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Burley v. Quiroga

United States District Court, E.D. Michigan, Southern Division

June 6, 2019

EDWARD BURLEY, Plaintiff,
v.
J. QUIROGA, WILLIAMSON, R. KLATT, and HAROLD GILKEY, Defendants.

          GEORGE CARAM STEEH DISTRICT JUDGE.

          REPORT AND RECOMMENDATION ON DEFENDANTS KLATT AND GILKEY'S MOTION FOR SUMMARY JUDGMENT (R. 148)

          PATRICIA T. MORRIS UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Edward Burley, a Michigan Department of Corrections (MDOC) inmate with a hearing impairment, alleges that Defendants violated a host of constitutional and statutory provisions. (R. 1.) The present Report addresses a motion for summary judgment filed by Defendants Russell Klatt and Harold Gilkey. (R. 148.) For the reasons below, I recommend that the Court DENY Defendants' motion.

         II. REPORT

         A. Facts and Procedural History[1]

         While incarcerated in 2006, Plaintiff received a hearing aid. (R. 130-6, PageID.1397, 1404.) According to a medical note from August 2009, hearing evaluation and speech testing revealed hearing loss, characterized variously as profound or moderate to severe. (R. 153, PageID.2109.) Other evidence also could suggest hearing loss. (R. 88, PageID.939 (“Amplification is recommended bilaterally.”)); (R. 88, PageID.958 (“[Officers] admit that [Burley] will generally not hear the loudspeaker when called . . . and will not hear when he is otherwise being called unless they gain eye contact (in order for him to read lips). They report no inconsistencies with these findings and that he is also always seen [with his] hearing aide [sic] on.”)); (R. 88, PageID.959 (“During today's visit [Plaintiff] displays difficulty hearing normal conversation and appears that he is lip reading. When speaking to [Plaintiff] without him looking directly at me he doesn't acknowledge hearing me.”); (R. 88, PageID.966 (“I then placed a very sensitive . . . stethoscope in his ears and spoke LOUDLY (behind a closed hand) and he DID NOT EVEN FLINCH.”)).

         A 2011 report mentions suspicions that Plaintiff exaggerated his hearing loss. (R. 153, PageID.2278, 2300); see also (R. 153, PageID.2315 (medical report form stating, “Reviewed documents today which state ‘responses appear to be suprathreshold'. Called and spoke with audiologists to clarify and was informed impression is that patient is suspected to have exaggerated his responses as his acoustic reflexes are present at normal levels and this is not consistent with profound hearing loss which is what he is demonstrating”)). Other records indicate that Plaintiff's hearing aid functioned properly and allowed him functional hearing. See (R. 88, PageID.961 (“Based on acoustic reflex findings . . . it was felt that his current hearing aid was appropriate at that time [i.e., in January 2011].”)); (R. 88, PageID.966 (“[C]urrent [hearing aid] device IS WORKING per audiology [in November 2011]. . . . [H]e can hear my relatively deep voice seemingly well though I spoke more loudly than [normal].”)); (R. 88, PageID.974 (“[Plaintiff] able to hear my voice for the most part and is wearing his hearing aid.”).) In November 2011, one doctor was “inclined to believe he probably does have profound S-N hearing loss approaching deafness.” (R. 88, PageID.966.) The problem, the doctor concluded, was that “we need to (or should have) proof positive objective evidence to PROPERLY accomadate [sic] his special needs[.]” (Id.)

         The following year, on January 2, 2012, Plaintiff refused offsite testing that would “confirm or deny suspicions of exaggerating hearing loss.” (R. 153, PageID.2098.) He feared that the testing, which required placing wires on his head, would trigger migraines. (R. 130-6, PageID.1403; R. 153, PageID.2349.)

