Previously, I have written on whether class actions are possible with respect to ADA claims considering how ADA claims are inherently focused on individual analysis. From reading the case law on a regular basis, I am seeing class actions being allowed with respect to Olmstead claims. Outside of that, it tends to be hit or miss. Today’s case is a case where a class action was allowed. The case is Holmes v. Godinez decided on my birthday, October 8, 2015 , and it involves a claim that the Illinois prison system systematically violated the rights of deaf and hard of hearing prison inmates. As is my usual practice, I have divided the blog entry into categories: facts and definition of the class; court’s reasoning on why the class as refined by the court works under federal Rules of Civil Procedure 23(a),(b); the motion for summary judgment; funny stuff; and takeaways. The reader is free to focus on any or all of the sections.

I
Facts and Definition of the Class

It is a tremendously long decision. I printed out 51 pages with a page on each half of the page (the way we used to see it in reporters). That said, the facts can be summarized pretty easily.

Plaintiffs claim that the Illinois Department of Corrections statewide policies and practices regarding accommodation for deaf and hard of hearing offenders violated the ADA, the Rehabilitation Act, the law governing religious liberty of those in prisons, and the first, eighth, and 14th amendments to the U.S. Constitution. More specifically, the complaint alleged that the Illinois Department of Corrections systematically: failed to provide class members with effective communication and adequate access to its programs and services; failed to provide class members with safe and effective visual notification system to invite them of emergencies; failed to establish sufficient policies to allow class members to participate in religious services consistent with the act allowing for religious liberties in prisons; and failed to have policies and practices consistent with the eighth and 14th amendment to the U.S. Constitution. After analyzing the extensive facts revealed through discovery, the court came up with a class defined as follows:

(i) all individuals incarcerated by IDOC currently and in the future; (ii) who IDOC classified as deaf or hard of hearing or who notified IDOC in writing during the Class Period, either personally or through a family member, that he or she was deaf or hard of hearing; and (iii) who require accommodations, including interpreters or other auxiliary aids or services, to communicate effectively and/or to access programs or services available to individuals incarcerated by IDOC during the Class Period.

Finally, the plaintiffs were not seeking damages, but rather asking for a declaration from the court that the Department of Corrections policies and procedures regarding accommodations for deaf and hard of hearing inmates violated federal law, and any other declaratory and injunctive relief appropriate to remedy past violations and prevent future violations.

II
Court’s Reasoning on Why the Class as Refined by the Court Works under Federal Rules Of Civil Procedure 23.

1. Class Definition

A. The proposed class of the plaintiffs was all current and future deaf or hard of hearing inmates in the custody of the Illinois Department of Corrections. The court said that was too broad because there was no objective means to ascertain identified deaf or hard of hearing inmates. If documented association with deafness or hearing loss was set as a precondition to class membership, then there was objective and administratively feasible means of ascertaining the class.

B. The Illinois Department of Corrections argued that the revised definition required the court to determine whether potential class members were actually qualified to participate in the programs and services they claim the Department of Corrections denied them access to. However, the court said that argument was for merit determinations and was not necessary to resolve at the class certification stage. Furthermore, a class definition is not overbroad just because it includes some members whom defendant may later prove suffered no injury.

2. Numerosity

A. To satisfy this requirement, plaintiff must prove the class is so large that joinder is impractical. While there is no objective threshold for numerosity, a class of 40 is typically enough to satisfy the requirement. During discovery, defendant identified 56 inmates who either self identify as hard of hearing or deaf or who the Illinois Department of Correction believed were hearing impaired. The plaintiffs claimed they found at least 30 additional class members citing Illinois Department of Corrections communication plans. Accordingly, the class was numerous enough to satisfy this requirement.

3. Commonality

A. The complaint of the plaintiffs principally focuses on the Illinois Department of Corrections system wide policies, including its written ADA Directive. As such, even if determining appropriate accommodations for particular hard of hearing or deaf inmate required individualized consideration, common issues tied the plaintiff claim together if the Illinois Department of Corrections high-level policies and practices did not conform to the law.

