United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr., United States District Judge
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.
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.
Facts as Alleged
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.
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.
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
Standard of review
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)).
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)).
1: Claims for failure to provide reasonable accommodations
under the ADA and the Rehabilitation Act
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.
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”).
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).
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 ...