John L. Wodatch renee m. Wohlenhaus kate m. Nicholson

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F. The DOC's Discrimination Causes Ongoing, Actual Injury, and Contravenes the Public Interest In Preventing Discrimination.
Finally, the plaintiffs can demonstrate irreparable harm.35 In Cupolo v. Bay Area Rapid Transit, 1997 WL 901909 at *5, this Court opined that "[i]njuries to individual dignity and deprivations of civil rights constitute irreparable injury," citing Chalk v. United States Dist. Court, 840 F.2d 701, 710 (9th Cir. 1988), and Sullivan v. Vallejo City Unified School Dist., 731 F. Supp. 947, 961 (E.D. Cal. 1990). The Cupolo Court underscored the ADA's goals of "equality of opportunity" and "full participation" and the fact that the behavior of the defendant interfered with the ADA's accomplishment of those goals. Id. See also 42 U.S.C. § 12101 (stating goals).

The same considerations are present in this case. According to the statements of the plaintiffs, the DOC continually refused to provide plaintiffs with qualified intepreters, TDDs, and captioning decoders, even after plaintiffs' counsel had spent time and energy negotiating a specific policy of non-discrimination. Defendants apparently made no effort whatsoever to put these policies into practice; they did not even undertake the simple step of posting a notice of plaintiffs' rights. Plaintiffs have no reason to believe that class members will not continue to suffer humiliation and irreparable injury.

These injuries are serious. Class members have been forced to endure delays of several days in release from custody — prior to being convicted of any crime. There are few constraints on freedom more profound than custody. More to the point, while in custody, Plaintiffs have been forced into profound isolation, prevented from participating in programs or services, from vital medical treatment and rehabilitation,36 to recreation as basic as watching television.37 Almost every avenue of communication has been closed to them: they are prevented from communicating with family, friends, and the courts over the phone, and are unable to communicate at anything more than a gestural level with officers and other inmates. Not surprisingly, these circumstances caused and continue to cause indignity, forced dependence, and emotional turmoil.38

Finally, in Innovative Health Systems, Inc. v. City of White Plains, 931 F. Supp. 222, 244 (S.D.N.Y. 1996), the court applied reasoning similar to that in Cupulo to find that the balance of hardships weighed in the favor of a preliminary injunction for violations of the ADA and the Rehabilitation Act. Specifically, the court stated that discrimination on the basis of disability converted the case into one warranting relief, especially where the Acts provide courts with the express power to change the discriminatory practices.


For the foregoing reasons, the United States respectfully urges the Court to grant the plaintiffs' application for a preliminary injunction.

Respectfully submitted this 26th day of June 1998.

Respectfully submitted,


United States Attorney Assistant Attorney General

for Civil Rights
By: ________________________


Assistant United States Attorney Chief Renee M. Wohlenhaus

California Bar No. ___________ Acting Deputy Chief

450 Golden Gate Ave Kate M. Nicholson

San Francisco, CA 94102 Attorney

(415) 436-7200 U.S. Department of Justice

Civil Rights Division

Disability Rights Section

P.O. Box 66738

Washington, D.C. 20035-6738

Tel: (202) 514-5527

Attorneys for the United States

1 Title 15 of the Cal. Code of Regulations is hereafter cited as "Title 15." A copy is attached as Exhibit G to the Declaration of Amanda K. Wilson (hereafter "Wilson Dec."), which plaintiffs have submitted to the Court. The importance of access to telephones is recognized by the state's own guidelines to Title 15, which note that "inmates have a constitutional right to unimpeded access to attorneys and legal representation." Guidelines to California Code of Regulations, Title 15, Programs and Procedures Standards (May 1998), at 64 (hereafter, "the Guidelines"). A copy of the Guidelines is attached as Exhibit H to Wilson Dec.

2The Guidelines make clear the importance of ready access to telephones, explaining that

[t]he telephone is an effective tool for reducing tension and anxiety in a detention facility. An adequate number of phones and a generally open phone use policy allow inmates to maintain contact with family and the community thereby avoiding many incarceration and reentry problems.

Guidelines at 63.

3 A copy of the Vandivere and Garcia declarations, and other declarations referred to herein, have been submitted to the Court by plaintiffs.

