MAUNEY v. CUGINO

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

BRADLEY L. MAUNEY, )

)

Plaintiff, )

)

v. ) 1:17CV280

)

A.W. CUGINO, II, S.P. HOSIER, )

CITY OF ARCHDALE, and )

CITY OF HIGH POINT, )

)

Defendants. )

MEMORANDUM OPINION AND RECOMMENDATION OF

UNITED STATES MAGISTRATE JUDGE

Plaintiff, Bradley L. Mauney, brings this federal civil

rights action against Defendants, Detective A.W. Cugino, II

(“Cugino”), Detective S.P. Hosier (“Hosier”), the City of

Archdale, North Carolina (“Archdale”), and the City of High

Point, North Carolina (“High Point”), alleging violations of

42 U.S.C. § 1983, the Rehabilitation Act, and the Americans

with Disabilities Act (“ADA”). (Docket Entry 42; see also

Docket Entry 41 (allowing filing of Amended Complaint).)

Defendants all filed both Motions to Dismiss (Docket Entries

46, 50) under Rule 12(b)(6) of the Federal Rules of Civil

Procedure and Motions for Summary Judgment (Docket Entries 71,

74) under Rule 56 of those Rules. One set of Defendants, High

Point and Hosier, explicitly incorporate the arguments made in

their Motion to Dismiss into their Motion for Summary

Judgment. (Docket Entry 72 at 8.) However, as to all

Defendants, the Summary Judgment Motions include all the

arguments made in the Motions to Dismiss. The Court thus

should treat the Motions to Dismiss as moot and directly

address only the Motions for Summary Judgment.

I. Plaintiff’s Allegations and Claims

The Amended Complaint describes Plaintiff as a pretrial

detainee housed in the Randolph County Jail (Docket Entry 42,

¶ 3), Defendant Cugino as a detective with the Archdale Police

Department (id. ¶ 6), and Defendant Hosier as a detective with

the High Point Police Department (id. ¶ 7). According to the

Amended Complaint, on December 8, 2016, Defendants Hosier and

Cugino “approached [Plaintiff] and put [him] in handcuff[s]

behind [his] back and asked if [he] could hear or speak.”

(Id. ¶ 9.) The Amended Complaint further states that, when

Plaintiff responded in the negative by shaking his head, the

detectives (A) called for an interpreter waiting in their car,

and (B) began to question him, despite the fact that the

interpreter could not “see or understand [Plaintiff] while

[his] hands were handcuffed behind [his] back.” (Id.) The

detectives allegedly then “gave up” and transported Plaintiff

to the Archdale Police Department, where they continued to

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attempt to question him with the interpreter present and

Plaintiff handcuffed behind his back (such that the

interpreter still could not assist him). (Id. ¶ 10.)

The Amended Complaint also asserts that “the Police

refused to let [his] hands free from the handcuffs so [he]

could communicate with [the] interpreter and [he] was even

willing to cooperate with the police.” (Id. ¶ 11.) In that

regard, the Amended Complaint alleges that the interpreter

“made demands to have [Plaintiff’s] hands free so [he could]

communicate with her,” but that Defendants Cugino and Hosier

refused. (Id.) According to the Amended Complaint, Defendant

Cugino later took Plaintiff before a magistrate and disclosed

Plaintiff’s deafness. (Id. ¶ 12.) The magistrate then “typed

on a computer and printed [a paper] out and told [Plaintiff]

to sign the paper.” (Id.) When Plaintiff inquired about an

interpreter, Defendant Cugino allegedly replied, “‘We can’t

get one’ and threw [Plaintiff] in jail.” (Id.)

The Amended Complaint sets out two claims for relief.

The first states that “[t]he handcuffing, refusal to let

[P]laintiff’s hands free to communicate, and discrimination

violated Plaintiff’s rights and constituted [ ] a due process

violation under [the] United States Constitution[ ,] 42 U.S.C.

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§ 1983, [the] Rehabilitation Act of 1973, [and the]

American[s] With Disabilities Act of 1990.” (Id. ¶ 15.) The

second states that the “[f]ailure to provide [an] interpreter

at Magistrate Joshua Grant’s hearing” violated the

Constitution and the same statutes, as well as N.C. Gen. Stat.

§ 8B-2(d). (Id. ¶ 16.) Plaintiff brings the claims against

all Defendants in both their individual and official

capacities. (Id. ¶ 8.)

