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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

CAMERON LUKE,

Plaintiff

v.

LEE COUNTY, COMMUNITY 

SUPERVISION AND

CORRECTIONS DEPARTMENT, 

SAN JACINTO COUNTY, TEXAS, 

COMMUNITY SUPERVISION 

AND CORRECTIONS 

DEPARTMENT; AND LEE 

COUNTY,

Defendants

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 No. 1:20-CV-00388-DII

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

TO: HONORABLE UNITED STATES DISTRICT JUDGE

Before the Court is Defendants San Jacinto and Lee County Community 

Supervision and Corrections Departments’ (“CSCDs”) Motion to Dismiss Plaintiff’s 

Second Amended Complaint, Dkt. 55, and all related briefing. After reviewing the 

briefing and the relevant case law, the undersigned recommends that the District 

Court deny in part and grant in part the CSCDs’ motion. 

I. BACKGROUND

The CSCDs move to dismiss Plaintiff Cameron Luke’s claim for violations of

Title II of the Americans with Disabilities Act. Dkts. 54, at 9; 55, at 9. Luke, who is 

deaf, requires an ASL interpreter to communicate effectively. Dkt. 54, at 1. Luke 

claims that after he was arrested for marijuana possession, the Defendants, including 

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the CSCDs, failed to provide him with an ASL interpreter throughout “the

investigation, arrest, booking, detainment, arraignment, release, court proceedings, 

and probation.” Id. at 14. 

After Luke initially filed suit, the CSCDs filed a motion to dismiss, which the 

District Court granted. Dkt. 19, at 6. The District Court reasoned that Luke’s claim 

against the CSCDs was moot “because [Luke] is no longer on probation or otherwise 

subject to the conditions of supervision implicated by his claim.” Id. at 4. In response 

to Luke’s motion to reconsider based on his request for damages, the District Court 

upheld the dismissal and stated that “[Luke’s] claims for nominal and compensatory 

damages under the ADA do not keep his suit against the CSCD Defendants alive, 

because such claims are barred by state sovereign immunity.” Dkt 22, at 5.1

Luke appealed to the Fifth Circuit, which analyzed whether Luke’s claims were 

in fact barred by sovereign immunity or whether sovereign immunity had been 

validly abrogated. Dkt. 47, at 6.2 The Fifth Circuit found that Luke successfully 

1 The District Court also granted Lee County’s motion for judgment on the pleadings, 

reasoning that “[Defendant’s] claims for nominal and compensatory damages against Lee 

County are barred by state sovereign immunity.” Dkt. 40, at 3. The Court then granted the 

State of Texas’s motion to dismiss, reasoning that Defendant was “required to serve the 

governor of Texas, which he did not do.” Dkt. 42, at 4. Rather, Defendant served the Secretary 

of State. Id. at 3. 

2 The Fifth Circuit affirmed the District Court’s ruling dismissing the State of Texas from the 

suit on grounds of improper service. Dkt. 47, at 10. The court reasoned that “[f]or Plaintiffs 

to sue a state in federal court, they must either (1) serve the state’s ‘chief executive officer’; 

or (2) provide service in a manner prescribed by that state’s law” and Plaintiff did neither. 

Id. at 10 (quoting Fed. R. Civ. P. 4(j)(2)). The court then reversed the dismissal of Plaintiff’s 

claim against Lee County, stating “Lee County is a political subdivision of Texas, rather than 

an arm of the State, and thus does not enjoy state sovereign immunity.” Id. at 6 (citing Alden 

v. Maine, 527 U.S. 706, 756 (1999); Stratta v. Roe, 961 F.3d 340, 352 (5th Cir. 2020)). The 

court further concluded that Luke had “successfully stated a Title II claim,” and thus, “his 

claim against Lee County should proceed past the pleading stage.” Id. at 9.

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pleaded a Title II claim satisfying step one of the [Georgia]

3 abrogation test.” Id. at 9. 

The court vacated the dismissal as to the CSCDs and remanded the case for 

disposition upon further briefing from the parties as to whether Luke’s claims satisfy 

the second and third steps of the abrogation test. Id. The Fifth Circuit also ordered 

the District Court to determine whether emotional distress damages are available 

under Title II after finding that Luke pleaded sufficient facts supporting 

compensatory damages in stating that he suffered “fear, anxiety, [and] humiliation” 

as a result of the alleged Title II violation. Id. at 7. 

