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Brown v. Belt

United States District Court, S.D. West Virginia, Charleston

October 13, 2017

DAN BROWN, Plaintiff,
ROBERT BELT, Deputy Sheriff; GARRETT SAMPLES, JR., Clay County Sheriff; and CLAY COUNTY COMMISSION, Defendants.


          John T. Copenhaver, Jr., United States District Judge

         Plaintiff Dan Brown, a resident of Clay County, West Virginia, was arrested for driving under the influence after he failed three field sobriety tests. Alleging that he was not given proper accommodations during the test administration, Brown brings claims under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, claims for negligent hiring, supervision and training, claims under the Fourth and Fourteenth Amendments of the United States Constitution, and state law claims for wrongful arrest and intentional infliction of emotional distress. Pending before the court are defendants' motion to dismiss, filed March 29, 2016 (ECF No. 10), and defendants' motion to deem the motion to dismiss as unopposed (ECF No. 21) inasmuch as plaintiff has failed to respond to the motion to dismiss.

         As an initial matter, the court denies defendants' motion to deem the motion to dismiss as unopposed. Plaintiff's subsequent motion for leave to amend, while dilatory, contains allegations that purportedly show plaintiff's continued intent to maintain the action.

         I. Facts as Alleged

         Taking plaintiff's allegations as true, as the court must at this stage, on July 26, 2013, defendant Robert Belt, a deputy sheriff of Clay County, saw Mr. Brown on the side of the road with a flat tire. Deputy Belt then approached him and began to conduct a traffic stop for driving under influence (“DUI”) and search his vehicle. When Deputy Belt ordered Mr. Brown to undergo three field sobriety tests, the “Horizontal Gaze Nystagmus, ” the “Walk and Turn, ” and the “One-Leg Stand, ” Mr. Brown pointed out that he suffered from several conditions that prevented him from being able to adequately complete the tests. In particular, he has long had nystagmus, an eye condition, as well as a leg injury that makes him unable to place weight on his leg. Although Mr. Brown told Deputy Belt that he was “100% disabled” and “could not take the normal tests for DUI, ” Belt continued to administer the three tests without offering accommodations. Following the tests, Deputy Belt arrested Mr. Brown for DUI.

         When Mr. Brown took a preliminary breath test, the result showed a blood alcohol level of 0.0. He asked to be given a blood test to provide further proof that he was not under the influence, but Deputy Belt failed to request it.

         II. Procedural posture

         On July 27, 2015, plaintiff filed his complaint with the court. The complaint contains five “causes of action” which the court treats as Counts 1 through 5, namely, Count 1, failure to provide reasonable accommodation under Title II of the Americans with Disabilities Act (“ADA”) and § 504 of the Rehabilitation Act; Count 2, negligent hiring, supervision, and/or training; Count 3, the Fourth and Fourteenth Amendment due process violations; Count 4, wrongful arrest; and Count 5, intentional infliction of emotional distress. As noted, plaintiff did not file a response to the motion to dismiss, but on September 15, 2016 filed a motion seeking leave to amend, along with a proposed amended complaint. The court considers that motion in a separate order.

         III. Standard of review

         Federal Rule of Civil Procedure 8(a)(2) requires that a pleader provide “a short and plain statement of the claim showing ... entitle[ment] to relief.” Rule 12(b)(6) permits a defendant to challenge a complaint when it “fail[s] to state a claim upon which relief can be granted.” In order to survive a motion to dismiss, a complaint “must contain enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Thus, a valid complaint must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Rios v. Veale, 648 Fed.Appx. 369, 370 (4th Cir. 2016) (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007)). In Rios, the Fourth Circuit admonishes that with “a civil rights complaint, we must be especially solicitous of the wrongs alleged and must not dismiss the complaint unless it appears to a certainty that the plaintiff would not be entitled to relief under any legal theory which might plausibly be suggested by the facts alleged.” Rios, 648 Fed.Appx. at 370 (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)).

         Accordingly, a complaint may only be dismissed if “after accepting all well-pleaded allegations in the plaintiff's complaint as true and drawing all reasonable factual inferences from those facts in the plaintiff's favor, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief.” Green v. Beck, 539 Fed.Appx. 78, 79 (4th Cir. 2013) (quoting Edwards, 178 F.3d 231, 244 (4th Cir. 1999)).

         IV. Analysis

         Count 1: Claims for failure to provide reasonable accommodations under the ADA and the Rehabilitation Act

         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. Similarly, § 504 of the Rehabilitation Act 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.” 29 U.S.C. § 794(a). While the complaint does not allege that the Commission received federal funds, the court has no reason to doubt it, and the defendants did not raise it as an issue.

         In general, a plaintiff seeking recovery for violation of either statute must allege that (1) he has a disability, (2) he is otherwise qualified to receive the benefits of a public service, program, or activity, and (3) he was excluded from participation in or denied the benefits of such service, program, or activity, or otherwise discriminated against, on the basis of his disability. Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 498 (4th Cir. 2005) (citations omitted). The scope of ADA protections extends to arrests and police activity more generally. Seremeth v. Bd. of Cty. Comm'rs Frederick Cty., Md., 673 F.3d 333, 338-39 (4th Cir. 2012) (citing, inter alia, Johnson v. City of Saline, 151 F.3d 564, 569 (6th Cir. 1998), for the proposition that “the phrase ‘services, programs, or activities' encompasses virtually everything that a public entity does”).

         The two statutory provisions allegedly implicated here are similar for present purposes, and the court considers them together. “Claims under ADA's Title II and the Rehabilitation Act can be combined for analytical purposes because the analysis is ‘substantially the same.'” Seremeth, 673 F.3d at 336 n.1 (citation omitted).

         Defendants attack the sufficiency of the complaint under these two acts on two principal grounds, which the court considers in turn: (1) that plaintiff did not adequately plead a qualifying disability and ...

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