For relief, Plaintiff seeks a declaration that Defendants

violated his rights, an injunction ordering 1) Defendants

Cugino and Hosier to reinvestigate Plaintiff’s case by

allowing him to communicate with his hands free so that an

interpreter can understand him, and 2) another hearing before

a magistrate with an interpreter present. (Id. ¶ 21.)

Plaintiff also demands compensatory damages in the amount of

$88,000 against each Defendant “for mental anguish, loss of

wage, loss of personal property, [and] loans defaulted due to

being unable to work because [P]laintiff is incarcerated” (id.

¶ 22), as well as punitive damages in the amount of $1.5

million against each Defendant (id. ¶ 23).

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II. Evidence Submitted by Defendants

Defendants submitted evidence showing the following

pertinent facts:

On December 8, 2016, Defendant Hosier obtained a warrant

in Guilford County, North Carolina, ordering Plaintiff’s

arrest on charges of indecent liberties with a child and

sexual battery. (Docket Entry 47-1.) Similarly, Defendant

Cugino and another detective, C.A. Chewning, procured a

warrant in Randolph County, North Carolina, for Plaintiff’s

arrest for indecent liberties with a child. (Id.) Chewning

and Defendant Hosier then went to arrest Plaintiff on these

charges. (Docket Entry 72-2, ¶ 9.)1 Defendants filed an

audio recording of the encounter, as well as a typed

transcript of that recording. (Docket Entries 48-2, 48-3.)

The transcript, which the audio recording supports, shows

that Detective Chewning and Defendant Hosier approached

Plaintiff and asked if he was “Brad Mauney.” (Docket Entry

48-3 at 4.)2 They then identified themselves, told Plaintiff

1 So far as the record indicates, Defendant Cugino did not

participate in any of the events described in the Amended Complaint.

Defendants do not move to dismiss on this ground, but instead argue the

case essentially as if Plaintiff had named Detective Chewning as a

defendant in place of Defendant Cugino. (Docket Entry 75 at 7 n.1.)

2 Pin citations to the transcript refer to the page numbers that

appear in the CM/ECF footer appended to the document upon filing.

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that they needed to speak with him about a “couple of

different things,” and asked whether or not he could read

lips. (Id.) At that point, Defendant Hosier called for the

interpreter. (Id.) Defendant Hosier had directed the

interpreter to wait in the car while initially approaching

Plaintiff because of his prior felony record and a concern

that he might flee or react violently during the arrest.

(Docket Entry 72-2, ¶ 8.)

After the interpreter arrived, the transcript reflects

the following exchange:

DETECTIVE HOSIER: Okay. Tell him that we need to

talk to him about some reports that we have. Is he

willing to talk to us about these reports?

THE INTERPRETER: About--what about?

DETECTIVE HOSIER: About some sexual assault

allegations.

THE INTERPRETER: Where?

DETECTIVE HOSIER: In High Point and Archdale.

THE INTERPRETER: Has--were there any--is there

any warrant on me?

DETECTIVE HOSIER: Well, we want to know if he’s

ready to talk to us. If he’s willing to talk to us

about it.

THE INTERPRETER: I’ll have to ask a lawyer about

that.

DETECTIVE HOSIER: Okay.

(Docket Entry 48-3 at 5.)

Next, the audio recording captured the clear sound of the

application of handcuffs, as corroborated by Defendant

Hosier’s Affidavit (Docket Entry 72-2, ¶ 11). The transcript

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reflects that Detective Chewning then took Plaintiff’s

cellular telephone and placed it in airplane mode, after which

Plaintiff asked Detective Chewning to turn the telephone off,

leading to an extended exchange about the seizure of the

telephone. (See Docket Entry 48-3 at 6-9.) Defendant Hosier

thereafter asked Plaintiff what he wanted to do with his

truck, which Plaintiff apparently had parked near the scene of

the arrest. (Id. at 9.) After deciding to move the truck to

a nearby parking lot, Detective Chewning and Defendant Hosier

obtained Plaintiff’s keys and moved the truck, following an

extended exchange due to Plaintiff’s truck not starting in a

typical fashion. (See id. at 9-14.) The audio recording (and

transcript) then ends as Plaintiff’s transportation from the

scene begins. (See id. at 15.)

