United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree, United States District Judge
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
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.
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).
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.
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).
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.
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).
April 3, 2015 1. Dispatch
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
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.
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
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).
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.
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.
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.
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
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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
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.
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.
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.
Dobler transported plaintiff to the Shawnee County DOC in his
patrol car. He did not communicate with her during this
District Attorney declined to pursue criminal charges against
plaintiff noting, “There is insufficient evidence of a
criminal offense.” Doc. 72-7.
Plaintiff's Description of the April 3, 2015
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.
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.
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.
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.
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
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
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.
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
Shawnee County Department of Corrections
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.
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).
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
Doc. 72-8 (Hutting Dep. 71:17-23).
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.”
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
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.
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 ...