Just what is the exposure to prisons with respect to discriminating against prisoners with disabilities? Prisons have several areas of exposure. First, if a prisoner is employed by the prison and suffers discrimination on the basis of a disability with respect to that employment, title I is involved. Second, the programs and activities of the prison need to be accessible to the person with a disability. Third, you may have a situation where the prison contracts with an entity that discriminates against persons with disabilities. Such a contract would violate both title II of the ADA and the Rehabilitation Act. Fourth, there may be constitutional violations. Prisons are subject to the Americans with Disabilities Act as a result of Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206 (1998). Also, a suit for money damages could overcome a sovereign immunity defense if the suit involved a violation rising to a constitutional violation per U.S. v. Georgia 126 S. Ct. 877 (2006). Furthermore, it is entirely possible that employees of the prison may be subject to personal liability for violation of constitutional rights. Of course, the plaintiff has to overcome qualified immunity, but that is not necessarily an impossible barrier.
Prisoners have medical needs. Is a failure to provide hearing aid batteries for a hearing impaired prisoner who wore hearing aids a violation of the due process clause of the 14th amendment? The 11th circuit in Gilmore v. Hodges, 738 F.3d 266 (11th Cir. 2013), held that it was but that the officers sued were able to claim qualified immunity. Per my usual practice, the blog entry is divided into the facts, the issues, the court’s reasoning, and takeaways. The reader is free to focus on any or all of the sections of the blog entry. Also, I recognize that a county jail is not the same thing as a prison, but for purposes of this blog entry, I am using the terms interchangeably.
The plaintiff, Kenneth Weinberg, was a pretrial detainee at a county jail and wound up spending 20 months over a period of time in that jail. The two people he sued were the medical supervisor of the jail at the time and a corrections officer. The jail had a policy of not providing inmates with hearing aid batteries, rather inmates were allowed to bring them into the jail or have them sent in by family or friends. Weinberg was hearing-impaired and wore hearing aids. In particular, he had a mild to moderate severe bilateral sensorineural hearing loss which, in the absence of hearing aids, would interfere in all communication except face-to-face quiet. Upon his arrest, he supplied the prison’s medical department a copy of his audiology report so that the medical supervisor could supply the hearing aid batteries he requested. The audiology report was later confirmed by the county jail’s staff. During his two years in jail, he repeatedly asked jail officials both orally and in writing for hearing aid batteries and was denied each time. Further, he claimed that the Sergeant, which he wound up suing, advised him that hearing aid batteries were a security risk, and therefore, his friends and family would not be allowed to send or bring them into the jail. All of this resulted in him going without functioning hearing aids for the approximately 20 months he was in the jail. As such, he was: unable to adequately participate in church services held in the county jail; could not hear the TV for over two years; could not adequately communicate with his attorney; at court hearings only heard 50% of the words said by the judge; could not adequately communicate with the court, other prisoners or correctional officers; many times he left the court room not knowing what the court ruling was; and could not hear important testimony during court proceedings. Since Weinberg was a pretrial detainee, the suit proceeded under the due process clause of the 14th amendment. He also alleged violations of title II, the First Amendment, and the equal protection clause of the 14th amendment. The District Court found for the defendants and Weinberg appealed. Before the appeal, Weinberg died due to unrelated reasons and his daughters were substituted as appellants.
1. Is a substantial hearing impairment that can be mitigated (the court used the term “remedied” and sometimes “corrected,” but I prefer the term mitigated since hearing aids never truly correct the hearing loss. It would be more accurate to say that they compensate for or mitigate the hearing loss), by hearing aids something that would amount to a serious medical need for purposes of the eighth and 14th amendment?
2. Can an officer’s refusal to treat a hearing loss, such as one the plaintiff had, give rise to a claim for deliberate indifference in violation of the 14th amendment? (since the concept is identical to the eighth amendment when it comes to deliberate indifference, the same facts could give rise to an eighth amendment violation for someone who is a prisoner rather than a pretrial detainee).
3. Were the defendants protected by qualified immunity?
1. A serious medical need is a need that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a layperson easily recognizes the necessity for a doctor’s attention.
2. In unpublished opinions, the fifth, second, and fourth circuits all held that a severe hearing loss may be a serious medical need for purposes of considering whether the eighth or 14th amendment was violated.
