Brown v. Belt

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

DAN BROWN,

Plaintiff,

v. Civil Action No. 2:15-cv-11549

ROBERT BELT, Deputy Sheriff;

GARRETT SAMPLES, JR., Clay County Sheriff; and

CLAY COUNTY COMMISSION,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Dan Brown, a resident of Clay County, West

Virginia, was arrested for driving under the influence after he

failed three field sobriety tests. Alleging that he was not given

proper accommodations during the test administration, Brown brings

claims under Title II of the Americans with Disabilities Act and

Section 504 of the Rehabilitation Act, claims for negligent

hiring, supervision and training, claims under the Fourth and

Fourteenth Amendments of the United States Constitution, and state

law claims for wrongful arrest and intentional infliction of

emotional distress. Pending before the court are defendants’

motion to dismiss, filed March 29, 2016 (ECF No. 10), and

defendants’ motion to deem the motion to dismiss as unopposed (ECF

No. 21) inasmuch as plaintiff has failed to respond to the motion

to dismiss.

As an initial matter, the court denies defendants’

motion to deem the motion to dismiss as unopposed. Plaintiff’s

subsequent motion for leave to amend, while dilatory, contains

allegations that purportedly show plaintiff’s continued intent to

maintain the action.

I. Facts as Alleged

Taking plaintiff’s allegations as true, as the court

must at this stage, on July 26, 2013, defendant Robert Belt, a

deputy sheriff of Clay County, saw Mr. Brown on the side of the

road with a flat tire. Deputy Belt then approached him and began

to conduct a traffic stop for driving under influence (“DUI”) and

search his vehicle. When Deputy Belt ordered Mr. Brown to undergo

three field sobriety tests, the “Horizontal Gaze Nystagmus,” the

“Walk and Turn,” and the “One-Leg Stand,” Mr. Brown pointed out

that he suffered from several conditions that prevented him from

being able to adequately complete the tests. In particular, he

has long had nystagmus, an eye condition, as well as a leg injury

that makes him unable to place weight on his leg. Although Mr.

Brown told Deputy Belt that he was “100% disabled” and “could not

take the normal tests for DUI,” Belt continued to administer the

three tests without offering accommodations. Following the tests,

Deputy Belt arrested Mr. Brown for DUI.

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When Mr. Brown took a preliminary breath test, the

result showed a blood alcohol level of 0.0. He asked to be given

a blood test to provide further proof that he was not under the

influence, but Deputy Belt failed to request it.

II. Procedural posture

On July 27, 2015, plaintiff filed his complaint with the

court. The complaint contains five “causes of action” which the

court treats as Counts 1 through 5, namely, Count 1, failure to

provide reasonable accommodation under Title II of the Americans

with Disabilities Act (“ADA”) and § 504 of the Rehabilitation Act;

Count 2, negligent hiring, supervision, and/or training; Count 3,

the Fourth and Fourteenth Amendment due process violations; Count

4, wrongful arrest; and Count 5, intentional infliction of

emotional distress. As noted, plaintiff did not file a response

to the motion to dismiss, but on September 15, 2016 filed a motion

seeking leave to amend, along with a proposed amended complaint.

The court considers that motion in a separate order.

III. Standard of review

Federal Rule of Civil Procedure 8(a)(2) requires that a

pleader provide “a short and plain statement of the claim showing

... entitle[ment] to relief.” Rule 12(b)(6) permits a defendant

to challenge a complaint when it “fail[s] to state a claim upon

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which relief can be granted.” In order to survive a motion to

dismiss, a complaint “must contain enough facts to state a claim

to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). Thus, a valid complaint must

“give the defendant fair notice of what the claim is and the

grounds upon which it rests.” Rios v. Veale, 648 F. App'x 369,

370 (4th Cir. 2016) (quoting Erickson v. Pardus, 551 U.S. 89, 93

(2007)). In Rios, the Fourth Circuit admonishes that with “a

civil rights complaint, we must be especially solicitous of the

wrongs alleged and must not dismiss the complaint unless it

appears to a certainty that the plaintiff would not be entitled to

relief under any legal theory which might plausibly be suggested

by the facts alleged.” Rios, 648 F. App'x at 370 (quoting Edwards

v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)).

Accordingly, a complaint may only be dismissed if “after

accepting all well-pleaded allegations in the plaintiff's

complaint as true and drawing all reasonable factual inferences

from those facts in the plaintiff's favor, it appears certain that

the plaintiff cannot prove any set of facts in support of his

claim entitling him to relief.” Green v. Beck, 539 F. App'x 78,

79 (4th Cir. 2013) (quoting Edwards, 178 F.3d 231, 244 (4th Cir.

