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CLARKSON v. COUGHLIN

June 16, 1995

DORIS CLARKSON individually and on behalf of all others similarly situated, Plaintiffs, - and - JANICE WHAN, MARK BROCK, TERRYTON HARRISON, RISS POWELL, GLENNIS ROBERTSON, and LARRY RANDALL, individually and on behalf of all others similarly situated, Plaintiff-Intervenors, against THOMAS A. COUGHLIN, III, individually and in his capacity as Commissioner of the New York State Department of Correctional Services, et al., Defendants.

ROBERT W. SWEET, U.S.D.J.


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

Sweet, D.J.

 In this class action brought by deaf and hearing-impaired inmates in the custody of New York's Department of Corrections, plaintiffs move for declaratory judgment as to the existence of the statutory and constitutional rights they assert, for summary judgment on all their claims pursuant to Rule 56, Fed. R. Civ. P., and for preliminary and permanent injunctive relief. The claims asserted by the plaintiffs are:

 (i) discrimination based on disability in violation of § 504 of the Rehabilitation Act, 29 U.S.C. 794 ("§ 504");

 (ii) discrimination based on disability in violation of Title II of the Americans with Disabilities Act (the "ADA"), 42 U.S.C. §§ 12131-33;

 (iii) denial of due process of law in disciplinary, grievance, administrative and parole proceedings and interviews in violation of the due process clause of the Fourteenth Amendment of the U.S. Constitution, U.S. Const. amend. XIV, § 1 (the "Due Process Clause");

 (iv) deliberate indifference to the needs of deaf and hearing-impaired inmates in violation of the Due Process Clause;

 (v) deprivation of equal protection under the law in violation of the equal protection clause of the Fourteenth Amendment of the U.S. Constitution, U.S. Const. amend. XIV, § 1 (the "Equal Protection Clause");

 (vi) infringement of the rights of deaf and hearing-impaired inmates to confidential medical and mental health communications and decision-making in violation of the Fourteenth Amendment of the U.S. Constitution, U.S. Const. amend. IX & XIV, § 1 and

 (vii) deliberate indifference to the serious medical needs of deaf and hearing-impaired inmates in violation of the Eighth Amendment to the U.S. Constitution, U.S. Const. amend. VIII.

 This Court has jurisdiction pursuant to 42 U.S.C. § 1331.

 Plaintiffs have standing to press their constitutional claims under 42 U.S.C. § 1983 ("§ 1983").

 For the reasons set forth below, this motion will be granted in part and denied in part.

 The Parties

 Plaintiff Doris Clarkson ("Clarkson") was from October 1988 until June 1991 an inmate incarcerated by the New York State Department of Correctional Services ("DOCS"). Clarkson has been deaf since early childhood and communicates using American Sign Language ("ASL").

 Plaintiff-intervenor Janice Whan ("Whan") was from August 1990 until January 1992 an inmate of DOCS. Whan is hearing-impaired, suffering from congenital, degenerative hearing loss, and communicates by lip reading and with the assistance of hearing aids.

 Plaintiff-intervenor Mark Brock ("Brock") was from 1986 to 1993 an inmate of DOCS. Brock has been incarcerated in DOCS' Downstate Correctional Facility ("Downstate"), Auburn Correctional Facility and at the Eastern Correctional Facility ("Eastern"). Brock has been completely deaf since birth, and communicates primarily through ASL.

 Plaintiff-intervenor Terryton Harrison ("Harrison") has been from February 1992 to the present an inmate of DOCS. He was incarcerated at Downstate for approximately three months and was then at Clinton Correctional Facility ("Clinton"). Previously, Harrison was incarcerated at the Elmira Correctional Facility ("Elmira"), Attica Correctional Facility ("Attica") and at the Sensorially Disabled Unit at Eastern (the "SDU"). Harrison is deaf, and he communicates primarily through ASL. He has virtually no residual hearing, cannot lip read well and his speech is not understood by hearing persons.

 Plaintiff-intervenor Riis Powell ("Powell") has been from early 1992 to the present an inmate of DOCS. Powell is currently incarcerated at the SDU of the Eastern Correctional Facility. Previously he was housed at the Downstate and Coxsackie Correctional Facilities. Powell is deaf from birth, has virtually no residual hearing or ability to speak, and communicates primarily through ASL. He has limited ability to communicate in written English.

