Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

CALLOWAY v. BORO OF GLASSBORO DEPT. OF POLICE

February 8, 2000

CORA CALLOWAY, PLAINTIFF,
V.
BORO OF GLASSBORO DEPARTMENT OF POLICE, DET. ROBERT BEST, DET. RONALD MASSARI, JOHN DOE, AND MELANIE POWELL, DEFENDANTS, AND BORO OF GLASSBORO DEPARTMENT OF POLICE, DET. RONALD MASSARI, AND MELANIE POWELL, THIRD-PARTY PLAINTIFFS, V. DET. ROBERT BEST, GLOUCESTER COUNTY PROSECUTORS OFFICE, ANDY YURICK, ESQ., JOHN DOES 1-5, AND GLOUCESTER COUNTY, THIRD-PARTY DEFENDANTS.



The opinion of the court was delivered by: Orlofsky, District Judge:

  OPINION

This case presents two issues of first impression in this Circuit, namely, (1) whether a deaf arrestee may bring a claim under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131, et seq. ("Disability Act"),*fn1 and § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) ("Rehabilitation Act"),*fn2 for discrimination based on her disability after she was questioned at a police station, during the course of a criminal investigation, allegedly without the assistance of a qualified interpreter; and (2) whether individual defendants can be held liable under the Disability and Rehabilitation Acts. For the reasons set forth below, I find that the Disability and Rehabilitation Acts prohibit discrimination against the deaf in the context of a station-house investigative interview and that the Acts do not allow for the imposition of individual liability.

Plaintiff, Cora Calloway ("Calloway"), a deaf and functionally illiterate woman, brought this action alleging that the conduct of the Borough of Glassboro Department of Police ("Police Department"), Glassboro Police Detective Ronald Massari ("Massari"), Gloucester County Prosecutor's Office Sergeant Robert Best ("Best"), and Melaney Powell ("Powell") violated her rights under the Disability and Rehabilitation Acts. In her Complaint, Calloway also asserts a separate claim under 42 U.S.C. § 1983*fn3 based solely upon the Disability and Rehabilitation Acts, as well as pendent state statutory and common law tort claims. The Police Department, Massari and Powell ("Third-Party Plaintiffs") in turn filed a third-party complaint, alleging negligence and vicarious liability, against Best,*fn4 Prosecutor Andy Yurick, Esq., the Gloucester County Prosecutor's Office and Gloucester County.*fn5 Before this Court are two separate motions for summary judgment, made pursuant to Federal Rule of Civil Procedure 56(c). This Court exercises jurisdiction pursuant to 28 U.S.C. § 1331,*fn6 1343,*fn7 and 1367.*fn8

I. BACKGROUND

On the afternoon of April 23, 1997, Plaintiff Cora Calloway, a deaf and functionally illiterate woman, was allegedly assaulted by a neighbor, Lori Seeler ("Seeler"), at the Hollybush Apartments in Glassboro, New Jersey. See Pl.'s Br. in Opp. to Mot. for Summ. J. by Det. Best and Third Party Def.'s ("Pl.'s Br. 1") at 1. Seeler told the responding police officer that Calloway, who had left the scene, had touched her six-year-old daughter in the chest and pelvic areas. See id.; see also Best and Third-Party Def.'s ("Third-Party Def.'s") Ex. C (Gallagher Police Report) at 1. Seeler was then instructed to report to the police station for further investigation of her complaint. See Third-Party Def.'s Ex. C at 1.

At the police station, Seeler told Defendant Massari and another investigator not a party to this suit that she assaulted Calloway after her daughter disclosed that Calloway had "touched her on her breasts, buttocks and vaginal area." See Third-Party Def.'s Ex. D (Massari Report) at 1. Massari and the other investigator then interviewed the alleged victim who confirmed Seeler's allegations that Calloway had improperly touched the girl while babysitting her sometime that year. See id. at 2; see also Third-Party Def.'s Ex. E (Victim's Taped Interview). Subsequently, Seeler filed criminal complaints against Calloway for criminal sexual contact and child endangerment pursuant to N.J.S.A. 2C:14-3(a) and 2C:24-4(a), respectively. See ThirdParty Def.'s Ex. F.