B. Plaintiffs met their burden to show significant proof of the system wide policies and practices alleged including: the Illinois Department of Correction has a written ADA Directive, which purpose is to provide instruction to staff for providing accommodations to offenders with disabilities. The defendant conceded that this directive applied across all prisons in Illinois to all offenders with hearing issues. Some of the plaintiffs claims directly challenged whether the policy sufficiently protected the rights of class members under federal law. For example, the complaint allege that the directive had to mandate more in-depth training and experience for ADA coordinators and other Illinois Department of Corrections staff. Therefore, whether the ADA Directive satisfied the Illinois Department of corrections obligations under the ADA was a common question likely to drive the resolution of litigation.

C. Plaintiffs presented expert testimony and anecdotal evidence supporting their allegations that the great majority of Illinois Department of Corrections failures in ensuring effective communication for deaf and hard of hearing inmates was the result of a failure to implement and ensure consistent application and adequate institutional policies concerning those inmates. Expert testimony revealed that the ADA Directive was not only insufficient to ensure compliance with the ADA, but even those requirements were being systematically ignored or misunderstood by Illinois Department of Corrections staff. The expert concluded that the Department of Corrections had a culture of accepting noncompliance with the ADA with respect to providing deaf and hard of hearing inmates with effective communication. The allegations (which the court said it subjected to a rigorous review of all the evidence), regarding the Illinois Department of Corrections system wide failures was the glue that ties all their claims together.

4. Typicality

A. The claims of the named plaintiffs and the class members as defined by the court all arise from the same conduct of the Illinois Department of Corrections. That is, its policies and practices regarding accommodation for deaf and hard of hearing inmates. In particular, the cases of the class members all involve the same policies and standard practices of the Illinois Department of Corrections and they also contain the same legal theories (violation of constitutional and statutory rights by not providing inmates with effective communication or equal access to programs and services). For example, one plaintiff claimed that the failure to provide meaningful communication with medical staff after he was injured violated the eighth amendment by exposing him to a substantial risk of harm in the past, present, and future.

B. The litigation focuses on whether the Illinois Department of Correction policies and procedures are illegal as applied to all hearing impaired inmates and individual violations are to be considered as evidence only in the context of whether the broader policies and procedures of the Department of Corrections were illegal.

C. The vast majority of services and programs complained of by the plaintiffs do not appear to require any special qualification in order to participate in those programs and activities. For example, all inmates have the right to participate in the grievance process, have the right to be notified of an emergency situation, and have the right to receive proper medical treatment. While there may be a handful of cases where an inmate is currently ineligible for a program, typicality is not defeated because the class member shared the same legal claims based upon the same conduct.

5. Adequacy

A. Adequacy contains two parts: 1) adequacy of the named plaintiffs counsel; and 2) the adequacy of the named plaintiffs themselves to be representatives of the class. With respect to the legal advocacy piece, there was no dispute of adequacy there (in addition to individual plaintiffs, advocates representing the inmates included Winston and Strawn (a huge Chicago law firm), Uptown People’s Law Center, Equip for Equality (the protection and advocacy group for the state of Illinois), and the National Association of the Deaf). The court also found that the named plaintiffs could adequately represent the class because the named plaintiffs had the same interest in achieving effective communication and appropriate accommodation in Illinois Department of Corrections facilities. They also shared the same injury by being exposed to policies and practices that deprive them of such communication and accommodations. Finally, they have no conflict with prospective class members and they have been active participants in the case.

6. Conduct Generally Applicable to the Class

A. In order to get class certification, plaintiffs have to show that they meet the four requirements of rule 23a mentioned above as well as one of the requirements under rule 23b. In this case, the plaintiff chose to focus on whether the Department of Corrections had acted or refused to act on grounds generally applicable to the class (a particular provision is appropriate only when the class seeks injunctive or declaratory relief and requested damages, if any, are incidental). That is exactly the case here since the evidence revealed considerable disputed facts as to whether the Illinois Department of Corrections has appropriate policies and procedures in place and whether those that do exist are sufficient or even adequate.