 Plaintiff Glennis Robertson ("Robertson") was from May 1991 to approximately December 1993 an inmate of DOCS. Robertson is hearing-impaired, and communicates through ASL, Signed English, and lip reading. She cannot communicate well by reading or writing English. Her reading comprehension was tested by DOCS as grade level 2.9.

 Plaintiff Larry Randall ("Randall") was from 1989 to April 1994 an inmate of DOCS. He served his sentence at the Attica, Greenhaven and at Southport Correctional Facilities. He was transferred to Sing Sing Correctional Facility ("Sing Sing") after he became seriously ill, and was given medical parole in April 1994. Randall is hearing-impaired, and hears through the use of hearing aids.

 These named plaintiffs represent two sub-classes of deaf and hearing-impaired inmates as defined in this Court's decision of January 25, 1993. The plaintiff class was certified as two distinct sub-classes, one male (the "Male Sub-Class") and one female (the "Female Sub-Class") described as follows:

 
(a) all present and future deaf and hearing-impaired male inmates of the New York State Department of Correctional Services who have been, are, or will be discriminated against, solely on the basis of their disability, in receiving the rights and privileges accorded to all other inmates; and
 
(b) all present and future deaf and hearing-impaired female inmates of the New York State Department of Correctional Services who have been, are, or will be discriminated against, solely on the basis of their disability, in receiving the rights and privileges accorded to other inmates.

 Clarkson v. Coughlin, 145 F.R.D. 339, 347-48 (S.D.N.Y. 1993) ("Clarkson II")1

 Defendant DOCS is a department of New York State. Defendant Thomas A. Coughlin III is Commissioner of DOCS ("Coughlin") and is responsible for the supervision, management and control of all DOCS facilities. DOCS receives federal financial assistance in excess of $ 7 million. As a department of New York State, DOCS is a "public entity" within the purview of the ADA, 42 U.S.C. §§ 12131, 32.

 Defendant Robert Greifinger is Deputy Commissioner and Chief Medical Officer of DOCS ("Greifinger"). He is responsible for the provisions of health care services to DOCS inmates, the organization and supervision of DOCS' Division of Health Services and the performance of DOCS' health care employees.

 Defendant Susan Butler is Deputy Commissioner for Program Services of DOCS ("Butler"). She is responsible for the delivery of program services to DOCS inmates, including recreation, education and visiting.

 Defendant Elaine A. Lord is Superintendent of Bedford Hills Correctional Facility ("Lord"). Lord is charged with the supervision, management, and control of Bedford Hills, including directing the work and defining the duties of all subordinate officers and employees of that facility.

 Defendant Bridget Gladwin is Superintendent of the Taconic Correctional Facility ("Gladwin"). Gladwin is charged with the supervision, management, and control of Taconic, including directing the work and defining the duties of all subordinate officers and employees of that facility.

 Defendant Daniel Senkowski is Superintendent of Clinton Correctional Facility ("Senkowski"). Senkowski is charged with the supervision, management, and control of Clinton, including directing the work and defining the duties of all subordinate officers and employees of that facility.

 Defendant Stephen Dalsheim is Superintendent of Downstate ("Dalsheim"). Dalsheim is charged with the supervision, management, and control of Downstate, including directing the work and defining the duties of all subordinate officers and employees of that facility.

 Defendant Raul Russi is Chair of the New York State Board of Parole and Head of the New York State Division of Parole ("Russi"). He has superintendence, management and control of all New York State Board of Parole and Division of Parole hearings and services.

 Defendant Richard C. Surles ("Surles") is Commissioner of the New York State Office of Mental Health ("OMH"). Pursuant to N.Y. Corr. Law § 401, DOCS has designated the Office of Mental Health to provide psychiatric services to inmates in the State correctional system. These defendants are sometimes referred to herein collectively as the "Defendants".

 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, among other relief. Clarkson filed her First Amended Class Action Complaint on May 10, 1991. Defendants answered on May 17, 1991. On June 14, 1991, the date on which Clarkson was paroled, the Defendants moved for dismissal of the action and transfer. Motions for intervention, joinder of additional defendants and class certification were filed on August 9, 1991. In an opinion of February 4, 1992 this Court granted the motions for intervention and joinder and denied all other motions pending at the time. Clarkson v. Coughlin, 783 F. Supp. 789 (S.D.N.Y. 1992) ("Clarkson I").

