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Downing v. Osceola County Board of County Commissioners

United States District Court, M.D. Florida, Orlando Division

November 16, 2017

THOMAS K. DOWNING, Plaintiff,
v.
OSCEOLA COUNTY BOARD OF COUNTY COMMISSIONERS, Defendant/Third Party Plaintiff, INMATE CALLING SOLUTIONS, LLC, Third Party Defendant.

          ORDER

          Paul G. Byron, Judge

         This cause comes before the Court without oral argument on the following:

1. Defendant/Third-Party Plaintiff Osceola County Board of County Commissioners' (the “County”) Motion for Summary Judgment Against Plaintiff Thomas Downing with Incorporated Memorandum of Law (Doc. 45), filed July 3, 2017;
2. Plaintiff's Response in Opposition to Defendant, Osceola County, Florida's, Motion for Summary Judgment (Doc. 52), filed July 16, 2017;
3. Osceola County Board of County Commissioners' Reply to the Plaintiff's Response in Opposition to Its Motion for Summary Judgment (Doc. 59), filed July 28, 2017;
4. Third-Party Defendant's Dispositive Motion for Final Summary Judgment and Incorporated Memorandum of Law (Doc. 46), filed July 3, 2017; 5. Third-Party Plaintiff Osceola County Board of County Commissioners' Response in Opposition to Motion for Final Summary Judgment (Doc. 55), filed July 17, 2017;
6. Third-Party Defendant Inmate Calling Solutions, LLC d/b/a ICSolutions' Reply to Third-Party Plaintiff Osceola County Board of County Commissioners' Response in Opposition to Third-Party Defendant's Motion for Summary Judgment (Doc. 60), filed July 31, 2017;
7. Third-Party Plaintiff Osceola County Board of County Commissioners' Motion for Summary Judgment and Incorporated Memorandum of Law (Doc. 47), filed July 3, 2017;
8. Third-Party Defendant's Response in Opposition to Third-Party Plaintiff Osceola County Board of County Commissioners' Dispositive Motion for Summary Judgment and Incorporated memorandum of Law (Doc. 54), filed July 17, 2017; and
9. Third-Party Plaintiff Osceola County Board of County Commissioners' Reply to ICS's Response in Opposition to Motion for Summary Judgment (Doc. 61), filed July 31, 2017.

         The parties have completed their briefing and the Court is otherwise fully advised on the premises. Upon consideration and review of the record, including all pleadings, deposition transcripts, affidavits, exhibits, and the parties' respective legal memoranda, Defendant/Third-Party Plaintiff Osceola County's motion for summary judgment against Plaintiff Thomas Downing (Doc. 45) is GRANTED; Third-Party Defendant Inmate Calling Solutions, LLC's motion for summary judgment against Defendant/Third-Party Plaintiff Osceola County (Doc. 46) is GRANTED; and Defendant/Third-Party Plaintiff Osceola County's motion for summary judgment against Third-Party Defendant Inmate Calling Solutions (Doc. 47) is DENIED.

         II. BACKGROUND

         Plaintiff, Mr. Thomas Downing (“Mr. Downing”), is a deaf individual that communicates using sign language. (Doc. 45-19, 7:22-8:3). In the early morning hours of March 18, 2012, Mr. Downing was arrested by the Osceola County Sheriff's Office for domestic battery. (Doc. 45-22). Shortly after arriving at Osceola County Corrections, Mr. Downing complained of chest pains and was taken to Osceola Regional Medical Center. (Id.). On March 19, 2012, Mr. Downing was transferred to the Osceola County Jail where he was provided with an inmate handbook that included a procedure for filing grievances. (Doc. 45 p. 5; Doc. 45-2, pp. 20-21; Doc. 45-19, 40:23-41:8). The entire time Mr. Downing was confined to the Osceola County Jail he was kept in the medical unit. (Doc. 45-19, 45:12-19). Mr. Downing requested access to an interpreter or videophone, (Doc. 45-13, p. 1), and on March 22, 2012, Mr. Downing was taken to use the Osceola County Jail's Telecommunications Device for the Deaf (“TDD machine”). (Doc. 45-19, 42:6-20; Doc. 47-2). Mr. Downing was accompanied to the TDD machine by a representative from Inmate Calling Solutions, LLC (ICS).[1] (Doc. 45-19, 43:19-25). Mr. Downing attempted to use two separate TDD machines, however both proved inoperable and only produced “garbled text, numbers, and letters” in “no particular order.” (Id. at 42:14-43:13; 104:16- 105:18; see also, Doc. 47-2). The ICS representative did not attempt to fix the TDD machine and Mr. Downing was unable to fix it himself. (Doc. 45-19, 90:25-91:2). At no point during Mr. Downing's incarceration were the TDD machines ever operable for Mr. Downing's use. (Doc 47-1, 18:5-19:7, 23:5-24:3; Doc. 47-2, p. 6).

         At various times throughout Mr. Downing's time in jail, he communicated with correctional staff members using handwritten notes and verbal requests. (Doc. 45-19, 46:13-47:3, 77:22-78:6). These notes included statements such as: “get me defense lawyer and let them know that I'm deaf. Get interpreter, ” “Please can I go see Counselor, ” “Please get me videophone, ” and “I lost and not know what to do, No deaf devices for me” [sic]. (Doc. 45-4, pp. 4-7). Mr. Downing gave these notes to corrections officers and his case manager, and complained to “[a]nyone on shift, when there was a shift change, or any group turnover.” (Doc. 45-19, 28:6-12, 47:15-48:3). It does not appear that these individuals indicated they would alert their superiors that Mr. Downing had requested an interpreter or attorney. Although Mr. Downing expressed his needs through notes and verbal requests, he has no recollection of filing a formal grievance as outlined in the inmate handbook. (Doc 45-19, 72:10-25; Doc. 45-4, ¶4).

         Eventually, Mr. Downing sent a letter to an attorney requesting assistance. (45-19, 64:21-23). Mr. Downing met with the attorney he sent the letter on April 2, 2012. (Id. at 68:17-69:6). On April 5, 2012, after spending eighteen days in the Osceola County Jail, Mr. Downing was released. (Id. at 69:7-19). Mr. Downing then filed this action on March 16, 2016, claiming discrimination in violation of the Americans with Disabilities Act (ADA) Title II 42 U.S.C. §§ 12131 and Section 504 of the Rehabilitation Act 29 U.S.C. § 794. (Doc. 1). Thereafter, on November 2, 2016, the County filed its Second Amended Third Party Complaint for Indemnification, Breach of Contract, and Breach of Contract to Provide Insurance against ICS. (Doc. 24).

         III. STANDARD OF REVIEW

         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The party moving for summary judgment must “cit[e] to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials” to support its position that it is entitled to summary judgment. Fed.R.Civ.P. ...


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