4 The Guidelines for the Medical and Mental Health standards imposed by Title 15 underscore the importance of these interviews. "[T]he jail must find out at the earliest possible point who is carrying a contagious disease, who is in need of medical attention, and/or who should not be admitted to the jail for medical/mental health reasons,” and "[t]he more information gathered through the screening, the better the likelihood that important issues will surface.” Guidelines to California Code of Regulations, Title 15, Medical and Mental Health, Sanitation and Nutrition Standards (May 1998), at 31. (The Guidelines for medical, mental health, sanitation, and nutrition standards are published separately from the Guidelines for program and procedures standards; a copy of the Guidelines for the medical and mental health standards is attached as Exhibit I to Wilson Dec.) The Guidelines further advise that the medical interview be conducted in an environment that will "increase the chances of the inmate discussing any potential problems." Id.

5 The Guidelines explain that this interview is necessary for the jail to maintain a "classification system," which

should separate the sophisticated from the uninitiated, the violent from the nonviolent, the passive from the aggressive. In addition, the classification system should assist in identifying security risks, . . . those requiring protective custody. . . [and] those eligible for facility programs.

Guidelines at 36.

6  Wilson Dec at ¶ 11; Garcia Dec. at ¶ 5.

7 These policies resulted from negotiations with plaintiffs' counsel and technical assistance from the NorCal Center on Deafness. Wilson Dec. at ¶ 7.

8  A TDD, or telecommunication device for the deaf, also called a TTY, makes it possible for persons who are deaf, hard of hearing, or who have speech impairments to communicate by telephone. Conversing with a TDD is very similar to a spoken conversation, except that it is typed and read, instead of spoken and heard. A TDD user places the telephone handset into a cradle on the TDD, and then types his or her conversation; the TDD converts the typed letters and symbols into sounds which are transmitted over the phone lines. The TDD at the other end of the line then translates the sounds (a series of high-pitched beeps) back into letters and symbols, which are shown on a small display screen on the TDD. Some TDDs also have a paper tape and the capacity to make a printed copy of the conversation. See Declaration of Michael Strong, Ph.D. (hereafter “Strong Dec.”) at 11-12.

9 American Sign Language is not based on English; the languages differ vastly in syntax and structure. See Tom Humphries, A Basic Course in American Sign Language 1 (1980). See also U.S. Department of Justice, The Americans with Disabilities Act Title II Technical Assistance Manual (November 1993 and Supp. 1994) § II-7.1200 at 40 (discussing qualified interpreters and different forms of communication by sign) (hereafter "TA Manual"). A copy of the TA Manual is attached to this memorandum as Exhibit A. See also Strong Dec., Ex. 8.

10 As required by title IV of the ADA, each state has a relay service that permits deaf people to call people or organizations that do not have TDDs. A relay call is made through an operator with a TDD, who types the spoken words of one party into the TDD, and then speaks the response from the TDD user.

11 In addition to their innate importance, participation in these programs can also have an effect on sentencing, often leading to a more lenient sentence.

12 A number of district courts have specifically applied the statutes to county and municipal correctional facilities. Hanson v. Sangamon Co. Sheriff's Dep’t, 991 F. Supp. 1059, 1062 (C.D. Ill. 1998) (upholding claim where deaf man was processed at a county jail). Fennell v. Simmons, 951 F. Supp. 706, 713 (N.D. Ohio 1997) (squarely holding ADA applies to county jail); Outlaw v. City of Dothan, 1993 WL 735802, at *3 (M.D. Ala. April 27, 1993) ("terms [service, program, or activity include] the jail and all of its facilities").

13 A "qualified individual with a disability" is an individual who -- with or without accommodations such as "the provision of auxiliary aids and services," or "reasonable modifications to rules, policies, or practices" — meets the essential eligibility requirements for the receipt of services or participation in programs or activities provided by the public entity. 42 U.S.C.§ 12115(2); 28 C.F.R. § 35.104.

14 As the Department's commentary to its regulation makes clear, "'[t]he 'essential eligibility requirements for participation in some activities covered under this part may be minimal." 28 C.F.R. pt. 35, App. A. at 472. See Rothschild v. Grottenthaler, 907 F.2d 286, 290 (2d Cir. 1990) (deaf parents are qualified to have interpreters in activities at hearing child's school); Raines v. Florida, 983 F. Supp. 1362, 1372 (N.D. Fla. 1997); Niece v. Fitzner, 922 F. Supp. 1208, 1218 (E.D. Mich. 1996) (cause of action under ADA for deaf fiancé of prison inmate); Aikins v. Mt. Helena Hosp., 843 F. Supp. 1329, 1337 (N.D. Cal. 1994) (supporting a claim against the hospital on behalf of the deaf wife of a patient at the hospital). Cf. TA Manual § II-7.1000 (Supp. 1994) (the obligation to ensure effective communication is not limited to those who have a "direct interest" in the program at issue; example is courtroom spectators).