 Plaintiffs filed further motions seeking joinder of additional defendants, intervention by additional plaintiffs and certification of a class. After stipulation by the parties and with permission of this Court the respective return dates of these motions were reset. By opinion dated January 25, 1993, this Court granted: (i) the additional motion to intervene, (ii) the motion to join additional defendants, (iii) leave to amend the complaint, and (iv) certification of the plaintiff class and the two sub-classes within it, one of male and one of female deaf or hearing-impaired inmates in DOCS custody. See Clarkson II.

 Plaintiffs filed their Second Amended Class Action Complaint on March 29, 1993. Defendants answered once again on April 30, 1993. Plaintiffs in turn filed another Amended Complaint on June 8, 1993.

 A final round of amendment to the complaint and corresponding answer concluded with Defendants' filing on September 26, 1994. Plaintiffs filed the instant summary judgment motion on August 3, 1994. After stipulations extending the time for Defendants to file responsive papers and for Plaintiffs to reply, oral argument was heard on the within motion on February 8, 1995 at which time the motion was deemed fully submitted.

 The Facts

 There are two different forms of communication through manual signs commonly used by deaf people in this country Signed English and ASL. Signed English is a form of English in which each spoken word is accorded a corresponding manual "sign" and these signs are used with their customary syntax and in their customary word order. Signed English is essentially a system for visually paraphrasing spoken English.

 Although ASL also utilizes manual signing, it is best thought of as a foreign language used by American deaf people, with its own grammar and syntax. Proficiency in Signed English, regardless of degree, does not facilitate communication in ASL, and vice versa.

 The certification exam administered by the National Registry of Interpreters for the Deaf is considered the most reliable means of ascertaining the competence of a sign language interpreter. See Joint Committee on Access to the Courts, Improving the Access of Deaf and Hearing-Impaired Litigants to the Justice System, 48 The Record of the Association of the Bar of the City of New York, 834, 839 (1993). A qualified sign language interpreter is defined in the federal regulations appurtenant to the ADA as one who is "able to interpret effectively, accurately, and impartially both receptively and expressively, using any necessary specialized vocabulary." 28 C.F.R. § 35.104.

 A telephone communication device for the deaf ("TDD") is a device which uses the electronic transmission of text to allow deaf persons to communicate via telephone, with deaf persons or hearing persons who have access to a TDD, or with hearing persons who do not have a TDD, via a third-party relay service. Telecommunication is facilitated for some hearing-impaired people by use of amplified handsets.

 A closed-captioned decoder is an apparatus which "subtitles" the spoken text on television or film so that deaf and hearing-impaired persons can follow television programs.

 Visual alarm systems are devices which visually alert deaf persons to emergencies such as building fires, by means of a flashing light or other visual cue. Hearing impaired individuals who are not completely deaf are sometimes assisted through the installation of amplified alarms.

 Berthlynn Terry ("Terry") is DOCS' Deputy Commissioner for Affirmative Action and the head of its Office of Affirmative Action which is responsible for development and implementation of policies regarding inmates with disabilities. Terry is the person identified by DOCS as having knowledge and information pertaining to compliance with the Rehabilitation Act and the ADA. In deposition testimony she indicated that she was unaware of any "formal mechanism" in the prison system by which inmates can discuss their needs for reasonable accommodations based on disabilities. The documentary record reveals no form by which inmates could request such an accommodation, and defendants did not submit their evaluation, required by the ADA, of their programs for disabled inmates.

 Lorraine Waldron, a corrections counselor employed by DOCS at Downstate ("Waldron") has taken classes in sign language. In a system which assigns a corrections counselor to every inmate, Waldron has been and is assigned as the counselor to some of the male class members who arrived at Downstate for reception and classification. According to her declaration, Waldron's sign language abilities are "not highly developed." The record is silent on whether Waldron can communicate in ASL, the primary mode of communication used by several of the male named plaintiffs.

 Although a precise number is not alleged, the parties agree that at any given time there may be over fifty inmate members of the plaintiff class. The complete range of auxiliary aids and assistive devices required to permit class members to participate fully in and benefit from the programs, services and activities DOCS makes available to non-disabled inmates is not present in each of the facilities in which class members are incarcerated.

 Up to thirty deaf and hearing-impaired and visually-impaired male inmates may be, at any given time, serving part of their sentences in the SDU, which is a special unit within Eastern for persons with sensorial disabilities where they receive services to accommodate their disabilities. Prior to placement in the SDU all of the deaf and hearing-impaired male inmates spend months in DOCS' reception and classification facilities ("Reception Facilities") which are not equipped or staffed to provide the complete range of auxiliary aids and assistive devices they require. Members of the Male Sub-Class are incarcerated in general population facilities for some or all of their incarceration. At these facilities the full range of auxiliary aids and assistive devices is either incomplete or wholly unavailable. Members of the Female Sub-Class are incarcerated in general population facilities for the entire length of their incarceration, because the SDU presently houses only male inmates and is the only such facility in the DOCS system.