III
The Motion for Summary Judgment

1. ADA and Rehabilitation Act Claims

A. Since the plaintiff did not request compensatory punitive damages, it is not necessary to show that the discrimination was intentional.

B. Whether particular accommodations are reasonable, is a highly fact specific question, especially in the prison context, that needs to be determined on a case-by-case basis and therefore, is a question of fact precluding summary judgment.

C. The Illinois Department of Corrections sweeping statement that it provides reasonable accommodations in its programs, activities, and services were simply not supported by the little evidence they brought forth to try and backup their claim.

D. While it is true that typical ADA claims regarding employment must be brought under title I of the ADA and not title II of the ADA, prison job program do not constitute employment under title I of the ADA because such a person is an inmate of the prison and not an employee or job applicant. As such, the Illinois Department of Corrections job assignment program constitute services, programs or activities under title II of the ADA.

2. Religious Liberty of Institutionalized Inmates

A. Plaintiff presented evidence that the Illinois Department of Corrections placed substantial burdens on the religious exercise when they denied hearing accommodations needed for them to effectively participate in religious services. Further, material questions of fact existed as to whether the Illinois Department of Corrections employed a consistent and widespread practice of denying hearing accommodations to offenders for religious purposes.

B. Extensive evidence existed that the Illinois Department of Corrections either denied or ignored specific request for ASL interpreters for religious services and programs, which if proven poses a substantial burden on plaintiffs ability to attend religious services of their choice.

3. ADA and § 1983 Constitutional Claims

A. The Seventh Circuit has not squarely decided whether the ADA or Rehabilitation Act preclude § 1983 claims for violations of those statutes. That said, other circuits as well as district courts within the Seventh Circuit have found that to be the case. While that probably will hold the day in the Seventh Circuit, the plaintiffs in this case alleged constitutional violations and not violations of just the ADA and the Rehabilitation Act.

B. Whether § 1983 suits are precluded by other statutes depends upon whether the statute and the constitutional rights involved vary in significant ways. If so, then § 1983 suits are not precluded.

C. Nothing in the statutory text, the legislative history of the ADA, or the Rehabilitation Act contain clear or explicit congressional intent prohibiting simultaneous constitutional claims.

D. The protections available under the ADA/Rehabilitation Act vary in material respects from the constitutional claims. In particular, proving the equal protection claim means showing that the Illinois Department of Corrections acted with discriminatory intent, which is not something that has to be shown with respect to the ADA/Rehabilitation Act claims since only injunctive and declaratory relief were being sought. Further, proving inadequate medical treatment under the eighth amendment mean showing that the Illinois Department of Corrections was deliberately indifferent to their serious medical needs.

E. The Seventh Circuit has found that both the Age Discrimination in Employment Act and Title VII of the Civil Rights Act did not preclude constitutional remedies and both of those contained very similar standards, elements of proof, and available remedies as to the ADA/Rehabilitation Act.

4. First Amendment Right to Free Speech

A. It is one thing to say that an inmate is not being properly accommodated, but it is another thing to say that the constitutional right to free speech was being denied. The court found that the evidence simply was not there with respect to plaintiffs claims pertaining to the right to free speech.

5. First Amendment Right to Free Exercise of Religion

A. Inmates have a First Amendment right to attend religious services offered to other inmates. The systematic failure to reasonably accommodate deaf and hard of hearing inmates so that they could meaningfully participate in those services would indeed burden that constitutional right.

6. Eighth Amendment Protection from Cruel and Unusual Punishment

A. The court wasn’t buying it because communication barriers described did not render the plaintiff so isolated so as to be deprived of life’s basic necessities. Plaintiffs were still able to communicate. At a minimum they interacted with Illinois Department of Corrections staff and other inmates through gestures, written notes, or reading lips, and many could even speak and understand some English. Further, the plaintiffs were not actually segregated from the general population and were regularly exposed to day-to-day human interactions.

