t7

'Flt~E D
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS 2806 AUG24 AM II: 12
SAN ANTONIO DIVISION

MARIA SALINAS, Plaintiff
VS.
CITY OF NEW BRAUNFELS, Defendant.

§ § §
i XR § SA06CA0729
§ JURY TRIAL DEMANDED §

ORIGINAL COMPLAINT Plaintiff, MARIA SALINAS, brings this suit against Defendant, CITY OF NEW BRAUNFELS, and in support states as follows:
STATEMENT OF THE CLAIM 1. Plaintifffiles this civil action for declaratory, injunctive, and monetary reliefas redress from Defendant for its unlawful discrimination based on Plaintiffs disability, including the failure to timely provide Plaintiffthe appropriate auxiliary aids and services while responding to an emergency call at Plaintiffs home. Plaintiff asserts that Defendant discriminated against her in violation of Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §794 ("Section 504"), and Title II of the Americans with Disabilities Act of 1990,42 U.S.C. §12131 et seq. ("ADA").
JURISDICTION AND VENUE 2. This Court has jurisdiction over Plaintiff's federal claims under 28 U.S.C. §1331. 3. Venue is invoked pursuant to 28 U.S.C. §1391, and properly lies within the San Antonio Division ofthe Western District of Texas because all ofthe events complained of occurred within Comal County, Texas.

PARTIES 4. Plaintiff, Maria Salinas, is an individual residing at 770 IH 35 N., Apt. #1115 in New Braunfels, Comal County, Texas. Plaintiffis deafand relies on the use ofAmerican Sign Language to communicate. 5. Defendant, the City of New Braunfels, is a public entity covered by the ADA. Because Defendant is also a recipient of federal financial assistance, it is also subject to the requirements of Section 504. 6. Defendant, City of New Braunfels, has under its administrative control the New Braunfels police department and the New Braunfels fire and emergency medical services departments. Each of these departments is a public entity covered by the ADA and each is a recipient of federal financial assistance. Therefore each must comply with the ADA and with Section 504. Defendant may be served through the Mayor of New Braunfels, at 424 S. Castell New Braunfels, Texas 78131-1747. 7. Defendant City ofNew Braunfels operates aPolice Department that provides "911 Services," "Domestic Problem Calls," "Sick Person Calls," "Accident Investigation," "Injured Persons Services," and many other similar services as part of its commitment to serve and protect the residents ofNew Braunfels. 8. Defendant City of New Braunfels failed to provide Ms. Salinas with appropriate auxiliary aids and services, failed to provide her with the opportunity for effective communication, and failed to ensure the reasonable accommodation ofher disability during her interaction with New Braunfels police and other city personnel in September of2004.
2

9. Defendant City of New Braunfels has failed to implement appropriate written policies and actual practices aimed at ensuring that deaf and hard of persons are accommodated and provided appropriate auxiliary aids to ensure their effective communication with city police and other emergency service personnel. Defendant City of New Braunfels has not conducted training of its employees adequate to ensure that said employees appropriately accommodate and provide appropriate auxiliary aids and services to deaf and hard ofhearing persons. 10. Defendant has acted with deliberate indifference toward, and with reckless disregard of, Plaintiffs federally-protected rights under Section 504 and the ADA.
STATEMENT OF FACTS 11. Plaintiff Maria Salinas has a bilateral, profound hearing loss. 12. Ms. Salinas uses American Sign Language ("ASL") to communicate and relies on ASL interpreters to communicate with other people who do not sign. 13. On September 23, 2004, Ms. Salinas returned home to her apartment from work and unexpectedly found her boyfriend, Mr. Ed Spencer, lying motionless on her couch. She was unable to rouse him. 14. Alarmed and upset, Ms. Salinas went to her neighbor's apartment to seek assistance from her neighbors, who returned with her to the apartment and called "911 " to request emergency assistance and the services of a qualified sign language interpreter on her behalf. 15. On information and belief, although the New Braunfels police were aware from the 911 call that Ms. Salinas was deaf and had requested interpreter services, the police did not attempt to locate a qualified interpreter in response to her request and failed to assign this task to another city
3

employee. None of the responding officers was able to sign or to communicate effectively with Ms. Salinas. 16. Upon the arrival ofthe police in her home, the officers were again notified that Ms. Salinas was deafand needed the services ofa qualified sign language interpreter in order to understand what was being said. On information and belief, although the police were given the names oftwo qualified sign language interpreters in the New Braunfels area, the officers again refused to attempt to locate a sign language interpreter through which to communicate with Ms. Salinas and failed to assign this task to another city employee. 17. On information and belief, one of these interpreters did eventually speak with one of the officers on the scene, informed him directly on Ms. Salinas's behalf that an interpreter would be needed to communicate with Ms. Salinas, and gave the officer a number to call to obtain paid interpreter services because she was unable to leave her work to interpret at the scene. During this call, it is believed that the officer relayed that the police were trying unsuccessfully to communicate with Ms. Salinas. On information and belief, although the interpreter with whom the officer spoke strongly urged the police officer to call the agency that could provide the needed service for a fee, the officer refused to seek paid interpreter services. 18. Without an interpreter present, Ms. Salinas was unable to understand what was going on in her apartment, did not know what functions the police were performing, remained unsure about her boyfriend's prognosis, and became increasingly distraught as she was left out of the many communications taking place around her. 19. Not having succeeded in obtaining free interpreter services, the officer next attempted to communicate with Ms. Salinas by going to the manager ofthe apartment complex to learn ifanyone
4

on the premises knew sign language. The manager was familiar with the sign language alphabet, but was not able to communicate in American Sign Language. Unfortunately, the assistant manager's knowledge of the alphabet was so limited that she could not communicate effectively with Ms. Salinas and she remained isolated, frustrated, and unable to communicate with the police and other personnel. 20. On information and belief, the officer relied on the apartment manager's minimal knowledge of the alphabet in order to obtain Ms. Salinas's permission to conduct a search ofher home. 21. On information and belief, the officer relied on the apartment manager's minimal knowledge of the alphabet in order to ask Ms. Salinas questions about her boyfriend's illness and use of medications. 22. Ms. Salinas, emotionally distraught over her boyfriend's condition and not able to learn the fact or cause ofhis death, became increasingly upset as the events during the police response to her call took place without her even minimal understanding. Unable to communicate to the officers her concerns about her boyfriend's medical history, her knowledge as to his condition in the days leading up to his death, and her questions concerning what had happened and what would happen, Ms. Salinas experienced for several hours aperiod ofprolonged and acute emotional distress and anxiety. At some times during this period, she was unsure as to whether or not she was the suspect in a murder investigation. At others, she was unsure as to whether her loved one might be revived. 23. Instead of obtaining a local, qualified sign language interpreter in order to communicate effectively with Ms. Salinas, a New Braunfels police officer, frustrated with his inability to communicate with Ms. Salinas through the services of a free interpreter or through an apartment manager with insufficient interpreting skills, relegated her to her bedroom and motioned for her to
5

wait there. Ms. Salinas' experience ofhis gestures was one offear and hurt, and - not having access to the words he spoke or his apparent reasoning - she felt the officer was being deeply disrespectful of her, and callous. 24. As a result of this relegation, Ms. Salinas was unable to see or hear what the police officers and emergency medical personnel were doing in the other areas of her home or to her boyfriend's body. Because she was deaf and the police would not pay the fee to obtain a qualified interpreter to discuss the situation with her, Ms. Salinas suffered in isolation and fear in the hours following the apparent death of her loved one. 25. Still acting without a qualified interpreters, a police officer eventually came back into the room where Ms. Salinas had been relegated and indicated via a written note that he needed to search her bedroom as well. As a result ofthe police officer's inability to communicate effectively with Ms. Salinas, the police officer could not explain what they were looking for or what they thought might have happened to her boyfriend. Understandably, Ms. Salinas felt confused by this expanded search and was not given the same opportunity as a person without a communication-related disability would have been to attempt to question why the search was expanded. 26. Although the New Braunfels police clearly needed to communicate with Ms. Salinas and attempted to do so on many occasions, they failed to give primary consideration to her communication needs or to ensure that the means of communication they were attempting were effective for Ms. Salinas. 27. Ironically, as the police officers were attempting these ineffectual means ofcommunication with Ms. Salinas, a certified sign language interpreter arrived in response to Ms. Salinas' earlier cries for help via her pager. On information and belief, the police did not permit this interpreter access to
6

Ms. Salinas, but instead attempted to tum her away and told her she was not needed. It is believed that the interpreter was not permitted to interpret because the police did not wish to pay for her services. In the end, they permitted her access but did not pay her. 28. Despite Ms. Salinas's status as tenant of the apartment in question, her status as the caller requesting help in response to a loved one's sickness, and her close relationship to Mr. Ed Spencer, the deceased, at no time were the police officers successful in communicating to her any information concerning Mr. Spencer's condition or the purpose, phase, or results of their investigation. 29. Furthermore, as aresult ofthe New Braunfels police and emergencypersonnel's actions and inactions and discriminatory conduct, Ms. Salinas has sustained damages including but not limited to loss of selfesteem, emotional distress, and continued feelings of isolation, and segregation. Her inability to trust the New Braunfels police and emergency personnel to serve and protect her in the same manner that they protect and serve persons without disabilities persists. 30. As aresult ofthe New Braunfels police and emergency personnel actions and inactions, Ms. Salinas was treated in a different, disrespectful, and discriminatorymanner during a period ofcrucial significance in her development of her own personal response to a loved one's death and of her understanding of that life-shaping event. 31 Additionally, at no time did the New Braunfels police provide Ms. Salinas with the name of their ADA or Section 504 Coordinator or information concerning how she could obtain appropriate auxiliary aids or services in order to followup on the results of their investigation. 32. Additionally, even though the New Braunfels police were aware that Ms. Salinas was quite upset about their failure to provide appropriate auxiliary aids and services during this emergency
7

response, they also did not provide her with infonnation concerning the City's grievance policy for ADA or Section 504 violations. 33. On infonnation and belief, the New Braunfels police department lacks a coherent policy for responding to the basic and consistent communication needs ofdeaf and hard ofhearing residents, and their policies and practices will therefore continue to be violative of both Section 504 and the ADA.
COUNT I
DEFENDANTS DISCRIMINATED AGAINST PLAINTIFF IN VIOLATION OF SECTION 504 OF THE REHABILITATION ACT OF 1973.
34. Plaintiff re-alleges Paragraphs 1-33 as set forth herein. 35. Section 504 states that "no otherwise qualified individual with a disability in the United States ... 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 or under any program or activity conducted by any Executive agency or the United States Postal Service." 29 U.S.C. §504(a). 36. Plaintiff's hearing loss substantially limits or interferes with major life activities, including her ability to hear. Plaintiff is an individual with a disability as defined by Section 504. 29 U.S.C. § 705(20)(B). 37. Plaintiffis a qualified individual with a disability under Section 504. 28 C.F.R. § 41.32(b). 38. Plaintiff, as a citizen and consumer residing in New Braunfels, was and will continue to be in need ofDefendanfs public safety and emergency response services. Aresident ofComa1County, she continues to fall within the New Braunfels catchment area for safety and emergency services and
8

must rely on the same departments that have previously discriminated against her because of her disability. Because there appears not to have been any improvement in the New Braunfels p~licies and practices pertaining to persons who are deafor hard ofhearing, there is a substantial likelihood ofthis discriminatory conduct reoccurring. Therefore, Ms. Salinas faces a high probability or real and immediate harm if Defendant's practices toward the deaf and hard of hearing are not immediately corrected. Accordingly, Ms. Salinas seeks to enjoin Defendants from committing further violations of Section 504. 39. By Defendants' actions and inactions described above, Defendants discriminated against Plaintiff in violation of Section 504 and its implementing regulations by, among other things:
a. excluding Plaintiff from participation in, denying her the benefits of, and otherwise subjecting her to discrimination under Defendants' programs and activities;
b. denying Plaintiff the opportunity to participate in and benefit from Defendants' aids, benefits, and services to the same extent that a person who was not deaf or hard of hearing could participate and receive;
c. depriving Plaintiff of aids, benefits, programs, and services that are as effective as those offered to other non-disabled individuals by failing to establish and/or abide by effective communication procedures for the deaf and hard of hearing when responding to an emergency call;
d. failing to provide Plaintiffwith aids, benefits, or services that are as effective as those provided to others who are not deaf or hard ofhearing;
e. otherwise limiting Plaintiff in the enjoyment of rights, privileges, advantages, or opportunities enjoyed by others receiving an aid, benefit, or service from Defendants
9

who are not deaf or hard of hearing ; and f. refusing to reasonably accommodate Plaintiff with appropriate auxiliary aids and
services or to modify its policies or procedures to prevent discrimination because of her disability.
COUNT II DEFENDANTS DISCRIMINATED AGAINST PLAINTIFF IN VIOLATION OF
TITLE II OF THE AMERICANS WITH DISABILITIES ACT OF 1990. 40. Plaintiffre-alleges Paragraphs 1-36 as set forth herein. 41. Plaintiffs hearing impairment substantially limits her major life activities, including Plaintiffs ability to hear, and is an individual with a disability under the ADA. 42 U.S.C. §12102(2). 42. Plaintiff, as a citizen and consumer residing in New Braunfels, was and will continue to be in need ofDefendants' public safety and emergency response services. Aresident ofComal County, she continues to fall within the New Braunfels catchment area for safety and emergency services and must rely on the same departments that have previously discriminated against her because of her disability. Because there appears not to have been any improvement in the New Braunfels policies and practices pertaining to persons who are deafor hard ofhearing, there is a substantial likelihood of this discriminatory conduct reoccurring. Therefore, Ms. Salinas faces a high probability or real and immediate harm if Defendants' practices toward the deaf and hard of hearing are not immediately corrected. Accordingly, Ms. Salinas seeks to enjoin Defendants from committing further violations of the ADA. 43. Plaintiffis a qualified individual with a disability under the ADA. 42 U.S.C.A. § 12131(2).
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44. Defendants violated Title II of the ADA in that they: a. discriminated against Plaintiff because of her disability in violation of 42 U.S.C. § 12132 and 28 C.F.R. § 35.130(a); b. failed to ensure that communications with Plaintiff were as effective as communications with non-disabled individuals in violation of28 C.F.R. §35.160(a); c. failed to provide auxiliary aids and services, including qualified interpreters to Plaintiff, in violation of 28 C.F.R. § 35. 160(b); d. failed to modify policies, practices, or procedures to avoid discrimination against Plaintiff, in violation of28 C.F.R.§ 35.130(b)(7); e. acted in a discriminatory manner toward Plaintiffbecause ofher disability and failed to ensure that programs, services, and activities were accessible to Plaintiff in violation of28 C.F.R. § 35.130(b)(1); f. excluded Plaintiff from programs, services and activities of the public entity and denied Plaintiff the benefit of these programs, services, and activities due to her disability in violation of28 C.F.R. § 35.l30(b)(1); and g. failed to provide notice of the designated ADA Coordinator, ADA Grievance procedures or ensure direct, communications with persons who are deaf. INJUNCTIVE RELIEF
45. As a proximate result of Defendants' practices, policies and procedures, Ms. Salinas has suffered, and will continue to suffer irreparable injury due to denials ofher statutory rights. 46. Unless injunctive relief is granted, Ms. Salinas will suffer immediate and irreparable injury for which there is no remedy at law.
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PRAYER FOR RELIEF THEREFORE, Ms. Salinas respectfully prays that this Court grant the following relief: 47. Assume jurisdiction over the claims in Ms. Salinas' Complaint and cite Defendants to appear and answer herein; 48. Enter a declaratory judgment stating that Defendants' practices, policies and procedures have subjected Ms. Salinas to discrimination in violation of Section 504 of the Rehabilitation Act, as amended, the Americans with Disabilities Act, and Chapter 121 of the Texas Human Resources Code. Specifically, Ms. Salinas seeks a declaration from the court that the failures of Defendants described in the above paragraphs have subjected Ms. Salinas to discrimination in violation of Section 504, the ADA, and Chapter 121. 49. Issue injunctive relief requiring the Defendants to refrain from violating Section 504, the ADA and Chapter 121 during its interactions with persons who are deaf or hard of hearing. 50. Award Ms. Salinas compensatory damages against the City ofNew Braunfels in the amount that the trier of fact deems appropriate for the injuries Ms. Salinas sustained due to Defendants' actions. 51 Order Defendants to pay Ms. Salinas' reasonable attorneys fees and costs of suit. 52. Grant Ms. Salinas such other and further relief as this Court may deem just and proper.
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DATED: August 24,2006 Respectfully submitted,
ADVOC By:
State Bar No. 2401 780 7800 Shoal Creek Blvd., Suite 142-S Austin, Texas 78757 (512) 454-4816 (Phone) (512) 302-4936 (Fax) THOMAS J. CRANE State Bar No. 05007320 6800 Park Ten Blvd, Suite 208-N San Antonio, Texas 78213 ATTORNEYS FOR PLAINTIFF
13

 
 IN THEUNITEDSTATESDISTRlCT COURT FOR THE WESTERN DISTRlCT OF TEXAS
SAN ANTONIO DIVISION

MARlA SALINAS Plaintiffs,
VS. CITY OF NEW BRAUNFELS
Defendant.

