holding that plaintiff’s preference to use a wheelchair did not give rise to a tenable claim under the ADA
How later courts described this case
- holding that plaintiff’s preference to use a wheelchair did not give rise to a tenable claim under the ADA
Written by the judges who cited it.
The opinion
MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), 08/31/2017, 9:28 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEES
Robert Oakley Jeremy M. Dilts
Carmel, Indiana Bloomington, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Melissa Burklow, August 31, 2017
Appellant-Plaintiff, Court of Appeals Case No.
15A05-1611-PL-2519
v. Appeal from the Dearborn
Superior Court
Dearborn County and Dearborn The Honorable Jonathan N.
County Sheriff, Cleary, Judge
Appellees-Defendants The Honorable Darrell Auxier,
Special Judge
Trial Court Cause No.
15D01-1409-PL-64
Altice, Judge.
Case Summary
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[1] Melissa Burklow appeals from the trial court’s grant of summary judgment in
favor of Dearborn County (the County) on her claim alleging violations of Title
II of the Americans with Disabilities Act (ADA) and in favor of the Dearborn
County Sheriff (the Sheriff) (collectively, the Defendants) with respect to her
claim for defamation.
[2] We affirm.
Facts & Procedural History
[3] Burklow has been diagnosed with narcolepsy and cataplexy. 1 Throughout the
course of 2011, Burklow was involved in a number of incidents involving the
Sheriff’s Department. Burklow reported that she had been the victim of identity
theft and made claims of theft of personal property and trespassing. In another
incident, a neighbor reported being bitten by Burklow’s dog. Officers
responding to these calls prepared police reports in which they noted the
difficulty in communicating with Burklow and/or commented on her
demeanor.
[4] On or about October 11, 2011, Burklow’s adult daughter called the Sheriff’s
Department out of concern for Burklow. Burlklow’s daughter reported that
Burklow had been “drinking wine all day” and had been in bed and was
1
Cataplexy is defined as “a condition characterized by sudden, brief attacks of muscle weakness sometimes
causing the body to fall helplessly, that is usually triggered by strong emotion: often associated with
narcolepsy.” www.dictionary.com/browse/cataplexy?s=t (last visited July 11, 2017).
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“crying.” Appellant’s Appendix Vol. 2 at 60. Burklow’s daughter also reported
that when she tried to console Burklow, Burklow hit her in the face. Burklow
then left the residence and on her way out told her daughter that “she was going
to a parking lot and was going to shoot herself.” Id.
[5] Burklow returned home a couple hours later, and police were again dispatched
to her residence. After officers confronted Burklow, she began to suffer a
cataplectic episode in which she fell to the floor in a “curled up, stiff state.”2 Id.
at 61. The officer reported that Burklow could not move, but that she was able
to talk. Although Burklow was not arrested that day, she was eventually
charged with battery for striking her adult daughter.
[6] During the course of the investigation and prosecution of the battery charge and
for purposes related to the identity-theft matter, Burklow made numerous visits
to the Dearborn County Courthouse. Upon entering the courthouse, Burklow
verbally requested the use of a wheelchair due to her fear of suffering a
cataplectic episode. A wheelchair was provided on one occasion and she
borrowed a wheelchair for another. Burklow asserts that on other occasions her
wheelchair request was met “with suspicion and derision” or that she was
simply told that no wheelchairs were available. Appellant’s Brief at 10.
[7] Burklow maintains that she requested information from the County about how
to contact the County’s ADA Coordinator. Burklow asserts that the
2
Burklow refers to these episodes of cataplexy as a “seizure.” Appellant’s Brief at 8.
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information was never provided to her and that she obtained the desired
information only after it was added to the County’s website in January 2013.
Thereafter, Burklow, with the help of her disability advocate, requested from
the Sheriff copies of the police reports concerning the criminal proceedings
involving her as well as reports related to her various interactions with police
throughout 2011. Burklow’s request was denied and it was explained to her
that such documents were not available for public access.
