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 Jon Duquin ("Plaintiff" or "Duquin"). For the reasons set forth below, Dean's motion for summary judgment is granted and Duquin's complaint is dismissed in its entirety.
Duquin filed his original complaint in the district court for the Western District of New York on November 5, 1998. The complaint was amended on August 9, 1999. At all relevant times Duquin was incarcerated at Wende Correctional Facility ("Wende"). In the amended complaint Duquin alleged that Dean, the Deputy Supervisor for Programs at Wende, along with several other defendants*fn1 (collectively, "Defendants") 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., by failing to provide (1) qualified sign language interpreters for orientation, medical appointments, grievance hearings, confidential communications with staff, and vocational and educational programs; (2) effective visual fire alarms; (3) use of closed-captioned television sets to permit viewing comparable to that enjoyed by hearing inmates; and (4) access to text telephones ("TTY") equivalent to hearing inmates' access to telephone service.
On October 27, 1999, the attorney then representing Duquin 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 order in Clarkson v. Coughlin, 91 Civ. 1792,*fn2 (the "Consent Decree").
On May 14, 2002, Defendants moved to dismiss Duquin'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 October 15, 2004, Defendants moved to dismiss the amended complaint for lack of personal jurisdiction. By opinion dated December 7, 2004, this Court granted the motion to dismiss without prejudice as to all defendants except Dean.
Dean filed the instant motion for summary judgment on February 14, 2005. Plaintiff's opposition was filed on May 12, 2005, and oral arguments on motions for summary judgment were heard in this and a companion case, Figueroa v. Dean, No. 99 Civ. 12457, on June 8, 2005. Dean filed a reply in support of the motion on July 11, 2005, whereupon the matter was marked fully submitted.
In his memorandum of law in opposition to the motion for summary judgment, Duquin for the first time raised a claim regarding the lack of an ombudsperson at Wende as mandated by the Consent Decree. Because Duquin did not plead any facts on the face of the complaint to support this claim, it will not be considered in the instant motion.
The facts are taken from the record as well as both parties' Statements of Material Facts Pursuant to Local Civil Rule 56.1. The facts are not in dispute except as noted below.
Relevant provisions of the Consent Decree are set forth in this Court's March 31, 2006 opinion in the companion case of Figueroa v. Dean, No. 99 Civ. 12457, familiarity with which is assumed.
Wende is a maximum security facility housing approximately 900 inmates. At all relevant times, Dean was the Deputy Superintendent of Programs at Wende. Duquin was incarcerated at Wende from October 17, 1998 to January 29, 2001 except for two brief periods during the summer of 2000, during which he participated in a work release program at Buffalo Correctional Facility.
Duquin, who was born deaf, contends that he is a member of the class protected by the Consent Decree. Duquin does not use hearing aids and can communicate by using sign language and to some extent by reading lips. He does not read and write "fully," but can do so "well enough" to communicate with Wende staff at least some of the time.
In 1998 and 1999, Wende shared two staff interpreters, Laurie Mamo and Barbara Seeley, with the nearby Wyoming Correctional Facility, and Duquin occasionally made use of their services. In 2001, Wende hired a full-time staff interpreter, Ann Andzel, who continues to work at Wende.
Department of Correctional Services ("DOCS") Directive No. 2612 ("Directive 2612"), titled "Inmates with Sensorial Disabilities," closely tracks the language of the Consent Decree. Directive 2612 states that correctional facilities may use inmate interpreters as well as staff interpreters so long as the inmate interpreters are "able to interpret effectively, accurately, and impartially both receptively and expressively" and "factors such as emotional or personal involvement and considerations of confidentiality will not adversely affect their ability to interpret . . . or jeopardize the safety and security of the inmate."
Since 1998, inmate interpreters have been used for educational and vocational classes at Wende. In classes in which videos are used, Wende also provides closed-captioned text displays for hearing-impaired inmates. Duquin testified at deposition that "he turned down [inmate] interpreter services most of the time." He indicated that he felt some of the inmate interpreters were not qualified because they could only finger spell and could not understand full sign language. However, Duquin also testified that "for vocational thing or school, that was okay having an inmate interpreter," because he insisted on having interpreters "that could sign fairly well." Duquin expressed dissatisfaction with the services of an inmate interpreter who was provided for a GED class, and refused to continue with the class. Duquin noted that Wende officials initially did not know he had already received his GED, "so we had to go through a lot of rigamarole [sic] before we proved that I did." After proving his GED certification, Duquin was assigned to work as a porter. Despite indicating at deposition that he wanted to take part in other types of work programs, Duquin also testified that he "never asked for any kind of program. I stayed in the porter [sic]."
When hearings were held on grievances filed by Duquin, he was provided with an inmate interpreter, although he testified that on at least some occasions he refused their services because he believed the inmate interpreters were not certified and there was "no confidentiality." For disciplinary hearings, he was provided with the assistance of a staff interpreter.
Whenever Duquin had a doctor's appointment, he was assisted by staff interpreter Laurie Mamo. As of October 12, 1999, staff interpreters were available at nurse's sick call on Tuesdays and Thursdays when needed. Hearing-impaired inmates were required to sign up for sick call the evening before, so that Wende could ensure the presence of an interpreter. Duquin testified at deposition that he went to ...