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Akhi Raheem Muhammad v. Gregory T. Weis

December 10, 2010

AKHI RAHEEM MUHAMMAD
v.
GREGORY T. WEIS, ET AL.



The opinion of the court was delivered by: Padova, J.

MEMORANDUM

Pro se Plaintiff Akhi Raheem Muhammad, a.k.a. Roy Sudduth, brought this action against more than 200 defendants, alleging violations of his constitutional rights as well as his rights under Title II of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act of 1973 ("RA"), 29 U.S.C. § 794(a). On August 17, 2009, we dismissed Plaintiff's ADA and RA claims against all private entity Defendants and some public entity Defendants; transferred his claims against the Court of Common Pleas of Allegheny County, the Pennsylvania Commonwealth Court, the Pennsylvania Superior Court, and the Pennsylvania Supreme Court to the United States District Court for the Western District of Pennsylvania; and retained jurisdiction only over his ADA and RA claims against the Pennsylvania Department of Insurance ("Defendant"). On June 18, 2010, Defendant filed a Motion for Summary Judgment on Plaintiff's remaining claims. For the reasons that follow, the Motion is granted.

I. FACTUAL BACKGROUND

Plaintiff is diabetic and has difficulty with his eyesight. (Def.'s Statement of Material Facts ¶ 1; Pierce Decl. Attach. C at 3.) On November 29, 2006, Plaintiff's automobile insurance provider, Geico, notified Plaintiff that it was canceling his insurance policy because his driver's license had been suspended. (Id. Attach. A.) The Notice informed Plaintiff that he could appeal Geico's decision by signing the Notice and sending it to Defendant. (Id.) Defendant received the Notice, which Plaintiff had signed, on December 11, 2006. (Id.) The matter was assigned to Consumer Services Investigator ("CSI") Geraldine Moten. (Id. ¶ 14.)

On January 18, 2007, CSI Moten sent Plaintiff an Investigative Report ("the report"), concluding that his insurance had been properly canceled and informing him that he could request an administrative hearing within ten days of receiving the report. (Id. Attach. E.) CSI Moten mailed the report to Plaintiff using the zip code 90213-2251, which had appeared as Plaintiff's zip code on the Notice of Cancellation. (Id. ¶¶ 21-22 and Attachs. A, E.) On February 14, 2007, the report was returned to Defendant by the United States Postal Service ("USPS"), with the notation that it was "not deliverable as addressed." (Id. ¶ 23 and Attach. F.)

On February 21, 2007, Plaintiff called CSI Moten, stating that he had not received the report. (Id. ¶ 24.) When CSI Moten explained that the report had been returned to Defendant, Plaintiff stated that his zip code was 90210. (Id. ¶ 24 and Attach. C at 3.) CSI Moten resent the report, using the zip code 90210. (Id.) The next day, Plaintiff called CSI Moten again, and requested that she fax him a copy of the report. (Id. ¶ 25 and Attach. C at 2.) CSI Moten faxed the report to the number Plaintiff provided. (Id. ¶ 26, Attach. C at 2, and Attach. G.) After he received the fax, Plaintiff requested an administrative hearing, preferably in Philadelphia, PA. (Id. Attach. H.)

On March 13, 2007, a Hearing Administrator mailed a Notice of Hearing to Plaintiff using the zip code 90213-2251, the zip code that appeared on the Notice of Cancellation. (Martin Decl. ¶¶ 7-8 and Attach. A.) The Notice of Hearing indicated that Plaintiff's administrative hearing was scheduled for May 3, 2007. (Id.) USPS subsequently returned the Notice of Hearing to Defendant, by USPS with the notation that it was "unclaimed." (Id. ¶ 14 and Attach. G.)

On April 27, 2007, Plaintiff called Assistant Hearings Administrator ("AHA") Jean Martin and told her that he had not received the notice of his hearing. (Id. ¶ 10.) He was unaware that the hearing had been scheduled for May 3, 2007, and asked that it be continued. (Id.) AHA Martin advised Plaintiff to put his request in writing and fax it to her. (Id.)