15 Congress expressly authorized the Attorney General to issue regulations implementing both section 504 and title II of the ADA, and to provide technical assistance to entities covered by the ADA. See 29 U.S.C. § 794(a); 42 U.S.C. §§ 12134(a), 12206. In view of Congress' express delegation of authority to the Attorney General, the Department's regulations and interpretations should be accorded controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Bragdon v. Abbott, U.S. , 1998 WL 332958 at *14 (June 25, 1998); Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984). The same is true of the preamble or commentary accompanying the regulations since both are part of the Department's official interpretation of the legislation and its regulations. See Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (agency's interpretation of its own regulation is entitled to deference). The Department of Justice's Technical Assistance Manual is also entitled to deference. See Innovative Health Sys. v. City of White Plains, 931 F. Supp. 222, 233 n.4 (S.D.N.Y. 1996), aff’d, 117 F.3d 37 (2d Cir. 1997); Fiedler v. American Multi-Cinema, Inc., 871 F. Supp. 35, 36-37 n.4 (D.D.C. 1994).

16 In general, a qualified interpreter is likely to be required for someone who is deaf and uses sign language when the communication involved is comparatively important, lengthy, or complex and, thus, more conducive to confusion on the part of the deaf individual. TA Manual § II-7.1000 at 38; 28 C.F.R. pt. 35, App. A at 437.

17 The Department chose a functional definition not in order to lower the qualifications required of interpreters, but to make the point that interpreting in certain contexts may require specialized terminology, or skills, over and above certification. 28 C.F.R. pt 35, App. A at 473. See TA Manual § II-7.1200. See also Declaration of Nancy Fishberg.

18 An entity should give the disabled person an opportunity to elect an appropriate aid or service, and the entity should give deference to that choice unless the entity can demonstrate that some other effective aid or service exists or that the means chosen would not be required under the title II regulation. Deference to the person’s choice is desirable because of the range of disabilities. The public entity is responsible to provide the appropriate auxiliary aids and services. See 28 C.F.R. § 35.160; 28 C.F.R. Pt. 35, App. A at 473.

19 Defendant's treatment of Mr. Lambert — in which they misconstrued his failure to respond as impertinence or resistance — is a scenario many police offices are trying to address. Many deaf people are killed because an officer misinterprets a deaf arrestee's failure to stop, or otherwise respond to a spoken order. On the street, this can be a difficult problem to address adequately, but in an institutional setting like this one, it can be avoided with adequate training.

20 Captioning can either be open, where it is fully visible to everyone, or closed, where only those who have a captioning decoder see the captions. Many television programs have closed captioning, which can be viewed with the use of a closed captioning decoder.

21 Deaf inmates should be housed with deaf inmates, where possible, even if it means returning them to a different housing arrangement at the end of the day's job or course work. Defendants' current practices are a likely violation of the requirement to make reasonable modifications to policies, practices, or procedures. See 28 C.F.R. § 35.130(b)(7).

22 In addition to the general requirement regarding effective communication, defendants are also covered by 28 U.S.C. § 35.161 ("Where a public entity communicates by telephone, . . . TDDs or equally effective telecommunication systems shall be used to communicate with individuals with impaired hearing or speech."). Entities that have extensive phone contact with the public are encouraged to use a TDD to comply with this section of the regulation. For entities that, nevertheless, chose to use the relay to comply with this part, they must be prepared to effectively accept and handle relayed calls in the normal course of business. See TA Manual § II-7.2000 at 41.

23 Accommodation must provide "meaningful access" to persons with disabilities. Alexander v. Choate, 469 U.S. 287, 301 (1985).

24 "Qualified interpreters" are also required by the Rehabilitation Act. 28 C.F.R. § 42.503(b)(6)(f).

25  Although the Act allows department heads discretion regarding the manner of providing such notifications, an entity cannot simply choose to disregard the requirement. Id.

26 The regulation provides:

A public entity shall ensure that interested persons, including persons with impaired vision or hearing, can obtain information as to the existence and location of accessible services, activities, and facilities.