At some point in the afternoon, the Plaintiff, Cora Calloway, also arrived at the police station, accompanied by her two hearing siblings, allegedly in order to file a complaint for assault against Seeler. See Third-Party Def.'s Br. at 2; see also Pl.'s Ex. G (Kim Calloway Dep.) at 21. Instead of filing the complaint, however, at some point after their arrival at the station the police informed the trio that Seeler had reported that "Cora had touched her daughter in places she shouldn't be touched." Pl.'s Ex. G (Kim Calloway Dep.) at 21. The Plaintiff's sister, Kim Calloway, testified that, using her rudimentary American Sign Language*fn9 skills, she signed the substance of Seeler's allegations to the Plaintiff who then became upset and started to cry. See id. Although Kim Calloway asserted that the Plaintiff understood the allegations against her, she believed that the Plaintiff was unaware that Seeler had formalized the charges in a criminal complaint. See id. at 29.

Aware that Calloway was present at the station, the police began to try to locate a sign language interpreter to aid in the investigation. According to police reports, after several failed attempts to obtain an interpreter, police personnel contacted Sergeant Eric Johnson*fn10 of the Gloucester County Prosecutor's Office for assistance. See Third-Party Def.'s Ex. D at 2; Massari Aff. at ¶¶ 9-11. According to the affidavits filed in this case, Johnson then instructed Best, also of the Gloucester County Prosecutor's Office, to report to the police station to assist in the sexual assault investigation. See Third-Party Def.'s Ex. K (Best Certification) at ¶ 2. Additionally, Johnson contacted an acquaintance, Defendant Melaney Powell, an uncertified interpreter, and asked Powell to interpret for Calloway since "none of the interpreters known to the department or the prosecutor's office was [sic] available." Powell Aff. at ¶¶ 5-8. According to Powell's Affidavit, she told Johnson that she was not a certified interpreter. See id. at ¶ 9.

After Powell and Best arrived at the police station, they, along with Massari, escorted Calloway from the lobby of the police station, where she was sitting with her siblings, to the detective bureau for questioning concerning the alleged sexual assault of Seeler's daughter. See Third-Party Def.'s Ex. G at 2. During this videotaped interview, the officers repeatedly attempted, through Powell's interpretive services, to deliver the Miranda warnings to Calloway. See Def.'s Br. at 4; Pl.'s Br. 1 at 3. When Calloway indicated that she did not understand the word "lawyer," the officers suspended the interview. See Third-Party Def.'s Ex. K (Best Certif.) at ¶ 5; Powell Aff. at ¶ 16; see also Massari Aff. at ¶ 15. Subsequently, an attorney notified the officers that he represented Calloway in a civil matter and, after Powell interpreted a phone call from the attorney to Calloway, Calloway indicated that she no longer wished to speak to the police without her attorney present. See Pl.'s Br. 1 at 5; Powell Aff. at ¶¶ 20-21. Calloway was arrested, bail was set, and she was released the next day on her own recognizance. See Pl.'s Br. 1 at 5.*fn11

Calloway contends that throughout the "interrogation" she was distraught by her inability to understand Powell, whom she argues was unqualified to serve as her interpreter, and by Powell's incorrect interpretation of her signing communications to the police. See Pl.'s Br. 1 at 4. Calloway filed a Complaint against the Police Department, Best, Massari and Powell in the New Jersey Superior Court, Law Division alleging violations of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. (Count II) and the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Count III). Calloway also brought a claim pursuant to 42 U.S.C. § 1983 for alleged violations of the Disability and Rehabilitation Acts (Count IV), a claim for "mental and physical anguish" (Count V) and state law claims for lack of a qualified interpreter, in violation of N.J.S.A. 34:1-69.10(c) (Count I), false imprisonment (Count VI), and negligence against Powell (Count VII).*fn12 See Complaint (removed to the United States District Court for the District of New Jersey, July 2, 1998). On May 29, 1998, the Honorable John Holston of the New Jersey Superior Court, Law Division, Gloucester County, dismissed Calloway's state law and mental anguish claims against Defendant Best. See Pl.'s Br. 1 at 6; Third-Party Def.'s Ex. I. Subsequently, the Police Department, Massari and Powell ("Third-Party Plaintiffs") filed a Third-Party Complaint against Gloucester County, the Gloucester Prosecutor's Office, Andrew Yurick, Esq. and Best, claiming that they justifiably relied on the negligent advice of Best that Powell was lawfully permitted to translate for the deaf. See Third-Party Complaint (filed July 2, 1998). On July 2, 1998, the matter was removed to this Court. See Notice of Removal (filed July 2, 1998).*fn13 On May 14, 1999, two motions for summary judgment were submitted to this Court: (1) by Best, in his capacity as both a defendant and third-party defendant, and third-party defendants Andy Yurick, Esq. and the Gloucester County Prosecutor's Office;*fn14 and (2) by the Third-Party Plaintiffs.