3. The ability to hear is a basic human need that materially affects daily activity and a substantial hearing impairment requires medical treatment by a physician.
4. The evidence presented showed that Weinberg could have also had trouble hearing fire or other alarms, responding to commands issued by guards, and reacting to a fight behind him or to a prisoner threatening his safety.
5. An inmate’s inability to hear may render the inmate extremely vulnerable to danger and harm from his unperceived surroundings.
6. While Weinberg did not allege that is hearing loss caused physical pain, other cases have seen allegations that the deprivation of hearing aids caused them pain and interfered with their ability to sleep.
7. The court says, and I certainly would agree, that it took no great leap of logic to suggest that nearly 2 years of isolation as a result of untreated hearing loss could do serious physical and mental harm.
8. The court citing to the personal record of Helen Keller said, “the inability to hear means the loss of a most vital stimulus namely the sound of the voice bringing language, setting thoughts, to stir , and keeping people in the intellectual company of man.”
1. Since the evidence, assuming it is true, was sufficient to establish that the defendant knew of the plaintiff’s hearing loss based on his medical records and the numerous medical grievance he filed and yet the defendants repeatedly refused to provide him with hearing aid batteries that easily would have corrected (see my comments about correction versus mitigation above), the problem while also preventing him from obtaining batteries from his family, the court had little difficulty concluding that the evidence allowed the inference that the response to the prisoner’s needs was done with deliberate indifference and caused him harm.
2. Not all hearing loss will rise to a serious medical need. You could have a situation where a plaintiff could carry on a normal conversation and hear and follow directions without the use of a hearing aid even if that person has a hearing loss (such a person, to my mind, would have to have an extremely mild hearing loss).
3. You could have a situation where hearing aids won’t work for the hearing impaired prisoners. Also, it is possible that even if a person wore hearing aids, an official of the prison may not be aware of the inmate’s condition or its extent (a situation that would be very unlikely in my opinion).
1. To overcome a qualified immunity defense, a person has to show that the constitutional right was clearly established such that a reasonable official would understand that what he is doing violated that right.
2. Hearing loss that can be corrected or mitigated with hearing aids had never previously been held to be a serious medical need by the United States Supreme Court, the 11th Circuit, or the Florida Supreme Court.
3. Officials are not obligated to be creative or imaginative in drawing analogies from previously decided cases.
4. A finding that vision impairment is a serious medical need is not something that conclusively would lead to the conclusion that a substantial hearing loss corrected by hearing aids would also be a serious medical need. Accordingly, pre-existing case law did not provide the defendants with fair warning that the plaintiff’s constitutional rights were being violated.
5. Reliance on unpublished case law from other Circuits and from district courts cannot be held to rise to the level of fair warning because only binding precedent clearly establishes a right for qualified immunity purposes.
6. No case law from the 11th Circuit, United States Supreme Court, or the Florida Supreme Court clearly applies to a failure to provide hearing aid batteries.
1. We now know, in the 11th circuit anyway, that a hearing loss corrected by hearing aids involves a serious medical need. As a deaf person who functions entirely in the hearing world as a result of hearing aids and his ability to lip read, this conclusion is a no-brainer.
2. Jail and prison’s now arguably have the obligation to provide hearing aid batteries for prisoners who wear hearing aids. At a minimum, they certainly have to allow family to be able to get hearing aid batteries to that prisoner. Keep in mind, that hearing aid batteries can be expensive, though the Internet has made them much more affordable , and accordingly, not all families may have the resources to provide hearing aid batteries for the prisoner. Certainly, if they don’t, then the prison is going to want to supply the hearing aid batteries for the reasons mentioned in this opinion or run the real risk of violating a prisoner’s constitutional rights. Unanswered is the question of whether the jail or the prison would have any obligation to perform a cochlear implant and/or furnish hearing aids, both of which can get very expensive.
3. While the two officers were able to get out of this lawsuit on qualified immunity grounds, the next set of officers should they disregard someone in Weinberg’s situation, will not be so lucky since this is a public decision from the 11th circuit.
4. As a deaf person who functions entirely in the hearing world due to hearing aids and lip reading, this decision makes a lot of sense on a very personal level. It’s heartening to see the court truly get what it means to have a specific type of disability.