by Matt Clarke
On September 18, 2019, a federal district court ordered the Colorado Department of Corrections (DOC) to provide access to videophones for all of its deaf and hard of hearing prisoners and prisoners who wish to communicate with people who are deaf or hard of hearing. The court ordered the DOC to implement policies and procedures for videophone use, compliance monitoring, maintenance and repair.
Attorney Amy Robertson assisted deaf DOC prisoners Cathy Begano, Andrew Atkins, Mark Trevithick, Leonid Rabinkov and Bianca Charmane Rogers – whose mother is deaf – in filing two consolidated civil rights lawsuits against the DOC and DOC staff, alleging the prison system’s failure to provide access to videophones violated the Americans with Disabilities Act (ADA), the Rehabilitation Act (RA) and the First Amendment.
When the suits were filed, the DOC provided only teletypewriter services (TTY) to deaf prisoners. That technology is 60 years old, error-prone, failure-prone and causes delays in communication. It requires the hearing-impaired person to use the English language to type a message on a TTY machine. The message is received by an operator at a distant location who then reads it to an American Sign Language (ASL) interpreter at another location. The interpreter uses a videophone and ASL to relay the message to the person receiving it. A reply involves all of those steps in reverse order. The messages lose nuance and emotional content.
ASL is not related to or derivative of English, and English is not the native language of the deaf prisoners who filed suit or Rogers’ mother. The TTY machines often interject random characters or spew gibberish. They also break down frequently and parts are difficult to find. Further, the relayed-and-translated nature of the process often leads to miscommunication and always causes delays. Rabinkov had been unable to communicate with his friends and his mother at all, as they use Russian Sign Language – which is not supported by TTY.
Trevithick filed a motion for partial summary judgment on his ADA and RA claims, while the defendants filed motions to dismiss and for summary judgment, alleging failure to exhaust administrative remedies and mootness because, during the course of the litigation, the DOC made videophones available. Since that was the relief sought by the plaintiffs, mootness was an issue. However, the district court rejected that argument due to a lack of videophone policies and procedures or financial investment by the DOC in making videophones available, continuing security-related objections to videophones by DOC officials, and the DOC’s position that TTY had satisfied its obligations under the ADA and RA – all of which made the changes easily reversible.
The court held that Begano had failed to file a timely Step 2 grievance and thus had failed to exhaust administrative remedies. Her claims were dismissed without prejudice. The remaining plaintiffs had exhausted administrative remedies before the second lawsuit was filed and, since the cases had been consolidated, that was sufficient.
Trevithick had shown that the defendants were aware of the inadequacy of TTY and had not corrected the discrimination against deaf prisoners. He was granted summary judgment on the ADA and RA claims, and the court, sua sponte,extended summary judgment on those claims to the remaining plaintiffs. Disputed material fact issues remained on the First Amendment claim.
The DOC was ordered to provide videophones for deaf and hard-of-hearing prisoners and prisoners seeking to communicate with deaf or hard-of-hearing people outside of prison, and to adopt policies and practices for the videophones. The case remains pending a trial on monetary damages and resolution of the First Amendment claims. See: Rogers v. Colorado Department of Corrections, U.S.D.C. (D. Colo.), Case No. 1:16-cv-02733-STV-NRN.
Additional source: denverpost.com
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Related legal case
Rogers v. Colorado Department of Corrections
|U.S.D.C. (D. Colo.), Case No. 1:16-cv-02733-STV-NRN