As an initial matter, the CSCDs have raised new arguments in their motion to 

dismiss filed after Luke’s Second Amended Complaint. Specifically, the CSCDs argue 

that the Heck4 doctrine bars Luke’s claim because his complaint “impl[ies] the 

invalidity of his sentence.” Dkt. 55, at 21 (citing DeLeon v. City of Corpus Christi, 488 

F.3d 649, 652 (5th Cir. 2007)). The CSCDs also argue that Luke’s claims “turn on 

vicarious liability, as he only alleges that his probation officers were aware of his 

request for a certified interpreter,” yet, vicarious liability isn’t available under Title 

II of the ADA. Id. at 23 (relying on a holding from a Title IX case). Federal Rule of 

Civil Procedure 12(g)(2)—which provides that a party cannot raise “a defense or 

objection that was available to the party but omitted from its earlier motion”—bars 

the Court’s consideration of these new arguments. Fed. R. Civ. P. 12(g)(2). 

Additionally, the Fifth Circuit remanded this case (1) for “consideration of whether 

3 See United States v. Georgia, 546 U.S. 151, 159 (2006).

4 See Heck v. Humphrey, 512 U.S. 477, 486 (1994).

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Congress validly abrogated state sovereign immunity for the claims against the 

Supervision Departments” and (2) to “decide the effect, if any, Cummings has on 

Luke’s ability to recover emotional distress damages under Title II” and nothing 

more. Dkt. 47, at 7-8. The undersigned will not deviate from the Fifth Circuit’s

mandate. See Briggs v. Pa. R.R. Co., 334 U.S. 304, 306 (1948) (“In its earliest days 

this Court consistently held that an inferior court has no power or authority to deviate 

from the mandate issued by an appellate court.”).

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(1) allows a party to assert lack of subjectmatter jurisdiction as a defense to suit. Fed. R. Civ. P. 12(b)(1). Federal district courts 

are courts of limited jurisdiction and may only exercise such jurisdiction as is 

expressly conferred by the Constitution and federal statutes. Kokkonen v. Guardian 

Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A federal court properly dismisses a 

case for lack of subject-matter jurisdiction when it lacks the statutory or 

constitutional power to adjudicate the case. Home Builders Ass’n of Miss., Inc. v. City 

of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). “The burden of proof for a Rule 

12(b)(1) motion to dismiss is on the party asserting jurisdiction.” Ramming v. United 

States, 281 F.3d 158, 161 (5th Cir. 2001), cert. denied, 536 U.S. 960 (2002). 

“Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does 

in fact exist.” Id. In ruling on a Rule 12(b)(1) motion, the court may consider any one 

of the following: (1) the complaint alone; (2) the complaint plus undisputed facts 

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evidenced in the record; or (3) the complaint, undisputed facts, and the court’s 

resolution of disputed facts. Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008).

III. DISCUSSION

A. Georgia Analysis

The Supreme Court in United States v. Georgia established a three-part test 

for determining whether Title II validly abrogates states’ sovereign immunity. 546 

U.S. at 159. A court must determine, on a “claim-by-claim basis”: (1) which aspects 

of the State’s alleged conduct violated Title II; (2) to what extent such misconduct 

also violated the Fourteenth Amendment; and (3) insofar as such misconduct violated 

Title II but did not violate the Fourteenth Amendment, whether Congress’s purported 

abrogation of sovereign immunity as to that class of conduct is nevertheless valid. Id.

The Fifth Circuit has already determined that Luke has sufficiently stated a 

Title II claim based on his allegations that the CSCDs “knew he was deaf yet failed 

to provide an accommodation despite multiple requests for an interpreter” during 

meetings with probation officers. Dkt. 47, at 7. Luke’s claims, therefore, “satisfy step 

one of the abrogation test.” Id. at 9. “The inquiry should now proceed to the second 

and, if necessary third step” of the Georgia abrogation test. Id. The question at step 

two of the Georgia test is whether Luke has also pleaded a violation of the Fourteenth 

Amendment. 

Step two: implication of Fourteenth Amendment right

The second prong of the Georgia test requires the undersigned to determine 

the extent to which the CSCDs’ alleged violation of Title II of the ADA also violated 

the Fourteenth Amendment. Georgia, 546 U.S. at 159. If Luke’s pleadings also state

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a claim for violation of the Fourteenth Amendment, then sovereign immunity will 

have been validly abrogated pursuant to Congress’s Section Five enforcement powers. 