Defendant Hosier’s Affidavit states that he applied the

handcuffs behind Plaintiff’s back based on “police policy and

for public safety reasons,” as well as his prior criminal

record. (Docket Entry 72-2, ¶ 11.) The policy requires such

handcuffing of all persons, even deaf persons. (Id.)

According to Defendant Hosier, after affecting the arrest, he

did not further question Plaintiff about the criminal charges.

(Id. ¶¶ 12, 14.) The interpreter remained and interpreted for

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Plaintiff until he went to a holding cell. (Id.) Plaintiff

asked to have his hands cuffed in front of him instead of

behind him, but Defendant Hosier declined to change the

position of the handcuffs due to police policy and the fact

that Plaintiff became “highly agitated.” (Id.)

Following the filing of the Amended Complaint, Plaintiff

pled guilty to, or was found guilty of, sex offenses in

multiple counties and received prison sentences, which he

continues to serve. (See Docket Entries 47-3, 47-4.) Of

note, Plaintiff entered an Alford plea to one count of

indecent liberties with a child in conjunction with the

charges that resulted in his arrest in this case. (See Docket

Entry 47-2.)

III. Summary Judgment Standards

“The [C]ourt shall grant summary judgment if the movant

shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). A genuine dispute of material fact

exists “if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant

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bears the burden of establishing the absence of such

dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

In analyzing a summary judgment motion, the Court

“tak[es] the evidence and all reasonable inferences drawn

therefrom in the light most favorable to the nonmoving party.”

Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc).

“Summary judgment is appropriate when the movant shows there

is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Welton v. Durham

Cty., No. 1:17CV258, 2018 WL 4656242, at *2 (M.D.N.C. Sept.

27, 2018) (unpublished) (citing Fed. R. Civ. P. 56(a)). “The

moving party has the initial burden of demonstrating the

absence of any material issue of fact; [however,] once the

moving party meets its initial burden, the non-moving party

must come forward with evidentiary material demonstrating the

existence of a genuine issue of material fact requiring a

trial.” Heggins v. City of High Point, No. 1:16CV977, 2017 WL

6514681, at *2 (M.D.N.C. Dec. 20, 2017) (unpublished)

(emphasis added); see also Equal Emp’t Opportunity Comm’n v.

Womble Carlyle Sandridge & Rice, LLP, No. 1:13CV46, 2014 WL

2916851, at *4 (M.D.N.C. June 26, 2014) (unpublished) (“On

those issues for which the non-moving party has the burden of

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proof, it is his or her responsibility to oppose the motion

for summary judgment with affidavits or other admissible

evidence . . . .”), aff’d, 616 F. App’x 588 (4th Cir. 2015).

In assessing such matters, “the Court [does] not

consider[ ] ‘facts’ set forth in [summary judgment] briefs

that are not supported by citations to admissible evidence.”

Maisha v. University of N.C., No. 1:12CV371, 2015 WL 277747,

at *1 (M.D.N.C. Jan. 22, 2015) (unpublished), aff’d, 641 F.

App’x 246 (4th Cir. 2016). Additionally, “[u]nless

[D]efendants admitted [an] alleged fact in their [A]nswer, the

Court [does] not consider [the] unverified statements in

[Plaintiff’s Amended C]omplaint. [Such] allegations are not

under oath and are not evidence.” Id. (internal parenthetical

citations omitted) (citing Higgins v. Scherr, 837 F.2d 155,

156-57 (4th Cir. 1988)).

Nor do any statements in Plaintiff’s Responses (Docket

Entries 83, 84) constitute evidence that the Court can

consider at the summary judgment stage. The Roseboro Letters

sent to Plaintiff on February 1 and 13, 2019, informed him

that “[his] failure to respond, or if appropriate, to file

affidavits or evidence in rebuttal within the allowed time may

cause the [C]ourt to conclude that the [D]efendant(s’)

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contentions are undisputed . . . .” (Docket Entries 76 at 1

(emphasis added); accord Docket Entry 78 at 1.) Any factual

assertions in Plaintiff’s Responses “do[] not subject [him] to

the penalty of perjury for any misstatements” and thus cannot

defeat an opposing summary judgment motion. Turner v. Godwin,

No. 1:15CV770, 2018 WL 284978, at *3 (E.D. Va. Jan. 3, 2018)

(unpublished); see also United States v. White, 366 F.3d 291,

300 (4th Cir. 2004) (explaining that courts should not

consider unsworn arguments as evidence in opposition to

summary judgment motion). Moreover, although a verified

complaint may serve as an affidavit for summary judgment

purposes, see, e.g., Smith v. Blue Ridge Reg’l Jail Auth.-

Lynchburg, No. 7:17-CV-00046, 2017 WL 6598124, at *2 n.5 (W.D.