         Nonetheless, that same year, he was granted a “special accommodation” to use a telecommunications device for the deaf (TDD) for telephone conversations. (R. 130-5, PageID.1352; R. 139, PageID1636-1637.)[2] A special accommodation allows an inmate to use assistive devices when he or she has “a medical condition which restricts his/her ability to function adequately in the institutional environment.” MDOC PD 04.06.160(E) (eff. June 30, 2008). The accommodation can be cancelled after a medical practitioner examines the inmate. Id. PD 04.06.160(K).

         Plaintiff filed the present lawsuit on February 25, 2016, alleging various claims against MDOC, a cadre of state officials and employees, and a few “non-state” defendants. (R. 1.) Shortly after, all pretrial matters were referred to me. (R. 8.) Many defendants have since been dismissed from the case. (R. 76, 99, 162.) On June 30, 2016, Plaintiff filed a motion to amend his complaint, (R. 65), which the Court later granted in part, permitting the additional allegations Plaintiff sought to levy against Gilkey. (R. 65.)

         Klatt and Gilkey now move for summary judgment. (R. 148.) Briefing is complete and the matter is ready for resolution.

         B. Analysis

         1. Summary Judgment Standard

         When a movant shows that “no genuine dispute as to any material fact” exists, the court will grant his or her motion for summary judgment. Fed.R.Civ.P. 56(a). In reviewing such motion, the court must view all facts and inferences in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The moving party bears “the initial burden of showing the absence of a genuine issue of material fact as to an essential element of the non-movant's case.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989) (quoting Celotex Corp. v. Cartrett, 477 U.S. 317, 323 (1986)) (internal quotation marks omitted). In making its determination, a court may consider the plausibility of the movant's evidence. Matsushita, 475 U.S. at 587-88. Summary judgment is also proper where the moving party shows that the non-moving party cannot meet its burden of proof. Celotex, 477 U.S. at 325.

         The non-moving party cannot rest merely on the pleadings in response to a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Instead, the non-moving party has an obligation to present “significant probative evidence” to show that “there is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip Morris Cos., 8 F.3d 335, 339-40 (6th Cir. 1993). The non-movant cannot withhold evidence until trial or rely on speculative possibilities that material issues of fact will appear later. 10B Wright & Miller, Fed. Prac. & Proc. Civ. § 2739 (3d ed. 1998). “[T]o withstand a properly supported motion for summary judgment, the non-moving party must identify specific facts and affirmative evidence that contradict those offered by the moving party.” Cosmas v. Am. Express Centurion Bank, 757 F.Supp.2d 489, 492 (D.N.J. 2010). In doing so, the non-moving party cannot simply assert that the other side's evidence lacks credibility. Id. at 493.

         When the non-moving party fails to adequately respond to a summary judgment motion, a district court is not required to search the record to determine whether genuine issues of material fact exist. Street, 886 F.2d at 1479-80. The court will rely on the “facts presented and designated by the moving party.” Guarino v. Brookfield Twp. Trs., 980 F.2d 399, 404 (6th Cir. 1992). After examining the evidence designated by the parties, the court then determines “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law.” Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th Cir. 1989) (quoting Anderson, 477 U.S. at 251-52). Summary judgment will not be granted “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248.

         2. Defendant Klatt

         Klatt's motion focuses only on Plaintiff's claims under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., and the Rehabilitation Act, (RA), 29 U.S.C. § 701, et seq. (R. 148, PageID.1955.)

         a. Legal Background

         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. The RA applies a nearly identical prohibition to entities receiving federal funds: “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(a). “Other than [RA §] 504's limitation to denials of benefits ‘solely' by reasons of disability and its applicability only to entities that receive federal funds, ‘the reach and requirements of both statutes are precisely the same.'” McBride v. Mich. Dep't of Corrections, 294 F.Supp.3d 695, 704 (E.D. Mich. 2018) (quoting S.S. v. Eastern. Kentucky Univ., 532 F.3d 445, 452-53 (6th Cir. 2008)).[3] Because “neither of these differences [is] at issue” in this case, the ADA Title II and RA § 504 claims will be addressed as one. Id.[4]