Section Five of the Fourteenth Amendment provides that “Congress shall have power 

to enforce, by appropriate legislation, the provisions” of the Fourteenth Amendment, 

including the Equal Protection Clause and the Due Process Clause. U.S. Const. 

amend. XIV, § 5. This permits Congress to create private remedies against the States 

for violations of the Fourteenth Amendment. Georgia, 546 U.S. at 158. As a result, 

“insofar as Title II creates a private cause of action for damages against the States 

for conduct that actually violates the Fourteenth Amendment, Title II validly 

abrogates state sovereign immunity.” Id. at 159. 

Due process

The Due Process Clause guarantees certain fundamental rights, and a 

violation of Title II violates the Due Process Clause when it prevents people with 

disabilities from exercising those rights. Tennessee v. Lane, 541 U.S. 509, 515 (2004).

The CSCDs argue that Luke has not pleaded a violation of his due process 

rights for several reasons. First, the CSCDs argue that Luke’s due process rights are 

not implicated in meetings with probation officers since probation officers don’t 

adjudicate legal rights or determine the terms of probation and Luke does not explain 

the source of his alleged right to a certified interpreter at probation meetings. Dkt. 

55, at 12-14. Then, the CSCDs state that, even if Luke did have a right to an ASL 

interpreter at his probation meetings, “for criminal defendants, the denial of an 

interpreter is constitutionally infirm only if it made the proceeding ‘fundamentally

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unfair’” and an even lower standard would apply in the probation meeting context. 

Id. Lastly, the CSCDs contend that Luke received fair warning of “acts that may 

revoke his probation” because he received “clear written notice that detailed his 

probation terms.” Id. 

Luke responds that Plaintiffs argument is “misconstrued” because the issue is 

“not whether there is a due process right to an interpreter for meetings with probation 

officers. Rather, the issue is whether there was a lack of fair warning of acts which 

may lead to revocation throughout Plaintiff’s probation.” Dkt. 57, at 3. Luke,

therefore, argues that a due process violation arose through “lack of fair warning of 

acts that may lead to revocation throughout [his] probation.” Id. 

It is well established that due process must be afforded to probationers in 

connection with the revocation of probation. Gagnon v. Scarpelli, 411 U.S. 778, 782 

(1973). “An essential component of these due process rights is that individuals be 

given fair warning of acts which may lead to revocation.” United States v. Simmons, 

812 F.2d 561, 565 (9th Cir. 1987) (citations omitted, emphasis added). Additionally, 

in the trial and hearing context, lack of a qualified interpreter can implicate due 

process. See Prince v. Beto, 426 F.2d 875 (5th Cir. 1970) (finding that the trial court 

permitting a husband to interpret for his wife in a criminal trial of her assailant was 

fundamentally unfair and violated defendant’s due process rights). 

Luke repeatedly frames the due process violation at issue in this case as based 

in “a lack of fair warning of acts which may lead to revocation throughout [his] 

probation.” Dkt. 57, at 3; see also id. at 6 (stating “Plaintiff was not afforded an 

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opportunity to understand his probation terms and conditions in his primary 

language”); id. at 7 (stating that “Defendants continuously violated Plaintiffs’ due 

process right to fair warnings of acts that could revoke his probation” because “any 

violation from the meetings or programs [he was required to attend] could have 

revoked Plaintiffs probation”); id. at 8 (stating “Defendants violated Plaintiff’s due 

process right to be given a fair warning of acts that may revoke his probation”).

While lack of fair warning of acts which may lead to revocation can constitute 

a due process violation, each of the cases cited by Luke relate to “proceedings,” 

including jury trials, and disciplinary, grievance, and parole hearings. Dkt. 57, at 4-

8. Luke fails to explain how the lack of fair warning was implicated in his meetings 

with the CSCDs’ probation officers. As to his probation Luke states:

On or about July 18, 2019 [Luke] appeared before a Lee County Judge 

Paul E. Fischer in Lee County Court without an ASL interpreter and 

was placed on a one-year probation for his possession of marijuana 

charge. About three weeks before the hearing, Mr. Luke ... requested 

and got confirmation from the Lee County Court that an ASL interpreter 

will be provided for the hearing. However, no ASL interpreter was 

provided to Mr. Luke that day to explain the court proceeding, the 

decision, or the terms and conditions of his probation.

Dkt. 54, at 7 (emphasis added). 

On or about July 18, 2019, Mr. Luke’s probation was transferred from 

Lee County Community Supervision and Corrections Department to 

San Jacinto County Community Supervision and Corrections 

Department. 

Id. 