1999)).

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IV. Analysis

Count 1: Claims for failure to provide reasonable accommodations

under the ADA and the Rehabilitation Act

Title II of the ADA provides that “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.” 42 U.S.C. §

12132. Similarly, § 504 of the Rehabilitation Act provides that

“[n]o otherwise qualified individual with a disability ... shall,

solely by reason of her or his disability, be excluded from the

participation in, or be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal

financial assistance.” 29 U.S.C. § 794(a). While the complaint

does not allege that the Commission received federal funds, the

court has no reason to doubt it, and the defendants did not raise

it as an issue.

In general, a plaintiff seeking recovery for violation

of either statute must allege that (1) he has a disability, (2) he

is otherwise qualified to receive the benefits of a public

service, program, or activity, and (3) he was excluded from

participation in or denied the benefits of such service, program,

or activity, or otherwise discriminated against, on the basis of

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his disability. Constantine v. Rectors & Visitors of George Mason

Univ., 411 F.3d 474, 498 (4th Cir. 2005) (citations omitted). The

scope of ADA protections extends to arrests and police activity

more generally. Seremeth v. Bd. of Cty. Comm’rs Frederick Cty.,

Md., 673 F.3d 333, 338-39 (4th Cir. 2012) (citing, inter alia,

Johnson v. City of Saline, 151 F.3d 564, 569 (6th Cir. 1998), for

the proposition that “the phrase ‘services, programs, or

activities' encompasses virtually everything that a public entity

does”).

The two statutory provisions allegedly implicated here

are similar for present purposes, and the court considers them

together. “Claims under ADA’s Title II and the Rehabilitation Act

can be combined for analytical purposes because the analysis is

‘substantially the same.’” Seremeth, 673 F.3d at 336 n.1 (citation

omitted).

Defendants attack the sufficiency of the complaint under

these two acts on two principal grounds, which the court considers

in turn: (1) that plaintiff did not adequately plead a qualifying

disability and (2) that he was not unlawfully denied unreasonable

accommodation.

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i. Pleading a qualifying disability

The ADA defines “disability” as:

a) a physical or mental impairment that substantially

limits one or more major life activities of such

individual;

b) a record of such an impairment; or

c) being regarded as having such an impairment.

42 U.S.C. §12102.

Under the first prong, Brown does not expressly plead

substantial limitation of a major life activity. Nonetheless, his

statement to the officer that he was “100% disabled” suffices at

the motion to dismiss stage to indicate substantial limitations of

major life activities.

In this context, Brown names several “impairments,”

including nystagmus and a leg injury. To be sure, the allegations

are rather summary. However, in this matter of statutory

interpretation, the court is bound to faithfully execute the

Congressional intent underlying the ADA Amendments Act of 2008

(“ADAAA”), Pub. L. No. 110–325, 122 Stat. 3553. Specifically

responding to a perceived judicial narrowing of the disability

definition under the ADA, Congress instructed us to construe the

definition of disability “in favor of broad coverage of

individuals under this chapter, to the maximum extent permitted by

[its] terms.” Summers v. Altarum Inst., Corp., 740 F.3d 325, 329

(4th Cir. 2014) (quoting 42 U.S.C. § 12102(4)(A)). The cases

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defendants cite predate the ADAAA. The court finds plaintiff’s

pleading of a qualifying disability to be adequate.

ii. Denial of reasonable accommodation

It is well-established law that one can plead a Title II

violation arising out of a police investigation or arrest.

Indeed, courts recognize two types of claims under Title II: 1)

wrongful arrest, where a suspect is arrested based on his

disability, rather than for criminal activity; and 2) reasonable

accommodation, where police “fail to reasonably accommodate [a

suspect’s] disability during the investigation or arrest.” See

Waller ex rel. Estate of Hunt v. City of Danville, 556 F.3d 171,

174 (4th Cir. 2009) (citations omitted).

It may be deemed that both types of claims are alleged

by plaintiff. First, he informed Deputy Belt that on account of

his disability, he could not take the field sobriety tests, yet

was offered no accommodations, and was subsequently arrested by

virtue of his disability, rather than criminal liability. Second,

once arrested, the officer failed to reasonably accommodate his

disability by providing the blood test he allegedly requested to

show that he was not an impaired driver.