[8] In addition to the above legal proceedings, Burklow was involved in custody
proceedings with her ex-husband. In preparation therefor, Burklow met with
Bobbie Hopes, a clinical psychologist charged with conducting an evaluation
for the court’s consideration of the custody matter. Dr. Hopes had been
provided with police reports and various call sheets for incidents involving
Burklow,3 and Dr. Hopes discussed those matters with her. Dr. Hopes then
submitted a report to the court to assist with the custody determination. In her
report, Dr. Hopes discussed the various police reports and the information
contained therein, quoting specifically an officer’s statement that Burklow “was
a known abuser of perscription [sic] medication.”4 Appellant’s Appendix Vol. 2 at
45. Dr. Hopes also noted in her report the characterization in the police records
3
It is unclear from the record how Dr. Hopes became privy to the police and call reports. In any event,
Burklow does not challenge the manner in which the reports were provided.
4
This police report was prepared on October 20, 2011.
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that Burklow was a “mental person” and notations that Burklow was alleged to
have been diagnosed with “Bipolar Disorder.” Id.
[9] On September 23, 2014, Burklow filed a complaint alleging that the County
violated the ADA and that the Sheriff was liable for defamation. The
Defendants filed a motion for summary judgment on February 29, 2016. The
trial court held a summary judgment hearing on May 23, 2016. On August 10,
2016, the trial court entered its order granting summary judgment in favor of
the Defendants and expressly determined such to be a final, appealable
judgment. Burklow filed a motion to correct error, which the trial court denied.
Burklow now appeals. Additional facts will be provided as necessary.
Discussion & Decision
[10] We review summary judgment de novo, applying the same standard as the trial
court. Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009). A party seeking
summary judgment must establish that “the designated evidentiary matter
shows that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C). The
party moving for summary judgment bears the initial burden of establishing its
entitlement to summary judgment. Pfenning v. Lineman, 947 N.E.2d 392, 396-97
(Ind. 2011). “Only then does the burden fall upon the non-moving party to set
forth specific facts demonstrating a genuine issue for trial.” Id. at 397. The
reviewing court must construe the evidence in favor of the non-movant and
resolve all doubts against the moving party. Id. The party appealing the grant
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of summary judgment has the burden of persuading this court that the ruling
was erroneous. See Perkins v. Stesiak, 968 N.E.2d 319, 321 (Ind. Ct. App. 2012),
trans. denied.
ADA
[11] Burklow argues that the trial court erred in granting summary judgment in favor
of the County with respect to her claims under the ADA. The County argues
that summary judgment was appropriate because Burklow’s ADA claims are
barred by the applicable statute of limitation. Even if timely filed, the
Defendants argue that Burklow’s claims fail on the merits.
[12] Congress enacted the ADA to eliminate discrimination and to create causes of
action for qualified people who have faced discrimination. See 42 U.S.C. §
12101(b). The ADA provides in pertinent part:
[N]o 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. The ADA requires that the public entity make “reasonable
modification” to allow the disabled person to receive the services or to
participate in the public entity’s programs. 28 C.F.R. § 35.130(b)(7).
[13] Burklow claims that the County violated the ADA when the County did not
provide her with her requested accommodation in the form of a wheelchair for
use during court hearings. The basis for Burklow’s request was her “fear of
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possible injury” if she were “to suffer onset of cataplexy while appearing in
court.” Appellant’s Brief at 15. Burklow, however, cannot show that she was
entitled to a reasonable accommodation in the form of a wheelchair. In fact, it
is undisputed that Burklow has not been prescribed a wheelchair or other
assistive device and that she does not use a wheelchair when she is in any other
public area, including running errands or shopping. We conclude that
Burklow’s subjective fear does not support a finding that the County was
obligated under the ADA to provide her with her requested accommodation.
See Sistrunk v. Khan, 931 F.Supp.2d 849, 857 (N.D.Ill. 2013) (holding that
plaintiff’s preference to use a wheelchair did not give rise to a tenable claim
under the ADA). Thus, even if timely filed, Burklow’s ADA claim based on
the denial of her request for a wheelchair fails as a matter of law. Summary
judgment was therefore proper.
