United States District Court, N.D. New York
LUIS ROSALES 91-A-3067, Wende Correctional Facility, Alden, New York, Plaintiff Pro Se,
ERIC T. SCHNEIDERMAN, MICHAEL G. McCARTIN, A.A.G., Attorney General for the State of New York, The Capitolm Albany, New York, Attorneys for Defendants.
MEMORANDUM-DECISION AND ORDER
MAE A. D'AGOSTINO, District Judge.
Plaintiff Luis Rosales is an inmate currently in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"). Plaintiff has proceeded pro se and brings this action pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his constitutional rights under the Eighth and Fourteenth Amendments. Dkt. No. 28. Additionally, Plaintiff asserts claims pursuant to Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and Section 504 of the Rehabilitation Act ("RA"), 29 U.S.C. § 794. Id. Presently pending are Defendants' objections, pursuant to 28 U.S.C. § 636(b)(1), to the Report-Recommendation and Order issued by Magistrate Judge Christian F. Hummel, denying Defendants' second motion for summary judgment. Plaintiff opposes Defendants' objections. Dkt. No. 90.
The specific facts of the case are set forth in the Report-Recommendation and Order dated November 2, 2012, familiarity with which is assumed. See Dkt. No. 54. The facts discussed herein will be those relevant to the claims remaining and are related in the light most favorable to Plaintiff as the non-moving party.
B. Directive #2612 and Hearing Impairments
DOCCS' Directive No. 2612 (the "Directive") addresses accommodations made for inmates with hearing impairments. Dkt. No. 75-8 at 1. Inmates classified as "deaf" or "hard of hearing" may obtain Shake Awake alarm clocks, telephone amplifiers, and placement in designated facilities that accommodate specific needs (hereinafter "designated facility"). Id. at 3, 14. Plaintiff has a history of hearing impairments in both ears. Dkt. No. 75-4. Plaintiff contends that the Directive's classification system neither meets his needs nor those of other inmates suffering from hearing loss.
On December 3, 2009, Defendant Dr. Serhan classified Plaintiff as having "nonsignificant hearing loss" and provided Plaintiff with a hearing aid for the right ear. Dkt. No. 75-5. On February 8, 2010, Plaintiff was examined by a nonparty doctor and asked for a Shake Awake Alarm. Dkt. No. 75-3 at 29, 31-32. However, Plaintiff's request was denied because of his hearing loss classification. Id. Plaintiff is concerned that background noise aggravates his hearing abilities. Id. at 18-19.
C. Facility Transfers
The Court held a settlement conference with the parties on May 16, 2013. After the settlement conference took place, Plaintiff was transferred to two other correctional facilities. By letter dated July 14, 2013, Plaintiff informed the Court that he was transferred to Sing Sing C.F. Dkt. No. 72. By letter dated November 6, 2013, Plaintiff informed the Court that he was transferred to Wende C.F, which is a designated facility under the Directive. Dkt. No. 75-8 at 3. Plaintiff indicated that he would settle this action if he would be housed in a designated facility for the entire remainder of his prison sentence. Id. at 1-2; see also Dkt. No. 84. In response, Defendants stated that they cannot cannot guarantee that arrangement for various reasons. Dkt. No. 82 at 1. Defendants stated that DOCCS can transfer inmates for any or no reason and for ...