While factual development in this case may not support

the reasonable accommodations allegations, the motion to dismiss

Count 1 must at this juncture be denied.

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Count 2: Negligent hiring, supervision, and training

Plaintiff’s second cause of action alleges that Clay

County Commission and Sheriff Samples failed to properly train or

supervise Deputy Belt. Specifically, Deputy Belt allegedly did

not receive training on the ADA or the provision of reasonable

accommodations to disabled persons in the course of his thirteen-

year tenure with the Clay County Sheriff’s Department. The Clay

County Commission is alleged to have failed to properly fund

training on the ADA. Together, these failures allegedly created

an environment of indifference and disrespect for the rights of

persons with disabilities.

The training and supervision claims blend together.

While the Fourth Circuit has not yet recognized such claims under

the ADA, the court agrees that “there is no indication that it

would not follow other courts and recognize such a claim.” Estate

of Saylor v. Regal Cinemas, Inc., 54 F. Supp. 3d 409, 426 (D. Md.

2014). Another court in our circuit recently acknowledged, in

dicta, that the failure-to-train “claim appears to be legally

appropriate in some circumstances.” Talley v. City of Charlotte,

No. 3:14-cv-00683-MOC-DCK, 2016 WL 8679235, at *10 n. 3 (W.D.N.C.

July 22, 2016). As a recent study noted, “Several courts

acknowledge that law enforcement can violate reasonable

accommodation requirements by inadequately training officers in

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how to interact with people with disabilities. . . . [T]he ADA’s

legislative history clearly requires adequate police training.”

Robyn Levin, Note, Responsiveness to Difference: ADA

Accommodations in the Course of Arrest, 69 Stan. L. Rev. 269, 295,

298 (2017). A House of Representatives Judiciary Committee report

on the ADA indeed reads:

In order to comply with the non-discrimination mandate,

it is often necessary to provide training to public

employees about disability. For example, persons who

have epilepsy, and a variety of other disabilities, are

frequently inappropriately arrested and jailed because

police officers have not received proper training in the

recognition of and aid [for] seizures. Such

discriminatory treatment based on disability can be

avoided by proper training.

Patrice v. Murphy, 43 F. Supp. 2d 1156, 1159 (W.D. Wash.

1999) (quoting H.R. Rep. No. 101-485, pt. III, at 50 (1990),

as reprinted in 1990 U.S.C.C.A.N. 267, 473).

It is therefore plain that training was a key instrumentality that

Congress intended to be employed to promote compliance with the

ADA. This being so, the claim is stated.

The count’s caption notwithstanding, Brown’s complaint

pleads no factual allegations relating to “negligent hiring,” so

that prong of the cause of action is dismissed.

Defendants are correct that a Title II action does not

lie against Sheriff Samples in his individual capacity. See

Spencer v. Earley, 278 Fed. App’x 254, 257 (4th Cir. 2008). They

also assert immunity for the Clay County Commission under W. Va.

Code 29-12A-5(a), which reads in pertinent part,

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A political subdivision is immune from liability if a

loss or claim results from:

[ ]

(4) Adoption or failure to adopt a law, including, but

not limited to, any statute, charter provision,

ordinance, resolution, rule, regulation or written

policy;

(5) Civil disobedience, riot, insurrection or rebellion

or the failure to provide, or the method of providing,

police, law enforcement or fire protection.

W. Va. Code Ann. § 29-12A-5 (West).

However, defendants do not explain why, in their view, this state

legislative provision should encompass the present federal

statutory claims, and the court is reluctant to dismiss the claims

at this stage without such a showing. Under the Supremacy Clause

of the United States Constitution, federal law supersedes contrary

state law, and the court is not aware of any invocation of § 29-

12A-5 immunity from federal causes of action.

Accordingly, the motion to dismiss is denied as to the

negligent supervision and training claims.

Count 3: Violation of due process under the Fourth and Fourteenth

Amendments under 42 U.S.C. § 1983

Mr. Brown asserts that he was arrested, seized, and

searched without any reasonable suspicion, and relatedly, that

Deputy Belt’s failure to provide reasonable accommodation or

alternative DUI testing resulted in his arrest and detainment.

Plaintiff alleges that these circumstances “led to the officer

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violating the Due Process rights of the Plaintiff under the 4th

and 14th Amendments. . .” As discussed, at this early stage of

the litigation, the court has to take the factual allegations in

the complaint as true, but need not credit its legal assertions.