Va. Dec. 26, 2017) (unpublished), Plaintiff submitted an

unverified Amended Complaint in this case (see  Docket Entry

42 at 7). Therefore, the allegations in the Amended Complaint

do not constitute evidence.

IV. Rehabilitation Act/ADA Claims

The Fourth Circuit has “construe[d] the ADA and

Rehabilitation Act to impose similar requirements. Thus,

despite the different language that these statutes employ,

they require a plaintiff to demonstrate the same elements to

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establish liability.” Halpern v. Wake Forest Univ. Health

Scis., 669 F.3d 454, 461 (4th Cir. 2012) (internal citations

omitted). “The ‘public services’ subchapter of the ADA, 42

U.S.C. § 12131, provides, ‘No qualified individual with a

disability shall, by reason of such disability, be excluded

from participation in or be denied the benefits of the

services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity.’ Id. § 12132.”

Semereth v. Board of Cty. Comm’rs Frederick Cty., 673 F.3d

333, 336 (4th Cir. 2012) (internal brackets omitted).

Further, “‘[d]iscrimination’ includes ‘not making reasonable

accommodations to the known physical or mental limitations of

an otherwise qualified individual with a disability.’ Id.

§ 12112(b)(5)(A) (from Title I’s definition).” Semereth, 673

F.3d at 336. These provisions apply to police investigations

of criminal conduct. Id. at 339. However, a plaintiff must

establish an actual injury from any alleged ADA or

Rehabilitation Act violation in order to state a valid claim

for relief. See Rosen v. Montgomery Cty. Md., 121 F.3d 154,

158 (4th Cir. 1997).

Before addressing the merits of Plaintiff’s claims, the

Court first should note that “the ADA and the Rehabilitation

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Act do not provide any causes of action against individual

defendants in their individual capacities.” Keith-Foust v.

North Carolina Cent. Univ., No. 1:15CV470, 2016 WL 4256952, at

*13 (M.D.N.C. Aug. 11, 2016) (unpublished). Therefore, such

claims against Defendants Hosier and Cugino (or Detective

Chewning) fail as a matter of law.

Turning now to the remaining aspects of Plaintiff’s ADA

and Rehabilitation Act claims, no question appears to exist as

to whether Plaintiff meets the disability and “qualified

individual” elements. Likewise, as stated above, the ADA and

Rehabilitation Act apply to police investigations. Therefore,

the Court need only consider whether Defendants denied

Plaintiff a “reasonable accommodation,” Seremeth, 673 F.3d at

336, in a manner that actually injured him, see Rosen, 121

F.3d at 158.

Here, looking at the facts in the light most favorable to

Plaintiff, Defendant Hosier and Detective Chewning knew of

Plaintiff’s disability when they went to arrest him and knew

that he could not communicate well without an interpreter.

Although they provided an interpreter, they handcuffed

Plaintiff behind his back, which limited, to some extent, his

ability to communicate even with the interpreter present.

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However, Defendant Hosier and Detective Chewning possessed a

warrant for Plaintiff’s arrest for serious sex crimes.

Service of the warrant did not require communication with

Plaintiff about the circumstances of the charges or additional

investigation prior to arrest.

Further, police policy reasonably dictated placement of

handcuffs behind Plaintiff’s back for safety purposes. Nor

did circumstances that developed after Plaintiff’s arrest

necessitate deviating from that policy. Shortly after

Defendant Hosier and Detective Chewning approached Plaintiff,

he invoked his right to speak with an attorney before

answering questions about the allegations against him. The

only evidence in the record indicates that this action

occurred prior to Plaintiff’s handcuffing, but, whether

handcuffed or not, the undisputed evidence establishes that

Plaintiff invoked that right and all questioning about the

charges against him ceased. From that point on, the parties

needed only to secure Plaintiff’s telephone and truck before

transporting him to the Archdale Police Department. They

accomplished those tasks in just a few minutes time through

back and forth communication. Plaintiff has pointed to no

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necessary communication which failed to occur. (See Docket

Entries 83, 84.)

