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Hearon v. Sheriff Butch Conway, Securus Tech, Inc.

United States District Court, N.D. Georgia, Atlanta Division

April 28, 2017

SHERIFF BUTCH CONWAY, SECURUS TECH, INC., Vendor, and RAY CRUISE, Vendor Representative, Defendants.



         This matter is before the Court on Magistrate Judge Alan J. Baverman's Final Report and Recommendation [6] (“R&R”), recommending that this action be dismissed without prejudice.

         I. BACKGROUND[1]

         Plaintiff Derek Leonard Hearon (“Plaintiff”) is a deaf prisoner at the Gwinnett County Detention Center (“GCDC”) in Lawrenceville, Georgia. GCDC generally requires prisoners to use “phone cards” to pay for their telephone calls. (Compl. at 8). GCDC previously allowed hearing-impaired prisoners to make free telephone calls on a teletypewriter (“TTY”) machine, including because the TTY does not accept phone cards. (Compl. at 3-4, 8).[2] GCDC now requires prisoners who wish to use the TTY to do so through “collect calls, ” which require the recipient to bear the expense of the TTY call. (Compl. at 3-4, 8); see /collect熩 (defining a “collect call” as “a telephone call that the receiving party is asked to pay for”). This policy change occurred after GCDC determined it was unfair to allow hearing-impaired prisoners to make free calls when other prisoners were required to pay for their calls. (Compl. at 8).

         Plaintiff alleges that the TTY is “outdated” and that “the noise in the dorm causes garble[d] words and the relay operator does not understand [his] typing.” (Compl. at 3-4). Plaintiff states that he sometimes uses “video visitation” in lieu of the TTY but that he is required to use sign language to do so. (Compl. At 3-4, 8). Plaintiff states that he also uses ordinary telephones with assistance from third parties, but that this undermines the privacy or confidentiality of his communications. (Compl. at 3-4, 8).

         On January 19, 2016, Plaintiff filed his Complaint [1], asserting a claim under Title II of the Americans with Disabilities Act (“ADA”). Plaintiff asserts that GCDC “is not ADA (American Disabilities Act) compliant in regards to their telephones not being properly programmed for the hearing impaired.” (Compl. at 4). He seeks damages. On April 22, 2016, the Magistrate Judge screened Plaintiff's Complaint and issued his R&R, recommending that this action be dismissed without prejudice.[3] Plaintiff did not file objections to the R&R.


         A. Legal Standard

         After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). Where no party has objected to the report and recommendation, the Court conducts only a plain error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam). Plaintiff has not filed objections to the R&R, and the Court thus reviews it for plain error.

         B. Analysis

         “Title II of the ADA prohibits a ‘public entity' from discriminating against ‘a qualified individual with a disability.'” Bircoll v. Miami-Dade Cty., 480 F.3d 1072, 1081 (11th Cir. 2007) (quoting 42 U.S.C. § 12132).[4]

In order to state a Title II claim, a plaintiff generally must prove (1) that he is a qualified individual with a disability; (2) that he was either excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) that the exclusion, denial of benefit, or discrimination was by reason of the plaintiff's disability.

Id. at 1083. “To prevail on a claim for compensatory damages under . . . the ADA, a plaintiff must show that a defendant violated his rights under the statute[] and did so with discriminatory intent.” McCullum v. Orlando Reg'l Healthcare Sys., Inc., 768 F.3d 1135, 1146-47 (11th Cir. 2014). “That is an exacting standard, which requires showing more than gross negligence.” Id. at 1147. “[A] plaintiff must show that the defendant knew that harm to a federally protected right was substantially likely and failed to act on that likelihood.” Id.

         The Magistrate Judge found that Plaintiff fails to state an ADA claim against Defendants Securus Tech, Inc. (“Securus”), a private company, and Ray Cruise, a Securus representative, because neither Defendant is a “public entity.” The Magistrate Judge concluded, for the same reason, that Plaintiff fails to state a claim against Defendant Sheriff Butch Conway (“Sheriff Conway”) in his individual capacity. The Court finds no plain error in these determinations. See Edison v. Douberly, 604 F.3d 1307, 1308 (11th Cir. 2010) (“Only public entities are liable for violations of Title II of the ADA.”); Slaughter v. Georgia Dep't of Corr., No. 5:15-cv-90, 2016 WL 915260, at *3 (S.D. Ga. Mar. 4, 2016) (“Plaintiff cannot bring a claim under Title II of the ADA against prison staff and officials individually.”); Sims v. Connection, No. 13-cv-5190, 2014 WL 1383084, at *5 (E.D.N.Y. Apr. 8, 2014) (“ is a private entity, not a state actor.”); Clay v. Steele, No. 4:12-cv-2001, 2013 WL 5442792, at *8 (E.D. Mo. Sept. 30, 2013) (“Securus Technologies, Inc. is a private ...

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