# MAUNEY v. CUGINO

> District Court, M.D. North Carolina · August 15, 2019

URL: https://www.frixlaw.com/law-library/cases/10253326

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** August 15, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10253326

## How later opinions describe it (automated extraction)

- recognizing that Title II of ADA enforces aspects of Due Process Clause by adding protection beyond basic requirements of Fourteenth Amendment
- explaining that courts should not consider unsworn arguments as evidence in opposition to summary judgment motion

## Opinion text

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.

-3-
§ 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
-6-
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

-7-
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

-8-
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

-9-
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.

-13-
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253326. Public record. Not legal advice.