Luke’s pleadings do not explain how the CSCDs were involved with setting the 

terms and conditions of his probation, such that their failure to apprise him of the 

terms and conditions amounts to a due process violation. In Lee and San Jacinto 

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Counties, as in all counties in Texas, the “judge of the court” determines whether to 

“grant community supervision,” and makes the decision to “impose conditions,” or 

“discharge the defendant.” Tex. Code Crim. Proc. Art. 42A.051. This authority may 

not be delegated to a probation officer or anyone else. See DeLeon, 466 S.W.2d at 574. 

It is an unauthorized delegation if the probation officer is permitted to determine the 

terms of probation. See Cox v. State, 445 S.W.2d 200, 201 (Tex. Crim. App. 1969). 

Failure to comply with terms determined by a probation officer cannot be used to 

revoke probation. See id. Further, in a probation revocation hearing, the discretion to 

either continue the defendant on probation or revoke probation rests in the trial 

judge. DeGay v. State, 741 S.W.2d 445, 449 (Tex. Crim. App. 1987).

Luke has not pleaded that it was the CSCDs that are responsible for the lack 

of fair warning about the terms of his probation and the conduct that might lead to 

revocation because it was not for the CSCDs to set probation terms. Luke has also 

brought his claims against Lee County which oversees the Lee County Court, and the 

Fifth Circuit has concluded that Luke has “successfully stated a Title II claim” 

against Lee County, a political subdivision that does not enjoy sovereign immunity. 

Dkt 47, at 6. Upon reversal of the District Court’s dismissal as to Lee County, the 

Fifth Circuit stated that Luke’s claims against Lee County on the basis of the denial 

of an interpreter throughout his criminal proceedings “should proceed past the 

pleading stage.” Id. at 9. However, for the purposes of the Georgia abrogation test as 

to the CSCDs, Luke has not sufficiently pleaded a Fourteenth Amendment due 

process violation as to the CSCDs. 

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Equal protection

“The Equal Protection Clause of the Fourteenth Amendment commands that 

no State shall ‘deny to any person within its jurisdiction the equal protection of the 

laws,’ which is essentially a direction that all persons similarly situated should be 

treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)

(quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). Thus, the Equal Protection Clause 

serves “as a shield against arbitrary classifications.” Engquist v. Or. Dep’t of Agr., 553 

U.S. 591, 598 (2008). “Strict scrutiny is required if the [classification] operates to the 

disadvantage of some suspect class or impinges upon a fundamental right explicitly 

or implicitly protected by the Constitution.” Richard v. Hinson, 70 F.3d 415, 417 (5th 

Cir. 1995) (citing San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973)). “The 

Supreme [C]ourt has explained that fundamental rights, for equal protection 

purposes, are such rights as: a right of a uniquely private nature, the right to vote, 

right of interstate travel, and rights guaranteed by the First Amendment.” Sonnier

v. Quarterman, 476 F.3d 349, 368 n.16 (5th Cir. 2007) (citing Mass. Bd. of Retirement

v. Murgia, 96 S. Ct. 2562, 2566 (1976)). In the absence of a “classification affecting 

fundamental personal rights or based upon inherently suspect distinctions such as 

race, religion, or alienage,” classifications or unequal treatment are “subject to the 

same rational basis analysis utilized in due process claims.” Jackson Ct. Condos., Inc.

v. City of New Orleans, 874 F.2d 1070, 1079 (5th Cir. 1989). 

The CSCDs argue that Luke has not pleaded a violation of equal protection 

because he has pleaded a classification on the basis of disability, which receives 

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rational basis scrutiny. Dkt. 55, at 6. The CSCDs contend that their actions in failing 

to provide an interpreter during Luke’s meeting with probation officers pass rational 

basis review because “it was clearly reasonable for the CSCDs to save money by 

relying on Luke’s mother to interpret for her son.” Id. at 6. Luke responds that he has 

pleaded a classification affecting a fundamental right, the right to liberty at stake in 

the revocation of probation, and that therefore, strict scrutiny applies. Dkt. 57, at 8. 

Luke states the CSCDs failed to meet their burden of showing that their actions are 

narrowly tailored to serve a compelling government interest, and thus fail the strict 

scrutiny test. Id. a 9. 

The undersigned agrees with the CSCDs. Luke has pleaded a classification on 

the basis of disability in pleading that “Defendants’ actions caused him greater levels 

of fear, anxiety, indignity, frustration, humiliation, and emotional distress than a 

hearing person would be expected to experience.” Dkt. 54, at 2; see also id. at 8 

(stating “disability” is a “motivating factor in [Defendants] decisions and other 

actions.”). Under the Equal Protection Clause, disabled individuals are not a suspect 

class. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). As a result, 

classifications on the basis of disability are subject to rational basis scrutiny, meaning 

they violate the Equal Protection Clause “if they lack a rational relationship to a 

legitimate governmental purpose.” Lane, 541 U.S. at 522. Under this standard, a 

legislative classification “must be upheld against equal protection challenge if there 

is any reasonably conceivable state of facts that could provide a rational basis for the 

classification.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993). 