II. LEGAL STANDARD GOVERNING A MOTION FOR SUMMARY JUDGMENT

"On a motion for summary judgment, the court must determine whether the evidence shows that `there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999) (citing Fed.R.Civ.P. 56(c)). "Any factual dispute invoked by the nonmoving party to resist summary judgment must be both material in the sense of bearing on an essential element of the plaintiff's claim and genuine in the sense that a reasonable jury could find in favor of the nonmoving party." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). "In opposing summary judgment, a party `must do more than simply show that there is some metaphysical doubt as to material facts,' Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), but a court should not prevent a case from reaching a jury simply because the court favors one of several reasonable views of the evidence." Abraham, 183 F.3d at 287. "[T]he judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. 2505; see also Abraham, 183 F.3d at 287. "Thus, while the nonmoving party must present enough evidence to demonstrate a dispute is genuine, all inferences in interpreting the evidence presented by the parties should be drawn in favor of the nonmoving party." Abraham, 183 F.3d at 287 (citing Boyle v. County of Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998)). "Cases that turn crucially on the credibility of witnesses' testimony in particular should not be resolved on summary judgment." Id.

If the nonmoving party fails to oppose the motion by written objection, memorandum, affidavits and other evidence, the Court "will accept as true all material facts set forth by the moving party with appropriate record support." Anchorage Assocs. v. Virgin Islands Bd. of Tax Rev., 922 F.2d 168, 175 (3d Cir. 1990) (quoting Jaroma v. Massey, 873 F.2d 17, 21 (1st Cir. 1989)). Even where the non-moving party has failed to establish a triable issue of fact, summary judgment will not be granted unless "appropriate." Fed. R.Civ.P. 56(e); see Anchorage Assocs., 922 F.2d at 175. Rule 56(e) of the Federal Rules of Civil Procedure requires that the case be evaluated on its merits, with summary judgment being granted for the movants only if they are entitled to a judgment as a matter of law. See Anchorage Assocs., 922 F.2d at 175.

III. DISCUSSION

A. Summary Judgment Motion of Third-Party Plaintiffs Glassboro Department of Police, Massari, Powell and Defendant Best

In her Complaint, Calloway alleges that on April 23, 1997, the Police Department, Massari, Best and Powell violated her rights when they appointed an allegedly unqualified interpreter to assist Calloway throughout an alleged custodial interrogation at the Glassboro Department of Police. See Complaint at §§ 9-16. In support of their motion for summary judgment, the Third-Party Plaintiffs and Best contend that Calloway has failed to make out cognizable claims under the Disability and Rehabilitation Acts, that all state law claims should be dismissed, and that the Third-Party Plaintiffs and Best are entitled to qualified immunity. Calloway argues in response that genuine issues of material fact exist on all claims and that the Third-Party Plaintiffs and Best are not entitled to qualified immunity. This Court shall first address the merits of the federal claims, then analyze the state law issues.

1. The Americans with Disabilities Act, The Rehabilitation Act, and Section 1983

a. Liability of a Public Entity Under the Disability and Rehabilitation Acts

The first broad issue this Court must decide is whether Calloway has in fact presented cognizable claims under the Americans with Disabilities Act and Rehabilitation Act. Encompassed within the broad scope of this issue are sub-issues requiring this Court: (1) to define the police conduct at issue, or more specifically, to determine whether Calloway was subjected to a custodial interrogation or merely investigative questioning; and (2) to determine whether that police conduct is covered under the Americans with Disabilities Act and Rehabilitation Act. If these federal statutes are found applicable to this case, this Court must then decide whether Best, Massari and Powell are entitled to qualified immunity under the Acts as well as under 42 U.S.C. § 1983. The starting point of this Court's analysis must begin with the text of the Disability and Rehabilitation Acts.

Section 504 of the Rehabilitation Act of 1973, the first broad federal statute aimed at eradicating discrimination against individuals with disabilities, reads in part:

No otherwise qualified individual with a disability. . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . .

