deputy Dobler to “go ask [plaintiff] if she pushed him down in the mud.” While Deputy Dobler spoke to plaintiff a second time, Corporal Beightel told Mr. Hans, “If she says that she pushed you down on the ground, that she pushed you, she has to go to jail. No. ifs, ands, or buts, it's not our choice.” Later, Corporal Beightel reiterated this point: “If that's what happened, if she says that's what happened, she's gotta go to jail.” Corporal Beightel then asked Mr. Hans again, “It's a voluntary statement, do you want to fill one out? You can say no, you can say yes.” Mr. Hans then declined to provide a written statement.

         After the second interview with plaintiff, Deputy Dobler returned inside the house and asked Mr. Hans if he was trying to interfere with plaintiff's vehicle-the Cadillac. Mr. Hans responded that he was trying to unscrew the cap on one of the vehicle's tires when plaintiff approached him from behind and stomped on his hand, breaking through the nail on one finger. Deputy Dobler interjected. He said, “She was protecting her property ‘cause she thought you were damaging it . . . .” Deputy Dobler later commented, “If you came up to my car and I caught you messing with it, I'd push you away from it, too.” The officers then conferred privately. After they conferred, Deputy Dobler spoke to plaintiff a third time. This interaction lasted a little longer than one minute. He asked plaintiff why she had pushed Mr. Hans down and stepped on his hand. At the same time Deputy Dobler was speaking with plaintiff, Corporal Beightel told Mr. Hans that if there was probable cause to believe that a battery had occurred, Kansas law left them no choice: They had to take the aggressor to jail.

         Then, Deputy Dobler re-entered the house and asked to look at Mr. Hans's hand. Mr. Hans explained that when plaintiff pushed him over, she came over the top of him and stomped on his hand. Mr. Hans then said that plaintiff had not stomped on his hand intentionally.

         Deputy Dobler explained to Mr. Hans that plaintiff had told him Mr. Hans was letting air out of one of the Cadillac's tires. As he said this, Deputy Dobler made a rotating motion with his right hand as if he were unscrewing something. Then, Deputy Dobler explained that plaintiff “went like this”-and he made a sweeping motion with his arms outstretched, palms facing up. Deputy Dobler told Mr. Hans she did this to get him away from the tire.

         The officers then spoke with Mr. Hans briefly. Corporal Beightel and Deputy Dobler discussed whether plaintiff had stepped on Mr. Hans's hand accidentally and, if that was the case, then no battery had occurred.

         The officers took the truck keys from plaintiff to give to Mr. Hans, and the Cadillac keys from Mr. Hans to give to plaintiff. At that point, plaintiff planned to leave the scene so she and Mr. Hans would be separated.

         While officers exchanged the keys with Mr. Hans, they told him that he shouldn't allow an argument to reach that point before calling law enforcement. Mr. Hans responded:

Yes sir, I get it man. You guys already arrested me once. She split my head with a sprinkler, and I was working on my Harley, and I put her against the wall and pulled the sprinkler out of her hand (inaudible). When you guys showed up, it looked like I had choked her, the grease marks, and I went to jail for that. So I do understand how it works, I don't wanna go to jail. That's why when she called you guys when we were sitting in the car and then hung up, I came in the house and called you back. I knew that was a bad thing, bad, bad. And I know you guys, you're busy, it's a Friday night, you got better things to do.

Ex. 13 to Doc. 65 (Beightel Body Camera Footage at 1:49-2:22). Then, Mr. Hans reiterated, “Yeah like I said, after the last time, I learned my lesson, and as soon as she called while we were in the car, I'm like goddamn I'm going to jail.” When the officers went outside to give plaintiff the keys to the Cadillac, Corporal Beightel asked plaintiff, “Are you going to go to a friend's house?” His speech was slow and deliberate. Plaintiff responded, “My cousin's.” Plaintiff tried to communicate something else orally. Corporal Beightel said, “What?” Plaintiff tried to communicate orally again. She then began to walk in the house. Corporal Beightel responded, “Hang on. Yeah, well.” Corporal Beightel followed her into the house. Mr. Hans was standing in the entry way and Corporal Beightel asked, “What does she need?” Mr. Hans orally asked her what she needed while using gestures that may have included ASL signs. He then informed Corporal Beightel that she needed her suitcase.

         After plaintiff collected her bags to leave, Corporal Beightel asked plaintiff, “Do you understand you were this close to going to jail?” Again, his speech was slow and deliberate. And he used gestures as he asked the question. While he was saying “you” he pointed at plaintiff. And while he said “this close” he held his right index finger and thumb less than an inch apart. Plaintiff responded, “Me, why?” Then, plaintiff communicated by speaking and gesturing that Mr. Hans was trying to let the air out of her tires. She raised her leg and made a downward gesture with it-seemingly reenacting a kick or push with the bottom of her foot. She then told the officers that Mr. Hans threw something at her eye. She tried to communicate something else orally and Corporal Beightel responded, “Huh?” Plaintiff then walked down the driveway to the Cadillac. As she walked, she tried to communicate orally with the two officers. Neither one responded. Once plaintiff reached the Cadillac, she gestured by the front passenger-side fender in a manner consistent with someone letting air out of the front tire, followed by a kicking motion and a gesture suggesting a two-handed push. She then walked around the front of the car and picked up a dog bone, saying and gesturing that Mr. Hans had hit her in the eye with the bone. Corporal Beightel asked plaintiff, “Did it hit you?” Plaintiff responded, “It did” and pointed to her left eye.[2]