The same analysis applies to Plaintiff’s post-arrest

detention and bail hearing. The interpreter remained present

for Plaintiff’s detention prior to his bail hearing and

Defendant Hosier and Detective Chewning did not further

question Plaintiff regarding his alleged crimes. Plaintiff

again has failed to identify any important communication that

did not take place due to lack of reasonable accommodation.

(See id.) He did state in answer to interrogatories during

discovery that he “changed [his] mind,” about speaking with

officers and that he could only spell single words, rather

than communicate in sentences, while handcuffed. (Docket

Entry 65, ¶¶ 2, 3.) However, Plaintiff possessed no right to

speak with officers after invoking his right to consult an

attorney and has shown no injury that resulted from any lack

of such communication. (See id.; see also Docket Entries 83,

84.) In particular, Plaintiff has not even described any

specific information that he could not convey. (See Docket

Entry 65, ¶¶ 2, 3; see also Docket Entries 83, 84.)

As for the bail hearing, Defendant Hosier left prior to

that hearing and the interpreter left with him. Nevertheless,

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as Plaintiff has acknowledged, the magistrate communicated

with Plaintiff by printing paperwork. (Docket Entry 42, ¶

12.) Plaintiff also produced in discovery the handwritten

notes he and Detective Chewning used to communicate during the

hearing. (Docket Entry 65, Ex. A-1.) Nor has Plaintiff even

alleged that any important failure to communicate actually

happened during the hearing, much less come forward with

evidence to show any effect on the outcome of the hearing due

to a failure to communicate. (See Docket Entries 83, 84.)

In the end, the record simply cannot support a finding

that handcuffing Plaintiff behind his back violated his rights

under the ADA (or Rehabilitation Act). The evidence in the

record shows that the authorities and Plaintiff communicated

sufficiently during all relevant events to take care of all

necessary business. Moreover, Plaintiff has failed to produce

any evidence that he suffered any harm as a result of any

communication difficulties.3 For these reasons, the Court

3 Plaintiff’s request for relief in his Amended Complaint and his

answers to Defendants’ interrogatories in discovery are telling in this

regard. Plaintiff seeks a preliminary injunction commanding Defendants

Cugino and Hosier to “reinvestigate” his case with Plaintiff’s hands free

so that he can explain the situation. (Docket Entry 42, ¶ 21.) However,

at the time of Plaintiff’s arrest, Defendant Hosier and Detective

Chewning already possessed arrest warrants. Plaintiff could not then

escape arrest or custody by explaining the situation. Thus, any lack of

ability to explain himself did not cause Plaintiff’s arrest or

prosecution and, in any event, his ultimate conviction confirms that he

possessed no legitimate explanation. The outcome of the state court

criminal proceeding related to this case also moots any request for

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should enter summary judgment against Plaintiff on his claims

under the ADA and Rehabilitation Act.4

V. Section 1983 Claims

To establish a Section 1983 claim, Plaintiff must prove

(1) that Defendants “deprived [him] of a right secured by the

Constitution and laws of the United States[ ] and (2) that

they deprived [him] of this constitutional right under color

of State statute, ordinance, regulation, custom, or usage.”

Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001)

(internal brackets and quotation marks omitted). Plaintiff

contends that Defendants violated his rights under the

Fourteenth Amendment of the United States Constitution and,

consequently, Section 1983, by handcuffing his hands behind

his back during his arrest and his detention at the Archdale

Police Department pending his bail hearing. He also claims

injunctive relief. Further, Plaintiff cannot receive damages for his

incarceration because such damages would necessarily call the validity

of his state court conviction into question. See Heck v. Humphrey, 512

U.S. 477 (1994). Plaintiff’s reliance on his incarceration as the source

of his damages points to a serious flaw in his case, namely that the

warrant procured prior to his arrest, not any lack of communication with

the arresting officers, led to his arrest, incarceration, and any

financial harm.

4 Plaintiff cites N.C. Gen. Stat. § 8B-2(d) as requiring the

arresting officers to provide an interpreter for him. (Docket Entry 42,

¶ 18.) They did provide one during his arrest and pre-hearing detention.

As for the hearing itself, Plaintiff again has produced no evidence of

any harm stemming from any failure to provide an interpreter, as required

for liability under the ADA and Rehabilitation Act.