         As for the showings required in ADA and RA claims, the parties do not appear to agree on the appropriate framework, but neither do they address their disagreement. Klatt's brief launches into an intentional-discrimination analysis, focusing on the elements associated with that framework. (R. 148, PageID.1955.) For his part, Plaintiff cites out-of-circuit caselaw holding that discrimination under ADA Title II can be established “in one of three ways: (1) intentional discrimination (disparate treatment); (2) disparate impact; or (3) failure to make a reasonable accommodation.” (R. 154, PageID.4002 (citing Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009).) He opts for the reasonable accommodation route. But this leads to more questions as to whether, and how, a reasonable-accommodation claim can be brought in this Circuit.

         While the Sixth Circuit “has distinguished intentional discrimination claims from disparate-impact and reasonable-accommodation claims, ” it remains “unclear ‘whether a reasonable-accommodation claim under Title II is a viable claim separate from a disparate-treatment or disparate-impact type claim[.]'” United States Soc'y for Augmentative & Alternative Comm'n, Inc. v. Lyon, No. 15-cv-13065, 2016 WL 6563422, at *2 (E.D. Mich. Nov. 4, 2016) (quoting Everson v. Leis, 412 Fed.Appx. 771, 784 n. 6 (6th Cir. 2011) (Moore, J., dissenting)).) Other circuits do distinguish the claims, at least to the extent they recognize each as a separate basis for liability. See, e.g., Wisconsin Comm. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 751 (7th Cir. 2006) (“[A]s our cases already hold, failure to accommodate is an independent basis for liability under the ADA.”). In the Second Circuit, which recognizes the distinction, the reasonable-access analysis is not all that different from our intentional-discrimination analysis: the prima facie claim under both the ADA and the RA requires a showing that (1) the plaintiff was a qualified individual with a disability, (2) who was discriminated against (3) because of his or her disability. Fulton, 591 F.3d at 43. The refusal to provide a “reasonable accommodation” is simply one of the ways the entity can discriminate. Id.

         The Second Circuit's approach likely reflects what the Sixth Circuit would do if presented with this issue-acknowledge the distinction between the frameworks but find the required elements to be similar, if not identical. In dealing with a different issue, the Sixth Circuit has broadly stated that “Title II does more than prohibit public entities from intentionally discriminating against disabled individuals. It also requires that public entities make reasonable accommodations for disabled individuals so as not to deprive them of meaningful access to the benefits of the services such entities provide.” Ability Ctr. of Greater Toledo v. City of Sandusky, 385 F.3d 901, 907 (6th Cir. 2004). The court discerned this “mandate” in 42 U.S.C. § 12132's provision that individuals cannot “be denied the benefits” of an entity's programs. Id. at 909-10; see also Rose v. Wayne Cty. Airport Auth., 210 F.Supp.3d 870, 890 (E.D. Mich. 2016) (finding that Title II required public entities to make reasonable accommodations). Specific elements for such a claim were not discussed.

         But in a subsequent case, the Sixth Circuit sketched the framework for a reasonable accommodations claim (again, however, without specifically addressing whether such a claim involved different elements). Tucker v. Tennessee, 539 F.3d 526, 532-33 (6th Cir. 2008), overruled in part by Anderson v. City of Blue Ash, 798 F.3d 338, 357 n. 1 (6th Cir. 2015).[5] To bring a discrimination claim under the ADA or RA, “a plaintiff must prove that: ‘(1) she has a disability; (2) she is otherwise qualified; and (3) she is being excluded from participation in, being denied the benefits of, or being subjected to discrimination under the program . . . because of her disability.'” Id. at 532 (quoting Dillery v. City of Sandusky, 398 F.3d 562, 567 (6th Cir.2005)). The plaintiff also “must show that the discrimination was intentionally directed toward him or her in particular.” Id. Once these elements have been established, “the burden shifts to the defendant to show that the accommodation provided was either effective, or that the accommodation sought and not provided would have resulted in a fundamental alteration of the procedures or an undue financial or administrative burden.” Id. at 532-33 (footnote omitted; emphasis added). This test will be employed here. See Tri-Cities Holdings LLC v. Tenn. Health Servs & Dev'p Agency, No. 2:13-CV-305, at *9 n. 13 (E.D. Tenn. Aug. 25, 2017) (“Reasonable accommodations are likewise analyzed under the framework for intentional discrimination.”).