 Individuals committed to DOCS' custody are first sent to facilities designated as Reception Facilities where they are processed and assessed to determine appropriate long-term facility placements in the correctional system. The statutorily mandated purpose of program and classification procedures is:

 
to assure the complete study of the background and condition of each inmate in the care or custody of the department and the assignment of such inmate to a program that is most likely to be useful in assisting him [sic] to refrain from future violations of the laws. Such procedures . . . shall require . . . consideration of the physical, mental and emotional condition of the inmate; . . . his educational and vocational needs; . . . the danger he presents to the community or to other inmates; the recording of continuous case histories . . . ; and periodic review of case histories and treatment methods used.

 N.Y. Correction Law § 137(1). Downstate is a Reception Facility.

 At the Reception Facilities information is acquired from inmates through interviews with counselors and review of background materials which accompanied inmates into DOCS' custody. DOCS is required by New York statute to conduct a psychiatric evaluation of each inmate. N.Y. Correction Law § 148 (McKinney 1987). Inmates who are identified as having special medical or mental health needs are sent to a special unit within a Reception Facility, called "extended classification" to undergo more extensive educational, medical and intelligence testing. While incarcerated in a Reception Facility inmates receive no educational, vocational or rehabilitative training. After some time in a Reception Facility, each inmate is placed more or less permanently in a long-term DOCS facility. Inmates who go though extended classification are evaluated by classification analysts and other professionals, and as a result of these evaluations may be assigned to specialized units within DOCS for their long-term placement. Some, but not all, of the deaf and hearing-impaired male inmates are referred from extended classification to the SDU. Other deaf or hearing-impaired inmates who may need the services provided in the SDU are referred to other long-term facilities because of medical, security or disciplinary reasons.

 Upon arrival in any DOCS' facility, inmates are assigned counselors who are to work with inmates throughout their prison stay. DOCS' counselors are required to evaluate the educational, vocational and programmatic needs of inmates in their custody. Counselors are required to conduct appropriate psychological, intelligence, educational and vocational evaluations as are necessary to make appropriate program and service placements. It is the counselor's role to supplement the evaluation process with input from inmates regarding programs which may be helpful to them.

 State administrative regulations encourage DOCS to provide telephone and television privileges to all inmates in DOCS custody. See 7 N.Y.C.R.R. § 320.3(e) ("visiting, phone calls, and correspondence shall be encouraged as a vital part of rehabilitation.") DOCS is required to maintain a grievance process through which inmates can seek redress when actions or inaction of DOCS' staff negatively affect their incarceration. See 9 N.Y.C.R.R. § 7654. DOCS is charged with maintaining inmates in a safe physical environment. New York Correction Law § 45(6). DOCS is responsible for providing inmates with timely and appropriate medical and mental health care. New York Correction Law §§ 45(6), 148. Finally, inmates have procedural due process protections in disciplinary and parole board proceedings. See 7 N.Y.C.R.R. Part 250 et seq. (disciplinary proceedings); 9 N.Y.C.R.R. § 8000 et seq. (parole proceedings).

 Defendants are aware of Plaintiffs' respective hearing disabilities and the extent to which these disabilities interfere with each inmate's ability to participate in DOCS programs and activities.

 Clarkson was incarcerated in the Bedford Hills Correctional Facility for almost three years from October 1988 to June 1991. Defendants knew that she needed a sign language interpreter and assistive devices in order to communicate effectively. She never received the services of a qualified sign language interpreter, nor any assistive devices, such as a TDD. Clarkson was never provided with access to a qualified sign language interpreter for medical or psychiatric care, even after the Superintendent of Bedford Hills was notified that Clarkson had been administered the Human Immunodeficiency Virus (HIV) test without her knowledge and informed consent. The priest who advised Clarkson regarding her rights to consent or refuse HIV testing could not communicate effectively with her in ASL.

 Clarkson was prescribed three daily medicines. Because she is deaf and Defendants could not communicate effectively with her, however, she never understood what they were for. It was alleged that she had a psychiatric condition, yet no evaluation or counseling of her mental health condition was done in the presence of a sign language interpreter.