         After plaintiff's interaction with the officers near the Cadillac, Deputy Dobler decided to arrest plaintiff for Domestic Battery. Deputy Dobler construed her actions as ones reenacting conduct where she had kicked and pushed Mr. Hans. He said plaintiff was “emotional, ” and he interpreted her actions as a “stomp, kick, and push” that “without a doubt” were intentional. Doc. 72-5 (Dobler Dep. 60:11-61:5, 68:8-13). Deputy Dobler did not arrest plaintiff for pushing Mr. Hans. Instead, he explained, he decided to arrest her for “stepping” on Mr. Hans and kicking him. Id. (94:22-95:2).

         Corporal Beightel did not interpret any of plaintiff's gestures to communicate that she had stomped on Mr. Hans's hand. But, he said, he understood her gestures to amount to an admission that she had kicked Mr. Hans, and this admission established probable cause for the officers to arrest her.

         After plaintiff alleged that Mr. Hans had thrown a dog bone at her, Corporal Beightel revisited Mr. Hans inside and asked him whether he threw anything at plaintiff. Mr. Hans denied that he had done so. Corporal Beightel then told Mr. Hans:

She's going to jail. She's going to jail. She told us you threw something, hit her in the eye. What she did, after she, it was explained that she may go to jail, was a different description than what she said the first time. So, she's going to jail. Um, she won't be able to call you tonight, so you guys will be separated for the night. Do you have any questions for me?

Ex. 13 to Doc. 65 (Beightel Body Camera Footage at 7:50-8:17).

         Corporal Beightel then walked back down the driveway to the Cadillac. He instructed plaintiff to get her purse and bring it with her as she was headed to jail. As he said this to plaintiff, he made a waving motion toward his body with both hands. Plaintiff reached into the Cadillac and picked up her purse. Corporal Beightel also asked plaintiff if she had her keys. She looked in her purse, pulled out her keys, and showed them to Corporal Beightel.

         Deputy Dobler then told plaintiff, “If you stay cooperative, I'll put the cuffs in front and not in back, deal?” Deputy Dobler used gestures as he spoke. As he said “you” he pointed at plaintiff. As he said “in front, ” he held his wrists together in front of his body. And as he said “in back, ” he held his wrists together behind his body. Plaintiff responded, “Okay” and held her wrists up in front of her body. Deputy Dobler then placed plaintiff under arrest and handcuffed her, with her arms in front of her body.

         The entire interaction at the house among plaintiff, her husband, and the two officers lasted about 30 minutes. Plaintiff never asked for a sign language interpreter during this interaction. She now claims that she believes it was the officers' job to provide an interpreter. Dr. Andrews, plaintiff's expert, opines that plaintiff, to understand what was happening and to ensure adequate communication during the process, needed a qualified ASL interpreter.

         Deputy Dobler transported plaintiff to the Shawnee County DOC in his patrol car. He did not communicate with her during this transport.

         The District Attorney declined to pursue criminal charges against plaintiff noting, “There is insufficient evidence of a criminal offense.” Doc. 72-7.

         3. Plaintiff's Description of the April 3, 2015 Arrest

         At her deposition, plaintiff testified about the entire incident leading to her arrest. An ASL interpreter assisted her during this deposition. Plaintiff took about 30 minutes to describe the events. Her version of the events follows.

         On April 3, 2015, plaintiff and Mr. Hans were having an argument at their home. She tried to leave but Mr. Hans took the keys to their Cadillac. So plaintiff grabbed the keys to their truck. After plaintiff grabbed the truck keys, Mr. Hans got in the Cadillac and backed out to block the truck, presumably so that plaintiff could not leave in it.

         Plaintiff jumped in the Cadillac and called 911. Plaintiff called 911 because she wanted the Cadillac keys back. She also felt like she was in danger because Mr. Hans was really, really mad and had been drinking. By this point, the parties had engaged in no physical contact.

         After her calls to 911, Mr. Hans told plaintiff, “[T]he cops are on the way.” Doc. 72-3 (Hans Dep. 57:17). Mr. Hans then got out of the Cadillac and opened the hood. Plaintiff did not know what he was doing, but she suspected he was messing with the car's wiring. She got out of the car and closed the hood.

         After plaintiff closed the hood, Mr. Hans found “something” and threw it at plaintiff's face, striking her. Id. (57:23-25). Plaintiff had no idea what Mr. Hans threw at her. Then, Mr. Hans went to the garage and retrieved a tool. He then tried to bleed air out of the Cadillac's tires.