[14] Burklow also claims that she was denied equal access to information and was
treated in a discriminatory manner by individuals working for the County. As
the basis for this claim, Burklow maintains that the County denied her requests
for police reports and information regarding the criminal proceedings against
her. The Sheriff designated evidence that Burklow’s request for the police
reports was denied because such records are not for public access. Burklow
makes no argument that the denial of her request was based on her disability.
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Burklow’s ADA claim in this regard fails as a matter of law.5 As such,
summary judgment was properly granted.
Defamation
[15] Burklow argues that summary judgment was improperly granted as to her
defamation claim against the Sheriff. Burklow’s defamation claim is based on
officer’s statements included in police reports that were provided to Dr. Hope,
who incorporated the contents thereof in the psychological report she prepared
for the child custody proceedings. Burklow maintains that the Sheriff’s reports
contained false and inaccurate statements that had “a drastic affect [sic] on her
ability to successfully combat her ex-husband’s efforts to modify the custody of
their minor children.” Appellant’s Brief at 18. In support of its motion for
summary judgment, the Sheriff argues that Burklow’s defamation claim was
untimely filed. Even if timely filed, the Sheriff argues that qualified immunity
defeats Burklow’s defamation claim.
[16] To maintain an action for either per se or per quod defamation the plaintiff
must demonstrate (1) a communication with defamatory imputation; (2)
5
To the extent Burklow claims that the County’s failure to provide her with the contact information for the
County’s ADA coordinator amounts to an ADA violation, Burklow has failed to provide cogent argument to
support such a position. Burklow cites 28 C.F.R. § 35.163, which concerns the requirement that a public
entity provide information and signage at inaccessible entrances to the public entity’s facilities that directs
users to accessible entrances or a location where they can obtain information about accessible facilities.
Burklow baldly asserts that such provision obligated the County to provide her the information she requested.
Further, there is no evidence that even remotely suggests that the denial of her information request was in
any way related to her disability. Thus, even accepting Burklow’s allegations as true, she fails to state a
tenable claim under the ADA.
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malice; (3) publication; and (4) damages. Kelley v. Tanoos, 865 N.E.2d 593, 596-
97 (Ind. 2007). The qualified privilege doctrine operates to protect
“communications made in good faith on any subject matter in which the party
making the communication has an interest or in reference to which he has a
duty, either public or private, either legal, moral, or social, if made to a person
having a corresponding interest or duty.” Kelley v. Tanoos, 865 N.E.2d 593, 597
(Ind. 2007) (quoting Bals v. Verduzco, 600 N.E.2d 1353, 1356 (Ind. 1992)).
[17] As a defense to defamation, the qualified privilege operates not to “change the
actionable quality of the words published, but merely [to] rebut[] the inference
of malice that is [otherwise] imputed.” Holcomb v. Walter’s Dimmick Petroleum,
Inc., 858 N.E.2d 103, 106 (Ind. 2006) (internal quotation marks omitted). To
merit its protection, “[t]he burden is upon the defendant in the first instance to
establish the existence of a privileged occasion for the publication, by proof of a
recognized public or private interest which would justify the utterance of the
words.” Bals, 600 N.E.2d at 1356. In the absence of a factual dispute, the
applicability of the privilege is a question of law to be determined by the court.
Id. (citing Bals, 600 N.E.2d at 1356).
[18] The facts here are not in dispute. The alleged defamatory statements originated
in police records that were produced in conjunction with the incidents involving
Burklow. Notations in the police records that Burklow may abuse prescription
medication and that she had been diagnosed with bipolar disorder were
documented as they were reported by others to the responding officer. These
undisputed facts cannot support a finding of malice. The alleged defamatory
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communications were clearly made in good faith by officers acting in the course
of their duties by documenting their interactions with Burklow. Such
statements fall within the qualified privilege doctrine.
[19] We further note that, at the very least, Burklow cannot establish the publication
element of a defamation claim. The reports were internal documents and only
produced to Dr. Hope who was charged with conducting an evaluation for
purposes of a judicial proceeding regarding custody. Assuming Burklow’s
defamation claim was timely filed, we conclude that the undisputed facts
establish that such claim cannot succeed as a matter of law. Summary
judgment was therefore proper.
[20] Judgment affirmed.
[21] Kirsch, J. and Mathias, J., concur.
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