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that Defendants violated those same rights by failing to

provide a sign language interpreter at his bail hearing.

Defendants Hosier and Cugino deny that their actions

violated Plaintiff’s rights and invoke the doctrine of

qualified immunity. “The doctrine of qualified immunity

protects government officials from liability for civil damages

insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable

person would have known.” Pearson v. Callahan, 555 U.S. 223,

231 (2009) (internal quotation marks omitted). “The

protection extends to all but the plainly incompetent or those

who knowingly violate the law.” Raub v. Campbell, 785 F.3d

876, 881 (4th Cir. 2015) (internal quotation marks omitted).

Under this doctrine, “[o]fficials are not liable for bad

guesses in gray areas; they are liable for transgressing

bright lines.” Id. (internal quotation marks omitted;

brackets in original). In evaluating qualified immunity,

courts consider “(1) whether the plaintiff has established the

violation of a constitutional right, and (2) whether that

right was clearly established at the time of the alleged

violation.” Id. The Court may address these prongs in

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whatever order “will best facilitate the fair and efficient

disposition of [this] case.” Pearson, 555 U.S. at 242.

A right qualifies as “clearly established . . . [if] it

would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.” Saucier v. Katz,

533 U.S. 194, 202 (2001), overruled in part on other grounds,

Pearson, 555 U.S. at 227. In other words, “[t]he unlawfulness

of the action must be apparent when assessed from the

perspective of an objectively reasonable official charged with

knowledge of established law.” Lopez v. Robinson, 914 F.2d

486, 489 (4th Cir. 1990). “This is not to say that an

official action is protected by qualified immunity unless the

very action in question has previously been held unlawful, but

it is to say that in the light of pre-existing law the

unlawfulness must be apparent.” Anderson v. Creighton, 483

U.S. 635, 640 (1987) (citation omitted). In ascertaining

whether a right qualified as clearly established at the time

of the challenged conduct, courts within this circuit

generally “need not look beyond the decisions of the Supreme

Court, th[e Fourth Circuit], and the highest court of the

state in which the case arose.” Edwards v. City of Goldsboro,

178 F.3d 231, 251 (4th Cir. 1999) (internal quotation marks

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omitted). However, in the absence of controlling precedent,

a right may qualify as clearly established (1) if it appears

“manifestly included within more general applications of the

core constitutional principles invoked” or (2) based on “a

consensus of cases of persuasive authority from other

jurisdictions.” Booker v. South Carolina Dep’t of Corr., 855

F.3d 533, 539-39 (4th Cir. 2017) (emphasis and internal

quotation marks omitted). Conversely, decisions from other

jurisdictions that decline to find constitutional violations

in similar circumstances can justify application of qualified

immunity, in the absence of controlling authority. See

Pearson, 555 U.S. at 244-45.

Plaintiff contends that the arresting officers violated

his rights by handcuffing him behind his back, restricting his

communication with the interpreter during his arrest and pre-

hearing detention. However, by handcuffing Plaintiff in that

way, Defendant Hosier and Detective Chewning followed

reasonable police policies and treated him as the relevant

policies required them to treat all arrestees regardless of

hearing ability. (See Docket Entry 72-2, ¶¶ 11, 14

(confirming Defendant Hosier’s reliance on police policy

during Plaintiff’s arrest, which required handcuffing of all

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arrestees behind their backs); Docket Entry 86-1 at 3-4 (same

as to Detective Chewning).) Plaintiff seeks a special

accommodation exempting him from such policies because of his

disability, but state and local government officials “are not

required by the Fourteenth Amendment to make special

accommodations for the disabled, so long as their actions

toward such individuals are rational. . . . If special

accommodations for the disabled are to be required, they have

to come from positive law [i.e., the ADA and Rehabilitation

Act] and not through the Equal Protection Clause.” Board of

Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 367-68

(2001); see also Tennessee v. Lane, 541 U.S. 509, 522-34

(2004) (recognizing that Title II of ADA enforces aspects of

Due Process Clause by adding protection beyond basic

requirements of Fourteenth Amendment).

As discussed above, the record cannot sustain a claim

under the ADA or Rehabilitation Act based on Plaintiff’s

arrest. Moreover, Defendant Hosier and Detective Chewning

behaved rationally by bringing an interpreter to assist them

in communicating with Plaintiff, but adhering to policies

requiring handcuffing behind an arrestee’s back. The evidence

in the record additionally shows that, during Plaintiff’s

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arrest, Defendant Hosier and Detective Chewning adequately

communicated with Plaintiff. They sought to speak with him

about the allegations, they learned he wished to speak with

counsel instead, and they communicated extensively with him

about his telephone and truck.