         In any event, the core of any reasonable access claim is that the plaintiff had a disability and was deprived services because of it. Lyon, 2016 WL 6563422, at *2. Those are the disputed points here. The ADA defines “qualified individual with a disability” as “an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, . . . or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2). The definition of “disability” is the same under both the ADA and the RA: “(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(1) (ADA definition); see also 29 U.S.C. § 705(9) (applying the ADA definition to the RA).

         The statutes and accompanying regulations anticipate the possibility that a public entity will need to provide interpreters. As a general matter, “[a] public entity shall take appropriate steps to ensure that communications with applicants, participants, members of the public, and companions with disabilities are as effective as communications with others.” 28 U.S.C. § 35.160(a)(1). Accordingly, “[a] public entity shall furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities, including applicants, participants, companions, and members of the public, an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity.” 28 U.S.C. § 35.160(b)(1). “Auxiliary aides” include “qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments.” 42 U.S.C. § 12103(1)(A); see also 28 U.S.C. § 35.104(1) (defining “auxiliary aids” as including “[q]ualified interpreters on-site or through video remote interpreting (VRI) services”).

         Thus, an ADA or RA claim can rest on the failure to provide interpreters. In deciding whether these aids are necessary, “the public entity typically is required to consider the [qualified individual's] request, ‘unless it can demonstrate another effective means of communication exists or that use of the means chosen would not be required under [28 C.F.R.] § 35.164, ” which absolves entities from having to take actions that fundamentally alter their programs or services or impose an undue burden. Tucker, 539 F.3d at 533 (quoting Bircoll v. Miami-Dade Co., 480 F.3d 1072, 1082 (11th Cir. 2007)).

         b. Factual Background and Arguments

         The case against Klatt stems from a misconduct proceeding he held in December 2013 concerning allegations against Plaintiff. Burley v. Mich. Dep't of Corrections, No. 16-cv-10712, 2016 WL 11259277, at *3 (E.D. Mich. Nov. 30, 2016), Rep. & Rec. adopted by 2017 WL 877219 (E.D. Mich. Mar. 6, 2017); (R. 148, PageID.2057.)[6] According to the grievance Plaintiff filed, Klatt denied his request for an interpreter during the hearing, even after being informed that Plaintiff could not hear the proceedings. (R. 148, PageID.2057.) Shortly after the hearing Plaintiff sent a letter to Jacque Koenigsknecht, a prison ADA coordinator, stating that Klatt had known about his hearing impairment but flatly refused to bring in an interpreter. (R. 148, PageID.2060.) Klatt reportedly responded to the request, “I don't do that. I am holding this hearing today.” (R. 148, PageID.2060.) At the Step I stage of the grievance process, MDOC found no violation. (R. 148, PageID.2058.) Its response noted,

Klatt did hold court on prisoner Burley who had asked for an interpreter. He was not given one. Prisoner Burley does having hearing issues but has hearing aides and also communicates well within the housing unit. . . . Klatt asked him questions during the hearing and Prisoner Burley was giving feed back and many times he stated make sure certain statements are placed into the body of the ticket. . . . At no time did Prisoner Burley tell . . . Klatt his hearing aid was not working.