§ § § § § CIVIL ACTION NO. SA-06-CA-0729XR § § § §

DEFENDANT CITY OF NEW BRAUNFELS' MOTION TO DISMISS

TO THE HONORABLE UNITED STATES DISTRlCT JUDGE XAVIER RODRlGUEZ: NOW COMES CITY OF NEW BRAUNFELS, Defendant in the above entitled
and numbered cause, and files tIllS its Motion to Dismiss pmsuant to Rule 12(b)(6), Federal Rules of Civil Procedme and in support thereof would show unto the Court the following:
I. The case at bar concerns an incident which occurred on September 23, 2004 when Plaintiff Salinas retUl'ned to her apartment and found her boyfriend dead on her couch. Plaintiff Salinas uses American Sign Language (ASL) to communicate. Plaintiff Salinas went to her neighbor's apartment seeking assistance for her neighbor to call 9-1-1. City of New Braunfels Police Officers responded to the location along with emergency services personnel. Defendant CITY OF NEW BRAUNFELS would show unto the Comt that its police officers did attempt to locate an interpreter through dispatch but were unsuccessful. Subsequently, an interpreter known to the Plaintiff did arrive and did interpret for the Plaintiff. (See Paragraph 27 of Plaintiff's Original Complaint). Plaintiffs suit is brought pmsuant to Section 504 of the Rehabilitation Act of 1973 as

Amended 29 U.S.C. §794 (§504) and Title II of the Americans with Disabilities Act of 199042 U.S.C. §12131 et. seq. (ADA).
II. Defendant CITY OF NEW BRAUNFELS asselts W1to the Cowt that the leading Fifth Circuit case in this area is Hainze v. Richards, 207 F.3d 795 (5tl1 Cir. 2000). In Hainze, Judge Politz analyzed ADA claims and §504 claims in the context of law enforcement. The Cowt in Hainze, held that the officer's use of deadly force to restrain the Plaintiff was not actionable under the ADA and that the County had not failed to reasonably accommodate Plaintiffs disability. The Cowt reasoned as follows:
"Despite HaillZe's claims we hold that Title II does not apply to an Officer's on the street responses to reported distmbances or other similar incidents, whether or not those calls involve subjects with mental disabilities, prior to the officer secming the scene and insming that there is no threat to hUl11an life." ld. at 801. The language in Haillze which has caused some uncertainty is found in head note 5 as follows:
"Once the area was secme and there was no threat to hUl11an safety, the Williamson County Sheriff's Deputies would have been under a duty to reasonably accommodate Hainze's disability in transporting him to a mental facility." ld. at 802.
In the case at bar, Plaintiff Salinas was not placed w1der arrest and was not the subject of a criminal investigation as contemplated by Haillze. Defendant CITY OF NEW BRAUNFELS assert that Plaintiff Salinas' repOlting of an incident wherein she requested police respond to her apartment does not fall in the category of "services, progran1s or activities of a public entity" of Title II as contemplated in Haillze.

Maria Salinas v. City ofNew Braunfels DEFENDANT CITY OF NEW BRAUNFELS' MOTION TO DISMISS

Civil Action No. SA-06-CA-0729XR Page 2

In an analogous case to the one at bar, Bircoll v. Miami-Dade County, Case No.
05-2054-CIV - Moreno (S.D. Fla. 2006), the trial court granted summary judgment to
Defendant Dade County on Plaintiffs allegations mlder Title II of tile Americans with
Disabilities Act and the Rehabilitation Act. In Bircoll, the plaintiff was stopped, detained
and arrested for driving under the influence. The Comi analyzed the Fifih Circuit case of
Hail1ze v. Richards and held that the plaintiff was not complaining of his handling or
transportation to the station house, but rather for the underlying arrest. The Comi held
there is no casual link between the plaintiffs disability and tile wrongful arrest in granting
the smmnmy judgment.
Defendant CITY OF NEW BRAUNFELS asselis unto the Court that the
Plaintiff has failed to state a cause of action mlder the facts of her complaint mlder
Hail1ze v. Richards, as a matter of law.
WHEREFORE, PREMISES CONSIDERED Defendant CITY OF NEW
BRAUNFELS prays that its Motion to Dismiss be in all tlungs grmlted and for such otller
and further relief to which it may show itselfjustly entitled. Respectfully submitted,
LAW OFFICES OF CHARLES S. FRIGERIO A Professional Corporation Riverview Towers 111 Soledad, Suite 840 Sml Antonio, Texas 78205 (210) 271-7877 (210) 271-0602 Telefax
BY: /s/ Chm'les S. Frigerio SBN: 07477500 HECTOR X. SAENZ SBN: 17514850
ATTORNEYS FOR DEFENDANT CITY OF NEW BRAUNFELS

Maria Salinas v. City ofNew Braunfels DEFENDANT CITY OF NEW BRAUNFELS' MOTION TO DISMISS

Civil Action No. SA-06-CA-0729XR Page 3

CERTIFICATEOF SERVICE
I hereby certify that on the 13th day of September, 2006, I electronically filed the foregoing Defendant City of New Braunfels' Motion to Dismiss with the Clerk of the Court using the CMlECF system which will send notification of such filing to the following:
Ms. Lucy D. Wood Advocacy, Incorporated 7800 Shoal Creek Blvd., Suite l42-S Austin, Texas 78757
And I hereby celiify that I have mailed by United States Postal Service the document to the following non-CMlECF participant:
Thomas J. Crane Attomey at Law 6800 Park Ten Blvd., Suite 208-N San Antonio, Texas 78213
/s/ Charles S. Frigel'io

Maria Salinas v. City ofNew Braunfels DEFENDANT CITY OF NEW BRAUNFELS' MOTION TO DISMISS

Civil Action No. SA-06-CA-0729XR Page 4

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

MARIA SALINAS Plaintiffs,
VS. CITY OF NEW BRAUNFELS
Defendant.

§ § § § § CIVIL ACTION NO. SA-06-CA-0729XR § § § §

ORDER

On this day came on to be considered, Defendant CITY OF NEW

BRAUNFELS' Motion to Dismiss pursuant to Rule 12(b)(6), Federal Rules of Civil

Procedure and the COUli after having considered the Motion, finds said Motion to be

meritorious;

IT IS THEREFORE ORDERED, that Defendant CITY OF NEW

BRAUNFELS is dismissed from this lawsuit with prejudice.

SIGNED THIS _ _ day of _ _ _ _ _ _----', 2006.

XAVIER RODRIGUEZ UNITED STATES DISTRICT JUDGE

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

MARIA SALINAS Plaintiffs,
VS. CITY OF NEW BRAUNFELS
Defendant.

§ § § § § CIVIL ACTION NO. SA-06-CA-0729XR § § § §

DEFENDANT CITY OF NEW BRAUNFELS' MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE UNITED STATES DISTRICT JUDGE XAVIER RODRIGUEZ:

NOW COME CITY OF NEW BRAUNFELS, Defendant in the above styled and

numbered cause, and pursuant to Rule 56, Federal Rules of Civil Procedure, files this its

Motion for Summary Judgment and in support thereof would respectfully show unto the

Court the following:

I.

Defendant CITY OF NEW BRAUNFELS would show unto the Court that there is no

genuine issue as to any material fact herein and that it is entitled to Judgment, as a matter of law.
II.

Defendant CITY OF NEW BRAUNFELS incorporates into its Motion for Summary

Judgment for all pmposes the following exhibits:

(1) Exhibit A - Deposition of Plaintiff Maria Salinas; (2) Exhibit B - Deposition of Detective Tarina Skrzyki;

(3) Exhibit C - Deposition Excerpts of Officer Jermyn Balcer;

(4) Exhibit D - City of New Braunfels Police Reports; and,

(5) Exhibit E - Deposition of Dispatch Supervisor Kelly Holder.
The above Exhibits A - E are hereby incorporated by reference for all purposes.
III.
The case at bar concerns an incident which occurred on September 23, 2004, wherein
Plaintiff Maria Salinas, a hearing impaired individual, returned home to her apartment after work
and found her boyfriend, Ed Spencer, lying motionless on her couch. Subsequently, it was
determined that Mr. Spencer was deceased. Plaintiff Salinas, unable to arouse her boyfriend,
went to her neighbor's apartment for assistance who returned to Plaintiff's apartment and called
9-1-1. Police and EMS Personnel arrived from the City of New Braunfels, responded to the call
which is known as a Death on Scene (DOS).
The following facts are undisputed:
(1) Plaintiff Salinas graduated from {he Texas School for the Deaf and subsequent attended Lee College for one and a half years and obtained a certificate of art graphics. (Exhibit A - Deposition of PlaintiffMaria Salinas, pp. 9-12).
(2) Subsequent to Plaintiffs education at Lee College, she has worked at a bank; Dillard's Department Store for 9 years and currently is working at Owens-Corning as a lmitting operator for over 10 years. (Exhibit A - Deposition ofPlaintiffMaria Salinas, pp. 14-28).
(3) Plaintiff Salinas communicates with her co-workers, maintains an email address lmown as "salsamaria," conducts her own personal business, including writing her bills, credit cards and subscribes to newspapers. (Exhibit A - Deposition ofPlaintiffMaria Salinas, pp. 33; 43; 48-52; 62-66).
(4) Plaintiff Salinas has been stopped twice by the City of New Braunfels' Police Department for motor vehicle violations and was able to communicate with the officer. (Exhibit A - Deposition of PlaintiffMaria Salinas, pp. 56-59).
(5) At the time of the incident in question, Plaintiff Salinas had a: video
phone which she uses to effectively communicate with the hearing world. (ExhibitA - Deposition of Plaintiff Maria Salinas, pp. 9495; 105-106; 117-118).

Maria Salinas v. City ofNew Braunfels Defendant City of New Braunfels' Motion for Summary Judgment

Civil Action No. SA-06-CA-0729XR Page 2

(6) At the time of the incident in question, Plaintiff Salinas could have used the video phone to communicate with the Police Department, but because of her emotional state, preferred an interpreter to give her "comfort." (Exhibit A - Deposition of Plaintiff Maria Salinas, pp. 101-108).
(7) On the date of the incident, New Braunfels City Police Officer Baker attempted to contact through dispatch a hearing impaired interpreter for the Plaintiff but was unable to contact one. (Exhibit C - Deposition Excerpts ofOfficer Jermyn Baker, pp. 109; 163).
(8) Officer Balcer was able to communicate with Plaintiff Salinas through pen and paper and obtained all the information needed for his report. (Exhibit C - Deposition Excerpts of Officer Jermyn Baker,pp.103; 105; 172-173; 180-181).
(9) Detective Skrzyki arrived as the lead investigator on the scene and was able to effectively communicate with Plaintiff Salinas. (See, Exhibit B - Deposition ofDetective Tarina Skrzyki, pp. 190; 193).
(10) Detective Skrzyki was able to assist Plaintiff Salinas in guiding her to the computer screen wherein Plaintiff Salinas contacted Patty Tels (Smith) to come to her apartment to interpret for her. (See, Exhibit B - Deposition of Detective Tarina Skrzyki, pp. 145-159; and Exhibit A - Deposition ofPlaintiffMaria Salinas, pp. 83-84).
(11) Plaintiff Salinas admits that from the time Patty Tels arrived she was able to effectively communicate with Police. (Exhibit A Deposition ofPlaintiffMaria Salinas, pp. 116-118).
(12) From the time the City of New Braunfels' Police Depmiment was dispatched to the scene at 15:14 until the time that Pat Tels arrived at Plaintiff's apmiment which was 16:38 the entire amount of time that transpired was 1 hour and 24 minutes. (Exhibit C -Deposition Excerpts of Officer Jermyn Baker, pp. 193-194; Exhibit D - City of New Braunfels' Police reports).
VI. LEGAL ISSUES
Plaintiff Salinas' claims against the City of New Braunfels are brought pursuant to Title
II of the Americans With Disabilities Act of 1990 (ADA) and Section 504 of the Rehabilitation
Act of 1973 (§504).

Maria Salinas v. City ofNew Braunfels Defendant City of New Braunfels' Motion for Summary Judgment

Civil Action No. SA-06-CA-0729XR Page 3

The jurisprudence interpreting both the ADA and Rehabilitation Act" is applicable to both regarding the burden of proof. Haynes v. Richards, 207 F.3d 795, 799 (5th Cir. 2000). Plaintiffs burden under these claims is to ,prove the following:
(1) She is a qualified individual; (2) Who was excluded from participation in or denied the benefits of
services, programs or activities of a public entity; and, (3) That such exclusion or denial or discrimination was by reason of
his disability. Lightbour/1 v. County of El Paso, Texas, 118 FJd 421,428 (5th Cir. 1997). Plaintiffs burden
in both causes of action is to show intentional discrimination. Carter v. Orleans Parish Pub. Sch., 725 F.2d 261,264 (5th Cir. 1984).
Defendant City of New Braunfels asselis that Plaintiff has failed in both the second and third prongs of this analysis. As a point of initial inquiry, Defendant contends that Plaintiff was not "denied public benefits" by the fact that she had her neighbor call 9-1-1 and dispatch police to investigate a call for a possible death on scene. Although the Courts have broadly construed the "services, programs or activities" language in the ADA and the Rehabilitation Act, no Fifth Circuit case has specifically addressed whether 9-1-1 emergency services fall within this category. The leading case in the Fifth Circuit, Haynes v. Richards, 207 FJd 795, 799 (5th Cir. 2000) addresses the ADA in the context of a criminal defendant and his inter reaction with the police during the course of an arrest. Defendant asserts that an in an analogous case of Albra v. City of Ft. Lauderdale, 2007 W.L. 1213230 (11 th Cir. Fla.), the COUli held that the Plaintiff, an alleged crime victim, failed to state a claim under the Americans with Disabilities Act in alleging that he was denied public benefits due to the City'S police depmiment's failure to investigate his claim. The COUli held that the City did not have a duty to investig,ate his claim and therefore, the Plaintiff failed to state a claim under ADA.

Maria Salinas v, City ofNew Braunfels Defendant City of New Braunfels' Motion for Summary Judgment

Civil Action No, SA-06-CA-0729XR Page 4

Defendant City of New Braunfels asserts that even if Plaintiffs 9-1-1 call for assistance
\
to investigate a DOS was a "public entity service" that Plaintiff was not denied the benefits of those services or otherwise discriminated. Plaintiff relies heavily on Center v. City of West Carrollton, 227 F.Supp.2d 863 (S.D. Ohio, 2002) for her ADA claim. However, the Center case is distinguishable from the case at bar. In Center, the plaintiff placed a call to the City of West Carrollton Police Department to report that her vehicle had been vandalized and requested a qualified interpreter for the deaf. The police depaliment dispatched an officer who responded to the scene and made a report concerning the broken window of plaintiff s vehicle. Plaintiff, on several occasions, requested an interpreter but was refused by the officer who claimed that communications were effective. The trial court denied the motion for the summary judgment to the extent that there was a genuine issue of material fact as to whether or not the communication between the plaintiff and the officer was in fact effective tmder the ADA. The fact was undisputed that the city never attempted to acquire an interpreter in the Center case.
In the case at bar, quite to the contrary, the City of New Braunfels never refused Plaintiff Salinas but instead attempted to acquire an interpreter. (Exhibit B - Deposition of Detective Tarina Shzyki, p. 165; Exhibit C - Deposition excerpts of Officer Jermyn Baker, pp. 109, 163; Exhibit D - New Braunfels Police Reports). Eventually, all interpreter by the nalne of Pat Tels, arrived at the scene alld even the Plaintiff admits that communication was effective at that point. (Exhibit A - Deposition of Plaintiff Maria Salinas, pp. 115-118). The time that elapsed in the case at bar before an interpreter arrived, was 1 hour and 24 minutes. (Exhibit C - Deposition excerpts of Officer Jermyn Baker, pp. 193, 194). Despite Plaintiffs pleadings to the contrary, I there was never all issue as to any fee being charged by the interpreter. (Exhibit A - Deposition ofPlaintiffMaria Salinas, pp. 121-123).

