The opinion of the court was delivered by: Sweet, D.J.
Defendant Helen Dean ("Defendant" or "Dean") has moved for summary judgment pursuant to Rule 56, Fed. R. Civ. P., against plaintiff William Figueroa ("Plaintiff" or "Figueroa"). For the reasons set forth below, Dean's motion for summary judgment on the merits is granted, Dean's motion for summary judgment on the ground of failure to exhaust is denied as moot, and Figueroa's complaint is dismissed in its entirety.
Figueroa filed his complaint in the district court for the Western District of New York on July 23, 1999. At all times relevant to the complaint he was incarcerated at Wende Correctional Facility ("Wende"). In the complaint he alleged that Dean, the Deputy Supervisor for Programs at Wende, violated his rights under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq., and the Rehabilitation Act, 29 U.S.C. § 794 et seq., because she (1) did not provide qualified sign language interpreters for medical and dental appointments, as well as educational and vocational programs; (2) did not provide visual fire alarms; (3) limited his access to the text telephone; and (4) denied his request for a television with a closed-caption device.
On October 27, 1999, the attorney then representing Figueroa filed a motion seeking a change of venue to the Southern District of New York, and on December 21, 1999, the Honorable William M. Skretny of the Western District upon consent granted the motion. The motion was premised on this Court's consent decree in Clarkson v. Coughlin, 91 Civ. 1792,*fn1 (the "Consent Decree").
On May 14, 2002, Dean moved to dismiss Figueroa's complaint for improper venue or, alternatively, to transfer venue back to the Western District of New York. In an opinion dated October 30, 2002 and entered November 1, 2002, this Court held that venue was proper and that Plaintiff's complaint would be treated as a motion for contempt under the Consent Decree. Figueroa v. Dean, Nos. 99 Civ. 12457 (RWS) & 99 Civ. 12458 (RWS), 2002 WL 31426205, at *1, *4 (S.D.N.Y. Oct. 30, 2002).
On January 6, 2004, Dean filed a motion for summary judgment on the ground that Figueroa had failed to exhaust his administrative remedies under the Prisoner Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). Figueroa filed opposition to this motion on March 11, 2004, and oral arguments were heard on April 21, 2004.
On October 26, 2004, Defendant was granted leave to file a motion for summary judgment on the merits as well as a supplemental brief on the issue of exhaustion under the PLRA. Both papers were submitted on February 1, 2005 and Plaintiff's opposition was filed on May 12, 2005. Dean filed a reply in support of the motion for summary judgment on the merits on May 26, 2005, and oral arguments were heard June 8, 2005, on which date both motions were marked fully submitted.
In his memorandum of law in opposition to the motion for summary judgment on the merits, Figueroa for the first time raised a claim regarding the lack of an ombudsperson at Wende as mandated by the Consent Decree. Because Figueroa did not plead any facts on the face of the complaint to support this claim, it will not be considered in the instant motion.
Relevant Provisions of the Consent Decree
The Consent Decree provides a wide range of relief to correct violations of hearing-impaired inmates' federal right. Among other things, the Consent Decree sets forth the time and manner in which inmates must be informed of their rights to reasonable accommodations and the procedure by which inmate requests for accommodations should be considered. Under the Consent Decree, inmate requests can be made orally or in writing to any Department of Correctional Services ("DOCS") or Office of Mental Health ("OMH") employee. If a request made to a DOCS or OMH employee is denied, the inmate must be advised of his/her right to renew the request by contacting the DOCS superintendent or OMH satellite unit chief. Consent Decree ¶ 5. Upon receiving a request, a DOCS superintendent or his designee should grant it or, if necessary, arrange to meet with the inmate within twenty-four hours to discuss the request. A decision must be made within one week of receiving the request, and if the request is denied, the inmate shall be advised of his right to grieve the decision under the Inmate Grievance Program, id. ¶ 6, which DOCS shall make accessible to deaf and hard of hearing inmates, id. ¶ 9. All such grievance decisions are to be forwarded to the Office of Diversity Management, which will, in turn, review the denial of requests for accommodations. Id. ¶ 10.
The Consent Decree requires DOCS to provide deaf and hard-of-hearing inmates with "the auxiliary aids, services and assistive devices necessary to facilitate full and effective participation in prison programs, activities and services." Id. ¶ 20. Auxiliary aids, services and devices may include, inter alia, qualified sign language interpreters, text telephone ("TTY/TDD"), closed-caption television/VCR decoders, and visual smoke detectors and fire alarms. Id. A sign language interpreter, whether a member of facility staff or an inmate, is considered "qualified" if certified by a national or New York State credentialing authority or if able to interpret "effectively, accurately, and impartially both receptively and expressively." Id. ¶ 4(d).
DOCS is required to provide reasonable accommodations, including sign language interpreters where necessary, for hearing-impaired inmates who request, and are eligible for, medical, dental, or mental health treatment "when communication between patient and medical personnel is critical to the efficacy of treatment or the safety and security of the inmate." Id. ¶ 24. Due to the need for confidentiality, inmate interpreters may not be used in these settings except in case of an emergency. Id.
Reasonable accommodations, including sign language interpreters where necessary, are required for hearing-impaired inmates at all counseling sessions and for educational and vocational programming. Id. ¶ 25. In the counseling setting, inmate interpreters may not be used where either the inmate or the counselor wishes to discuss confidential information. Id. Inmate interpreters may be used for educational and vocational programming. Id.
The Consent Decree requires DOCS to provide closedcaptioned television and VCR decoders to hearing-impaired inmates in the same amount and for the same duration of time as these devices are afforded to inmates who can hear. Id. ¶ 31. The Consent Decree also requires that all hearing-impaired inmates be afforded access in the same amount and with no additional restrictions to TTY/TDD telephone service as is afforded to hearing inmates, except that inmates using text telephones are to be afforded double the amount of time allotted for hearing inmate phone calls. Id. ¶ 32.
Additionally, in areas in which inmates with hearing disabilities reside or can otherwise be expected to be present, DOCS is required to provide visual alarms or warning systems, or equally effective manual means of notification, to alert hearing-impaired inmates to emergencies, counts, or other matters of importance. Id. ¶ 34.
Many, if not all, of the Consent Decree requirements have been incorporated into the published policies of DOCS and Wende. DOCS Directive No. 2612 ("Directive 2612"), titled "Inmates with Sensorial Disabilities," addresses, inter alia, the needs of hearing-impaired inmates and tracks much of the language of the Consent Decree. Wende Policy and Procedure No. 2312 ("P&P 2312") governs inmate phone calls at Wende, and makes specific provisions for the use of TTY by hearing-impaired inmates. Wende Policy and Procedure No. 2310 ("P&P 2310") governs the use of television sets in inmates' cells, and specifically addresses the availability of closed-captioned televisions for hearing-impaired inmates.
The facts are taken from the record and both parties' Statements of Material Facts Pursuant to Local Civil Rule 56.1. The facts are not in dispute except as noted below.
At all times relevant to the complaint, Figueroa resided at Wende, which is a maximum security facility housing approximately 900 inmates. At all relevant times, Dean was the Deputy Superintendent of Programs at Wende. Figueroa was born deaf, and contends that he is a member of the class protected by the Consent Decree.
Most deaf and hard-of-hearing inmates at Wende currently are housed in D Block. At the time of his complaint, Figueroa was housed in D Block, although at other times during his incarceration at Wende he has been housed in B Block, the Segregated Housing Unit ("SHU"), and the mental health unit ("ICP"). Figueroa uses hearing aids and can communicate using American Sign Language. He can also lip-read individuals speaking English and ...