(Id.) Plaintiff pressed forward through the grievance process and his claim was rejected for the final time at Step III. (R. 148, PageID.2054-56.)[7]

         Klatt's present motion relies almost exclusively on an affidavit he swore in November 2018. (R. 148, PageID.2050-52.) In it, he claims that Plaintiff “responded appropriately to my questions” during the hearing “and even insisted that certain statements were record [sic] in the hearing report.” (R. 148, PageID.2051.) “At no time did [Plaintiff] request the assistance of an interpreter nor did I ever form the belief that [Plaintiff] was unable to hear me, ” Klatt added. (Id.) If Plaintiff struggled to hear or participate, Klatt avers that he “would have contacted . . . Koenigsknecht . . . and requested those services.” (Id.)

         Klatt also mentioned Plaintiff's letter complaining to Koenigsknecht. According to Klatt, Plaintiff “was sent a response indicating that Health Services had recently evaluated him, and it was determined that he did not require the services of an interpreter. (Attachment #3).” (Id.) “Attachment #3” turns out to be Plaintiff's letter to Koenigsknecht and a single page containing an email exchange about Plaintiff's hearing impairment. (R. 148, PageID.2060-61.)[8] The exchange begins with an email from a nurse to Kent Filsinger on October 24, 2013, noting Plaintiff's broken hearing aid, which had gone unaddressed at a recent medical visit with Filsinger, and his request for “an interpreter for an upcoming video conference.” (Id.) Filsinger replied that Plaintiff “can hear fine” and did not even need to read lips to communicate at their most recent appointment, on October 29-until, that is, Filsinger asked about the broken hearing aid, at which “point [Plaintiff] acted as if he needed to read my lips.” (Id.) Filsinger did not believe Plaintiff needed an interpreter. (Id.) There is no mention, however, of anything being communicated to Plaintiff, as Klatt suggested in his affidavit. (R. 148, PageID.2051.)

         While his motion does not rely on it, Klatt also testified at a deposition in June 2018. (R. 154, PageID.4056-65.) He had a “very limited recollection of the case, ” he said; “I recall that he is hearing impaired, but he had a hearing aid. But besides that, I couldn't tell you any more about him.” (R. 154, PageID.4059.) He remembered the hearing impairment because they were in a unit that had accommodations for that disability, such as specialized telephones and lighting and a beeper system. (R. 154, PageID.4060.) It also had interpreters available “if needed.” (Id.)

         As for the misconduct hearing, Klatt testified those proceedings generally began with a guard issuing a prisoner a misconduct ticket. (R. 154, PageID.4061.) About two days later, Klatt would convene a hearing to review the ticket, ask the prisoner to explain the situation, and make a decision. (Id.) Klatt conducted the hearings alone and they were not recorded, nor did he take notes. (R. 154, PageID.4062.) Most hearings lasted 10 minutes, and that was Klatt's guess as to how long Plaintiff's took. (Id.) “I don't recall him ever requesting an interpreter, ” Klatt stated, adding that “if I wouldn't have been able to communicate with [Plaintiff], I would have never had the ticket. I would have never done the ticket. I would have called the administrative assistant and asked what we had to do.” (Id.) Later, Klatt elaborated that if an interpreter was requested he would have told the assistant “we need an interpreter for this.” (R. 154, PageID.4065.) While Klatt would have to request an interpreter for the prisoner to get one, he did not have authority to make the final decision. (Id.) In only two hearings out of thousands had anyone asked Klatt for an interpreter. (R. 154, PageID.4063.)

         Plaintiff offered his version of events in a declaration dated December 26, 2018. (R. 154, PageID.4053-54.) He said that at the time of the hearing, he had special accommodations for his hearing, including permission to use a telecommunication device for the deaf and an assistant. (R. 154, PageID.4053.) Twice during the misconduct hearing he asked for an interpreter because his hearing aid malfunctioned and twice Klatt refused him. (R. 154, PageID.4053-54.)