B. The failure to notify plaintiff of daily events like meals, showers, and gym time did not expose the plaintiff to substantial risk of serious harm, which is necessary in order to show an eighth amendment violation.

C. Widespread failure to alert hearing-impaired inmates to emergency situations could very well place the inmates at a substantial risk of serious harm, and evidence existed that such failures occurred. Further, there was a disputed issue at to whether the defendant knew about the risk because the ADA Directive itself required facilities to have emergency evacuation plans for ADA inmates and some facilities do have flashing alerts. In short, the evidence presented regarding emergency notifications could very well support a cruel and unusual punishment violation and therefore, summary judgment was not appropriate on that claim.

D. Certain inmates said that they suffered from serious medical conditions such as diabetes, kidney disease, broken finger, persistent migraines, etc. The failure to provide effective communication according to the plaintiffs led to inappropriate treatment, prolonged pain, and aggravation to their injury or illness. Further, they testified that they requested the use of video relay equipment or ASL interpreters thereby putting the Illinois Department of Corrections on notice as to their concerns. Accordingly, there was sufficient triable issues of fact with respect to whether the Illinois Department of Corrections employed a widespread practice of deliberate indifference to deaf and hard of hearing inmates so as to show deliberate indifference to their serious medical needs.

E. The Seventh Circuit has held that expert testimony is not required to prove an eighth amendment claim alleging inadequate medical treatment.

7. 14th Amendment Right to Equal Protection (Did Court Get It Right?)

A. The court said that the elements for proving an equal protection claim violation were showing that the plaintiffs were treated differently from others who were similarly situated; they were intentionally treated differently because of their membership in the class to which they belonged; and that the discriminatory intent was not rationally related to a legitimate state interest. While it is entirely possible and likely that the Illinois Department of Corrections did not do what they were supposed to do under the law, that is quite a different thing then saying there was no rational relationship. Accordingly, the equal protection claim is dismissed.

Here’s the thing. If the elements of an equal protection claim are indeed what the court says they are, then, of course, the plaintiffs lose. However, it is far from certain that the elements of the equal protection claim with respect to inmates in prison is what the court says it is. That is, we do know that persons with disabilities are in the lowest equal protection class (rational basis), with respect to employment decisions. However, with respect to non-employment matters, it is anybody’s guess as to what equal protection class persons with disabilities, especially inmates, fall in. It would not surprise me at all to see the plaintiffs appeal this particular holding sent the particular equal protection class for persons with disabilities is far from certain in this case.

8. Due Process Claim under the 14th Amendment

A. Hearing-impaired inmates not fluent in English may have a due process right to a qualified interpreter at prison disciplinary hearings. The Illinois Department of Correction processes for determining whether an inmate needs an ASL interpreter is probably not sufficient. In particular, the facts reveal that the adjustment committee makes an impromptu determination as to whether a particular inmate can communicate sufficiently. The chair of that committee never received ADA training specific to this role. Accordingly, a quick and uneducated judgment could very easily lead a hearing officer to improperly conclude that an inmate could adequately communicate at his or her prison hearing when in fact he or she could not. Further, lots of evidence existed that inmates were denied hearing accommodations during disciplinary proceedings both before and after the 2012 ADA Directive was issued from the Illinois Department of Corrections. Accordingly, the motion for summary judgment for violations of due process claims under the 14th amendment was denied.

IV
Funny Stuff

1. At the beginning of the opinion, the court says that they will sometimes refer to both deaf and hard of hearing individuals together as “hearing-impaired,” or “hearing disabled.” This is very odd. My understanding is that persons with hearing loss prefer either hard of hearing or deaf but not hearing-impaired. That makes sense to me because hearing-impaired is a disabling term. Also, I have never heard the term “hearing disabled,” before. For years, the better approach has been to refer to a “person with a disability,” rather than use the term, “disabled.” I am aware that some people are perfectly okay with the term “disabled,” but there are many that are most definitely not okay with that term, including myself.