         Plaintiff concedes that when Mr. Hans tried to drain air out of the Cadillac's tires, she tried to push him away from the tire. First, she said, she used her hands to push him. When he got back up and tried again to drain air out of the tire, she put her foot on his buttocks and pushed him. Plaintiff characterized this conduct as a “push”-and not a kick. Id. (56:24-25). She said that Mr. Hans had so much to drink that he tipped over easily. She barely had to push him.

         Mr. Hans was on his hands and knees on the ground. And plaintiff was behind him. She did not stomp on his hand. But plaintiff told Dr. Jean Andrews, her expert, that she stepped on one of his fingers, albeit accidentally.

         After the altercation by the Cadillac's tire, both plaintiff and Mr. Hans went back inside their home and waited for police to arrive. Plaintiff waited near the front door of her home.

         C. Shawnee County Department of Corrections

         After arresting her, Deputy Dobler transported plaintiff to the Shawnee County DOC. When plaintiff arrived there at 10:20 p.m., former Shawnee County corrections officer Angelica Hutting booked plaintiff into the facility. Officer Hutting lacks an independent recollection of booking plaintiff into the facility. But, she testified about her usual practice for booking a hearing-impaired individual in the DOC. Officer Hutting explained that if she experienced difficulty communicating with a deaf person, she used a combination of written notes and written forms that the arrestee could use to follow along. Officer Hutting also knew that Shawnee County had access to interpreters. She explained that she involved interpreters if she thought the inmate was not comprehending. Plaintiff recalls that Officer Hutting used written materials to cover the intake questions.

         1. Screening

         All inmates processed into the DOC are screened for the risk of suicide. Following this screening process, the DOC can place an inmate in general population (low risk), close observation (moderate risk), or on suicide watch (elevated risk). Officer Hutting conducted the plaintiff's initial screening. Following the screening, Officer Hutting prepared an Officer's Report Sheet about plaintiff. The report provides, “Subject was booked in for domestic battery. Subject indicated that she feels ‘a little bit' hopeless and helpless. Subject takes medication for depression. This is Subject's first arrest.” Doc. 72-22. When asked where she got the information to write that plaintiff felt “a little bit” hopeless and helpless, Officer Hutting did not recall. She volunteered that her “best guess” is that plaintiff wrote that down on her printed copy of the questions. Doc. 72-8 (Hutting Dep. 74:17-22).

         Officer Hutting prepared the report sheet based on her initial screening of plaintiff. Plaintiff's initial screening questionnaire provides, in part:

Initial Classification Suicide Questions
1. Ever Attempted Suicide? No
2. Had thoughts of hurting yourself? No
3. Thinking of hurting yourself now? No
4. How would you attempt suicide? No
5. Do you have means to do so now? No
6. Recent loss/death of loved one? No
Initial Classification Victimization Questions
1. Is inmate/juvenile particularly small? Yes Depression
2. Past child abuser (Juvenile = abuse victim)? Yes
3. Is inmate/juvenile effeminate? Yes A little bit
4. Other reason for protective custody? No
Initial Classification Mental Health Questions
1. Diag. Mental Illness? (Include family of juvenile) No
2. Taking Psychotropic Medication? No
3. Past in-patient MH care? (include family of Juv.) No
4. Are You Feeling Helpless and Hopeless Presently? No
5. Have You Ever or Are You Presently Hearing Voices? No

Doc. 72-9 at 1. When asked why the questionnaire does not report that plaintiff said she felt a little bit helpless or hopeless, Officer Hutting explained:

It appears as though I entered the responses to the questions for the mental health questions I entered as responses to the questions for victimization questions. It also appears as though I may have entered the responses for the victimization questions into the field for the responses for the mental health questions.

Doc. 72-8 (Hutting Dep. 71:17-23).

         But when one switches the answers to the two groups of screening questions, the answer to the question, “Are you feeling helpless and hopeless presently?” still does not line up with “yes, ” “a little bit.” That is, the “helpless and hopeless question” is the fourth question in its sequence and the “yes[, ] a little bit” answer is listed as an answer for the third question in its group. When asked about this alignment, Officer Hutting explained, “It appears as though I made a mistake in where I entered that information.” Id. (73:8-9).

         Based on Officer Hutting's responses in the initial screening questionnaire, Sergeant Anderson came to the DOC book-in area to conduct a suicide screening of plaintiff. Sergeant Anderson conducted her screening using the DOC's screening form. Dr. Andrew White, an expert consultant in jail and prison suicides, helped the DOC construct this screening form.

         To complete plaintiff's suicide screening and intake form, Sergeant Anderson and plaintiff sat side-by-side at a computer screen. Sergeant Anderson pointed to each question, and plaintiff then read the question silently. Plaintiff would respond yes or no, and Sergeant Anderson would type her response into the computer. If Sergeant Anderson didn't understand her answer, he directed her to write her answer down. Sergeant Anderson recalls using notes to communicate with plaintiff when he did not understand her. But he testified that he had discarded those notes.

         Plaintiff had been taking medication for depression for many years before the events of April 3, 2015. When she was arrested, plaintiff was taking Effexor, a medication she said she used to treat depression. And within the year immediately before her April 3, 2015 arrest, plaintiff had been hospitalized for depression for three days. Plaintiff told Sergeant Anderson in writing that she had been ...


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