Maria Salinas v. City a/New Braunfels Defendant City of New Braunfels' Motion for Summary Judgment

Civil Action No. SA-06-CA-0729XR Page 5

In the case at bar, Defendant City of New Braunfels, never refused an interpreter to Plaintiff Salinas, but instead, attempted'to acquire one. Defendant City of New Braunfels had the name of sign language interpreter on file at dispatch by the name of Linda Schrank but they were unable to contact her. (Exhibit D - Deposition of Dispatch Supervisor Kelly Holder, pp. 30-33). City of New Braunfels Police Department sends its dispatchers for special training in dealing with deaf persons. (Exhibit D - Deposition ofDispatch Supervisor Kelly Holder, pp. 4248). FUlihermore, Plaintiff Salinas had a video phone at her residence which she could have used to effectively communicate with the police department. (Exhibit A - Deposition ofPlaintiff Maria Salinas, pp. 94-106). Plaintiff Salinas chose not to use the video phone due to her emotional state and the fact that she wanted an interpreter to comfOli her. (Exhibit A Deposition of Plaintiff Maria Salinas, p. 103). Defendant City of New Braunfels asselis that it was not under a duty to wait for a hearing impaired interpreter before completing its investigation. Bircoll v. Miami-Dade County, 480 F.3d 1072, 1086 (11 th Cir. 2007). In Bircoll, the Court held that waiting for an oral interpreter before taking a field sobriety test was not a reasonable modification of police procedures to accommodate a motorist's deafness. The Court held that "forestalling all police activity at a road side DUI stop until an oral interpreter arrives is not only impractical, but also would jeopardize the police's ability to act in time ... ". Id. at 1086.
Defendant asserts that the case of Saltzman v. Board of Commissioners of the North Broward Hospital District, 239 Fed. Appx. 484 (11 th Dist. Fla. 2007) is analogous to the case at bar. In Saltzman, the plaintiff, a hearing impaired stroke patient and his wife brought claims against the medical center under the ADA and Rehabilitations Act for failure to provide a deaf interpreter. Saltzman called 9-1-1 emergency services and was transported to the hospital. The plaintiff claimed that the hospital failed to provide a sign language interpreter both to the patient

Maria Salinas v, City a/New Braunfels Defendant City of New Bralinfels' Motion for Summary Judgment

Civil Action No, SA-06-CA-0729XR Page 6

and his family who were deaf. The Court held that the medical center did not engage in intentional discrimination when it failed to provide sign language interpreter for the family.
In the case at bar, Defendant City of New Braunfels did not act intentionally nor with deliberate indifference to the needs of Plaintiff Salinas. Plaintiff Salinas was never denied an interpreter, had effective communication with the police Officer Baker (Exhibit C - Deposition excerpts of Officer Jermyn Baker) pp. 180-181) and Detective Tarina Sla-zyki (Exhibit B Deposition of Detective Tarina Sla-zyki) pp. 190-193}' 177-181), and by her own admission communicated effectively 1 hour and 24 minutes subsequent to the police arriving when Pat Tels, the interpreter arrived. (Exhibit A - Deposition of Plaintiff Maria Salinas) pp. 117-118; Exhibit C - Deposition excerpts of Officer Jermyn Baker} pp. 193-194). Plaintiff Salinas at most sustained hmi feelings by not being physically comforted. (Exhibit A - Deposition of Plaintiff Maria Salinas) p. 131). In this regard, the case is analogous to Crocker v. Lewiston Police Department, 2001 W.L. 114977 CD.M.E. 2001). The trial court in citing Rosen v. Montgomery County, Maryland, 121 F.3d 154, 158 (4th Cir. 1997) held that hurt feelings standing alone did not state a cause of action invoking the ADA's protection. The Court held that hmniliation and embarrassment are emotions experienced by almost every person arrested for drunk driving which was the underlying issue in the case and that it was not an injury sufficient to state a cause of action under the ADA.
In the· case at bar, Plaintiff has failed to proffer any evidence of a prima facie case lmder the second and third elements of an ADA claim. Plaintiff was not excluded nor denied the benefits of the public entity's services, but rather did obtain an interpreter 1 hour and 24 minutes into the police call for service. Plaintiff Salinas was afforded the same service and comiesy as any member of the public, hearing or non-hearing, concerning a death on scene CDOS) which was the bC).sis of the call. (Exhibit B - Deposition of Detective Tarina Sla-zyki) pp. 177-181).

Maria Salinas v. City ofNew Braunfels Defendant City of New Braunfels' Motion for Summary Judgment

Civil Action No. SA-06-CA-0729XR Page 7

Defendant City of New Braunfels did not discriminate or otherwise deny Plaintiff Salinas by
reason of her disability for the call in question, as a matter of law. Bircoll v. Miami-Dade
County, 480 F.3d 1072, 1087 (11 th Cir. 2007).
WHEREFORE, PREMISES CONSIDERED Defendant CITY OF NEW
BRAUNFELS prays that its Motion for Summary Judgment be in all things granted, that
Plaintiffs lawsuit be dismissed against it and for such other and fUliher relief as it may show
itselfjustly entitled.
Respectfully submitted,
LAW OFFICES OF CHARLES S. FRIGERIO A Professional Corporation Riverview Towers 111 Soledad, Suite 840 San Antonio, Texas 78205 (210) 271-7877 (210) 271-0602 Telefax
BY: /s/ Charles S. Frigerio CHARLES S. FRIGERIO SBN: 07477500
/
HECTOR X. SAENZ SBN: 17514850 ATTORNEYS FOR DEFENDANT CITY OF NEW BRAUNFELS

Maria Salinas v. City afNew Braunfels Defendant City of New Braunfels' Motion for Summary Judgment

Civil Action No. SA-06-CA-0729XR Page 8

-~--

------~

CERTIFICATE OF SERVICE
I hereby certify that on the 3rd day of January, 2008, I electronically filed the foregoing Defendant CITY OF NEW BRAUNFELS' Motion for Summary Judgment with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following:
Ms. Lucy D. Wood Advocacy, Incorporated 7800 Shoal Creek Blvd., Suite 142-S Austin, Texas 78757
And I hereby certify that I have mailed by United States Postal Service the document to the following non-CM/ECF participant:
Thomas J. Crane Attorney at Law 6800 Park Ten Blvd., Suite 208-N San Antonio, Texas 78213
lsi Charles S. Frigerio Charles S. Frigerio

Maria Salinas v. City a/New Braunfels Defendant City of New Braunfels' Motion for Summary Judgment

Civil Action No. SA-06-CA-0729XR Page 9

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

MARIA SALINAS, Plaintiff,
VS. CITY OF NEW BRAUNFELS,
Defendant.

) ) ) ) ) Civil Action No. SA-06-CA-729-XR ) ) ) ) )

ORDER On this date, the Court considered Defendant City of New Braunfels’ Motion for Summary Judgment. For the reasons discussed below, the motion is DENIED (Docket No. 28).
Factual and Procedural Background Plaintiff Maria Salinas filed this civil action for declaratory, injunctive, and monetary relief against Defendant City of New Braunfels (“the City” or “Defendant”) for alleged unlawful discrimination based on Plaintiff’s hearing disability. Plaintiff asserted that Defendant discriminated against her in violation of Section 504 of the Rehabilitation Act of 1973 (“Section 504”) and Title II of the Americans with Disabilities Act of 1990 (“ADA”). Plaintiff has bilateral, profound hearing loss, is deaf, and relies on the use of American Sign Language (“ASL”) to communicate. She relies on ASL interpreters to communicate with people who do not sign. Plaintiff alleges that the City failed to provide her with appropriate auxiliary aids and services, failed to provide her with the opportunity for effective communication, and failed to ensure the reasonable accommodation of her disability during her interaction with the New

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Braunfels’ police and other City personnel after she called “911” to report an emergency. On September 23, 2004, Plaintiff returned home to her apartment after work and found her
boyfriend, Ed Spencer, lying motionless on her couch. It was later determined that Mr. Spencer was deceased. Unable to rouse him, Plaintiff went to her neighbor’s apartment for assistance and they returned to Plaintiff’s apartment, where they called 911 to request emergency assistance and the services of a qualified ASL interpreter. Plaintiff alleges that although the police knew from the 911 call that she was deaf and needed interpreter services, the police did not attempt to locate an interpreter and failed to assign this task to another City employee. As a consequence, Plaintiff asserts none of the responding officers were able to communicate effectively with her.
After the police arrived at the scene and determined that Plaintiff needed interpreter services, Plaintiff alleges the police refused to attempt to locate two interpreters whose names were given to them. Apparently, one of those two interpreters contacted the police at the scene by phone and informed an officer that Plaintiff would need an interpreter in order to communicate. This interpreter allegedly told the officer the phone number to call to obtain paid interpreter services because the interpreter speaking on the phone was unable to leave her work and interpret at the scene. The officer allegedly refused to seek paid interpreter services after being given the phone number.
Without an interpreter present, Plaintiff alleges she was unable to understand what was going on in her apartment, did not know what functions the police were performing, remained unsure about Mr. Spencer’s prognosis, and became increasingly distraught as she was left out of the many communications taking place around her.
An officer attempted to communicate with Plaintiff by going to the manager of the apartment complex to learn if anyone on the premises knew sign language. The manager was familiar with the
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sign language alphabet, but was not able to communicate in ASL. The assistant manager's knowledge of the alphabet was so limited that she could not communicate effectively with Plaintiff, who became frustrated from being unable to communicate with the police.
Plaintiff alleges that the officer relied on the apartment manager's minimal knowledge of the alphabet in order to obtain Plaintiff’s permission to conduct a search of her home and to ask her questions about her boyfriend's illness and use of medications. Instead of obtaining an interpreter, the officer allegedly directed Plaintiff to her bedroom and motioned for her to wait there. A police officer eventually came back into the room and indicated on a written note that he needed to search her bedroom.
An ASL interpreter eventually arrived.1 Plaintiff alleges that after some delay, the police eventually gave the interpreter access in order to facilitate communication, but the police refused to pay for any interpreter services. Plaintiff avers that prior to the interpreter arriving at the scene, no officers were successful in communicating any information concerning Mr. Spencer's condition or the purpose, phase, or results of their investigation.
Plaintiff alleges that as a result of the New Braunfels’ police and emergency personnel's actions and inactions and discriminatory conduct, she has sustained damages including but not limited to loss of self esteem, emotional distress, mistrust of the police, continued feelings of isolation, and segregation. Plaintiff alleges that the police never provided her with the name of their ADA or Section 504 Coordinator or information concerning how she could obtain appropriate auxiliary aids or services in order to follow-up on the results of their investigation. Furthermore, she
1 Defendant concedes that approximately 1.5 hours passed from the time emergency personnel arrived until Plaintiff obtained the benefits of an interpreter.
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alleges that the City’s police department lacks a coherent policy for responding to the basic and consistent communication needs of deaf and hard of hearing residents, in violation of Section 504 and the ADA.
Plaintiff brought a claim against the City under Section 504, claiming that she is a qualified individual with a disability. She seeks to enjoin the City from committing further violations of Section 504, which she claims are likely to be repeated due to the City’s alleged deficient police practices in servicing individuals who are deaf or hard of hearing. Plaintiff also brought a claim under the ADA, claiming that the city failed to ensure that communications with her were as effective as communications with non-disabled individuals, failed to provide auxiliary aids and services, failed to modify policies, practices and procedures to avoid discrimination, and failed to provide notice of the designated ADA Coordinator, all in violation of the ADA’s implementing regulations.
Summary Judgment Standard The Federal Rules provide that summary judgment “shall be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.”2 The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.”3
2 FED. R. CIV. P. 56(c). 3 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
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Once a proper motion has been made, the nonmoving party may not rest upon mere allegations or denials in the pleadings, but must present evidence setting forth “specific facts showing a genuine issue for trial.”4 The trial court must resolve all reasonable doubts about the facts in favor of the nonmovant.5
Legal Standard 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.”6 A “public entity” includes “any department, agency, special purpose district, or other instrumentality of a State or States or local government.”7 The language of Title II generally tracks the language of Section 504 of the Rehabilitation Act of 1973.8 Congress' intent was that Title II extend the protections of the Rehabilitation Act “to cover all programs of state or local governments, regardless of the receipt of federal financial
4 FED. R. CIV. P. 56(e)(2). 5 Cooper Tire & Rubber Co. v. Farese, 423 F.3d 446, 456 (5th Cir. 2005). 6 42 U.S.C. § 12132. 7 42 U.S.C. § 12131(1)(B). 8 29 U.S.C. § 794(a). Section 504 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 . . . .” Id. A “program or activity” includes “all of the operations of . . . a department, agency, special purpose district, or other instrumentality of a State or of a local government . . . .” 29 U.S.C. § 794(b)(1)(A).
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assistance” and that it “work in the same manner as Section 504.”9 In fact, the statute specifically
provides that “[t]he remedies, procedures and rights” available under Section 504 shall be the same
as those available under Title II.10 The Fifth Circuit has held that jurisprudence interpreting either
section is applicable to both.11 Title II further directs the Attorney General to promulgate regulations
to effectuate the statute's purpose.12 In fact, the United States Department of Justice publishes a
guide for law enforcement officers that provides basic information regarding ADA requirements for
effective communication with hearing-impaired persons.13
Courts have broadly construed the “services, programs, or activities” language in the ADA
and the Rehabilitation Act to encompass “anything a public entity does.”14 Thus, a municipality’s
9 H.R. Rep. No. 101-485, pt. III at 49-50 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 472-73.
10 42 U.S.C. § 12133. 11 Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000). 12 42 U.S.C. § 12134(a) (see 28 C.F.R. § 35, et seq.). 13 COMMUNICATING WITH PEOPLE WHO ARE DEAF OR HARD OF HEARING: ADA GUIDE FOR LAW ENFORCEMENT OFFICERS, http://www.usdoj.gov/crt/ada/lawenfcomm.pdf (last visited Mar. 13, 2008). This pamphlet advises law enforcement officers that “an interpreter may be needed in lengthy or complex transactions - such as interviewing a victim, witness, suspect, or arrestee - if the person being interviewed normally relies on sign language . . . to understand what others are saying.” The pamphlet also directs law enforcement to “not expect or demand that a deaf person provide his or her own interpreter. As a rule, when interpreter service is needed, it must be provided by the agency.” Also, the pamphlet explains that the ADA requires law enforcement agencies to provide communication aids and services necessary to communicate effectively with deaf or hard of hearing people, to give primary consideration to the aid or service chosen by the hearing disabled person, to refrain from charging deaf or hearing impaired people for communication aids or services, and to provide effective, accurate, and impartial communication aids or services. 14 Burden v. City of Sacramento, 292 F.3d 1073, 1076 (9th Cir. 2002) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir. 2001)); Yeskey v. Pa. Dep't of Corr., 118 F.3d 168, 171 (3d Cir. 1997), aff’d 524 U.S. 206 (1998); see Johnson v. City of Saline, 151 F.3d 564, 569 (6th Cir.
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911 emergency response services fall within the category of “services, programs, or activities”
covered by the ADA and Section 504.
A plaintiff can succeed in an action under Title II if she can show that, by reason of her
disability, she was either “excluded from participation in or denied the benefits of the services,
programs, or activities of a public entity,” or was otherwise “subjected to discrimination by any such entity.”15 To prevail on a claim under Section 504 or the ADA, a plaintiff must prove that the discrimination was intentional; proof of deliberate indifference is not required.16 A municipal police department qualifies as a public entity.17 “The broad language of the statute and the absence of any
stated exceptions has occasioned the courts' application of Title II protections into areas involving law enforcement.”18
Pursuant to the C.F.R., “[a] public entity shall take appropriate steps to ensure that
communications with . . . members of the public with disabilities are as effective as communication
1998)(concluding that “services, programs, and activities include all government activities” and that the language “encompasses virtually everything that a public entity does”); Innovative Health Sys,, Inc. v. City of White Plains, 117 F.3d 37, 45 (2d Cir. 1997), superseded on other grounds by Zervos v. Verizon New York, Inc., 252 F.3d 163, 171 n.7 (2d Cir. 2001) (stating that the “services, programs, activities” language of Title II “is a catch-all phrase that prohibits all discrimination by a public entity, regardless of the context”); 29 U.S.C. § 794(b)(l)(A) (defining “program or activity” as used in the Rehabilitation Act as “all of the operations of” a qualifying local government); H.R. Rep. No. 101-485(II), at 84 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 367 (noting that Title II “simply extends the anti-discrimination prohibition embodied in Section 504 [of the Rehabilitation Act] to all actions of state and local governments”).
15 Hainze, 207 F.3d at 799. 16 Delano-Pyle v. Victoria County, 302 F.3d 567, 575 (5th Cir. 2002). 17 See Hainze, 207 F.3d at 799. 18 Id.
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with others.19 Additionally, “[a] public entity shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service . . . conducted by a public entity.”20 A “qualified interpreter” is included within the definition of an auxiliary aid and service.21
Analysis In its motion for summary judgment (Docket No. 28), the City lodges several arguments. First, the City argues that the provision of 911 emergency services is not within the ambit of “services, programs or activities” as stated in the ADA and the Rehabilitation Act. Second, the City argues there was effective communication between Plaintiff and the New Braunfels Police Department (“Police”) and that such communication did not constitute exclusion from or denial of the benefits of a public service. In the alternative, the City argues that the Police did not refuse to provide an interpreter, but actually attempted to acquire one for Plaintiff’s use. Lastly, the City asserts that, because there was no exclusion from or denial of the benefits of a public service, there was no discrimination, let alone intentional discrimination, premised upon Plaintiff’s disability. Are 911 Emergency Services within the Scope of the ADA and Rehabilitation Act? As stated above,22 as well as in this Court’s Order on the City’s Motion to Dismiss (Docket No. 11),23 a municipality’s 911 emergency services fall within the protections of the ADA and the
19 28 C.F.R § 35.160(a). 20 28 C.F.R. § 35.160(b)(1). 21 28 C.F.R. § 35.104(1). 22 See n.11, supra. 23 See Docket No. 11 at 6-7.
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Rehabilitation Act. The more difficult question concerns the scope of the emergency services. It is clear that the
City, as an emergency responder, has a duty to provide such services to a person in peril. It is unclear, however, whether any further duty is owed by the City to persons who stand in a special relationship to the one in peril. Without deciding whether 911 emergency services entail a duty to provide services to those who hold a special relationship to the person in peril, the Court finds that once the emergency responders make an effort to communicate with and extract information from such a person, the public entity has a duty, under the ADA, to ensure that a disabled person is “afford[ed] . . . an equal opportunity to benefits from the services provided by Defendant to [those] who do not suffer from a hearing-impairment.”24 Because the New Braunfels police purposefully engaged in communications with Plaintiff, conducted an investigation in her apartment, sought information from her pertinent to that investigation, and remained in her apartment at least 1.5 hours, it is clear the City had a duty to provide her with equal access to its services as would be afforded a non-hearing impaired individual. Was There Effective Communication Between the City and Plaintiff?
The City is obligated to ensure that communications with disabled persons are as effective as communication with other, non-disabled persons.25 Due to the broad, encompassing language found in the ADA, the term “effective” lends itself to a fact-intensive inquiry, making determination difficult on summary judgment.
24 Falls v. Prince George’s Hosp. Ctr., 1999 WL 33485550 at *8 (D. MD. 1999). See also, 28 C.F.R. § 35.160.
25 28 C.F.R. § 35.160(a). -9-