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The CSCDs argue “it was clearly reasonable for the CSCDs to save money by 

relying on Luke’s mother to interpret for her son.” Dkt. 55, at 15 (citing Bd. of Trustees

of Univ. of Alabama v. Garrett, 531 U.S. 356, 372 (2001)). Luke responds that the 

CSCD’s “one-sentence” justification for its classification is “non-sensical,” and that 

the CSCDs fail to provide any information to support their argument, such as 

documentation on costs associated with hiring interpreters. Dkt. 57, at 10. 

Parties attacking the presumption of validity extended to classifications “have 

the burden ‘to negative every conceivable basis which might support it.’” Beach

Commc’ns, Inc., 508 U.S. at 318 (internal citation omitted). Luke has not met his 

burden in order to overcome the presumption of validity afforded classifications 

subject to rational basis review. The CSCDs’ classification and proffered cost saving 

justification, therefore, passes rational basis review. See, e.g., Garrett, 531 U.S. at 372 

(finding that “it would be entirely rational (and therefore constitutional) for a state 

employer to conserve scarce financial resources by hiring employees who are able to 

use existing facilities”). Luke, therefore, has not pleaded a violation of the Fourteenth

Amendment’s Equal Protection clause. Because Luke has not pleaded a violation of 

the Fourteenth Amendment, the undersigned proceeds to the third prong of the 

Georgia analysis. 

Step Three: Whether abrogation is nevertheless valid

The third step of the Georgia abrogation test asks whether, as applied to the 

conduct alleged by Luke, Title II of the ADA nevertheless validly abrogates the 

CSCDs’ sovereign immunity. Congress’s abrogation power is “‘nevertheless valid’

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where Title II imposes requirements that are ‘congruent and proportional’ to an 

identified ‘pattern of [unconstitutional] exclusion and discrimination’—even if it 

sweeps in some conduct that is not itself unconstitutional.” Lane, 541 U.S. at 531; see

also City of Boerne v. Flores, 521 U.S. 507, 520 (1997). 

There are two pre-Georgia cases that primarily guide the determination of 

whether Title II validly abrogates the CSCDs’ sovereign immunity, Reickenbacker

and Lane. In Reickenbecker v. Foster, the Court held that because Title II does not 

merely act as a “prohibition on unconstitutional discrimination” but “creates an 

affirmative accommodation obligation on the part of public entities,” which “far 

exceeds that imposed by the Constitution,” Title II is not proportional and congruent 

to “legislative findings of unconstitutional discrimination against the disabled by the 

States.” 274 F.3d 974, 983 (5th Cir. 2001). However, in Lane, the Court found Title 

II’s accessibility requirements “congruent and proportional to its object of enforcing 

the right of access to the courts” and held that “Title II unquestionably is valid § 5 

legislation as it applies to the class of cases implicating the accessibility of judicial 

services.” 541 U.S. at 531.

The CSCDs argue that Lane is limited to “right of access” to the courts, and 

that Luke’s claims relating to the CSCDs failure to provide him with an ASL 

translator falls outside of that ambit. Dkt. 55, at 16. Therefore, the CSCDs claim,

Reickenbecker applies here and urges a finding that Title II is not proportional and 

congruent, and therefore does not validly waive the CSCDs sovereign immunity. Dkt. 

55, at 9. The first step then is to determine the scope of Lane’s holding and the second 

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step is to determine whether Luke’s claim relating to the denial of his request for an 

ASL translator is covered by that holding. 

In Lane, the first plaintiff was a wheelchair-bound man forced to crawl up two 

flights of stairs to reach a hearing on the second floor of the courthouse at which he 

was “compelled to appear to answer a set of criminal charges.” 541 U.S. at 513. Upon

attempting to make his second appearance he “refused to crawl or to be carried by

officers to get to the courtroom” and was later arrested and jailed for his failure to

appear. Id. The second plaintiff, Jones, was wheelchair-bound certified court reporter 

who alleged she had lost work because of her inability “to gain access to a number of 

county courthouses” and had “lost both work and an opportunity to participate in the 

judicial process.” Id. at 514.

