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Civil Rights – ADA & Rehabilitation Act – Provision of Services – Wheelchair and Speech Assistance

Plaintiff Kobe has been provided with the augmentative communications device (ACD) and the wheelchair he requested; he has failed to make out claims against all but one of the defendants. As to the defendant-governor, based on plaintiff’s allegations of, inter alia, the delay in providing the needed devices (e.g., Kobe was initially provided an ACD that only allowed him to use pre-recorded phrases), the court finds that plaintiff has stated a claim against the governor under the Americans with Disabilities Act and the Rehabilitation Act.

The governor’s motion to dismiss is denied. The remaining defendants’ motions for summary judgment are granted4, without prejudice to plaintiffs’ filing a new action to address their new allegations.

In support of his claim that defendants conspired to deny his civil rights, Kobe argues that the defendant-agencies and related individuals have engaged in widespread corruption, negligence and criminal conduct over the past decade or more. However, Kobe’s allegations fail to demonstrate that the agency defendants’ purported mismanagement and falsification of information, if such conduct were to be proven, were motivated by a specific class-based, invidiously discriminatory animus to deprive Kobe of his rights.

In support of his RICO claim, Kobe asserts that he has provided extensive documentation of conduct of an enterprise (the diversion of funds to creating work activity centers rather than using the funds to support less restrictive living environments for the disabled) through a pattern of racketeering activity. Kobe asserts predicate acts to include “obtaining insurance through false pretenses, including money laundering, mail and wire fraud and intimidation of witnesses.”

While it is true that Kobe has made allegations of corruption, his claims are speculative in nature. The court discerns no facts tenting to show an enterprise distinct from the persons alleged to have violated 18 U.S.C. § 1962(c). Nor has Kobe proven that each South Carolina Department of Disabilities and Special Needs defendant engaged in at least two acts of racketeering activity within a 10-year period, as required by 18 U.S.C. § 1961(5).

In support of his claims against Governor McMaster, Kobe has identified a violation of the Americans with Disabilities Act in the failure to provide him with assistive devices to which he is entitled. Kobe contends that he is unable to communicate with others without the ACD, which prevents him from access to the public services to which he is entitled. Kobe also contends that his rights to reasonably safe conditions of confinement, freedom from bodily restraints, and to training have been disregarded. The court concludes that Governor McMaster is not entitled to sovereign immunity with respect to Kobe’s claims for monetary damages.

For purposes of defendant McMaster’s motion to dismiss, the court will assume that the governor is a public entity subject to damages under Title II of the ADA or the Rehabilitation Act. The question then becomes whether the governor intentionally or with deliberate indifference failed to provide meaningful access or reasonable accommodation to Kobe by denying him the use of an ACD.

Defendants intentionally violate the ADA and the Rehabilitation Act by demonstrating deliberate indifference when they have notice of the potential risk of their decision and clearly refuse the accommodation knowingly. Compensatory damages are available for failure to accommodate a plaintiff if a defendant acted knowingly, voluntarily and deliberately, even if the violation resulted from mere thoughtlessness and indifference rather than because of any intent to deny a plaintiff’s rights.

Kobe contends that Governors Sanford and Haley were notified of his need for the equipment but abdicated their obligations under the ADA and Rehabilitation Act to remedy the alleged violation. The court concludes that at least some of Kobe’s allegations nudge the complaint across the line from conceivable to plausible with respect to the narrow issue of whether the governor is liable for damages under the ADA and Rehabilitation Act for the failure to provide Kobe with the assistive devices he requires.

The governor’s motion to dismiss is denied. The other defendants’ motions for summary judgment are granted, without prejudice in part.

Kobe v. McMaster (Lawyers Weekly No. 002-076-18, 52 pp.) (Margaret Seymour, S.J.) 3:11-cv-01146; Patricia Harrison for plaintiffs; Christie Newman, Vance Bettis, Shahin Vafai, Kenneth Paul Woodington, William Henry Davidson II, Damon Wlodarczyk, Nikole Deanna Haltiwanger, Roy Laney, David Allan DeMasters, Patrick John Frawley, Erica Parker, Christian Stegmaier, Meghan Hazelwood Hall, Joel Wyman Collins Jr., Robin Lilley Jackson, Sandra Jane Senn and Leslie Arlen Cotter Jr.  D.S.C.


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