The City argues that communications between its officers and Plaintiff were as effective as communication with a non-disabled member of the public. To support this contention, the City offers the deposition testimony of New Braunfels Police Department Officer Jermyn Baker (“Baker”), New Braunfels Police Department Detective Tarina Skrzyki (“Skrzyki”), and Plaintiff Maria Salinas. Baker testified that from his communication with Plaintiff, he was able to obtain all the information he needed to conduct his investigation, and that because he was able to acquire this information, his communication with Plaintiff was effective.26 Detective Skrzyki’s testimony reveals that she utilized written communication to obtain information from Plaintiff.27 Additionally, Skrzyki testified that “we communicated with her as well as we could. And we received the information we needed.”28 Skrzyki alleges that she was under the impression that Plaintiff was satisfied with the manner in which the New Braunfels Police handled the situation.29 Lastly, Plaintiff testified that she was able to communicate effectively once an interpreter arrived.30
To counter Defendant’s evidence on the issue of effectiveness, Plaintiff provides a barrage of evidence consisting of the deposition testimony of Plaintiff, Officer Baker, New Braunfels Police Department Captain John Villareal (“Villareal”), Detective Skrzyki, and the manager of the apartment complex where Plaintiff resided, Tonya Talbert (“Talbert”), as well as a New Braunfels
26 Docket No. 28, Ex. C. - Baker Deposition at 180:3-4. See also, pp. 193:18-19 (“[The communication] was totally effective for what I needed.”).
27 Docket No. 28, Ex. B. - Skrzyki Deposition at 191:1 - 193:18. 28 Id. at 177:24-25. 29 Id. 180:1 - 181:5. 30 Docket No. 28, Ex. A. - Salinas Deposition at 118:9.
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Police Report (“Police Report”) and the Expert Report of Jean Andrews, Ph.D. (“Expert Report”). Plaintiff’s deposition testimony reveals she felt her communication with the police officers
was “very frustrating” and “very hard”;31 she found it difficult to communicate with the police officers;32 that she needed an interpreter “because [she] could not understand what was going on”;33 that she made a written request for an interpreter;34 she had several important questions she wanted to ask the police officers;35 and that she could not understand the attempted communication with Talbert, her apartment manager whom the police asked to interpret for her.36
In addition, Officer Baker testified that he was unsure whether Plaintiff understood some of the written questions he submitted;37 despite his classification of the communication as effective, he was only able to obtain a couple of items of basic information, but nothing else from Plaintiff;38 that Plaintiff’s upset demeanor may have been due to her inability to communicate with him;39 he did not share any information with Plaintiff, and he did not know what information she desired to receive;40
31 Docket No. 32, App. I at ¶17. 32 Id. 33 Id. at ¶18. 34 Id. at ¶19. 35 Id. at ¶37. 36 Id. at ¶54. 37 Id. at ¶24. 38 Id. at ¶25. 39 Id. at ¶33. 40 Id. at ¶34.
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he did not know whether Plaintiff had any questions for him;41 and he did not know whether Talbert could effectively communicate with Plaintiff.42
Captain Villareal testified it was his opinion that Officer Baker failed to obtain all of the information he should have acquired from Plaintiff;43 he interprets Baker’s police report as indicating Baker was experiencing difficulty communicating with Plaintiff;44 he believed Plaintiff’s difficulty in writing and the fact she was upset created communication difficulties for the officers on the scene;45 he assumed that difficulties in communication remaining after the use of the apartment manager, Talbert, to interpret indicates Talbert’s skills were somewhat lacking;46 he had no knowledge to establish Talbert was communicating effectively;47 and it is his opinion that effective communication involves both the officer getting the information he desires and the hearing-impaired person getting the information she desires, and that there must be a dialogue between the two.48
Detective Skrzyki testified that it would be necessary to talk to someone in Plaintiff’s position to determine what had happened;49 she wrote in her report that officers were unable to obtain
41 Id. at ¶35. 42 Id. at ¶53. 43 Id. at ¶26. 44 Id. at ¶30. 45 Id. at ¶36. 46 Id. at ¶49. 47 Id. at ¶53. 48 Id. at ¶61. 49 Id. at ¶25.
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certain information from Plaintiff;50 on certain occasions Plaintiff did not understand her when she attempted to communicate;51 communication with Plaintiff was important because Plaintiff was a witness who was being interviewed;52 Plaintiff’s written responses to certain questions were “kind of mixed up”;53 that communication requires both parties’ participation, and when a deaf person is unable to ask questions they desire to ask, the communication is “not as good.”54
Apartment manager Talbert testified that she lacked specialized skill in communicating with deaf persons;55 she observed Plaintiff make a written attempt to have the police acquire an interpreter;56 there was a general lack of communication;57 she could not understand, and could not be understood by Plaintiff;58 and that she did not indicate to the police officers that she knew sign language.59
Finally, the Police Report indicates that Officer Baker had a “difficult time communicating” with Plaintiff and believed Plaintiff was “extremely upset” and having difficulty communicating with
50 Id. at ¶48. 51 Id. at ¶55. 52 Id. at ¶57. 53 Id. at ¶58. 54 Id. at ¶62. 55 Id. at ¶45, 50. 56 Id. at ¶46. 57 Id. at ¶47. 58 Id. at ¶51. 59 Id. at ¶52.
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him.60 Indeed, Detective Skrzyki wrote that officers were “still having trouble communicating” with Plaintiff.61 The Expert Report includes observations that, given the expert’s assessment of Plaintiff’s communication abilities, she would likely be unable to ask certain questions without the aid of an interpreter;62 and that Plaintiff would likely be unable to understand the written questions being asked by the police officers.63
In the context of the situation presented in this case, the ability to effectively communicate includes not only the act of receiving, but also the act of imparting information. The evidence construed in the light most favorable towards the Plaintiff creates a genuine issue of material fact as to whether the communication between Plaintiff and the New Braunfels Police Department was effective.
Defendant’s evidence focuses on a police officer’s ability to acquire information needed to complete an investigation, but the City wholly fails to address the effectiveness of Plaintiff’s understanding of her communication with the police officers. Additionally, Plaintiff’s own testimony succinctly points out that she only experienced effective communication after an interpreter arrived, making absolutely clear that she felt the communication before the interpreter’s arrival was ineffective.64
60 Id. at ¶29, 31. 61 Id. at ¶48. 62 Id. at ¶38. 63 Id. at ¶59. 64 Docket No. 28, Ex. A. - Salinas Deposition at 118:6-7. The Court again notes that at least 1.5 hours passed from the time emergency services personnel arrived until the interpreter arrived.
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The evidence establishes the City knew that two-way communication is necessary for the communication to be effective. Here, there is substantial evidence indicating a lack of the type of quality bilateral communication necessary for the establishment of effective communication. Additionally, the evidence shows that from the City’s point of view, it was experiencing some difficulty in its communication with Plaintiff, and that the City was unsure whether Plaintiff was able to communicate information or questions to its police officers.
Accordingly, the Court DENIES Defendant’s Motion for Summary Judgment on the issue of whether there was effective communication. Was There Refusal or an Attempt to Acquire an Interpreter?
As a public entity, the City is required to provide individuals with disabilities an equal opportunity to enjoy the benefits of public services, such as 911 emergency services. Therefore, a determination of the viability of a claim for violation of the ADA and the Rehabilitation Act requires an analysis of whether the public entity made an attempt to furnish adequate auxiliary services to Plaintiff. However, this inquiry is not dispositive, and comprises a part of the larger inquiry of whether effective communication was provided, an inquiry concerning which a genuine issue of material fact exists.
The City contends it made attempts to get an interpreter for Plaintiff. To support this contention, the City cites to the deposition testimonies of Detective Skrzyki, Officer Baker, and New Braunfels Police Department Dispatch Supervisor Kelly Holder (“Holder”), as well as several Police reports.65 Skrzyki testified she, without having contact with Plaintiff, asked another police officer
65 Docket No. 28 at 5. -15-

if they could get an interpreter.66 Baker testified he was instructed to try to get an interpreter for Plaintiff, and that he placed at least one phone call to a person who knew Plaintiff and could sign, but that person was unavailable.67 Baker also testified he attempted to call two or three other numbers, but that he was unsure whether the numbers were those of interpreters.68 Holder testified that within eight minutes of receiving Plaintiff’s emergency call a dispatcher attempted to contact an interpreter by the name of Linda Schrank, and that this interpreter was listed in a file containing providers of various services that may be needed to respond to multifarious emergencies.69 Lastly, certain police reports indicate that efforts were made to get an interpreter to the scene.70
To counter the City’s contention, Plaintiff argues she was deprived of “critically important” services in that the City, despite its present assertion to the contrary, did not make an attempt to procure interpreter services.71 In support of this position, Plaintiff offers evidence showing that Defendant has provided shifting and contradictory grounds as to why it failed to seek an interpreter.72 Evidence shows that the City did not attempt to procure an interpreter for the following, sometimes conflicting, reasons: the police thought that another interpreter was en route;73 Plaintiff was not in
66 Docket No. 28, Ex. B. - Skrzyki Deposition at 165:20 - 25. 67 Docket No. 28, Ex. C. - Baker Deposition at 108:16 - 109:2. 68 Id. at 109:18 - 110:9. 69 Docket No. 28, Ex. E. - Holder Deposition at 30:7 - 34:7. 70 Docket No. 28, Ex. D. - City Police Reports. 71 Docket No. 32 at 2. 72 Id. at 6-7. 73 Docket No. 32, App. III at ¶1 (noting the confusion as to whether an interpreter was on her way to the scene).
-16-

custody;74 written communication between the police and Plaintiff was effective;75 it would have
taken too long to obtain an interpreter;76 apartment manager Talbert’s communication with Plaintiff
was effective;77 there was no list of interpreters to call;78 Plaintiff was in too excited an emotional
state for an interpreter to be of much use;79 there was no emergency;80 and there was no need for
precise communication.81
Because a genuine issue of material fact exists as to whether New Braunfels police called or
attempted to acquire an interpreter, and because this inquiry is part of the more encompassing
determination of whether effective communication was achieved, the Court DENIES Defendant’s
Motion for Summary Judgment on the issue of whether Defendant made an attempt to acquire the
74 Id. at ¶4 (citing various deposition testimonies to the effect that a deaf person not in custody would not require provision of an interpreter).
75 Id. at App. I at ¶¶27-33; 48-63; App. III at ¶2. Also, the Court has decided a genuine issue of material fact exists as to whether communication was effective.
76 Id. at App. III at ¶¶5-10; Exs. 12-14 (indicating the police were reluctant to seek an interpreter because of the possible delay; however, other evidence indicates interpreter services were within 15 to 30 minutes’ drive from Plaintiff’s apartment).
77 Id. at Ex. 22; App. I at ¶¶44-63; App. III at ¶3 (noting difference in facts as to whether Talbert was able to communicate effectively). Again, the Court has decided a genuine issue of material fact exists as to whether communication was effective.
78 Id. at App. III at ¶¶11-13 (indicating a lack of either a policy or contract concerning the acquisition of interpreter services for use in emergency responses).
79 Id. at App. III at ¶14 (testifying that Villareal might have acquired a fee interpreter if Plaintiff had been more calm).
80 Id. at App. III at ¶15 (testifying that had Villareal been on the scene, he would have obtained an interpreter had there been an emergency).
81 Id. at App. III at ¶16 (noting that if the instant situation were one that required precise communication, an interpreter would have been called).
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services of an interpreter. Was the Discrimination, If Any, Intentionally Premised on Plaintiff’s Disability?
In support of its contention that the City did not engage in intentional discrimination necessary to a Section 504 or ADA claim, Defendant relies on an unreported 11th Circuit case82 and its allegations that communications were effective.83
The Saltzman case involved a hearing-impaired stroke patient and his similarly disabled wife. The Plaintiff brought claims under Section 504 and the ADA for the hospital’s alleged failure to provide interpreters for both the patient and his family. The Saltzman trial court ruled that there was no intentional discrimination, thus plaintiff had no cause of action under Section 504 or the ADA.84 In affirming the decision of the trial court, the Circuit Court noted that the hospital “had a policy in place for assisting hearing-impaired patients, . . . [and] [t]here is no evidence . . . any . . . policymaker intended or expected [discrimination against] hearing-impaired people.”85 The court further reasoned that attempts to obtain interpreters, while possibly negligent, were insufficient to satisfy the intentional discrimination requirement needed for plaintiffs to prevail.86 Additionally, the Circuit Court did not find that the hospital’s policy was inadequate or routinely not followed.87
82 Saltzman v. Bd. of Comm’rs of the N. Broward Hosp. Dist., 239 Fed. Appx. 484 (11th Cir. June 15, 2007).
83 As set forth above, the Court finds that a genuine issue of material fact exists as to whether communication was effective.
84 Saltzman, 239 Fed. Appx. at 485. 85 Id. at 488. 86 Id. 87 Id.
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The applicable standard for intentional discrimination necessary for recovery of compensatory damages remains unclear in the Fifth Circuit.88 However, Plaintiff argues that the factual scenario present in the instant case exceeds the facts of an analogous case in which the Fifth Circuit found that the facts satisfied the standard of intentional discrimination. Plaintiff cites to Delano-Pyle as the key case on the issue of intent for the Fifth Circuit.89 Plaintiff offers the evidence previously cited to establish a fact issue regarding effectiveness of communication, as well as to show that the police officers were aware their unsuccessful communication efforts were harming her;90 Officer Baker disregarded advice from one of Plaintiff’s contacts concerning the process and importance of acquiring interpreting services;91 and the dispatch officer, with knowledge of Plaintiff’s hearing-impairment, took no action to contact an interpreter.92 Plaintiff argues that the evidence presented is congruent with, and even exceeds that found in Delano-Pyle. This Court agrees with Plaintiff’s contention insofar as the facts construed in a light most favorable to the Plaintiff indicate a genuine issue of material fact exists regarding the issue of whether the City’s conduct was intentional.
88 Delano-Pyle v. Victoria County, 302 F.3d 567 (5th Cir. 2002) (noting that “deliberate indifference” is not the standard for intentional discrimination under the ADA and Rehabilitation Act while refraining from articulating the necessary criteria for intentional discrimination).
89 Docket No. 32 at 16 (citing Delano-Pyle, 302 F.3d 567 (5th Cir. 2002) (upholding jury finding of intentional discrimination where police officer, with knowledge of plaintiff’s hearingimpairment, failed to ascertain both plaintiff’s preferred manner of communication and whether plaintiff understood the police officer’s instruction, prior to administering sobriety tests).
90 Docket No. 32 at App. I at ¶33 (testifying that Plaintiff’s inability to communicate with police officer “could be frustrating” and cause her to be extremely upset).
91 Id. at App. I at ¶¶39-42 (citing to Ex. 11 - Affidavit of Tami Klett). 92 Id. at App. I at ¶¶1-16.
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Notwithstanding the creation of fact issues, Plaintiff goes to great length to distinguish the Saltzman case. Besides being merely persuasive and non-binding authority, the Court is of the opinion the instant case is easily distinguishable from the facts in Saltzman. First, unlike the Saltzman case, the Plaintiff in the case at bar has provided evidence indicating an absence of a policy for either dealing with hearing-impaired citizens or acquiring interpreter services.93 Additionally, Plaintiff has provided evidence which creates an issue of fact regarding whether the City attempted to acquire interpreter services,94 whereas, the hospital in Saltzman at least made attempts to obtain an interpreter. Lastly, Plaintiff offers evidence, including an expert’s report, pointing out certain deficiencies in, or the total lack of, training, policies and procedures for handling cases involving hearing-impaired persons or acquiring interpreter services to facilitate communication between the police and hearing-impaired persons.95
Based on the combination of a genuine issue of material fact and the clear distinguishability between the non-binding Saltzman case and this one, the Court DENIES Defendant’s Motion for Summary Judgment on the issue of whether the City’s acts were intentional.
93 Id. at App. V. 94 Id. at App. I at ¶¶1-16; 39-42. 95 Id. at App. V, Ex. 17.
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Conclusion For the foregoing reasons, the Court DENIES Defendant’s Motion for Summary Judgment (Docket No. 28) in its entirety. It is so ORDERED. SIGNED this 14th day of March, 2008.
_________________________________ XAVIER RODRIGUEZ UNITED STATES DISTRICT JUDGE
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 T I.

t r

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

MARIA SALINAS. Plaintiff
VS.
CITY OF NEW BRAUNFELS, Defendant.

