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Updike v. Clackamas County

United States District Court, D. Oregon

February 13, 2017

DAVID UPDIKE, on behalf of himself and all others similarly situated, Plaintiff,

          Daniel J. Snyder, John D. Burgess, and Carl Lee Post, Law Offices of Daniel Snyder, Debra J. Patkin, National Association of the Deaf, Of Attorneys for Plaintiff.

          Stephen L. Madkour, Clackamas County Counsel, Shawn A. Lillegren, Assistant Clackamas County Counsel, and Kathleen J. Rastetter, Assistant Clackamas County Counsel, Of Attorneys for Defendant.


          Michael H. Simon United States District Judge.

         Plaintiff David Updike (“Updike”) brings this putative class action against Defendant Clackamas County (“County”), alleging violations of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, and § 504 of the Vocational Rehabilitation Act of 1973, 29 U.S.C. § 794. Plaintiff asserts claims on behalf of himself and other deaf or hard of hearing individuals who have been, are, or will be incarcerated at the Clackamas County jail.[1] Pending before the Court are the following three motions, listed in the order in which they will be discussed: (1) Plaintiff's Motion to Compel Production of Documents (ECF 128); (2) Plaintiff's Second Motion to Supplement the Record in Support of Motion for Class Certification (ECF 142); and (3) Plaintiff's Motion for Class Certification (ECF 99).


         A. Factual Allegations

         In his Amended Complaint, Updike alleges that he has been deaf his entire life. He relies primarily on American Sign Language (“ASL”) to communicate with other people. Without auxiliary aids, such as video conferencing and closed-captioning functions, Updike cannot use a standard telephone or understand programs on television. Many other hearing-impaired people similarly rely on ASL and auxiliary aids to communicate and understand television programming.

         Updike has served time in Clackamas County Jail on multiple occasions. On approximately October 11, 2010, Updike began serving a 30-day sentence. From approximately April 30 to May 24, 2013, Updike served another sentence. On July 7, 2014, Updike again served time in the Clackamas County Jail.

         On each of these occasions, Clackamas County corrections employees knew that Updike was deaf. The County, however, did not provide Updike with an ASL interpreter. With no available ASL interpreter, Updike had limited ways of communicating with jail staff, including medical professionals. The County also repeatedly failed to provide Updike with auxiliary aids and services for communication. The denial of these aids and services effectively deprived Updike of the ability to speak over the telephone with his attorney and with Updike's family. This also deprived Updike of the possibility of fully using the television for recreation. Non-hearing-impaired inmates have the opportunity to speak with their attorneys and families and fully participate in recreational activities, such as watching television.

         During Updike's incarceration in 2013, Clackamas County corrections employees could not adequately communicate with Updike and failed to understand his reports of alleged harassment by other inmates. Because Clackamas County corrections employees either misunderstood Updike's reports or purposefully retaliated against him, the County placed Updike in solitary confinement. Lack of effective communication, lack of meaningful telephone access, and lack of recreational opportunities equal to those of non-hearing-impaired inmates caused Updike to feel frustrated, humiliated, and isolated.

         Updike asserts that his experience at Clackamas County Jail is representative of the experiences of other hearing-impaired prisoners. According to Updike, the County has failed to provide hearing-impaired inmates with adequate access to sign language interpreters. Lack of access to sign language interpreters inhibits the ability of inmates effectively to communicate with Clackamas County employees, particularly medical professionals. The County also fails to provide hearing-impaired inmates with auxiliary aids and services necessary for the inmates to understand television programming and jail announcements. In addition, the County does not give hearing-impaired inmates access to interpreters or other auxiliary aids and services during disciplinary proceedings, effectively depriving those inmates of the ability to defend themselves.

         Updike alleges that the County discriminates against deaf and hard of hearing individuals through its policies and practices and that such discrimination is willful and deliberate. Updike seeks both compensatory damages and equitable relief on behalf of the class.