28 C.F.R. §35.163 (a).

27 See, e.g., Tugg v. Towey, 864 F. Supp. 1201 (S.D. Fla. 1994) (grant of preliminary injunction requiring defendant to provide mental health counselors who were fluent in American Sign Language where even qualified interpreters did not ensure effective communication during therapy); Crawford v. University of California, 440 F. Supp. 1047 (M.D.N.C. 1977) (granting preliminary injunction compelling provision of qualified sign language interpreter because of balance of hardships even where no clear private right of action had been found).

28 For cases involving court-sanctioned injunctive relief in settlements which require the provision of qualified sign language interpreters and other appropriate auxiliary aids and services to deaf inmates, see Armstrong v. Wilson, 124 F.3d at 1025; Pyles v. Kamka, 491 F. Supp. 204 (D. Md. 1980).

29 With respect to administrative burdens, it should be noted that the County has a contract with a sign language interpreter service already in place. (A copy of a July 1997 letter, from John Longabaugh, Coordinator of Programs for the Disabled, stating that the County had entered into a contract for the provision of sign language interpreting services, is attached as Exhibit E to the Wilson Dec.)

30  At least one court has questioned the applicability of this kind of inquiry when a jail as opposed to a prison system is concerned, reasoning that such a facility is designed primarily to house individuals charged with, but not convicted of, criminal offenses (often not at the felony level). Fennell v. Simmons, 951 F. Supp. 706 (N.D. Ohio 1997).

31  In Turner, 482 U.S. at 78, the Supreme Court was concerned with judicial restraint in legislative and administrative matters: the ADA and the Rehabilitation Act are legislative enactments that are enforced by the Department of Justice. In fact, "constitutionalizing" these statutes robs Congress of its powers to enact statutes with specific requirements and remedies.

32 Although the 11th Circuit has vacated the panel opinion in Onishea pending rehearing en banc, the panel opinion's reasoning remains persuasive.

33  In Duffy v. Riveland, 98 F.3d at 455, the Court of Appeals applied the test only to the plaintiff's Rehabilitation Act Claim, not to his ADA claim. But in Bullock v. Gomez, 929 F. Supp. at 1306, the district court applied Turner to both Acts. In Bullock, the court did not, however, simply defer to the warden's testimony that the policy was necessary for security reasons. Instead, the court found flaws in the prison's rationale, and denied summary judgment for the prison.

34 Moreover, in Gates v. Rowland, the court emphasized the fact that prisoners live in a closed environment and thus can not chose where to eat. Id. In society, deaf individuals are able to make the arrangements necessary to communicate with people who are not deaf, whether by owning TDDs, by using interpeters, or by communicating in American Sign Language with people who use that method of communication. In jail, the possibility of addressing those necessities is removed; the defendants' practices effectively place deaf individuals in something like solitary confinement for no reason other than their deafness.

35 See generally Doe v. Judicial Nominating Comm’n, 906 F. Supp. 1534, 1545 (S.D. Fla. 1995) (discrimination on the basis of disability is the type of harm that warrants injunctive relief).

36 Exclusion from therapeutic programs constitutes irreparable harm. See Innovative Health Sys., Inc. v. City of White Plains, 931 F. Supp. at 241 (clients of a substance abuse program would be irreparably harmed by interference with treatment); Tugg, 864 F. Supp at 1207 (ineffective communication in counseling of deaf individuals is irreparable injury); Oxford House-Evergreen v. City of Plainfield, 769 F. Supp. 1329 (D.N.J. 1991) (plaintiffs would be irreparably harmed if removed from a home for recovering alcoholics and drug addicts). For discussion of medical treatment see cases cited supra.

37 In Concerned Parents to Save Dreher Park Center v. West Palm Beach, 846 F. Supp. 986, 992 (S.D. Fla. 1994), the court found irreparable harm to plaintiffs with disabilities when the city eliminated social, athletic, and other leisure programs for people with disabilities. See also Rewolinski v. Morgan, 896 F. Supp. 879 (E.D. Wis. 1995).

38 Cupolo, 1997 WL 901909, at *2, *6 (“substantial indignity and inconvenience" constitutes irreparable harm); Sullivan, 731 F. Supp. at 961 (injuries to a disabled person’s dignity, self-respect, and ability to function as an independent person constitutes irreparable harm). Cf. Chalk, 840 F.2d at 709-10 (loss of emotional satisfaction from job in disability claim constitutes irreparable harm).
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