§

§

§

§

St\

CIVIL ACTION NO. SA-06-CA-0729-XR

§

§

§

§

MEDIATED SETTLEMENT AGREEMENT

Agreements of Plaintiff Maria Salinas and Defendant City ofNew Braunfels:
KNO\V ALL MEN BY THESE I)RESENTS THAT I, MARIA SALINAS, a

resident of the State of Texas for consideration of SEVENTY FIVE AND NOll 00 DOLLARS

($75,000.00) cash to me in hand by the Defendant City ofNe\\' Braunfels, a governmental entity

of the State of Texas, the receipt of which is hereby Acknowledged, 311d for consideration of the

City of New Braunfels' and New Braunfels Police Department's (NBPD) commitments and

agreements to publish. implement, and continue to enforce the policy reg31'ding the hearing

impaired attached as Exhibit A (which is hereby incorporated in full into the text of this

Settlenlent Agreement) to be adopted within thirty days of the signing of this document. do agree

to release 311d forever discharge, and by these present, do for myself. my heirs, executors 31"ld

administrators. FULLY AND FINALLY AND COMPLETELY RELEASE AND DISCHARGE

Defendant CITY OF NEW BRAUNFELS. a governmental entity located in the State of Texas

and 311y employees of the City of New Braunfels, of 311d fi'om all liability or demand novv

accrued or which may hereafter accme, on account of any and all claims for damages or causes

of action, at law or in equity. in state or federal claims. including any and all claims t<.)r race or

national ongm discrimination, Civil Rights claims under Title II of the Americans with Disabilities Act of 1990, Section 504 of the Rehabilitation Act of 1973, any and an Code of Federal Regulations. any and all Department of Justice Guidelines, Title II, 42 U.S.c. 2000(a) and 2000(a)(2), 1981 and 1982 Civil Rights claims, claim for injunctive relief, discrimination claims, intentional infliction of emotional distress claims or any other claim, which I may now have, or which any of nly heirs, executors or administrators at any time hereafter may claim to have had as of this date against Defendant City of New Braunfels and a11 employees of the City of New Braunfels, by any reason ofany claim for damages, losses or demands, including but not limited to loss of enjoyment. loss of accommodations, loss of services, hospitaL medical, doctor and nursing bills, and any and an damages for personal injury, incapacity, loss or reduced eaming capacity, and any and aU causes 0 faction, subrogation interests medical liens, losses and expenses of whatsoever nature that ntay have been sustained by me in the past, or \vhich may exist a1 the present time, or \vhich may be claimed by me or anyone on my behalf to exist in the future as a result of the September 23, 2004 incident as set out in this lawsuit, the allegations which are included in Plaintiffs Complaint styled "Maria Salina.,>, v. City (~f New Brawt/cls. " Likewise. Defendant. for itself and on behalf of its officers, directors, representatives, agents, employees, partners, predecessors. successors, assigns, insurers. reinsurers, departments, affiliates, and attorneys. completely RELEASE, DISCHARGE. and RELINQUISH Plaintiff and Plaintiffs representatives, agents, successors, assigns. attol11eys, 811d anyone else acting tor Plaintiff from any and an past present or future claims, whether knO\vn or unknow11, and \-vhether based on a tort, contract or other theory of recovery. that have accrued or that ITlay accrue later or otherwise be acquired on account of or in any \\'ay growing out of or that are the subject of the Lawsuit.

Salinas v. City ofNew Braunfels

Settlement Agreement and Release of Claims

2

IT IS EXPRESSLY AGREED AND UNDERSTOOD by us that the compromise and settlement hereby evidenced is not an admission of liability on the part of the Defendant CITY OF NE\V BRAUNFELS and all employees of the City of New Braunfels. but is merely a compromise of a bona fide disputed claim between Plaintiff Maria Salinas and the CITY OF NEW BRAUNFELS.
IT IS FUTHER EXPRESSLY AGREEU AND UNI)ERSTOOI) that Plaintiff Maria Salinas in consideration of the payment and policy referenced above willfi1e with the Court the motion (attached as Exhibit B and agreed to by Defendant City of Nevv Braunfels) to dismiss with prejudice her lawsuit styled, "Maria Salinas 1', City <?f'.New Braul?f'els." Under Civil Action no. SA-06-CA-0729XR, In the United States District Court in 811d for the Western District of Texas, S811 Antonio Division. In consideration of the dismissal of Civil Action No. 06-CY-0729 and the agreements herein, The City of New Braunfels agrees to pay Maria Salinas the total 81noun1 set out in paragraph one above 811d to implement within (thirty days of this signing of this document) 811d enforce and continue to enforce the policies and arrangements set out herein. including those in Exhibit A.
THE UNIlERSIGNED DOES UNI1ERSTAND AND AGREE that this is in FULL SATISFACTION FOR ALL DAMAGES arising on account of the September 23, 2004 incident as described in this la\:I,rsuit with said allegations contained in my lawsuit styled "A1aria
Salinas v. Ci(F ql Netl' Brawlfcls" and we further do underst811d 811d agree and not to assert or
prosecute any claims or lawsuits against Defendant CITY OF NEW BRAUNFELS and all employees of the City of New Braunfels with reference to the described incidents as alleged in Civil Action No. SA-06-CA-0729XR.

Salinas v. City ofNew Braunfels

Settlement Agreement ~md Release of Claims

3

Any and all claims for race or national origin discrimination, Civil Rights claims under Title H of the Americans with Disabilities Act of 1990, Section 504 of the Rehabilitation Act of 1973, any and all Code of Federal Regulations, any and all Department of Justice Guidelines, Title II, 42 U.S.c. 2000(a) 311d 2000(a)(2), 1981. 311d 1982 Civil Rights claims, claim for injunctive relief. discrimination claims, intentional infliction of emotional distress claims or any other claim, against parties not specifically released herein, if any, 31°e hereby assigned in full to the parties hereby released.
IT IS FURTHER EXPRESSLY AGREED AND UNllERSTOOD AND ACKNOWLEDGED by Plaintiff MARIA SALINAS to Defendant CITY OF NEW BRAUNFELS and all employees of the City of New Braunfels for all state and federal causes of action including but not limited to loss of enjoyment, loss of accommodations, loss of services, hospital, medical, doctor and nursing biHs. and 311y and all damages fbr personal injury, incapacity, loss or reduced earning capacity, and any and all causes of action, subrogation interests, medical liens. losses 311d expenses, or any and all causes ofaction which Inay now' exist as a result of the hereinabove-mentioned incidents. and that NO ADIlITIONAL OR FURTHER SUM whatsoever is to be paid to me by Defendant CITY OF NEW BRAUNFELS 311d aU einployees of the City ofNe~' Braunfels other than the sum hereinabove first mentioned.
IT IS ALSO AGREED AND UNllERSTOOD by Plaintiff MARIA SALINAS and THE CITY OF NE,"! BRAUNFELS that each party to this lawsuit will pay its own costs of Court.
IT IS FURTHER EXPRESSLY AGREED ANI> UNllERSTOOD AND ACKNO\VLEDGED by the undersigned, that MARIA SALINAS will payout of the above mentioned settlement any and all claims of any hospital or provider of medical or legal services

Salinas v. City ofNew Braunfels

Settlement Agreement and Release of Claims

4

:' :

for any and aU medical or other expenses of any kind or nature whatsoever,incurred or to be incurred by or on behalf ohhe undersigned as a result of or to resultfi'om the above described incident.
MARIA SALINAS DOES FURTHER\V ARRANT AND REPRESENT that there are no liens or encumbrances against the claim asserted herein, nor the settlement proceeds paid hereunder, nor the undersigned's causes of action which could or might be made with respect to or aIising out of September 23, 2004 incident wherein Plaintiff Maria Salinas made a 9-1-1 call and her request for all interpreter due to her hearing impaired condition as described in this lawsuit with said allegations contained in my lawsuit aIld the injuries to her as a result of the said incident mentioned above. for or on account of monies payable to any hospitals, physiciaIls and/or practitioners of the healillg arts, health care providers and any and aU medical services provided on account of any claim and injury to Plaintiff MARIA SALINAS as a result of the incident made the basis of this lawsuit that have not been paid.
THE UNDERSIGNED ])ARTIES DO FURTRER WARRANT that they are oflegal age and legally competent to execute this Agreement and that they do so of their oWl1fi'ee will aIld accord \vithout re Hance or representation of any kind or character not expressly set forth herein.
THE UNDERSIGNED l'ARTU;:S no FURTHER 'WARRANT that their attorneys
have fully and satisfactorily explained this agreement to them and that they fully understaIld its contents.
THE UNDERSIGNED no "FURTHER 'WARRANT that they have read the foregoing
document carefully, that they knov.' and understaI1d the contents hereof and sign same as their own free acts.

Salinas v. City ofNew Braunfels

Settlement Agreement and Release of Claims

5

) , :','

THIS RELEASE and the Exhibits attached contain the ENTIRE AGREEMENT

between Plaintiff Maria Salinas and Defendant CITY OF NEW BRAUNFELS.

IN WITNESS THEREOF, the parties have hereunto belov.' signed their nmnes on the

dates recited below.

SIGNED:

Plaintiff:

]1J~~~

5/0~

(signature)

l3ate

Maria salinas

/

APPROVED AS TO FORM:
~ CITYC AITOW ~Y~ ~
f-7..J-tJ3

Salinas v. City ofNew Brml1lfels

Settlement Agreement ~md Release of Claims

6

New Braunfels Police Department
DEAF AND HARD OF HEARING Policy
1. Purpose It is the purpose of this policy to provide the 01Ticers and employees of this department with the guidance on e1Tective communication during police contacts with the deaf and persons who have hearing impairment. Under the Americans with Disabilities Act (ADA), people who are deaf or hard of hearing are entitled to the same services law en10rcement provides to anyone else. You must attempt to relay the same depth of information, and give the same opportunity lor exchange with the deaf person that you would give a hearing person in the same situation, no matter what service is being provided.
II. Policy Most oHicers will have encounters with persons who are deaf or alTected by significant hearing loss - whether that be as victims, witnesses, or suspects. To ensure elTective communication with persons who are deaf or hard of hearing, and to con1:orm to provisions of federal and state law, officers shall 10llow the guidelines provided in this policy.
III. Definitions Lip Reading: Also relerred to as speech reading; the ability to use information gained fi·om movement of the lips, face, body to increase understmlding.
Sign language: American Sign Language (ASL) is the 10rm of sign language most oilen used in the United States. Signs convey concepts or ideas even though a sign may stand lor a separate English word. Signing individual letters by tinger spelling can supplement sign language. Just as there are regional variations (dialects) in spoken English, there are regional differences in sign language.
Auxili{{l:}) aids and services: As defined in the Americans with Disabilities Act (ADA), these are communication aids that assist people who are deaf or who have hem·ing loss. They include, for example, sign language interpreters, hearing aids, cochlear implants, the exchange of written notes, telecommunications devices for the deaf (TDDs) also called text telephones (TTs) or teletypewriters (TTYs), telephone hmldset mllplifiers, assistive listening systems, videotext displays, and hearing assistance dogs.
Qual(fied InlellJreler: The interpreter must be able to interpret eilectively, accurately, and impartially both receptively and expressively in the language the deaf person uses (e.g., American Sign Language or Signed English) and

must be familiar with law enforcement terms and phrases. Because a qualitied interpreter must be able to interpret impmtially, a family member, child, or fi·iend of the individual who is deaf may not be qualified to render the necessary interpretation because of factors such as professional, emotional, or personal involvement, or considerations of confidentiality.
Direct Access: In the context of ADA requirements, direct access means that all calls from persons who are deat: have hearing loss or speech impairments must be accepted through this department's emergency communication center by whatever means are provided to other members of the public. They may not be relayed through third-party emergency service providers unless the caller asks the department to do so.
IV. ])rocedu res A. Emergency Call Takers and Dispatchers 1. The emergency call center of this agency shall be equipped to receive calls 11:om TDD mld computer modem users and all call takers will be trained to communicate with callers using TTY mld TDD equipment. 2. The deaf and hearing impaired shall be provided with direct, equal access to all emergency services provided by this department by communication tlu·ough TTYs, TDDs, or alternative devices that are equally etTective. 3. Emergency call takers shall place a high priority on response to emergency calls tor service fi·om persons who are deaf or who have hearing impairment. 4. All call takers and dispatchers shall receive initial and periodic refi·esher training on the use of TDDs, TTYs, and related devices as well as training in procedures and techniques lor handling callers who have communication dimculties. 5. All call takers and dispatchers shall receive initial mld periodic refi·esher training on the use of relay systems. 6. The City shall maintain the list of available sign language interpreters described in C-5 below, lor use by emergency call takers and dispatchers.
B. Encounters with Persons \l.,1ho are the Deaf and Hem·ing Impaired Communication problems in police-public encounters provide the basis for potential 1hlstration and embarrassment. Failure of oiTicers to recognize that a person has a hearing impairment, or that person's failure to make his or her impairment known to olIicers, can also lead to critical misunderstandings. To avoid such potentialities, officers shall be cognizant of the 10llowing: 1. Be alert to indications that a person may be deaf or have a hearing impairment. Such indications include but are not limited to the following:

a. The appearance of bumper stickers, rear window decals, or visor notices/symbols indicating the disability
b. Failure of persons to respond to spoken commmld or signals
c. Use of signs, hand signals, or gestures in an attempt to communicate
d. Display of cards by the person noting his or her hearing disability
e. Inability or dimculty of a person to follow verbal instruction or requests for information
I A need to see the onker's tace directly, suggesting that the person is attempting to lip-read
g. Evidence of assistive devices such as hearing aids, cochlear implmlts, or picture symbols
h. Evidence of behaviors such as increased agitation or irritability, low frustration levels, withdrawal, poor attention, or impaired equilibrium
2. When dealing with persons who are, or are suspected of being deaf or have hearing impairment, officers shall never assume that the person understmlds until it can be confirmed by appropriate responses to questions or directives.
3. Once someone is identitied as a deaf or hearing-impaired person, officers shall determine by written or other forms of conununication the person's preferred memIS of communication--- sign language, lip reading, reading and note writing, or speech.
4. For persons who use sign language, a family member or friend may interpret under emergency conditions until a qualified interpreter arrives, or in minor situations for the sake of convenience, but only with consent of the deaf person. In all other situations, otTicers shall not rely on tamily members or friends for sign language interpretation due to their potential emotional involvement or contlict of interest.
5. OtTicers shall address all questions and directives to persons who lip-read by facing them directly and speaking in a moderately paced conversational tone. Shouting or using exaggerated mouth movements interfere with the ability to lipread. UnderstmIding cmI be further degraded by the presence of facial hair, chewing gum, cigarettes, mId so on.
6. Officers shall be awru-e that only about one third of words can be accurately interpreted by lip-reading. Therefore, conununication of a critical nature (e.g., l\Ifiranda warnings) shall be reinforced by other memIS of communications. (See pru-agraph C below).

"
7. 01Iicers shall not assume that persons who wear hearing aids can hear and fully understand what is being said. Some use hearing aids to provide sound awareness rather than to increase speech understanding.
8. Highly stress1hl situations, background noise, mUltiple speakers, and complex information and instruction can compromise the limited eHectiveness of hearing aids. Officers shall test comprehension by seeking appropriate responses to simple questions or directives.
9. Deaf or hard-of-hearing persons may require additional time to understand and respond to commands, instructions, and questions.
c. Sign Language Interpreter Requirements
The need lor use of a sign language interpreter is governed generally by the length, importance, and complexity of the communication, as well as the deaf person's preferred meatIs of communication. 1. In a simple enlorcement situations, such as traillc stops,
driver's license checks, or consensual police-public encounters, a notepad and pencil may provide elTective communication (see IV.B.4). 2. During investigations atId atTests, a sign latIguage interpreter is generally necessary to ellectively communicate with a person who uses sign language. In such investigations atId encounters with the public who are dea1~ primary consideration shall be given to the deaf person's chosen maimer of communication. A sign language interpreter need not be available in order 101' an officer to make an atTest of a subject where probable cause is established independent of interrogating the deaf or heat'ing impaired suspect. A sign language interpreter shall be called 101' to be available later at booking. 4. If probable cause to make atl atTest must be established through questioning or interrogation of a deaf or severely hearing impaired person, a sign language interpreter shall be requested. 5. This depat'tment shall maintain an up to date list of available speech language interpreters who are available on a 24 hour basis, as qualified by the National Registry of Interpreters for the Deaf atId ensure their lamiliarity with common and essential 10n11s of police communication 101' interrogation and related purposes. The list of interpreters will be kept in the dispatch center. Otlicers will request the dispatcher to contact an interpreter when necessary.

6. Officers shall be required to demonstrate their ability to

communicate basic ASL requests mld directions as defined

by this department.

D. An-est Situations

1. Recognizing that some persons need their hands il."ee in order

to communicate, unless absolutely necessary tor the saiety of

otlicers or others, the use of hmldcutTs shall be avoided if

possible. If handcuffs are required, all essential

conununication with the suspect should be completed prior to

their application if possible.

2. Deaf persons and persons who have severe hearing

impairments otten have reduced verbal conununication skills,

speech that may be incoherent or otherwise resemble that of

an individual who is intoxicated, and ditliculty with

equilibrium. As such, otlicers shall avoid administering

standard fIeld sobriety tests to such persons. Breathalyzer,

blood alcohol, or horizontal gaze nystagmus should be

eniployed as alternative tests.

,..,
.).

Some deaf and hearing-impaired persons have limited written

lmlguage skills, pmticularly involving dit11cult matters such

as legal warnings and admonitions. Therefore, otlicers shall

not assume the effectiveness of this form of conununication

and should gain confirmation of a person's understmlding

whenever possible.

4. Otlicers shall ensure that deaf and hearing-impaired persons

who are arrested and trmlsported to a booking site have their

communication devices with them.