29 U.S.C. § 794; see also Helen L. v. DiDario, 46 F.3d 325, 330 (3d Cir. 1995). The broad reach of this statutory provision is evidenced by the definition of "program or activity" which includes "all of the operations of a department, agency, special purpose district, or other instrumentality of a State or of a local government . . . any part of which is extended Federal financial assistance." 29 U.S.C. § 794(b)(1)(A); see also Yeskey v. Commonwealth of Pennsylvania Dep't of Corrections, 118 F.3d 168, 170 (3d Cir.), aff'd, 524 U.S. 206, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998); Gorman v. Bartch, 152 F.3d 907, 911 (8th Cir. 1998). To state a claim under § 504, a plaintiff must demonstrate that: (1) she is a qualified individual with a disability; (2) she was denied the benefits of a program or activity of a public entity which receives federal funds; and (3) she was discriminated against based on her disability. See 29 U.S.C. § 794(a).

Title II of the Disability Act prohibits discrimination in the services of public entities and provides:

[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. Like section 504 of the Rehabilitation Act, the Disability Act's coverage extends to "all services, programs, and activities provided or made available by public entities," and is intended to "appl[y] to anything a public entity does." Yeskey, 118 F.3d at 171 (quoting 28 C.F.R. § 35.102(a) and pt. 35, app. A, subpt. A at 456 (1996 version)). Also congruous to section 504, to state a claim under the Disability Act, a plaintiff must demonstrate that: (1) she is a qualified individual with a disability; (2) she was either excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of her disability. See 42 U.S.C. § 12132. Importantly, the law developed under section 504 of the Rehabilitation Act is applicable to Title II of the Disability Act. See Yeskey, 118 F.3d at 170; Helen L., 46 F.3d at 330 n. 7 (citing Easley v. Snider, 36 F.3d 297 (3d Cir. 1994)).

The parties dispute whether the facts of this case support a cause of action under the Disability and Rehabilitation Acts. To dispose of the obvious, all parties are in agreement that Calloway is a "qualified individual with a disability"*fn15 and that the Police Department is a public entity.*fn16 Although not a major area of contention, the Third-Party Plaintiffs and Best contend that the Police Department is not a public entity which receives federal financial assistance for purposes of the Rehabilitation Act. Simply stated, I find that there exists a genuine issue of material fact regarding the Police Department's receipt of federal aid. See James M. Shepard-Kegl Certif. at ¶¶ 2, 5 (filed May 10, 1999) (stating that the Glassboro Police Department received four federal grants under the Public Safety Partnership and Community Policing Act of 1994); see also 28 C.F.R. § 42.540(f) (1999) ("`Federal financial assistance' means any grant . . . by which the Department provides or otherwise makes available assistance in the form of . . . [f]unds").

Not so easily resolved is the question lying at the heart of the parties' disagreement: whether Calloway was denied the benefits of a program, service, or activity of the Glassboro Department of Police. Accordingly, I now turn my attention to that inquiry.

In her Complaint, Calloway alleges that she was subjected to a custodial interrogation without the assistance of a qualified interpreter in violation of the Disability and Rehabilitation Acts. See Complaint at ¶¶ 9-16. In support of their motion for summary judgment, the Third-Party Plaintiffs and Best dispute the occurrence of a custodial interrogation and, in the alternative, assert that such an interrogation is not a service, program, or activity of a public entity, thereby precluding the application of the Disability and Rehabilitation Acts. Accordingly, this Court must first determine whether the Police Department conducted a custodial interrogation of Calloway.

In the seminal case of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court used the now familiar term "custodial interrogation" to describe the circumstance in which the warnings first elucidated in that case must be delivered. See id. at 444, 86 S.Ct. 1602. In Miranda, the Court described custodial interrogation as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. Since the Miranda decision, the Supreme Court has refined the definitions of custodial interrogation's dual requirements. Currently, in determining whether an individual is in "custody," the ultimate inquiry is "whether there is a `formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977)); United States v. Leese, 176 F.3d 740, 743 (3d Cir. 1999); see also Berkemer v. McCarty, 468 U.S. 420, 441-442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) (custody is defined as whether a reasonable person in the suspect's position would believe she was in police custody of the degree associated with formal arrest). Moreover, in interpreting "interrogation" the Court, in Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) stated:

We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.