         B. Procedural History

         On November 30, 2015, the Court granted in part the County's motion to dismiss, ruling that, among other things, Updike's claims based on conduct occurring before April 29, 2013, were barred under the applicable statute of limitations and that Updike lacked standing to seek injunctive relief individually or to represent a putative class seeking injunctive relief. The Court concluded that Updike's allegations regarding a threat of future injury to himself or other hearing-impaired individuals were too speculative to support standing to seek injunctive relief.[2]See Updike v. Clackamas Cnty., 2015 WL 7722410, at *6, 10 (D. Or. Nov. 30, 2015) (ECF 32).

         Updike later moved for leave to file a second amended complaint to add allegations that Updike contends would support his claim for injunctive relief. The Court denied that motion. ECF 54. Later, Updike moved for reconsideration to for leave to file a second amended complaint to add an additional named plaintiff, Andrew Abraham. In a written opinion, the Court denied those motions. ECF 94.

         Updike filed his pending motion for class certification, seeking both compensatory damages and equitable relief. In support of his motion, Updike presents evidence not only of discriminatory treatment of Updike by the County but also discriminatory treatment by the County of three other deaf individuals: Andrew Abraham, Michael Scott Elliot, and Frank W. Mounts. Updike argues that the County discriminated against these individuals by failing to provide them with necessary auxiliary aids and accommodations while they were incarcerated at the Clackamas County jail.


         A. Class Action Certification

         Federal class actions are governed by Rule 23 of the Federal Rules of Civil Procedure. The plaintiff “must be prepared to prove” that each of the applicable requirements of the rule is satisfied. Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2551 (2011). Rule 23 sets forth more than a “mere pleading standard.” Id. Rule 23, however, provides district courts with broader discretion to certify a class than to deny certification. See Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 956 (9th Cir. 2013).

         A party seeking class certification must satisfy each of the requirements of Rule 23(a) and at least one requirement of Rule 23(b). Wang v. Chinese Daily News, Inc., 737 F.3d 538, 542 (9th Cir. 2013). Under Rule 23(a), a district court may certify a class only if:

(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law and fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.

Fed. R. Civ. P. 23(a). In other words, a proposed class must meet the requirements of numerosity, commonality, typicality, and adequacy of representation. Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 588 (9th Cir. 2012). Rule 23 also requires, implicitly, that the members of the proposed class be objectively ascertainable. Ott v. Mortgage Investors Corp. of Ohio, Inc., 2014 WL 6851964, at *13 (D. Or. Dec. 3, 2014).

         In addition to the requirements of Rule 23(a), a party seeking to maintain a class action also must “satisfy through evidentiary proof at least one of the provisions of Rule 23(b).” Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1432 (2013). Here, Plaintiff seeks to certify the proposed class under either Rule 23(b)(2) or Rule 23(b)(3). A class action may proceed under Rule 23(b)(2) if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(2). A class action may proceed under Rule 23(b)(3) if “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3).

         The Rule 23 analysis is “rigorous” and may “entail some overlap with the merits of the plaintiff's underlying claim.” Wal-Mart, 131 S.Ct. at 2551 (quotation marks omitted); Comcast Corp., 133 S.Ct. at 1432. Nevertheless, Rule 23 “grants courts no license to engage in free-ranging merits inquiries at the certification stage.” Amgen, 133 S.Ct. at 1195, 1196 (emphasis in original). “Merits questions may be considered to the extent-but only to the extent-that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Id. at 1195; see also Baker v. Microsoft Corp., 2015 WL 1219506, at *6 (9th Cir. Mar. 18, 2015).

         B. The ADA and the Rehabilitation Act

         Title II of the ADA states 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. Defendant does not dispute that both the County and the County jail are “public entities” for purposes of the ADA. See 43 U.S.C. § 12131(1).

         The U.S. Department of Justice regulations implementing Title II of the ADA require public entities to “take appropriate steps to ensure that communications with applicants, participants, members of the public, and companions with disabilities are as effective as communications with others.” 28 C.F.R. § 35.160(a). To ensure effective communication, the ADA requires that a public entity “furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities, including applicants, participants, companions, and members of the ...

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