Respectfully submitted,
LAW OFFICES OF CHARLES S. FRIGERIO A Professional Corporation Riverview Towers 111 Soledad, Suite 840 San Antonio, Texas 78205 (210) 271-7877 (210) 271-0602 Telefax
BY: lsi Charles S. Frigerio CHARLES S. FRIGERIO SBN: 07477500 HECTOR X. SAENZ SBN: 17514850
ATTORNEYS FOR DEFENDANT CITY OF NEW BRAUNFELS
CERTIFICATE OF SERVICE
I hereby certify that on the 13th day of May, 2008, I electronically filed the foregoing Mediated Settlement Agreement with the Clerk of the Court using the CMIECF system which will send notification of such filing to the following:
Ms. Lucy D. Wood Advocacy, Incorporated 7800 Shoal Creek Blvd., Suite 142-S Austin, Texas 78757
Thomas J. Crane Attorney at Law 6800 Park Ten Blvd., Suite 208-N San Antonio, Texas 78213
lsi Charles S. Frigerio Charles S. Frigerio

 
 Case 5:06-cv-00729-XR Document 11 Filed 12/18/2006 Page 1 of 10

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

MARIA SALINAS, Plaintiff,
VS. CITY OF NEW BRAUNFELS,
Defendant.

) ) ) ) ) Civil Action No. SA-06-CA-729-XR ) ) ) ) )

ORDER On this date, the Court considered Defendant City of New Braunfels’ Motion to Dismiss. For the reasons discussed below, the motion is DENIED (Docket No. 4).
I. Factual and Procedural Background Plaintiff Maria Salinas filed this civil action for declaratory, injunctive, and monetary relief against Defendant City of New Braunfels (“the City”) for alleged unlawful discrimination based on Plaintiff’s hearing disability. Plaintiff asserted that Defendant discriminated against her in violation of Section 504 of the Rehabilitation Act of 1973 (“Section 504”) and Title II of the Americans with Disabilities Act of 1990 (“ADA”). Plaintiff has bilateral, profound hearing loss, is deaf, and relies on the use of American Sign Language (“ASL”) to communicate. She relies on ASL interpreters to communicate with people who do not sign. Plaintiff alleges that the City failed to provide her with appropriate auxiliary aids and services, failed to provide her with the opportunity for effective communication, and failed to ensure the reasonable accommodation of her disability during her interaction with the New Braunfels

-1-

Case 5:06-cv-00729-XR Document 11 Filed 12/18/2006 Page 2 of 10
police and other city personnel after she called “911” to report an emergency. On September 23, 2004, Plaintiff returned home to her apartment after work and found her
boyfriend, Ed Spencer, lying motionless on her couch. It was later determined that Mr. Spencer was deceased. Unable to rouse him, Plaintiff went to her neighbor’s apartment for assistance, who returned with her to her apartment and called 911 to request emergency assistance and the services of a qualified ASL interpreter. Plaintiff alleges that although the police knew from the 911 call that Plaintiff was deaf and needed interpreter services, the police did not attempt to locate an interpreter and failed to assign this task to another City employee. As a consequence, none of the responding officers were able to communicate effectively with Plaintiff.
After the police arrived at the scene and determined that Plaintiff needed interpreter services, Plaintiff alleges that the police refused to attempt to locate two interpreters whose names were given to them. Apparently, one of those two interpreters contacted the police at the scene by phone and informed an officer that Plaintiff would need an interpreter in order to communicate. This interpreter allegedly told the officer the phone number to call to obtain paid interpreter services because the interpreter speaking on the phone was unable to leave her work and interpret at the scene. The officer allegedly refused to seek paid interpreter services after being given that phone number.
Without an interpreter present, Plaintiff was unable to understand what was going on in her apartment, did not know what functions the police were performing, remained unsure about Mr. Spencer’s prognosis, and became increasingly distraught as she was left out of the many communications taking place around her.
Not having succeeded in obtaining free interpreter services, the officer next attempted to communicate with Plaintiff by going to the manager of the apartment complex to learn if anyone on
-2-

Case 5:06-cv-00729-XR Document 11 Filed 12/18/2006 Page 3 of 10
the premises knew sign language. The manager was familiar with the sign language alphabet, but was not able to communicate in ASL. The assistant manager's knowledge of the alphabet was so limited that she could not communicate effectively with Plaintiff, who became frustrated from being unable to communicate with the police.
Plaintiff alleges that the officer relied on the apartment manager's minimal knowledge of the alphabet in order to obtain her permission to conduct a search of her home and to ask her questions about her boyfriend's illness and use of medications. Instead of obtaining an interpreter, the officer allegedly directed Plaintiff to her bedroom and motioned for her to wait there. A police officer eventually came back into the room and indicated on a written note that he needed to search her bedroom.
An ASL interpreter eventually arrived in response to Plaintiff’s earlier communication via her pager. The police allegedly did not give this interpreter access to Plaintiff. The police eventually gave the interpreter access in order to facilitate communication, but the police did not pay her. Plaintiff alleges that prior to the interpreter arriving at the scene, no officers were successful in communicating any information concerning Mr. Spencer's condition or the purpose, phase, or results of their investigation.
Plaintiff alleges that as a result of the New Braunfels police and emergency personnel's actions and inactions and discriminatory conduct, she has sustained damages including but not limited to loss of self esteem, emotional distress, mistrust of the police, continued feelings of isolation, and segregation. Plaintiff alleges that the police never provided her with the name of their ADA or Section 504 Coordinator or information concerning how she could obtain appropriate auxiliary aids or services in order to follow-up on the results of their investigation. Furthermore, she
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Case 5:06-cv-00729-XR Document 11 Filed 12/18/2006 Page 4 of 10
alleges that the City’s police department lacks a coherent policy for responding to the basic and consistent communication needs of deaf and hard of hearing residents, in violation of Section 504 and the ADA.
Plaintiff brought a claim against the City under Section 504, claiming that she is a qualified individual with a disability. She seeks to enjoin the City from committing further violations of Section 504, which she claims are likely to be repeated due to the City’s alleged deficient police practices in servicing individuals who are deaf or hard of hearing. Plaintiff also brought a claim under the ADA, claiming that the city failed to ensure that communications with her were as effective as communications with non-disabled individuals, failed to provide auxiliary aids and services, failed to modify policies, practices and procedures to avoid discrimination, and failed to provide notice of the designated ADA Coordinator, all in violation of the ADA’s implementing regulations.
In its motion to dismiss, the City argues that its officers did attempt to locate an interpreter but were unsuccessful. The City points out that an interpreter did eventually arrive on the scene in order to facilitate communication. Based on the Fifth Circuit case of Hainze v. Richards, the City argues that Plaintiff’s ADA and Section 504 claims, which arose in the context of law enforcement activity, must be dismissed. Additionally, the City asserts that Plaintiff’s reporting of an incident wherein she requested [that] police respond to her apartment does not fall in the category of “services, programs or activities of a public entity” of Title II as contemplated in Hainze.
II. Legal Analysis A. Legal standard for motion to dismiss
In considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the Court must accept
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Case 5:06-cv-00729-XR Document 11 Filed 12/18/2006 Page 5 of 10
all well-pleaded facts as true and view them in the light most favorable to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). The issue is not whether the plaintiff will prevail but whether the plaintiff is entitled to pursue his complaint and offer evidence in support of his claims. Doe v. Hillsboro Indep. Sch. Dist., 81 F.3d 1395, 1401 (5th Cir. 1996). The Court may not look beyond the pleadings in ruling on the motion. Baker, 75 F.3d at 196. Motions to dismiss are disfavored and are rarely granted. Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 164 (5th Cir. 1999). Dismissal should not be granted “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id. at 164 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). However, the Court does not accept conclusory allegations or unwarranted deductions of fact as true. Tuchman v. DSC Commc'ns Corp., 14 F.3d 1061, 1067 (5th Cir. 1994). B. The City’s motion to dismiss Plaintiff’s ADA and Section 504 claims is DENIED
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. A “public entity” includes “any department, agency, special purpose district, or other instrumentality of a State or States or local government.” 42 U.S.C. § 12131(1)(B). The language of Title II generally tracks the language of Section 504 of the Rehabilitation Act of 19731,
129 U.S.C. § 794(a). Section 504 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 . . . .” Id. A “program or activity” includes “all of the operations of . . . a department, agency, special purpose district, or other instrumentality of a State or of a local government . . . .” 29 U.S.C. § 794(b)(1)(A).
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Case 5:06-cv-00729-XR Document 11 Filed 12/18/2006 Page 6 of 10
and Congress' intent was that Title II extend the protections of the Rehabilitation Act “to cover all programs of state or local governments, regardless of the receipt of federal financial assistance” and that it “work in the same manner as Section 504.” H.R.Rep. No. 101-485, pt. III at 49-50 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 472-73. In fact, the statute specifically provides that “[t]he remedies, procedures and rights” available under Section 504 shall be the same as those available under Title II. 42 U.S.C. § 12133. The Fifth Circuit has held that jurisprudence interpreting either section is applicable to both. Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000). Title II further directs the Attorney General to promulgate regulations to effectuate the statute's purpose. 42 U.S.C. § 12134(a) (see 28 C.F.R. § 35, et seq.).
Courts have broadly construed the “services, programs, or activities” language in the ADA and the Rehabilitation Act to encompass “anything a public entity does.” Burden v. City of Sacramento, 292 F.3d 1073, 1076 (9th Cir. 2002) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir. 2001)); Yeskey v. Pa. Dep't of Corr., 118 F.3d 168, 171 (3d Cir. 1997), aff’d 524 U.S. 206 (1998); see Johnson v. City of Saline, 151 F.3d 564, 569 (6th Cir. 1998)(concluding that “services, programs, and activities include all government activities” and that the language “encompasses virtually everything that a public entity does”); Innovative Health Sys,, Inc. v. City of White Plains, 117 F.3d 37, 45 (2d Cir. 1997), superseded on other grounds by Zervos v. Verizon New York, Inc., 252 F.3d 163, 171 n.7 (2d Cir. 2001) (stating that the “services, programs, activities” language of Title II “is a catch-all phrase that prohibits all discrimination by a public entity, regardless of the context”); 29 U.S.C. § 794(b)(l)(A) (defining “program or activity” as used in the Rehabilitation Act as “all of the operations of” a qualifying local government); H.R. Rep. No. 101-485(II), at 84 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 367 (noting that Title II “simply
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Case 5:06-cv-00729-XR Document 11 Filed 12/18/2006 Page 7 of 10
extends the anti-discrimination prohibition embodied in Section 504 [of the Rehabilitation Act] to all actions of state and local governments”). It would appear that a municipality’s 911 emergency response services would fall within the category of “services, programs, or activities” covered by the ADA and Section 504.
A disabled plaintiff can succeed in an action under Title II if she can show that, by reason of her disability, she was either “excluded from participation in or denied the benefits of the services, programs, or activities of a public entity,” or was otherwise “subjected to discrimination by any such entity.” Hainze, 207 F.3d at 799. A municipal police department qualifies as a public entity. See id. “The broad language of the statute and the absence of any stated exceptions has occasioned the courts' application of Title II protections into areas involving law enforcement.” Id.
Hainze stands for the limited proposition that an on-the-street police response to a disturbance involving a mentally or physically disabled suspect does not fall within the ambit of Title II prior to the officer’s securing of the scene and ensuring that there is no threat to human life. Id. at 800. The Court does not believe that Plaintiff’s case falls within this category. The Fifth Circuit stated that “[a] necessary prerequisite to a successful claim under Title II is that a disabled person be denied the benefits of a service, program or activity by the public entity that provides such service, program or activity.” Id. at 801. The Fifth Circuit further stated:
[W]e hold that Title II does not apply to an officer's on-the-street responses to reported disturbances or other similar incidents, whether or not those calls involve subjects with mental disabilities, prior to the officer's securing the scene and ensuring that there is no threat to human life. Law enforcement personnel conducting in-the-field investigations already face the onerous task of frequently having to instantaneously identify, assess, and react to potentially life-threatening situations. To require the officers to factor in whether their actions are going to comply with the ADA, in the presence of exigent circumstances and prior to securing the safety of themselves, other officers, and any nearby civilians, would pose an unnecessary risk
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Case 5:06-cv-00729-XR Document 11 Filed 12/18/2006 Page 8 of 10
to innocents. While the purpose of the ADA is to prevent the discrimination of disabled individuals, we do not think Congress intended that the fulfillment of that objective be attained at the expense of the safety of the general public. 207 F.3d at 801. Once the area was secure and there was no threat to human safety, the Williamson County Sheriff's deputies would have been under a duty to reasonably accommodate Hainze's disability in handling and transporting him to a mental health facility. That would have put this case squarely within the holdings of Pennsylvania Dep't of Corrections v. Yeskey and the cases that have followed. But that was not the situation at bar. 207 F.3d at 802. Plaintiff has alleged that the City is a recipient of federal funds and is subject to the ADA and Section 504. Complaint, Docket No. 1, ¶ 6. Plaintiff has also alleged that she is a disabled person who has been denied the benefits of a service, namely the City’s 911 emergency response services. The City has not alleged that Plaintiff was a suspect in the death of her boyfriend, and even if she was, there is no evidence that she was a threat to the safety of the officers or that the scene was not secure. Furthermore, the City has not denied that it is the recipient of federal funds. Viewing the facts in the light most favorable to Plaintiff, the scene was secure shortly after the police arrived, Plaintiff did not pose a threat to the safety of the officers, and Plaintiff requested reasonable accommodations for her disability, which were denied to her. The City cites to Bircoll v. Miami-Dade County, 410 F. Supp.2d 1270 (S.D. Fla. 2006) for the proposition that Plaintiff’s claims must be dismissed. Bircoll held that “the ADA does not apply to on-the-street DUI stop” of a deaf individual, which is a holding in line with Hainze. 410 F. Supp.2d at 1285. Both Hainze and Bircoll suggest that after the New Braunfel’s police arrived at a scene in response to Plaintiff’s 911 call and discovered that she was deaf and needed an interpreter, the officers were under a duty to reasonably accommodate her disability, so long as the area was
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Case 5:06-cv-00729-XR Document 11 Filed 12/18/2006 Page 9 of 10
secure and there was no threat to human safety. The Court also notes that this case is extremely similar to the case cited by Plaintiff in her
response: Center v. City of West Carrollton, 227 F. Supp.2d 863 (S.D. Ohio 2002). This case, read in conjunction with Hainze, strongly supports the argument that a City’s 911 emergency response services fall within the category of “services, programs or activities of a public entity” covered by the ADA and Section 504. In Center, the plaintiff sued the City of West Carrollton for its alleged failure to provide appropriate auxiliary aids and services to a deaf 911-caller after the police arrived at the scene. Id. at 864. The plaintiff alleged that the officer denied her request for a qualified interpreter, that she could not adequately communicate with the officer, and that she suffered emotional distress. Id. The City of West Carrollton argued that the officer who responded to Plaintiff’s call was able to communicate effectively with her and did not need the assistance of an interpreter. Id. at 866. In denying the City’s motion for summary judgment, the district court held that the effectiveness of auxiliary aids and/or services is a question of fact precluding summary judgment, and a jury was necessary to determine whether the officer’s use of handwritten notes to communicate with Plaintiff was effective. Id. at 870. For purposes of this motion to dismiss, the Court is not holding that the auxiliary aids or services provided to Plaintiff were, in fact, ineffective for purposes of the ADA and Section 504; rather, the Court is merely holding that Plaintiff has stated a valid claim, which if proven, would entitle her to relief. Viewing the evidence in the light most favorable to Plaintiff, the Court finds that she has alleged viable ADA and Section 504 claims against the City of New Braunfels.
III. Conclusion The City’s motion to dismiss is DENIED (Docket No. 4).
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Case 5:06-cv-00729-XR Document 11 Filed 12/18/2006 Page 10 of 10 It is so ORDERED. SIGNED this 18th day of December, 2006. _________________________________ XAVIER RODRIGUEZ UNITED STATES DISTRICT JUDGE
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 Case 5:06-cv-00729-XR Document 40 Filed 03/17/08 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

MARIA SALINAS,

§

Plaintiff,

§

§

§

v.

§

§

Civil Action No. SA-06-CA-0729XR

§

CITY OF NEW BRAUNFELS,

§

§

Defendant.

§

PLAINTIFF'S MOTION IN LIMINE

Plaintiffrespectfully files this Motion in Limine. Plaintiffrequests that the parties, counsel

for the parties, and, through counsel, any and all witnesses be instructed to refrain from asking about

or mentioning, directly or indirectly, any of the matters contained in this Motion in Limine.

Specifically, Plaintiff requests that the Court exclude from evidence at trial any testimony or

documents regarding the following:

A. Reference to any drug use by Edwin Spencer. Plaintiff requests that all exhibits on which

the names ofmedications appear be redacted, and that the jury be specifically instructed not

to concern itself with the decision of the Court to redact this personal information.

B. Any testimony by any defense expert witnesses, since none were identified.
c. . Any reference or suggestion that Defendant has employed or attempted to employ

individuals with disabilities, or that it generally treats people with disabilities in a fair

manner. Such evidence would be irrelevant, confusing and highly prejudicial pursuant to

F.R.E. 401 and 403. The issue for the jury is not what happened to others, but what

happened to Salinas.