In addressing whether Congress validly abrogated state sovereign immunity, 

the Supreme Court outlined the purpose of Title II of the ADA. Id. at 516. Based in 

part on Congress’s findings concerning a history of “unequal treatment” that 

“relegated [disabled individuals] to a position of political powerlessness” and 

“[i]nvoking the ‘sweep of congressional authority including the power to enforce the 

fourteenth amendment[,]’ the ADA is designed ‘to provide a clear and comprehensive 

national mandate for the elimination of discrimination against individuals with 

disabilities.’” Id. (citing 42 U.S.C. §§ 12101(a)(7), b(1), b(4)). The ADA “forbids 

discrimination against persons with disabilities” in the provision of public services, 

programs, and activities under Title II by public entities, “including state and local 

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governments, as well as their agencies and instrumentalities.” Id. (citing 42 U.S.C. 

§ 12131(1)). 

After finding that Congress “unequivocally expressed its intent to abrogate 

[sovereign] immunity,” the Court moved on to whether Congress “acted pursuant to 

a valid grant of constitutional authority.” Id. at 517. The Court, citing Nevada Dept.

of Human Resources v. Hibbs, 538 U.S. 721, 727-28 (2003), found that “[w]hen 

Congress seeks to remedy or prevent unconstitutional discrimination, § 5 authorizes 

it to enact prophylactic legislation proscribing practices that are discriminatory in 

effect, if not in intent, to carry out the basic objectives of the Equal Protection Clause.”

Id. at 518. The test for whether § 5 legislation is valid is whether it exhibits “a 

congruence and proportionality between the injury to be prevented or remedied and 

the means adopted to that end.” Id. at 520 (internal citation omitted).

Beyond enforcing the Equal Protection Clauses’ prohibition against “irrational 

disability discrimination,” the Court found that Title II also “seeks to enforce a variety 

of other basic constitutional guarantees, infringements of which are subject to more 

searching judicial review ... includ[ing] some, like the right of access to the courts ...

that are protected by the Due Process Clause of the Fourteenth Amendment.” Id. at

522-23 (citations omitted). The Court further explained that “Congress enacted Title 

II against a backdrop of pervasive unequal treatment in the administration of state 

services and programs, including systematic deprivations of fundamental rights.” Id.

at 524. The Court listed a number of examples, including:

[prohibitions on] engaging in activities such as marrying and serving as 

jurors[;] ... unconstitutional treatment of disabled persons by state 

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agencies in a variety of settings ... a pattern of unequal treatment in the 

administration of a wide range of public services, programs, and 

activities, including the penal system, public education, and voting ...

[demonstrating] a pattern of unconstitutional treatment in the 

administration of justice. 

Id. at 524-25.

With respect to the provision of services to disabled individuals, the Court 

noted that Congress’s appointed task force on accessibility “heard numerous 

examples of the exclusion of persons with disabilities from state judicial services and 

programs, including exclusion of persons with visual impairments and hearing 

impairments from jury service, failure of state and local governments to provide 

interpretive services for the hearing impaired, failure to permit the testimony of 

adults with developmental disabilities in abuse cases, and failure to make courtrooms 

accessible to witnesses with physical disabilities.” Id. at 527 (citing Task Force on the 

Rights and Empowerment of Americans with Disabilities, From ADA to 

Empowerment (Oct. 12, 1990)). 

Ultimately, based on this record demonstrating the “nature and extent of 

unconstitutional discrimination against persons with disabilities in the provision of 

public services ... justify[ing] Congress’ exercise of prophylactic power” the Court 

found “Title II unquestionably is valid § 5 legislation as it applies to the class of cases 

implicating the accessibility of judicial services.” Lane, 541 U.S. at 531. Further, 

finding Title II's requirement of program accessibility “congruent and proportional to 

its object of enforcing the right of access to the courts,” the Court held Title II validly 

abrogated sovereign immunity as to cases involving access to the courts. Id. at 533-

34.

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The CSCDs interpret Lane’s holding as limited to cases implicating the “right 

of access to the courts” to the exclusion of Luke’s claims regarding the provision of an 

ASL interpreter. While Lane references both “access to the courts” and “judicial 

services,” the text of Lane makes it clear that the right of access to the courts falls 

under the wider umbrella of “judicial services.” See id. at 530-31.5 The Fifth Circuit 

has also characterized Lane’s holding consistent with this interpretation. See Pace v.

Bogalusa City Sch. Bd., 403 F.3d 272, 287 (5th Cir. 2005) (“[T]he Supreme Court, in 

Tennessee v. Lane, held that Title II abrogates sovereign immunity to the extent that 

it implicates the accessibility of judicial services, but refused to consider its 

application to other rights, including those considered to be fundamental under the 

Constitution.”).

