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CLARKSON v. COUGHLIN

February 3, 1992

DORIS CLARKSON, on behalf of herself and all others similarly situated, Plaintiff, against THOMAS A. COUGHLIN, III, individually and in his capacity as Commissioner of the State of New York, Department of Correctional Services, ROBERT GREIFINGER, individually and in his capacity as Deputy Commissioner and Chief Medical Officer of the New York State Department of Correctional Services, MARION BORUM, individually and in his capacity as Deputy Commissioner for Program Services of the New York State Department of Correctional Services, ELAINE A. LORD, individually and in her capacity as Superintendent of the BEDFORD HILLS CORRECTIONAL FACILITY, and RAUL RUSSI, individually and in his capacity as Chair of the New York State Board of Parole and Head of the New York Division of Parole, Defendants. RODNEY THOMAS, LARRY RANDALL, JANICE WHAN, SCOTT CAMERON PHELPS, and JAMES WHITE, individually and on behalf of others similarly situated, Proposed-Plaintiff-Intervenors, - against - VICTOR HERBERT, individually and in his capacity as Superintendent of the COLLINS CORRECTIONAL FACILITY, WALTER KELLY, individually and in his capacity Superintendent of the ATTICA CORRECTIONAL FACILITY, BRIDGET GLADWIN, individually and in her capacity as Superintendent of the TACONIC CORRECTIONAL FACILITY, ARTHUR LEONARDO, individually and in his capacity as Superintendent of the GREAT MEADOW CORRECTIONAL FACILITY, CARL BERRY, individually and in his capacity as Superintendent of the WOODBOURNE CORRECTIONAL FACILITY, RICHARD C. SURLES, individually and in his capacity as Commissioner of the New York State Office of Mental Health, and SUSAN BUTLER, individually and in her capacity as Deputy Commissioner for Program Services of the New York State Department of Correctional Services, Proposed-Defendants.


The opinion of the court was delivered by: ROBERT W. SWEET

Sweet, D. J.

Defendants Thomas A. Coughlin, III ("Coughlin"), Robert Greifinger ("Greifinger"), Marion Borum ("Borum"), Elaine A. Lord ("Lord"), and Raul Russi ("Russi") (collectively the "Defendants") have moved to dismiss Plaintiff Doris Clarkson's ("Clarkson") complaint against them on the ground that the action is moot. Defendant Lord also has moved separately for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the ground that she is not a proper defendant to this action. In the alternative, the Defendants seek to transfer this action to the Northern District of New York pursuant to 28 U.S.C. § 1404(a).

 Rodney Thomas ("Thomas"), Larry Randall ("Randall"), Janice Whan ("Whan"), Scott Cameron Phelps ("Phelps"), and James White ("White") (collectively the "Intervenors") have moved to intervene as plaintiffs in this action pursuant to Rule 24(b) of the Federal Rules of Civil Procedure, and to join Victor Herbert ("Herbert"), Walter Kelly ("Kelly") Bridget Gladwin ("Gladwin"), Arthur Leonardo ("Leonardo"), Carol Berry ("Berry"), Richard C. Surles ("Surles"), and Susan Butler ("Butler") (collectively the "Proposed Defendants") as defendants pursuant to Rule 19(a) or Rule 20(a). Additionally, the Intervenors seek class certification pursuant to Rule 23.

 For the reasons set forth below, the Defendants' motion to dismiss the class complaint is denied. Clarkson's personal claims are dismissed as moot, while Whan's motion to intervene is granted. The other motions to intervene are denied at this time, with leave granted to renew. Surles, Butler, and Gladwin are joined as defendants pursuant to Rule 20(a). The motion to certify the proposed class is denied, with leave granted to renew the motion at a later date. Lord's motion for summary judgment and the motion to transfer the case to the Northern District of New York are denied.

 The Parties

 The Defendants and the Proposed Defendants are either officials of the New York State Department of Correctional Services ("DOCS") or of State organizations providing corrections-related services. Coughlin is the Commissioner of DOCS, Greifinger is its Chief Medical Officer and a Deputy Commissioner, and Butler is the Deputy Commissioner of Program Services. *fn1" Lord, Herbert, Kelly, Gladwin, Leonardo, and Berry are Superintendents of DOCS facilities. Russi is the Chair of the New York State Board of Parole and Head of the New York State Division of Parole, and Surles is the Commissioner of the New York State Office of Mental Health. Relief is sought from each in their individual and official capacities.

 Clarkson is deaf. Until recently, she was incarcerated at the Bedford Hills Correctional Facility in New York State. She has been unable to hear since early childhood and "speaks" with others primarily through the American Sign Language. Clarkson can understand little, if any, Signed English, and apparently cannot lip-read. *fn2" To communicate with people who can hear, Clarkson uses various auxiliary aids and assistive devices.

 Clarkson's term of incarceration at Bedford Hills began in 1988. During her time there, she alleges that she never had access to an interpreter conversant in American Sign Language. Bedford Hills also lacks the basic assistive devices upon which hearing-impaired people often rely. These devices include telephone communication devices for the deaf ("TDD"), which allow hearing-impaired persons to communicate over the phone directly with others or through a third-party relay service; close-captioned devices, which provide subtitles for television or films; and visual alarms and signals. Clarkson was provided with hearing aids while at Bedford Hills. These aids were of limited efficacy, though, given the extent and duration of Clarkson's hearing loss.