         Klatt argues that Plaintiff's discrimination claims fail because he has not demonstrated intentional discrimination under the ADA and RA. (R. 148, PageID.1955.)[9]The argument relies exclusively on Klatt's affidavit.[10] In essence, the brief credits the affidavit as the truth and simply repeats its averments. (R. 148, PageID.1955-56.) Klatt notes that Plaintiff responded appropriately at the misconduct hearing and never asked for an interpreter, that Klatt would have contacted the ADA coordinator if Plaintiff had had trouble hearing, and that Plaintiff “did file a complaint with [] Koenigsknecht and was provided a response indicating that Health Services had recently evaluated him, and it was determined that he did not require the services of an interpreter.” (R. 148, PageID.1956.) That evaluation, Klatt continues, “took place on October 29, 2013.” (Id.) As support for all these assertions, Klatt cites his affidavit.[11]

         Plaintiff characterizes Klatt's argument as resting on two assertions: that Plaintiff never requested an interpreter and that he did not need one. (R. 154, PageID.4004.) Regarding the first, Plaintiff says that Klatt's affidavit creates, at best, a “he said, he said” question of credibility that is inappropriate to resolve at the summary judgment stage. (Id.) Moreover, the grievance response suggested that Plaintiff had asked for an interpreter. (Id.) Regarding the second assertion, Plaintiff notes that MDOC provided him special accommodations, indicating it believed he had a hearing problem. (R. 154, PageID.4005.) As for the email attached to Klatt's affidavit, Plaintiff contends that it is “without context or supporting documentation and without an affidavit or testimony by Mr. Filsinger.” (Id.) Further, the email conflicts with other evidence of hearing loss and therefore “does not eliminate the genuine issue of material fact as to this issue.” (R. 154, PageID.4005-06.)

         c. Application

         I find Klatt's argument unpersuasive. As a global matter, it cites exclusively to his own affidavit, too slender a reed to support tossing the entire case. “Without more, self-serving affidavits are insufficient to sustain a motion for summary judgment.” Jadco Enterprises, Inc. v. Fannon, 991 F.Supp.2d 947, 955 (E.D. Ky. 2014); see also LNV Corp. v. Gebhardt, No. 3:12-CV-468, 2014 WL 1092109, at *4 (E.D. Tenn. Mar. 18, 2014) (“While defendant argues that several of the signatures on the Note were forged, defendant has presented no evidence substantiating this claim other than her own affidavits, and it is well-established that such ‘self-serving affidavits' are insufficient to sustain or avoid a motion for summary judgment.” (citation omitted)); Southern United States Trade Assoc. v. Unidentified Parties, No. 10-1669, 2012 WL 579439, at *2-3 (E.D. La. Feb. 22, 2012) (“It is well-settled law that affidavits setting forth ultimate or conclusory facts and conclusions of law are insufficient to sustain a motion for summary judgment. . . . [B]ecause Defendant's motion for summary judgment relies solely on his self-serving affidavits for support, and because the Defendant's credibility is a fact issue to be decided by the jury, the Court must conclude that summary judgment is inappropriate at this time.”). Of course, “any affidavit by a party to a case is by nature self-serving, ” and this fact alone should not discredit the party's statements. Hann v. Michigan, No. 05-CV-71347, 2010 WL 1006206, at *10 (E.D. Mich. Feb. 25, 2010); cf. C.R. Pittman Const. Co., Inc. v. Nat'l Fire Ins. Co. of Hartford, 453 Fed.Appx. 439, 443 (5th Cir. 2011) (“A party's own testimony is often ‘self-serving,' but we do not exclude it as incompetent for that reason alone.”). But when the self-serving affidavit finds no factual support in the record, it can “carry no weight on summary judgment.” Butts v. Aurora Health Care, Inc., 387 F.3d 921, 925 (7th Cir. 2004). Similarly, “affidavits may not be employed to resolve disputed factual issues, ” and thus they cannot be used to “simply attack[] the credibility of the opposing party's witnesses . . . .” 10B Wright & Miller, Fed. Prac. & Proc. Civ. § 2738 (4th ed.); see also Anderson, 477 U.S. at 254 (“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict.”).