Salinas v. City a/New Braunfels - Civil Action SA-06-CA-0729XR Plaintiff Maria Salinas' Motion in Limine

Case 5:06-cv-00729-XR Document 40 Filed 03/17/08 Page 2 of 7
D. Reference to alleged tattoos of Edwin Spencer. E. Any reference that Salinas is or has been involved in any grievance, claim or lawsuit or has
settled any claim which lawsuit or claim was unrelated to the subject ofthe present action for the reason that such matters are irrelevant to the issues ofthis case and are highly prejudicial to Salinas. F. Any and all references to alleged prior arrests, detention, or prior interaction with law enforcement officers. G. References to any prior relationships Maria Salinas may have had with men other than Mr. Spencer. H. Any reference or stating to the jury that Salinas was cohabiting with or was involved in a sexual relationship with Mr. Spencer, for such evidence would prejudicial and not probative of any controlling issue of fact. I. Any reference to herpes or any sexually transmitted disease. Plaintiff specifically requests that the Defendant not refer to any "diagnosis" or "medical information received" by Ms. Salinas. References to her having been diagnosed or having received other information might cause the jury to suspect that she has a stigmatizing disease. J. The undue burden or fundamental alteration defenses or any evidence that providing a sign language interpreter would have been costly, expensive, inconvenient, or administratively burdensome. Defendant has not presented any facts supporting the administrative and fiscal
defenses available under the ADA. See Plaintiffs Response to Defendant's Motion for
Summary Judgment, Exhibit 22 (Supplemental Response to Interrogatory No.2, Response to Interrogatory No.6). Nor did Defendant comply with the regulations governing these
Salinas v. City a/New Braunfels - Civil Action SA-06-CA-0729XR Plaintiff Maria Salinas' Motion in Limine

Case 5:06-cv-00729-XR Document 40 Filed 03/17/08 Page 3 of 7
defenses, as the decision not to provide Ms. Salinas with an interpreter was not made by the head of the public entity, and no written statement was provided to Ms. Salinas. Finally, Defendant has conceded that providing an interpreter to Ms. Salinas would not have created an undue financial burden. Ex. 22 (Request for Admission No. 11).
If Defendant had presented evidence of an undue burden or fundamental alteration, those defenses would involve fact issues to be resolved by the jury. In this case, because Defendant did not raise any affirmative defenses in its answer or in its motion for summary judgment, and has failed to provide any facts supporting these defenses in response to Plaintiffs discovery on these issues, the defenses have been waived and are not before this Court. Automated Med. Labs., Inc. v. Armour Pharm. Co., 629 F.2d 1118, 1123 (5th Cir. 1980) (when defendant has waived his affirmative defense by failing to allege it in his answer and other pleadings, defense has been waived).
For these reasons Defendant must be precluded from making any reference to the cost or administrative difficulties it might have or would have incurred in calling for and paying for a sign language interpreter. References to cost or administrative difficulty or burden before the jury would likely prejudice the jury against Plaintiff, causing them to conclude that costs or administrative burdens would be significant, when in fact Defendant has not provided any facts to Plaintiff that would so suggest. K. Maria Salinas' application or attempted application to receive social security or other governmental benefit.
L. Maria Salinas' application for or receipt of unemployment benefits.
M. The use of video relay services or video phone as a means by which Maria Salinas could have communicated with Defendant. Ms. Salinas has a video phone with which she can call
3 Salinas v. City ofNew Braunfels - Civil Action SA-06-CA-0729XR Plaintiff Maria Salinas' Motion in Limine

Case 5:06-cv-00729-XR Document 40 Filed 03/17/08 Page 4 of 7
hearing people at another location through an interpreter through Video Relay Services (VRS). Defendant implied in its Motion for Summary Judgment that Plaintiff should have used this video phone in order to communicate with the police on the scene. As Plaintiffhas previously briefed, Defendant is not set up to receive such a call, and Ms. Salinas was prevented by Defendant from using her video phone in any case.
More important, VRS may not be used for communications between deafindividuals and hearing individuals who are at the same location or site. See Plaintiffs Response to Defendant's Motion for Summary Judgment, Exhibit 27. VRS is a free relay service designed to give deaf persons the same degree of access to telephone services as hearing individuals enjoy. It therefore may not be used by a deafto communicate with a hearing person who is physically present at the same site, as Defendant suggests.
Defendant must be prohibited suggesting that VRS (or Ms. Salinas' video phone) might have been used between to facilitate communication between Ms. Salinas and any of Defendant's employees. Mentioning this possibility - which would have been unlawful and which Defendant's own actions made impossible in any event - will likely confuse the jury and could result in their erroneously thinking that VRS might have been used between Ms. Salinas and Defendant on the evening in question. N. Any reference to any of Salinas's personal habits such as smoking, drinking, or swearing in an effort to impugn his character as such are not relevant to the issues of this case and are prejudicial to her. F.R.E. 401 and 403. O. That this Motion in Limine has been filed or any ruling by the Court in response to this Motion in Limine, suggesting or inferring to the jury that Salinas has moved to prohibit certain matters from being heard by the jurors, or that the Court has excluded certain matters
4 Salinas v. City ofNew Braunfels - Civil Action SA-06-CA-0729XR Plaintiff Maria Salinas' Motion in Limine

Case 5:06-cv-00729-XR Document 40 Filed 03/17/08 Page 5 of 7

from the hearing of the jury. F.RE.401.

P.

Any reading or reference to comments or statements of attorneys, other than questions to

witnesses, contained in any deposition taken in this case because such constitutes unsworn

testimony or statements. F.RE. 603.

Q. Any mention or reference that a recovery by Salinas may not be subject to federal income

taxation. F.RE. 401 and 403.

R

Any mention that Salinas has retained his attorneys on a contingency fee basis since such

information is irrelevant since this Court will determine the fees she is entitled to recover on

an hourly basis pursuant to statute if she prevails. F.RE. 401 and 403.

S.

Any mention of or reference to any witness who was equally available to either party, was

not called as a witness, or to what would have been the testimony of any witness who was

not actually called to testify. F.RE. 401 and 403.

T.

Any reference to when, or how Salinas obtained legal counsel.

U. Any reference to the financial arrangements with, or the financial strength of, Salinas's

counsel.

V. Any reference or suggestion that Salinas, by this suit, seeks "preferential treatment" in that

the duties imposed on Defendant are duties imposed by law.

Plaintiff respectfully submits that each of the matters set out in this Motion in Limine is

inadmissible for any purpose, is unduly prejudicial, and would be excluded from evidence on timely

and proper objection.

Respectfully submitted,

By:

/s/ Lucy D. Wood

LUCYD.WOOD
5 Salinas v. City ofNew Braunfels - Civil Action SA-06-CA-0729XR Plaintiff Maria Salinas' Motion in Limine

Case 5:06-cv-00729-XR Document 40 Filed 03/17/08 Page 6 of 7
State Bar No. 24013780 7800 Shoal Creek Blvd., Suite 142-S Austin, Texas 78757 (512) 454-4816 (Phone) (512) 302-4936 (Fax) THOMAS J. CRANE State Bar No. 05007320 6800 Park Ten Blvd, Suite 208-N San Antonio, Texas 78213 (210) 737-0499 (PHONE) (210) 737-2403 (FAX) JOHN W. GRIFFIN State Bar No. 08460300 Marek, Griffin & Knaupp 203 N. Liberty St. Victoria, Texas 77901 (361) 573-5500 (PHONE) (361) 573-5040 (FAX)
ATTORNEYS FOR PLAINTIFF
6 Salinas v. City ofNew Braunfels - Civil Action SA-06-CA-0729XR Plaintiff Maria Salinas' Motion in Limine

Case 5:06-cv-00729-XR Document 40 Filed 03/17/08 Page 7 of 7
CERTIFICATE OF CONFERENCE Plaintiff's counsel certifies that she has attempted to confer with Defendant's counsel before the filing of this document. Defense counsel has not been available and has not commented on the draft sent him via email.
CERTIFICATE OF SERVICE I hereby certify that on this 17th day of March, 2008, a true and correct copy of the foregoing document was sent electronically to the person listed below in accordance with the Local Rules for the U.S. District Court for the Western District of Texas: Charles S. Frigerio Riverview Towers 111 Soledad, Suite 840 San Antonio, Texas 78205 Attorneyfor Defendant
/s/ Lucy D. Wood LUCYD.WOOD
7 Salinas v. City ofNew Braunfels - Civil Action SA-06-CA-0729XR Plaintiff Maria Salinas' Motion in Limine

 
 Case 5:06-cv-00729-XR Document 40-1 Filed 03/17/08 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

MARIA SALINAS, Plaintiff,
V.
CITY OF NEW BRAUNFELS, Defendant.

§

§

§

§

§

§

Civil Action No. SA-06-CA-0729XR

§

§

§

§

ORDER GRANTING PLAINTIFF'S MOTION IN LIMINE

Before the Court is Plaintiff's Motion in Limine filed March 17, 2008. The Court finds

that the motion has merit and should be granted.

Accordingly, IT IS HEREBY ORDERED that Plaintiff's Motion in Limine is

GRANTED. The Court specifically orders that parties, counsel for the parties, and, through

counsel, any and all witnesses are instructed to refrain from asking about or mentioning, directly

or indirectly, any of the following matters:

A. Reference to methadone or other drugs found with Edwin Spencer. All exhibits on

which the names of his medications appear will be redacted, and the jury specifically

instructed not to concern itself with the decision of the Court to redact this personal

information.

B. Any testimony by any defense expert witnesses, since none were identified.

C. Any reference or suggestion that Defendant has employed or attempted to employ

individuals with disabilities, or that it generally treats people with disabilities in a

fair manner.

Salinas v. City ofNew Braunfels - Civil Action SA-06-CA-0729XR PlaintiffMaria Salinas' Motion in Limine

Case 5:06-cv-00729-XR Document 40-1 Filed 03/17/08 Page 2 of 3
D. Reference to alleged tattoos of Edwin Spencer. E. Any reference that Salinas is or has been involved in any grievance, claim or lawsuit or
has settled any claim which lawsuit or claim was unrelated to the subject of the present action. F. Any and all references to alleged prior arrests, detention, or prior interaction with law enforcement officers. G. References to any prior relationships Maria Salinas may have had with men other than Mr. Spencer. H. Any reference or stating to the jury that Salinas was cohabiting with or was involved in a sexual relationship with Mr. Spencer I. Any reference to herpes or any sexually transmitted disease. It is specifically ordered that the Defendant not refer to any "diagnosis" or "medical information received" by Ms. Salinas. J. The undue burden or fundamental alteration defenses or any evidence that providing a sign language interpreter would have been costly, expensive, inconvenient, or administratively burdensome. K Maria Salinas' application or attempted application to receive social security or other governmental benefit. L. Maria Salinas' application for or receipt of unemployment benefits. M. The use of video relay services or video phone as a means by which Maria Salinas could have communicated with Defendant. N. Any reference to any ofSalinas's personal habits such as smoking, drinking, or swearing in an effort to impugn her character.
Salinas v. City ofNew Braunfels - Civil Action SA-06-CA-0 729XR PlaintiffMaria Salinas' Motion in Limine

Case 5:06-cv-00729-XR Document 40-1 Filed 03/17/08 Page 3 of 3

0. That this Motion in Limine has been filed or any ruling by the Court in response to this

Motion in Limine, suggesting or inferring to the jury that Salinas has moved to prohibit

certain matters from being heard by the jurors, or that the Court has excluded certain

matters from the hearing of the jury.

P.

Any reading or reference to comments or statements of attorneys, other than questions to

witnesses, contained in any deposition taken in this case.

Q. Any mention or reference that a recovery by Salinas may not be subject to federal

income taxation.

R

Any mention that Salinas has retained his attorneys on a contingency fee basis.

S.

Any mention of or reference to any witness who was equally available to either party,

was not called as a witness, or to what would have been the testimony of any witness

who was not actually called to testify.

T.

Any reference to when, or how Salinas obtained legal counsel.

U. Any reference to the financial arrangements with, or the financial strength of, Salinas's

counsel.

V. Any reference or suggestion that Salinas, by this suit, seeks "preferential treatment" in

that the duties imposed on Defendant are duties imposed by law.

It is so ORDERED.

Signed this _ _ _ _day of _ _ _ _ _ _ _ _, 2008.

XAVIER RODRIGUEZ UNITED STATES DISTRICT JUDGE
3 Salinas v. City ofNew Braunfels - Civil Action SA-06-CA-0729XR PlaintiffMaria Salinas' Motion in Limine

 
 Case 5:06-cv-00729-XR Document 63 Filed 04/28/08 Page 1 of 1
A!~L8~~8f

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

CLERK, U.S. DISTRICT COURT WESTERN DISTRICT OF TEXAS
By-------.b~E~P~O·TY~C~LWE·RVR

MARIA SALINAS, Plaintiff,
VS. CITY OF NEW BRAUNFELS,
Defendant.

) ) ) )
) Civil Action No. SA-06-CA-729-XR
) ) ) ) )

ORDER The Court has received notification that the above-numbered and styled case has settled. Accordingly, the Court VACATES all remaining deadlines and settings. To ensure that this case does not remain on the Court's docket in the absence ofa live controversy, the Court ORDERS the parties to submit a stipulation of dismissal or an agreed judgment and any appropriate supporting documents on or before May 9,2008. See FED. R. Crv. P. 41(a). Should the parties be unable to submit those documents by that date, the Plaintiff must request an extension of time to file the documents. Should the parties fail to file documents for an appropriate disposition ofthis case, a show cause order may issue directing the Plaintiff to show cause why this case should not be dismissed for failure to prosecute. Id. R. 41 (b). It is so ORDERED. SIGNED this 28th day of April, 2008.

XAVIER RODRIGUEZ UNITED STATES DISTRICT JUDGE

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 Case 5:06-cv-00729-XR Document 72 Filed 05/14/08 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

FILED

MAY 1 4 2008

~.. ;K, U.!. 0

ICT CG'.. . T Of TE.XAS

WESTERN DIS \

IV

UTY CLE.RK

MARIA SALINAS, Plaintiff
VS.
CITY OF NEW BRAUNFELS, Defendant.

§ §
§
§ § CIVIL ACTION NO. SA-06-CA-0729-XR
§ §
§
§

ORDER OF DISMISSAL

On this day came on to be heard the parties' Joint Motion for Entry of Order of Dismissal.

After reviewing said Motion and the Settlement Agreement submitted by the parties, the Court finds

that the parties have settled all claims and/or causes of action asserted by and/or on behalf of

Plaintiff Maria Salinas in this Civil Action, as evidenced by their signatures on the attached

Settlement Agreement. The court finds, pursuant to Fed. R. Civ. P. 41 (a)(2), that the terms set forth

in the Settlement Agreement, attached hereto and incorporated for all purposes, constitute the terms

and conditions under which the Court deems the dismissal of this suit proper.

It is hereby ORDERED that the parties comply with the terms ofthe Settlement Agreement.

It is further ORDERED that the above-styled action is hereby DISMISSED with prejudice.

The Clerk shall enter this Order and provide a copy to all parties.

~X'ctay Signed this l

of May, 2008.

XAVIER RODRIGUEZ UNITED STATES DISTRICT JUDGE

 
 U.S. District Court [LIVE] Western District of Texas (San Antonio) CIVIL DOCKET FOR CASE #: 5:06−cv−00729−XR

CLOSED, NSN

Salinas v. City of New Braunfels Assigned to: Judge Xavier Rodriguez Demand: $50,000 Cause: 29:0794 Job Discrimination (Handicap)
Plaintiff Maria Salinas

Date Filed: 08/24/2006 Date Terminated: 05/14/2008 Jury Demand: Both Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question
represented by John Griffin , Jr. Marek, Griffin &Knaupp 203 N. Liberty Street Victoria , TX 77901 (361) 573−5500 Fax: (361) 573−5040 Email: jwg@lawmgk.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lucy D. Wood Advocacy, Inc. 7800 Shoal Creek Blvd. Suite 142−S Austin , TX 78757 (512) 454−4816 Fax: 512/302−4936 Email: lwood@advocacyinc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas Joseph Crane Advocacy, Inc. 6800 Park 10 Blvd., Suite 208N San Antonio , TX 78213 (210)737−0499 Fax: (210)737−2403 Email: tcrane@advocacyinc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant City of New Braunfels

represented by Charles Straith Frigerio Attorney at Law Riverview Towers 111 Soledad Suite 840 San Antonio , TX 78205 210/271−7877 Fax: 210/271−0602 Email: frigeriolaw1995@sbcglobal.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hector Xavier Saenz Law Ofcs. Of Chas. S Frigerio Commerce Plaza Building

Date Filed 08/24/2006 08/24/2006 08/24/2006 08/30/2006 09/13/2006 09/14/2006 09/22/2006
09/25/2006
10/20/2006
11/06/2006 11/17/2006
12/18/2006 12/19/2006

111 Soledad Suite 840 San Antonio , TX 78205 (210) 271−7877 Fax: 210/271−0602 Email: frigeriolaw1995@sbcglobal.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Docket Text

1 COMPLAINT ( Filing fee $ 350 receipt number 202641), filed by Maria Salinas. (Attachments: # 1 Civil Cover Sheet)(bn, ) (Entered: 08/24/2006)

2 Summons Issued as to City of New Braunfels. (bn, ) (Entered: 08/24/2006)

If ordered by the court, all referrals will be assigned to Magistrate Judge Primomo (bn, ) (Entered: 08/24/2006)

3 SUMMONS Returned Executed by Maria Salinas. City of New Braunfels served on 8/29/2006, answer due 9/18/2006. (rf) (Entered: 08/31/2006)

4 MOTION to Dismiss by City of New Braunfels. (Attachments: # 1 Proposed Order OF DISMISSAL)(Frigerio, Charles) (Entered: 09/13/2006)

5 Original ANSWER to Complaint with Jury Demand by City of New Braunfels.(rf) (Entered: 09/15/2006)

6 RESPONSE to Motion re 4 MOTION to Dismiss, filed by Maria Salinas. (Attachments: # 1 Exhibit Exhibit A# 2 Proposed Order Proposed Order Denying Motion to Dismiss)(Wood, Lucy) (Entered: 09/22/2006)