Any pleading of a violation under Section 1983 has to

overcome the qualified immunity defense. It is well established

that government officials performing discretionary functions —

such as Deputy Belt – are entitled to qualified immunity from

liability for damages to the extent that “their conduct does not

violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800 (1982), 818. Analytically, determining

whether an official is entitled to qualified immunity involves a

two-pronged inquiry: “first whether a constitutional violation

occurred and second whether the right violated was clearly

established.” Melgar v. Greene, 593 F.3d 348, 353 (4th Cir.

2010). Importantly, the qualified immunity inquiry is a highly

fact-specific one. See Saucier v. Katz, 553 U.S. 194, 200 (2001).

Having encountered the driver with his vehicle on the

side of the road with a flat tire, it would be obvious to anyone

why the vehicle was stationary at that point. While the officer

would be expected to speak to the driver, the reasonable suspicion

basis on which the officer directed the driver to submit to

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sobriety tests is not apparent from the complaint. That is

particularly so when the preliminary breath test administered to

the driver was zero for alcohol. The action of the officer in

this instance is further complicated by the reasonable

accommodation factual issue that is incorporated in and

specifically made a part of Count 3.

In this case, the court does not have any showing of a

particularized basis for prolonging the encounter and

administering the sobriety tests over Mr. Brown’s protestations.

Therefore, the court cannot now say, as a matter of law, that

Deputy Belt’s decision to engage in such conduct, and the ensuing

consequences, were not outside the boundaries of clearly

established law. See Green v. Throckmorton, 681 F.3d 853, 863

(6th Cir. 2012). Accordingly, the motion to dismiss is denied as

to Count 3.

Count 4: Wrongful arrest

Plaintiff’s fourth cause of action asserts simply: “As a

result of the Defendant, Robert Belt’s actions or omissions, the

Plaintiff was wrongfully suspected and arrested for DUI.” The

one-year statute of limitations found in W. Va. Code § 55-2-12(c)

(2000) controls a claim for false arrest. Canterbury v. Laird,

221 W. Va. 453, 455, 655 S.E.2d 199, 201 (2007). The arrest took

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place on or about July 26, 2013, and the complaint was filed on

July 27, 2015. Accordingly, the claim is time-barred, and the

motion to dismiss is granted as to this cause of action.

Count 5: Intentional infliction of emotional distress/outrage

Plaintiff’s fifth cause of action asserts simply that

the defendants’ conduct was “intentional, extreme and outrageous,”

and that it caused plaintiff to suffer “severe emotional and

mental distress.” The elements of a claim for intentional or

reckless infliction of emotional distress are:

1) that the defendant’s conduct was atrocious, intolerable,

and so extreme and outrageous as to exceed the bounds

of decency;

2) that the defendant acted with the intent to inflict

emotional distress, or acted recklessly when it was

certain or substantially certain emotional distress

would result from his conduct;

3) that the actions of the defendant caused the plaintiff to

suffer emotional distress; and

4) that the emotional distress suffered by the plaintiff was

so severe that no reasonable person could be expected

to endure it.

Philyaw v. E. Associated Coal Corp., 219 W. Va. 252, 257

(2006).

Courts are to play a “gate-keeping” role in determining

whether, as a matter law, asserted conduct could reasonably

satisfy the element of “atrocious, intolerable, and so extreme and

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outrageous.” Id. Conduct which is merely “unreasonable, unkind,

or unfair” is insufficient to state a claim for intentional

infliction of emotional distress. See id. at 258. Crediting

fully the allegations in plaintiff’s complaint, and drawing all

inferences in his favor, the plaintiff has alleged conduct that,

while unkind and perhaps unfair, was not atrocious, intolerable or

so exceeding the bounds of decency as to state a claim for

intentional infliction of emotional distress. The claim is

dismissed.

Vv. Conclusion

For the foregoing reasons, the court ORDERS that

defendants Robert Belt, Garrett Samples, Jr., and Clay County

Commission’s motion to dismiss be, and it hereby is, granted in

part and denied in part. In particular, the court dismisses the

negligent hiring prong of Count 2 and all of Count 4, wrongful

arrest, and Count 5, intentional infliction of emotional

distress/outrage, but does not dismiss any other claims at this

juncture. Defendants’ motion to deem the motion to dismiss as

unopposed is, as earlier noted, denied.

The Clerk is directed to transmit copies of this order

to all counsel of record and any unrepresented parties.

ENTER: October 13, 2017

LO ph TD =p —D

15 John T. Copenhaver, Jr.

United States District Judge