Plaintiff’s Responses to the Motions for Summary Judgment

express his opinion that finger-spelling and mouthing words do

not afford an “effective” means of communication for a deaf

person. (Docket Entry 83 at 2-3; Docket Entry 84 at 2-3.)

Although the transcript reveals moments when the interpreter

struggled to understand Plaintiff, those moments remained few

and fleeting. Further, the transcript confirms that

ultimately the interpreter always could convey Plaintiff’s

words to the arresting officers. Based on this record, no

violation of Plaintiff’s Fourteenth Amendment rights occurred

during his arrest. In any event, no reasonable officer would

have perceived the circumstances of Plaintiff’s arrest as

violating any clearly established Fourteenth Amendment right.

The same basic considerations defeat Plaintiff’s Section

1983 claims regarding his pre-hearing detention and bail

hearing. The interpreter remained present during that period

of detention and communication occurred in written form during

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the bail hearing. Plaintiff has not come forward with any

evidence of any important matter that went uncommunicated

during these events. The officers again complied with federal

disability-related statutes and behaved rationally in

compliance with the Fourteenth Amendment.

In sum, the Court should enter summary judgment in favor

of Defendants Hosier and Cugino (or Detective Chewning) on

Plaintiff’s Section 1983 claims.

As for any official capacity claims, which would lie

against Defendant Hosier’s and Cugino’s employers, and thus

replicate Plaintiff’s claims against Defendants Archdale and

High Point, “a municipality cannot be held liable solely

because it employs a tortfeasor-or, in other words, a

municipality cannot be held liable under § 1983 on a

respondeat superior theory.” Monell v. Department of Soc.

Servs., 436 U.S. 658, 691 (1978) (emphasis in original).

“Only in cases where the municipality causes the deprivation

‘through an official policy or custom’ will liability attach.”

Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (quoting

Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999)).

“Because section 1983 was not designed to impose municipal

liability under the doctrine of respondeat superior, the

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‘official policy’ requirement was ‘intended to distinguish

acts of the municipality from acts of employees of the

municipality, and thereby to make clear that municipal

liability is limited to action for which the municipality is

actually responsible.’” Riddick v. School Bd. of Portsmouth,

238 F.3d 518, 523 (4th Cir. 2000) (quoting Pembaur v. City of

Cincinnati, 475 U.S. 469, 479 (1986)). “To state a cause of

action against a municipality, a section 1983 plaintiff must

plead (1) the existence of an official policy or custom; (2)

that the policy or custom is fairly attributable to the

municipality; and (3) that the policy or custom proximately

caused the deprivation of a constitutional right.” Pettitford

v. City of Greensboro, 556 F. Supp. 2d 512, 530 (M.D.N.C.

2008).

Here, Plaintiff has not even alleged (much less come

forward with evidence to show) that any official custom or

policy of the defendant-municipalities caused any

constitutional deprivation. The only relevant policies

mentioned in the record require the handcuffing of all

arrestees behind their back.5 For the reasons set out

5 Plaintiff’s Responses to the Motions for Summary Judgment assert

that Defendants did not appropriately respond to his requests for copies

of their policies. (Docket Entry 83 at 5); Docket Entry 84 at 5-6.)

However, he does not even allege that any other policy impacted his case,

let alone explain how Defendants’ policies other than handcuffing him

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previously, Defendant Hosier and Detective Chewning’s

application of those policies did not limit Plaintiff’s

ability to communicate in a way that violated his federal

statutory or constitutional rights. Therefore, Defendants

Archdale and High Point also have shown entitlement to summary

judgment on Plaintiff’s Section 1983 claims.

VI. Conclusion

The record does not contain evidence sufficient to

support any of Plaintiff’s claims.

IT IS THEREFORE RECOMMENDED that Defendants’ Motions for

Summary Judgment (Docket Entries 71, 74) be granted, that

Defendants’ Motions to Dismiss (Docket Entries 46, 50) be

denied as moot, and that Judgment be entered against

Plaintiff.

This, the 15th day of August, 2019.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

behind his back could have violated his rights. (See id.)

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