The next question is whether Luke’s claim relating to the CSCDs’ failure to 

provide an ASL interpreter implicates the accessibility of judicial services. The 

undersigned finds that it does. The Lee and San Jacinto County CSCDs, which 

supervise offenders who are sentenced to community supervision by local courts, are 

established by district judges in each judicial district and organized within local 

judicial districts. Tex. Loc. Gov’t Code § 76.002. Supervision department employees 

work for the judicial districts, and the judicial districts pay their salaries and provide 

5 “Whatever might be said about Title II’s other applications, the question presented in this 

case is not whether Congress can validly subject the States to private suits for money 

damages for failing to provide reasonable access to hockey rinks, or even to voting booths, 

but whether Congress had the power under § 5 to enforce the constitutional right of access to 

the courts. Because we find that Title II unquestionably is valid § 5 legislation as it applies 

to the class of cases implicating the accessibility of judicial services, we need go no further.” 

Lane, 541 U.S. at 530-31 (citing United States v. Raines, 362 U.S. 17, 26 (1960)). 

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office space, equipment, and other forms of support. Id. § 76.006(b).

6 Luke pleads that 

he was placed on a one-year probation by a Lee County Court Judge to be overseen 

by the Lee County CSCD (and later, the San Jacinto County CSCD). Dkt. 54, at 7. 

Given the relationship between the CSCDs and the local court districts, as outlined 

under the Texas Local Government Code, it is reasonable to infer that Luke’s claims 

implicate a judicial service, that of oversight of his probation period. This 

interpretation is supported by Lane’s notation of the “exclusion of persons with 

disabilities from state and judicial services and programs, including ... failure of state 

and local governments to provide interpretative services for the hearing impaired.” 

Lane, 541 U.S. at 527.

Because Luke has pleaded a claim that implicates the accessibility of judicial 

services, for which the Supreme Court has found Title II validly abrogates state 

sovereign immunity, the CSCDs are not entitled to sovereign immunity, and Luke’s 

claims should proceed past the pleading stage. 

B. Damages

After determining that Luke pleaded facts sufficient to support compensatory 

damages in stating he was caused “fear, anxiety, indignity, [and] humiliation,” the 

Fifth Circuit raised the issue of “whether compensatory damages are available to 

Title II Plaintiffs at all.” Dkt. 47, at 7. They are. See Delano-Pyle v. Victoria Cnty., 

302 F.3d 567, 574 (5th Cir. 2002) (“A plaintiff asserting a private cause of action for 

6 See also Who We Serve: Community Supervision & Corrections Departments,

https://www.tdcj.texas.gov/divisions/cjad/who_we_serve.html

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violations of the ADA or the [Rehabilitation Act] may only recover compensatory

damages upon a showing of intentional discrimination.”). The closer question, and 

the one identified by the Fifth Circuit for disposition by the District Court, is whether 

emotional distress damages are available under Title II. See Dkt. 47, at 7 (“We leave 

it to the District Court to decide the effect, if any Cummings has on Luke’s ability to 

recover emotional distress damages under Title II.”).7

The CSCDs argue that Cummings held that emotional distress damages are 

not available under Section 749 of the Rehabilitation Act and that this prohibition 

“applies equally to Title II, as the Rehabilitation Act and Title II share the same 

remedies.” Dkt. 55, at 19. Luke responds that “Cummings did not consider Title II, so 

the issue of whether emotional distress damages is available under Title II is not 

settled” by Cummings. Dkt. 57, at 16. Luke argues that there exists a presumption 

that courts may use “‘any available remedy’ to right a wrong when a statute’s 

remedial provision is silent on its scope” and that the limitation on damages under 

the Rehabilitation Act “stems from principles of contract” that are not at issue in a 

non-spending clause statute like Title II. Dkt. 57, at 17. Luke asks the Court to find 

that the Supreme Court’s holding that “‘emotional distress damages are not 

recoverable’ based on the premise that ‘the statutes at issue are silent as to available 

remedies’” is incorrect. Dkt. 57, at 20. Luke points the undersigned to cross7 In Cummings v. Premier Rehab Keller, P.L.L.C., the Supreme Court held that emotional 

distress damages are not available under the Rehabilitation Act. 142 S. Ct. 1562, 1576 (2022) 

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referenced statutory texts that were not addressed in briefing or at argument in 

Cummings. Id.8

As to damages available under Title II and the Rehabilitation Act, “[the Fifth

Circuit], as well as others, [have] noted that, because the rights and remedies under

[the Rehabilitation Act and the ADA] are the same, case law interpreting one statute

can be applied to the other.” Pace, 403 F.3d at 287-88; see also Barnes v. Gorman, 536 

U.S. 181, 185 (2002). Cummings clearly established “that emotional distress damages

are not recoverable under ... Spending Clause antidiscrimination statutes[,]” such as

the Rehabilitation Act. Cummings, 142 S. Ct. at 1576. It follows that this 

interpretation of the remedies available under the Rehabilitation Act should also be 

applicable to Title II of the ADA. 