         Klatt's affidavit contravenes each of these principles. First, it lacks support from the record; or more precisely, Klatt never stops to highlight such material. The only relevant evidence mentioned in his affidavit or brief-only obliquely in his brief by a citation to his affidavit-is the short email exchange between the nurse and Filsinger. (R. 148, PageID.1956, 2051, 2061.) But those emails cannot support the weight of the affidavit.

         For one thing, both the affidavit and the brief cite the emails for the proposition that Plaintiff received a response telling him he did not need an interpreter. (R. 148, PageID.1956, 2051.) But the emails say no such thing. Apparently, Klatt is referring to the December 29, 2013 letter Plaintiff wrote to the ADA coordinator after the hearing, which is provided with the email. (R. 148, PageID.2060.) Scribbled on the letter is a handwritten note signed on January 4, 2014, by the coordinator, Koenigsknecht, stating “[a]ccording to Health Services, on 10/29/2013 you were evaluated and you do not require an interpreter.” (Id.) There is no indication this sheet was provided to Plaintiff. Worse still, Klatt does not explain why it would matter if Plaintiff had received it.

         In a similar vein, the emails provide no context for Filsinger's claim that Plaintiff “can hear fine.” (R. 148, PageID.2061.) This conclusion came after an evaluation, apparently by Filsinger, but no official record of the appointment is provided. Nor is it clear who Filsinger is. These questions go to the weight of the evidence, which the factfinder must evaluate.

         Even if the emails were unimpeachable as evidence, they would still represent a just speck against the voluminous medical record that Klatt leaves unexamined. As can be seen in the above fact section, the record contains countervailing evidence. See, e.g., (R. 88, PageID.939 (“Amplification is recommended bilaterally.”)); (R. 88, PageID.958 (“[Officers] admit that [Burley] will generally not hear the loudspeaker when called . . . and will not hear when he is otherwise being called unless they gain eye contact (in order for him to read lips). They report no inconsistencies with these findings and that he is also always seen [with his] hearing aide [sic] on.”)); (R. 88, PageID.959 (“During today's visit [Plaintiff] displays difficulty hearing normal conversation and appears that he is lip reading. When speaking to [Plaintiff] without him looking directly at me he doesn't acknowledge hearing me.”); (R. 88, PageID.966 (“I then placed a very sensitive . . . stethoscope in his ears and spoke LOUDLY (behind a closed hand) and he DID NOT EVEN FLINCH.”)). And as Plaintiff asserts, MDOC must have thought he had some degree of impairment since it granted him a “special accommodation” due to his hearing loss. (R. 130-5, PageID.1352; R. 139, PageID1636-1637.) Thus, to credit the emails as dispositive would require weighing conflicting evidence, which, again, is a job for the factfinder. [12]

         The rest of Klatt's affidavit invites a trial, not a summary dismissal. Most directly, his assertion that Plaintiff never requested an interpreter clashes with Plaintiff's avowals that he did make that request-an assertion he has repeated in the grievance, (R. 148, PageID.2057), the letter to the ADA coordinator, (R. 148, PageID.2060), the complaint, (R. 1, PageID.37), and his declaration (R. 154, PageID.4053-54). These statements set the groundwork for a credibility duel that cannot be held at the summary-judgment stage.

         Thus, Klatt has failed to demonstrate that the material facts are undisputed. The elements of Plaintiff's prima facie case that Klatt appears to attack-whether Plaintiff is disabled and whether he was denied services due to that disability-are disputed issues with, at present, conflicting evidence. It may be that Klatt could explain why the evidence of Plaintiff's disability does not create a genuine dispute under the ADA and RA standards. But he has not attempted to make that showing. Consequently, I recommend denying Klatt's motion for summary judgment.

         4. Defendant Gilkey

         The second issue is, frankly, a mess. The key question is whether Gilkey was named as a party to the case in the original complaint or the amended complaint. If the former, Plaintiff's claim was timely; if the latter, it would be barred by the statute of limitations.

         a. ...


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