by Mark Wilson
On December 29, 2021, a federal court in Georgia granted a group of deaf and hearing-impaired state prisoners class certification in their suit against state prison and parole officials, challenging the adequacy of available hearing-related accommodations and services.
Seven deaf and hearing-impaired prisoners brought suit in federal court for the Middle District of Georgia against the state Department of Corrections (DOC) and the state Board of Pardons and Parole (BPP) on October 3, 2018, alleging that Defendants denied them and other deaf and hearing-impaired prisoners necessary accommodations and services to communicate effectively and participate in DOC program services and activities, in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. ch. 126 § 12101 et seq., and the Rehabilitation Act, 29 U.S.C. § 701 et seq., as well the Eighth and Fourteenth Amendments to the U.S. Constitution. Plaintiffs sought broad-based declaratory and injunctive relief.
Nearly one year later, Plaintiffs moved for class certification under Federal Rule of Civil Procedure (FRCP) 23(b)(2). Defendants opposed the motion, arguing that the implementation of a formal statewide ADA policy in 2018 mooted the claims. They also objected that the proposed class was “overly broad and not reasonably ascertainable.”
After its initial screening of the case, the Court recalled, it observed “that the thorniest part of the dispute centered on how the class should be defined—if at all.” At the subsequent hearing on class certification, Defendants argued that “plaintiffs’ approach has been in terms of a class definition is it’s just been, essentially … everyone.”
When the parties were then unable to agree on a class definition, a second hearing was held, at which Plaintiffs presented expert testimony from Dr. Kimberly M. Cavitt, an audiologist with experience at the Ohio Department of Rehabilitation and Correction. Defendants put up their own experts, Dr. Joseph Fowlkes, the former medical director at Georgia Diagnostic and Classification Prison, and Dr. Edgar Bohannon, an audiologist to whom DOC referred prisoners to assess and treat hearing loss.
Fowlkes walked the Court through DOC’s five-level classification system for hearing-impaired prisoners, which Bohannon said he didn’t use, relying instead on audiological testing to classify hearing loss in decibel ranges. Yet Defendants pointed to both to show that DOC had already addressed Plaintiffs’ claims.
The Court rejected that mootness argument. While “there is no question that Defendants have attempted to address the alleged deficiencies that make up the vast majority of Plaintiff’s claims,” the Court recognized that it has long been the rule “that ‘voluntary cessation of alleged illegal conduct does not…make the case moot.’” Moreover, Plaintiffs presented evidence that some members of the proposed class were still subjected to discriminatory behavior, such as being denied sign-language interpreters in crucial situations. So the Court could not “conclude that Defendants’ voluntary cessation has mooted Plaintiffs’ claims.”
Noting that Plaintiffs were required to show only that their proposed class was not defined through vague or subjective criteria, the Court next rejected Defendant’s objection to the class definition. The proposed class turns “on objective criterion” of hearing loss measurable by audiological testing, so it “is sufficiently capable of being determined,” the Court concluded.
The Court then found that Plaintiffs satisfied each of the requisite class certification factors found in FRCP 23(a): numerosity, commonality, typicality, and adequacy of representation. Recognizing that “civil rights cases against parties charged with unlawful, class-based discrimination are prime examples” of suits brought under that rule, the Court concluded that its “requirements … are met.” See: Harris v. Ga. Dep’t of Corr., 2021 U.S. Dist. LEXIS 247124 (M.D. Ga.).
The parties have now proceeded to the discovery phase of the case, for which the Court set a deadline of November 1, 2022. Plaintiffs are represented by attorney Brian George Liegel from the Miami office of Weil, Gotshal & Manges LLP, as well as other attorneys with the firm in New York City and Washington, D.C., along with attorneys from the American Civil Liberties Union and the National Association of the Deaf in Silver Spring, Maryland. See: Harris v. Ga. Dep’t of Corr., USDC (M.D. Ga.), Case No. 5:18-cv-00365.
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login
Related legal case
Harris v. Ga. Dept of Corrections
|Cite||USDC (M.D. Ga.), Case No. 5:18-cv-00365|