Other courts’ holdings support this inference. See Faller v. Two Bridges Reg’l

Jail, No. 2:21-CV-00063-GZS, 2022 WL 17260763, at *1 (D. Me. Nov. 2, 2022)

(“[W]hile the Supreme Court in Cummings may have framed the limitation on

emotional distress damages as only applying to Spending Clause statutes, the plain

statutory language of § 12133 reflects a congressional policy that the remedies under

the Rehabilitation Act ‘shall be’ the remedies available under Title II of the ADA.”); 

Hejmej v. Peconic Bay Med. Ctr., No. 17CV782JMASIL, 2022 WL 5429675, at *7 

8 Luke’s statutory text argument is essentially that the Rehabilitation Act authorizes 

remedies available under 42 U.S.C. § 1981a, governing damages in cases of intentional 

discrimination in employment, which includes compensatory damages for “emotional pain” 

and “mental anguish.” Dkt. 57, at 19. However, the statutory text Luke references applies to 

causes of action against programs or activities “receiving Federal Financial Assistance” and 

makes remedies available to “any employee or applicant for employment” bringing a claim 

under the Rehabilitation Act. 29 U.S.C. § 794(a). 

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(E.D.N.Y. July 6, 2023) (“Plaintiffs are precluded—by the ADA's text and the 

Supreme Court’s ruling in Cummings—from seeking compensatory damages for 

alleged emotional distress.”); Gillette v. Oregon, No. 3:20-CV-00513-IM, 2022 WL 

2819057, at *7 n.5 (D. Or. July 19, 2022) (“The Supreme Court recently held that 

damages for emotional distress are not recoverable under the Rehabilitation Act, and

therefore likely also under the ADA.” (citing Cummings, 142 S. Ct. at 1576)); 

Montgomery v. D.C., No. CV 18-1928 (JDB), 2022 WL 1618741, at *24 (D.D.C. May 

23, 2022), reconsideration denied, No. CV 18-1928 (JDB), 2023 WL 4684897 (D.D.C. 

July 21, 2023) (“Title II of the ADA incorporates the ‘remedies, procedures, and rights 

set forth in’ the Rehabilitation Act, ... hence, if a certain category of damages is not 

available under [the Rehabilitation Act], it is not available under Title II either.”);

J.P. as Next Friend of A.S.W. v. Nebraska, No. 4:22-CV-3095, 2022 WL 5254121, at 

*7 (D. Neb. Oct. 6, 2022). (“As a matter of law, [punitive and emotional distress 

damages] are unavailable to Plaintiffs under [the ADA and the Rehabilitation Act].”). 

The undersigned finds, consistent with the holding in Cummings as to 

emotional distress damages under the Rehabilitation Act and the general principle 

that the rights and remedies under Title II and the Rehabilitation Act are the same, 

that emotional distress damages are not available under Title II. 

IV. RECOMMENDATION

In accordance with the foregoing discussion, the undersigned 

RECOMMENDS that the District Court DENY the CSCDs’ Motion to Dismiss, Dkt. 

55, as to the CSCDs’ sovereign immunity and GRANT the motion as to Luke’s claims 

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for emotional distress damages. Luke’s claims for emotional distress damages under 

Title II should be DISMISSED WITH PREJUDICE. 

V. WARNINGS

The parties may file objections to this Report and Recommendation. A party 

filing objections must specifically identify those findings or recommendations to 

which objections are being made. The District Court need not consider frivolous, 

conclusive, or general objections. See Battle v. United States Parole Comm’n, 834 F.2d 

419, 421 (5th Cir. 1987). A party’s failure to file written objections to the proposed 

findings and recommendations contained in this Report within fourteen days after 

the party is served with a copy of the Report shall bar that party from de novo review 

by the District Court of the proposed findings and recommendations in the Report 

and, except upon grounds of plain error, shall bar the party from appellate review of 

unobjected-to proposed factual findings and legal conclusions accepted by the District 

Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); 

Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc). 

SIGNED August 3, 2023.

DUSTIN M. HOWELL

UNITED STATES MAGISTRATE JUDGE

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