7 ORDER AND ADVISORY: Notice of right to consent to disposition of a civil case by a U.S. Magistrate Judge., Order for Scheduling Recommendations/Proposed Scheduling Order. Plaintiff shall submit a scheduling recommendations/proposed scheduling order to the Court by 11/13/2006. Signed by Judge Xavier Rodriguez. (rf) (Entered: 09/25/2006)

8 CONSENT/NON−CONSENT to Trial by US Magistrate Judge by Maria Salinas Received. (Document is sealed pursuant to the Electronic Filing Procedures for the Western District of Texas). (rf) (Entered: 10/20/2006)

9 Scheduling Recommendations Joint Proposed by City of New Braunfels. (Frigerio, Charles) (Entered: 11/06/2006)

10 SCHEDULING ORDER: Pretrial Conference set for 11/15/2007 9:30 AM before Honorable Xavier Rodriguez. Jury Selection set for 11/26/2007 9:30AM before Honorable Xavier Rodriguez. Jury Trial set for 11/26/2007 9:30 AM before Honorable Xavier Rodriguez. ADR Report Deadline due by 12/20/2006. Amended Pleadings due by 4/19/2007. Discovery due by 7/31/2007. Motions due by 8/31/2007. Signed by Judge Xavier Rodriguez. (rf) (Entered: 11/20/2006)

11 ORDER denying 4 Motion to Dismiss. Signed by Judge Xavier Rodriguez. (rf) (Entered: 12/18/2006)

12 ADR Report Filed − NON−CONSENT to Alternate Dispute Resolution (ADR) by City of New Braunfels(Frigerio, Charles) (Entered: 12/19/2006)

12/19/2006 12/29/2006 03/13/2007 03/20/2007 04/12/2007 04/13/2007
04/17/2007 06/21/2007 06/21/2007 06/22/2007
07/06/2007 07/09/2007
07/17/2007 10/11/2007 10/30/2007

13 ADR Report Filed − CONSENT to Alternate Dispute Resolution (ADR) by Maria Salinas(Wood, Lucy) (Entered: 12/19/2006)
14 Pretrial Disclosures by City of New Braunfels. (Frigerio, Charles) (Entered: 12/29/2006)
15 CONSENT/NON−CONSENT to Trial by US Magistrate Judge by City of New Braunfels Received. (Document is sealed pursuant to the Electronic Filing Procedures for the Western District of Texas). (rf) (Entered: 03/13/2007)
16 Pretrial Disclosures First Supplemental by City of New Braunfels. (Frigerio, Charles) (Entered: 03/20/2007)
17 Joint MOTION to Extend Scheduling Order Deadlines by Maria Salinas, City of New Braunfels. (Attachments: # 1 Proposed Order # 2 Proposed Order)(Wood, Lucy) (Entered: 04/12/2007)
18 FIRST AMENDED SCHEDULING ORDER: granting 17 Joint MOTION to Extend Scheduling Order Deadlines. Pretrial Conference reset for 12/19/2007 10:00 AM before Honorable Xavier Rodriguez. Jury Selection reset for 1/7/2008 9:30 AM before Honorable Xavier Rodriguez. Jury Trial reset for 1/7/2008 9:30 AM before Honorable Xavier Rodriguez. Discovery due by 9/5/2007. Motions due by 10/5/2007. Signed by Judge Xavier Rodriguez. (rf) (Entered: 04/16/2007)
19 Pretrial Disclosures Second Supplemental by City of New Braunfels. (Frigerio, Charles) (Entered: 04/17/2007)
20 Joint MOTION to Extend Scheduling Order Deadlines and ORDER by Maria Salinas, City of New Braunfels. (Attachments: # 1 Proposed Order Extension of Deadline)(Wood, Lucy) Modified on 6/21/2007, to add filer (rf). (Entered: 06/21/2007)
Notice of Correction: **NOTIFIED COUNSEL OF ADDITION OF FILER** re 20 Joint MOTION to Extend Scheduling Order Deadlines and ORDER. (rf) (Entered: 06/21/2007)
21 ORDER granting 20 Joint MOTION to Extend Scheduling Order Deadlines.Discovery due by 9/5/2007. Motions due by 10/5/2007. Jury Selection reset for 1/7/2008 9:30 AM before Honorable Xavier Rodriguez. Jury Trial reset for 1/7/2008 9:30 AM before Honorable Xavier Rodriguez. Pretrial Conference set for 12/19/2007 10:00 AM before Honorable Xavier Rodriguez. Signed by Judge Xavier Rodriguez. (rf) (Entered: 06/22/2007)
22 Third MOTION to Extend Scheduling Order Deadlines by Maria Salinas. (Attachments: # 1)(Wood, Lucy) (Entered: 07/06/2007)
23 ORDER granting 22 Third MOTION to Extend Scheduling Order Deadlines filed by Maria Salinas.Discovery due by 12/4/2007.,Motions due by 1/3/2008., Jury Selection reset for 4/7/2008 9:30 AM before Honorable Xavier Rodriguez., Jury Trial reset for 4/7/2008 9:30 AM before Honorable Xavier Rodriguez., Pretrial Conference reset for 3/19/2008 10:00 AM before Honorable Xavier Rodriguez. Signed by Judge Xavier Rodriguez. (rf, ) (Entered: 07/09/2007)
24 Pretrial Disclosures Third Supplemental by City of New Braunfels. (Frigerio, Charles) (Entered: 07/17/2007)
25 WITNESS/EXHIBIT/EXPERT LIST by Maria Salinas. (Wood, Lucy) (Entered: 10/11/2007)
26 WITNESS/EXHIBIT/EXPERT LIST by City of New Braunfels Designation of. (Attachments: # 1 Exhibit A − Expert CV)(Frigerio, Charles) (Entered: 10/30/2007)

11/26/2007 01/03/2008
01/07/2008 01/07/2008 02/06/2008 02/06/2008
02/07/2008 02/07/2008 02/13/2008 02/13/2008 02/13/2008 02/14/2008

27 WITNESS/EXHIBIT/EXPERT LIST by Maria Salinas. (Wood, Lucy) (Entered: 11/26/2007)
28 MOTION for Summary Judgment by City of New Braunfels. (Attachments: # 1 Affidavit Attorney Charles Frigerio, # 2 Exhibit A − Deposition of Salinas, # 3 Exhibit A−1 Con't Deposition of Salinas, # 4 Exhibit B − Deposition Skrzyki, # 5 Exhibit B1 − Con't Deposition Skrzyki, # 6 Exhibit C − Deposition of Baker, # 7 Exhibit C1 − Con't Deposition of Baker, # 8 Exhibit D − Police Reports, # 9 Exhibit E − Deposition of Holder, # 10 Proposed Order)(Frigerio, Charles) (Entered: 01/03/2008)
29 Joint MOTION for Extension of Time to File Response/Reply to Motion for Summary Judgment by Maria Salinas, City of New Braunfels. (Attachments: # 1 Proposed Order Extension of Deadline to File Response to Motion for Summary Judgment)(Wood, Lucy) (Entered: 01/07/2008)
30 ORDER granting 29 Motion for Extension of Time to File Response to Motion for Summary Judgment. The response is due by 2/7/07. Signed by Judge Xavier Rodriguez. (rf) (Entered: 01/08/2008)
31 Unopposed MOTION for Leave to Exceed Page Limitation by Maria Salinas. (Attachments: # 1 Proposed Order Granting Plaintiff's Unopposed Motion for Leave to File Response in Excess of Fifteen Pages)(Wood, Lucy) (Entered: 02/06/2008)
32 RESPONSE to Motion, filed by Maria Salinas, re 28 MOTION for Summary Judgment filed by Defendant City of New Braunfels (Attachments: # 1 Proposed Order Denying Defendant's Motion for Summary Judgment, # 2 Appendix, # 3 Exhibit 1, # Exhibit 2, # 5 Exhibit Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit 16, # 19 Exhibit 17, # 20 Exhibit 18, # 21 Exhibit 19, # 22 Exhibit 20, # 23 Exhibit 21, # 24 Exhibit 22, # 25 Exhibit 23, # 26 Exhibit 24, # 27 Exhibit 25, # 28 Exhibit 26, # 29 Exhibit 27)(Wood, Lucy) (Additional attachment(s) added on 2/14/2008: # 30 corrected exhibit #2) (rf, ). (Entered: 02/06/2008)
33 ORDER granting 31 Motion for Leave to File Response in Excess Pages. Signed by Judge Xavier Rodriguez. (rf) (Entered: 02/07/2008)
34 NOTICE of Filing Exhibits by Maria Salinas (2 discs not available electronically) (rf) (Entered: 02/07/2008)
35 MOTION for Leave to File Plaintiff's Exhibit 2 by Maria Salinas. (Attachments: # 1 Proposed Order, # 2 Exhibit 2)(Wood, Lucy) (Entered: 02/13/2008)
36 NOTICE of Attorney Appearance by Hohn W. Griffin on behalf of Maria Salinas (Wood, Lucy) Modified on 2/13/2008, to edit text (rf). (Entered: 02/13/2008)
Notice of Correction: ***NOTIFIED COUNSEL OF MODIFICATION OF TEXT TO REFLECT THE NOTICE OF APPEARANCE IS ON BEHALF OF JOHN W. GRIFFIN****re 36 Notice of Appearance. (rf) (Entered: 02/13/2008)
37 ORDER granting 35 Motion for Leave to File Amendment to Response. Signed by Judge Xavier Rodriguez. (rf) (Entered: 02/14/2008)

02/14/2008
02/27/2008 03/14/2008 03/17/2008 03/17/2008 03/17/2008 03/17/2008 03/17/2008 03/17/2008 03/17/2008 03/17/2008 03/17/2008 03/17/2008 03/17/2008 03/17/2008 03/18/2008 03/18/2008 03/19/2008
03/19/2008

Notice of Correction: ***NOTIFIED COUNSEL THAT THE PURSUANT TO THE COURT'S ORDER doc #37, THE CORRECT EXHIBIT #2 HAS BEEN ATTACHED TO DOCKET ENTRY 32 Response to Motion. (rf) (Entered: 02/14/2008)
38 NOTICE of Filing by Maria Salinas (Attachments: # 1 Appendix Fuller v. Wellington−Order Denying MSJ)(Wood, Lucy) (Entered: 02/27/2008)
39 ORDER DENYING 28 Motion for Summary Judgment. Signed by Judge Xavier Rodriguez. (rf) (Entered: 03/14/2008)
40 MOTION in Limine by Maria Salinas. (Attachments: # 1 Proposed Order)(Wood, Lucy) (Entered: 03/17/2008)
41 Exhibit List by Maria Salinas.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Wood, Lucy) (Entered: 03/17/2008)
42 Witness List by Maria Salinas. (Wood, Lucy) (Entered: 03/17/2008)
43 Proposed Jury Instructions by Maria Salinas. (Wood, Lucy) (Entered: 03/17/2008)
44 AGREEMENT FOR VERDICT by Jury of Less than Six Members by Maria Salinas. Proposed Verdict Form. (Wood, Lucy) (Entered: 03/17/2008)
45 Proposed Findings of Fact by Maria Salinas. (Wood, Lucy) (Entered: 03/17/2008)
46 STATEMENT OF FACTS Contested Facts by Maria Salinas. (Wood, Lucy) (Entered: 03/17/2008)
47 STATEMENT OF ISSUES Contested Issues by Maria Salinas. (Wood, Lucy) (Entered: 03/17/2008)
48 Pretrial Disclosures Estimated Trial Length by Maria Salinas. (Wood, Lucy) (Entered: 03/17/2008)
49 NOTICE Intent to Present Testimony Via Deposition by Maria Salinas (Wood, Lucy) (Entered: 03/17/2008)
50 Proposed Voir Dire by Maria Salinas. (Wood, Lucy) (Entered: 03/17/2008)
51 Pretrial Disclosures Statement of Claims by Maria Salinas. (Wood, Lucy) (Entered: 03/17/2008)
52 Opposed MOTION to Continue Trial Setting by City of New Braunfels. (Attachments: # 1 Proposed Order)(Frigerio, Charles) (Entered: 03/18/2008)
53 MOTION in Limine by City of New Braunfels. (Attachments: # 1 Proposed Order)(Frigerio, Charles) (Entered: 03/18/2008)
Text Order DENYING 52 Motion to Continue entered by Judge Xavier Rodriguez. (This is a text−only entry generated by the court. There is no document associated with this entry.) (jlh) (Entered: 03/19/2008)
54 Minute Entry for proceedings held before Judge Xavier Rodriguez: Pretrial Conference held on 3/19/2008. Motion in Limine doc #40 granted in part and denied in part. Motion in Limine doc #53 granted in part and denied in part. Motion to Continue doc #52 is denied. (Minute entry documents are not available electronically.) (Court Reporter Karl Myers.)(rf) (Entered: 03/20/2008)

03/19/2008 03/20/2008
03/21/2008 03/24/2008 03/26/2008 03/26/2008 04/01/2008 04/02/2008 04/14/2008 04/28/2008 05/09/2008
05/09/2008 05/09/2008
05/09/2008 05/09/2008

ORAL ORDER GRANTING IN PART AND DENYING IN PART 40 Motion in Limine; GRANTING IN PART AND DENYING IN PART 53 Motion in Limine Signed by Judge Xavier Rodriguez. (rf) (Entered: 03/20/2008)
55 Proposed Pretrial Order by City of New Braunfels. (Attachments: # 1 Defendant's Statement of the Party's Claims, # 2 Defendant's Proposed Stipulated Facts, # 3 Defendant's Contested Facts, # 4 Defendant's Contested Legal Issues, # 5 Defendant's Proposed Voir Dire Questions, # 6 Defendant's Witness List, # 7 Defendant's Exhibit List, # 8 Defendant's Proposed Charge to the Jury, # 9 Defendant's Proposed Special Interrogatories)(Frigerio, Charles) (Entered: 03/20/2008)
56 Memorandum in Support of 40 MOTION in Limine by Maria Salinas. (Attachments: # 1 Exhibit A)(Wood, Lucy) (Entered: 03/21/2008)
57 Memorandum in Opposition to Motion, filed by Maria Salinas, re 53 MOTION in Limine filed by Defendant City of New Braunfels (Wood, Lucy) (Entered: 03/24/2008)
58 NOTICE of Intent to Present Testimony Via Deposition by Maria Salinas re 49 Notice (Other) (Wood, Lucy) (Entered: 03/26/2008)
59 Proposed Jury Instructions by Maria Salinas AMENDED. (Wood, Lucy) (Entered: 03/26/2008)
60 BRIEF regarding 53 MOTION in Limine by City of New Braunfels. (Attachments: # 1 Proposed Order)(Frigerio, Charles) (Entered: 04/01/2008)
61 NOTICE of Settlement by Maria Salinas (Crane, Thomas) (Entered: 04/02/2008)
62 Notice of Alternative Dispute Resolution Outcome: Settle during ADR. Amount of fee: $$800.00. (rf) (Entered: 04/14/2008)
63 ORDER the parties shall submit a stipulation of dismissal or an agreed judgment by 5/9/08, re 61 Notice of Settlement filed by Maria Salinas. Signed by Judge Xavier Rodriguez. (rf) (Entered: 04/30/2008)
64 ****DOCUMENT IS DEFICIENT − MISSING CERTIFICATE OF SERVICE AND CASE STYLE NOT REFLECTED****STATUS REPORT by Maria Salinas. (Wood, Lucy) Modified on 5/9/2008, to designate deficiency (rf). (Entered: 05/09/2008)
65 Joint MOTION to Dismiss by Maria Salinas, City of New Braunfels. (Wood, Lucy) Modified on 5/9/2008, to add filer (rf). (Entered: 05/09/2008)
66 ****DOCUMENT IS DEFICIENT − MISSING CERTIFICATE OF SERVICE****NOTICE of Settlement Mediated Settlement Agreement, with Exhibits by Maria Salinas (Wood, Lucy) Modified on 5/9/2008, to designate deficiency (rf). (Entered: 05/09/2008)
67 DEFICIENCY NOTICE: ***NOTIFIED COUNSEL THAT THIS DOCUMENT IS DEFICIENT − MISSING CERTIFICATE OF SERVICE AND CASE STYLE**** re 64 Status Report (rf) (Entered: 05/09/2008)
Notice of Correction: ****NOTIFIED COUNSEL THAT THE DEFENDANT HAS BEEN ADDED AS A FILER OF THIS DOCUMENT***** re 65 Joint MOTION to Dismiss. (rf) (Entered: 05/09/2008)

05/09/2008
05/09/2008 05/09/2008 05/13/2008 05/14/2008

68 DEFICIENCY NOTICE: ***NOTIFIED COUNSEL THAT A CERTIFICATE OF SERVICE IS REQUIRED**** re 66 Notice of Settlement (rf) (Entered: 05/09/2008)
69 CERTIFICATE OF SERVICE by Maria Salinas 64 Status Report (Wood, Lucy) (Entered: 05/09/2008)
70 CERTIFICATE OF SERVICE by Maria Salinas 66 Notice of Settlement (Wood, Lucy) (Entered: 05/09/2008)
71 NOTICE of Settlement Mediated Settlement Agreement by City of New Braunfels (Frigerio, Charles) (Entered: 05/13/2008)
72 ORDER DISMISSING CASE. Signed by Judge Xavier Rodriguez. (rf) (Entered: 05/14/2008)