 Clarkson was enrolled in educational programs while at Bedford Hills, including Adult Basic Education and Arts and Crafts but she received no instruction through a sign language interpreter.

 Before Clarkson was to meet with the Parole Board in March 1991, she attended several interviews with Parole Board staff to ascertain her plans for the future. She was not provided with an interpreter at these interviews.

 Janice Whan suffers from congenital, degenerative hearing loss caused by prenatal exposure to rubella. She also suffers from glaucoma. Whan's hearing loss got progressively worse while she was an inmate at DOCS' Taconic Correctional Facility from August 1990 until January 1992. Originally she required only one hearing aid but by the time she was released from DOCS' custody she needed two.

 Whan communicates with hearing people by reading lips, but depends on hearing aids to give much needed auditory cues when trying to follow conversation. She requested the hearing aids and DOCS did not provide them until ten months after her request. While at Taconic, Whan could not hear the fire alarm, could not follow television because there is no closed-caption decoder and lacked the amplified handset that she needed in order to use the telephone.

 Whan had difficulty following her prison orientation and other programs. Whan explained her problems to the Program Committee and her counselors, but no action was taken to provide her with the requisite hearing aids or accommodations she needed to hear and lip read more effectively. On several occasions DOCS' medical staff loudly discussed Whan's medical problems in close proximity to other inmates.

 Plaintiff Brock is deaf and has been deaf since birth. His primary method of communication is ASL. Brock cannot read or write English well. In order to make himself properly understood, Brock requires the assistance of a qualified sign language interpreter.

 Brock was an inmate at Downstate for over six months. Shortly after Brock moved to intervene in this case, he was transferred to the SDU. On a previous incarceration from 1986 to 1988 Brock was housed in the SDU, except for several months when he was transferred to the Auburn Correctional Facility for disciplinary or security reasons.

 Brock's request to his counselor for a TDD was denied. He was told that she could make calls for him. Consequently, Brock could not make private telephone calls. In addition, he could not watch television because there was no closed-caption decoder. Brock missed morning count because he could not hear the public announcement system. He was at risk of harm because there was no visual alarm system. None of these services were provided to Brock during his incarceration at Auburn either.

 Harrison is a deaf inmate who is currently incarcerated at Clinton. Harrison has virtually no residual hearing and primarily communicates in ASL. Harrison cannot lipread well and his speech is not understood by hearing persons.

 Between 1985 and 1987, Harrison was housed at Elmira for approximately six months, then at the SDU for two years. For security reasons, Harrison was then transferred out of the SDU to Attica.

 Harrison began his current incarceration in February 1992 at Downstate, where he was placed in extended classification because of his deafness and mental health needs. The classification analyst recommended that although Harrison's needs could best be served in the SDU at Eastern, he should be placed in an alternative maximum security setting because of prior problems he had dealing with deaf inmates at the SDU. Harrison was transferred to Clinton on May 30, 1992.

 At Clinton, Harrison was considered for inclusion in two special programs. He was denied admission into the Merle Cooper Program, a therapeutic program for inmates because he was found "unable to benefit from group therapy due to hearing impairment." Initially he was also denied admission to the Assessment and Program Placement Unit ("APPU"), a special unit for victim prone inmates, because "Harrison is a deaf mute, a condition for which the APPU program has no services." Harrison was transferred to the Clinton APPU on or about November 14, 1992 where he presently does not have access to a sign language interpreter.

 At no DOCS facility other than the SDU was Harrison provided with access to qualified sign language interpreters or other services he needed to participate in prison programs and activities. At Attica, Harrison was denied all programming because of his deafness and stayed in his cell twenty-four hours a day. At no DOCS facility was he permitted to participate in a group drug and alcohol rehabilitation program because he had no access to an interpreter. In the Clinton APPU, there are no programs or services accessible to deaf inmates.

 Harrison has been disciplined in several DOCS facilities without being provided a qualified sign language interpreter either in preparation for or during his disciplinary proceedings on January 6, 1994, Harrison was disciplined for disobeying two direct orders from corrections officers that he did not understand. The record contains the statement by a corrections officer: "Harrison was ordered to pick up a cup in the mess hall. I ordered him by pointing to the cup because I know that he is deaf." On another occasion a corrections officer reported that he ordered Harrison "with directed hand motions" to clean up a mess. Although Harrison asked in writing for a sign language interpreter to be present at the disciplinary hearing, he was told by the hearing officer at the hearing that Clinton does not have access to sign language interpreters. The hearing was conducted by an exchange of written messages.


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