On May 1, 2007, Plaintiff faxed a letter ("the May 1 letter") to AHA Martin asking that the May 3, 2007 hearing be continued. (Id. Attach. D.) The letter stated that Plaintiff had not received the March 13 Notice of Hearing and that he only became aware that his administrative hearing was scheduled for May 3 during the April 27 phone call. (Id.) In the May 1 letter, Plaintiff also made a request for reasonable accommodation of his visual impairment. (Id.) Specifically, Plaintiff "request[ed] a 'reasonable accommodation', pursuant to the [ADA], in the form of an 'auxiliary aide/equipment' which would enable [him] and members of [his] 'protected class' to be able to view 'standardized print'." (Id. (emphases omitted).) Plaintiff further specified that "[t]his 'reasonable accommodation' should be in the form of a 'CCTV; CRTV or an overhead projector and projection screen'." (Id. (emphases omitted).) Defendant received the May 1 letter. (Id. ¶ 11 and Attach. D.)

On May 2, 2007, the Hearing Examiner granted Plaintiff's request for a continuance and rescheduled Plaintiff's administrative hearing for June 18, 2007, in Philadelphia. (Id. Attach. E.) AHA Martin mailed a copy of the scheduling order to Plaintiff, using the zip code 90210, and faxed a copy to Plaintiff using the number Plaintiff provided to CSI Moten. (Id. ¶ 13 and Attach. F; Pierce Decl. ¶ 25.)

On June 18, 2007, Defendant held Plaintiff's first administrative hearing ("the June hearing"). At the June hearing, Hearing Officer ("HO") Nowak acknowledged that Plaintiff had made a request for accommodations in May. (6/18/07 Hrg. Tr. at 12.) Referring to Plaintiff's request for a CCTV, a CRTV, or an overhead projector, HO Nowak stated that "a search has been made throughout this building for that equipment, and that equipment is not in this building. There is no such thing available." (Id. at 7.) Later, she reiterated that "a search was made to see if any of this equipment was available, and it's not." (Id. at 12.) She further stated that "everybody in Harrisburg was looking mightily for this equipment, that it doesn't -- there is none. I don't know if there's -- nobody uses overhead projectors anymore, we just don't." (Id. at 16.) HO Nowak did "recognize and agree completely that [Plaintiff was] entitled to reasonable accommodation," and offered Plaintiff "the option of providing someone to read for [him]." (Id. at 9; 6.) She also offered to read any documents being discussed to Plaintiff herself. (Id. at 6.) As an additional option, she offered to continue the hearing. (Id. at 6-7.) Plaintiff stated that he would find a reader to be an insufficient accommodation and requested a continuance. (Id. at 14-15; 7). HO Nowak continued the hearing at Plaintiff's request. (Id. at 12.)

On June 25, 2007, HO Nowak rescheduled Plaintiff's hearing for September 18, 2007 ("the September hearing"). (Martin Decl. ¶ 16 and Attach. H.) That same day, AHA Martin mailed a copy of the rescheduling order to Plaintiff, using the zip code 90210. (Id. ¶ 17 and Attach. I.)

Plaintiff did not appear at the September hearing. (9/18/07 Hrg. Tr. at 7.) Approximately 27 minutes after the scheduled start of the hearing, Chief Hearing Officer ("CHO") James Johnson went on the record and stated that Plaintiff had not appeared. (Id.) CHO Johnson further stated that he had checked in with Defendant's offices in Philadelphia and Harrisburg, and Plaintiff had not contacted either office to explain his non-appearance. (Id.) CHO Johnson also stated that, pursuant to Plaintiff's request for accommodation, Defendant had provided an overhead projector, had made transparencies of all the docket exhibits and possible Geico exhibits for overhead projection, and was prepared to make transparencies of Plaintiff's exhibits as well. (Id. at 8.) The Geico representative moved for dismissal with prejudice in light of Plaintiff's non-appearance, and CHO Johnson granted the motion. (Id. at 8-9.)

On September 21, 2007, CHO Johnson issued a written order dismissing Plaintiff's claim with prejudice for failure to prosecute ("the September 21 order"). (Martin Decl. ΒΆ 19 and Attach. J.) That same day, AHA Martin mailed a copy of the September 21 order to ...


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