 Clarkson's experience at Bedford Hills can be described best as "a prison within a prison." Eastern New York Correctional Facility, Sensorially Disabled Unit Operations & Procedures Manual 1 (Sept. 1989) [hereinafter "SDU Manual" ]. Rarely was she fully aware of what was going on around her. The record indicates, for example, that Clarkson underwent HIV testing without her knowledge and that she received and took medicine without knowing why. Her ability to participate in educational training programs was limited; she could not take advantage of group counseling; and she did not enjoy the same telephone and television privileges as did inmates who are not hearing-impaired. These and other alleged deprivations apparently were caused in part by the Defendants' failure to provide Clarkson with the communicative tools necessary for her to function fully in the prison environment (as required by law, see, e.g., N.Y. Correct. Law §§ 136-139; 7 N.Y.C.R.R. pts. 200, 700; 9 N.Y.C.R.R. § 7695.4).

 Because of her hearing loss, Clarkson also alleges that she was deprived of her procedural due process rights. The rules and regulations of prison life were never properly conveyed to her at intake. Without a qualified interpreter, she was not capable of defending herself in disciplinary proceedings nor exercising her right to grievance, transfer, good time, and change of status procedures. Injunctive relief is sought to remedy these alleged deprivations pursuant to the Eight, Ninth, and Fourteenth Amendments to the United States Constitution, § 504 of the Rehabilitation Act, 29 U.S.C. § 794, and 42 U.S.C. § 1983.

 DOCS does have a facility that would have provided Clarkson with the relief sought here. It is, however, located at DOCS's Eastern Correctional Facility and serves only male inmates. Known as the Sensorially Disabled Unit ("SDU"), this facility was established by DOCS to provide resources for hearing-impaired inmates that were unavailable previously. See SDU Manual, supra, at 6. The SDU apparently can handle only 30 hearing-impaired inmates at a time, *fn3" and there may be male inmates within the DOCS system who are eligible for or desire a transfer to the SDU, but cannot be readily accommodated.

 Like Clarkson, the Intervenors allege that they are all hearing-disabled. Thomas is incarcerated at the Auburn Correctional Facility. Allegedly deaf since birth, he cannot read or write English well and communicates primarily through American Sign Language. At the time of oral argument, he was scheduled to go to the SDU, but had not been transferred there yet. Thomas apparently was enrolled in the SDU previously, but was transferred out so that he could receive mental health treatment not available at the Eastern Facility.

 Whan is incarcerated at the Taconic Correctional Facility. She allegedly suffers from congenital, degenerative hearing loss. On October 24, 1991, she apparently received a pair of hearing aids that she had requested in December 1990. She follows conversations primarily by reading lips, with some reliance placed on her limited hearing ability. Whan seeks tutoring in American Signed Language, a closed-caption television decoder, and an amplified telephone handset or TDD.

 Phelps is incarcerated at the Great Meadows Correctional Facility. He allegedly is hearing-impaired and relies on hearing aids, lip reading, and writing to communicate. As of oral argument, it seemed that he had been transferred to the SDU.

 White is incarcerated at the Woodbourne Correctional Facility. He alleges that he has recently suffered a dramatic loss in hearing. The Defendants contend that they are unable to verify the degree of his loss, if any. Nevertheless, he has been scheduled for, and presumably sent to, the SDU.

 Prior Proceedings

 Clarkson initiated this action by filing a Class Action Complaint on March 15, 1991. On March 26, 1991, she brought an Order to Show Cause seeking access to the requested services, a purging of all disciplinary charges from her record, credit for the time to which she would have been entitled had she participated in prison activities, the promulgation of rules and procedures designed to protect the rights and privileges of other hearing-impaired inmates, and the development of a plan ensuring that all Bedford Hills staff working with her knew of her special needs.

 Clarkson was paroled on June 14, 1991. That day, the Defendants served their present motions for dismissal and transfer. *fn4" The Intervenors filed their motion for intervention and class certification on August 9, 1991. Oral argument on the motions was heard on December 19, 1991, and the motions considered submitted as of that date.

 Discussion

 I. Mootness

 As a threshold matter, the Defendants contend that the entire suit should be dismissed because the claims brought by Clarkson are moot. *fn5" Clarkson argues that her personal claims are not moot because she may be reincarcerated if she violates her parole and that even if her personal claims are moot, the class complaint should not be dismissed.

 Once the conduct of which a prisoner complains is no longer directed at that prisoner, a prisoner's personal claim for injunctive relief from that conduct is moot. For example, in Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985) (per curiam), the Second Circuit held that the plaintiff's claim for injunctive relief from solitary confinement was moot because the period of confinement had lapsed. The plaintiff could still pursue his claim for lost good time credits, however. Likewise, in Beyah v. Coughlin, 789 F.2d 986, 988-89 (2d Cir. 1986), the Court of Appeals held that the plaintiff's complaint directed at allegedly unconstitutional practices at a particular institution was moot to the extent it sought declaratory and injunctive relief once the ...


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