On December 2, 2010, a Texas federal court entered summary judgment in favor of a visitor to a state prisoner who had sued the Texas Department of Criminal Justice (TDCJ) for failing to adequately accommodate his disability.
Jeremy Durrenberger, who is hearing impaired, visited state prisoner Jeremy Bryson at the Hughes Unit several times. Bryson was incarcerated for having assaulted Durrenberger. In non-contact visitation at the Hughes Unit, prisoners and visitors are separated by a plexiglass window and communicate using low-volume telephones.
Due to his disability, Durrenberger was unable to hear Bryson over the visitation phones. When he requested accommodation from prison authorities, he was either ignored, permitted to visit in an end booth, allowed to communicate using a pen or pencil and paper, or allowed a contact visit.
Being ignored was common, contact visits were very rare, and being in the end booth didn’t help because he still couldn’t hear Bryson, so Durrenberger stopped visiting. He then filed suit in federal court pursuant to the Americans with Disabilities Act (ADA), 42 U.S.C. § 12181, and the Rehabilitation Act (RA), 29 U.S.C. § 794, seeking damages, costs, declaratory and injunctive relief, and attorney fees for the TDCJ’s failure to adequately accommodate his participation in prison visitation.
In a summary judgment motion, the TDCJ raised defenses of Eleventh Amendment immunity, lack of a disability and adequate accommodation. Durrenberger filed a motion for summary judgment, too.
The district court held that the TDCJ had accepted federal funding and had thus waived Eleventh Amendment immunity for the RA claim pursuant to § 504 of the RA. Whether the federal funding had been used in connection with visitation or not was irrelevant. Further, because Durrenberger’s ADA claim duplicated the RA claim except for an immaterial difference in the statutes’ causation provisions, the TDCJ’s immunity claim related to the ADA violation was moot.
The court held that Durrenberger was disabled because his hearing impairment substantially limited the major life activity of hearing and communicating. In support of this finding, the district court cited a report by an audiologist which documented Durrenberger’s hearing loss and noted he might have difficulty communicating in high background noise situations, when speech is softly spoken or when he is not face-to-face with the speaker in close proximity. The court rejected the TDCJ’s contention that visitation is inherently noisy, causing even normal-hearing people to have difficulty communicating.
The district court found the TDCJ’s attempts at accommodation were inadequate. It specifically noted “that written communication and telephonic communication from the inmate dayroom is qualitatively different from in-person visitation,” and thus insufficient. Because Bryson was in prison for assaulting Durrenberger, the TDCJ did not have to grant contact visits as an accommodation. However, the court held that either making a telephone amplification device available or allowing visits in an attorney visitation booth would reasonably accommodate Durrenberger’s disability.
Therefore, the court denied the TDCJ’s summary judgment motion and granted Durrenberger’s motion in part. The TDCJ filed a motion for reconsideration which was denied, and the district court set a trial date to determine “Durrenberger’s entitlement to compensatory damages under the RA and the amount of such damages and to any unresolved issues with respect to Durrenberger’s request for attorney’s fees.”
Before the trial occurred, however, the TDCJ agreed to settle the case. On May 18, 2011, the Texas Civil Rights Project (TCRP), which represented Durrenberger, issued a press release regarding the settlement. The TDCJ agreed to “purchase a small volume amplification device which will be put in the telephone’s handset” when Durrenberger visits Bryson. Further, the TDCJ will pay Durrenberger $4,500 plus $30,500 for his attorney’s fees and costs.
“This is an example of the State wasting money through its stubbornness,” said Scott Medlock, director of the TCRP’s Prisoners’ Rights Program. “The device they needed to purchase for Mr. Durrenberger cost around $100. We offered to settle the suit very early on for a small fraction of what TDCJ is now paying in attorneys’ fees. In these times of tight budgets, TDCJ needs to seriously think about the consequences of not settling these cases early.” See: Durrenberger v. TDCJ, U.S.D.C. (S.D. Texas), Case No. 4:09-cv-00786; 2010 WL 5014338.
Additional source: TCRP press release
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Related legal case
Durrenberger v. TDCJ
|Cite||U.S.D.C. (S.D. Texas), Case No. 4:09-cv-00786; 2010 WL 5014338|