2. The Illinois Department of Corrections contracts with a Healthcare Services vendor with respect to providing the majority of medical, dental, mental health, pharmaceutical and consultant care at all of its correctional facilities. Their policy on hearing aids at Illinois Department of Correction facilities permits offenders to have only one hearing aid even if a second hearing aid would improve their hearing ability, except in cases of “severe bilateral hearing loss.”

A. As someone who had worn very complex and powerful hearing aids for 46 years now (I got them at nine), I get that hearing aids are very expensive, though their cost has come down over the years in terms of their ability to do different things for the price. That said, if a person has a bilateral hearing loss, hearing with only the use of one aid, providing aids are helpful in the first place (a reason that people who wear hearing aids find them so frustrating is that all hearing aids do is amplify sounds. They do not enhance the ability to comprehend the sounds. Frequently people with hearing loss lose the ability to hear sounds on a volume level as well as on a comprehension level, but that is not always the case and is not the case in my situation), is very disorienting and not very effective. It would be interesting to know whether there is a rational basis for such a policy, assuming rational basis would be the standard.

3. A plaintiff testified that the hearing aid batteries wear out after a period of time and that it can take the Illinois Department of Corrections a week to replace them. A plaintiff testified that the batteries wear out every two months. This makes absolutely no sense to me. Again, as a hearing aid user of several decades, I can tell you that the maximum amount I have gotten out of hearing aid batteries is a week and often less. I don’t know how it is even possible that a single battery could last for two months. With respect to hearing aid batteries and how failure to provide same may be a violation of the law, check out this case, which I discussed in this blog entry.

V

Takeaways:

1. While class actions with respect to ADA claims may be difficult, they are not impossible. This particular case shows that if there is a systematic process of denying people who are hard of hearing or deaf effective communications and the like, it may be possible to have a class action involving identifiable deaf and hard of hearing people.

2. An argument now exists that prison job programs do not constitute employment under title I of the ADA.

3. It wouldn’t surprise me in the least if the plaintiff appealed the dismissal of the equal protection claim under the 14th amendment on the grounds that the lower court may well have erred in deciding that persons with disabilities were in the rational basis class.

4. How a class action shapes up on resolution of the dispute at trial is not the same thing as whether the class should be certified in the first place. This is a big statement because the way class actions work is that if the class is certified, settlement is generally rapidly reached.

5. The court notes that expert testimony is not required with respect to eighth amendment claims. That said, there was a dispute here over whether expert testimony regarding whether the practices of the prisons complied with the ADA was admissible. In this particular case, the plaintiff’s hired an individual with 20 years of experience as the ADA coordinator for the Nebraska Department of Correctional Services. In that role, she had the responsibility for developing and implementing ADA compliant programs and responding to all deaf and hard of hearing inmate request for ADA accommodations in Nebraska’s correctional facilities. Her responsibilities had her going to Nebraska’s facilities where she interviewed prison staff and inmates extensively and trained Nebraska Department of Correctional Services employees on ADA compliance for hearing-impaired offenders. She had first-hand knowledge of administrative operations, programs, services, and activities and became very familiar with the unique struggles hard of hearing and deaf inmates based. She also assisted at least five other state correctional departments in achieving ADA compliance, aided the development of an ADA coordinator certification program, and was a frequent speaker at ADA presentations and conferences. In preparation for the case, she reviewed the depositions and exhibits in this case, inspected two large Illinois Department of Corrections facilities, and held in person meeting with inmates at those prisons. As such, she was more than qualified to offer opinions regarding the Illinois Department of Corrections’s ADA compliance in that she knows of what she speaks and was not offering subjective belief or unsupported speculation. What all this means in plain English is that ADA compliance expert testimony may very well be in play when needed providing it can be shown that the person testifying knows of what he or she speaks and is not offering subjective belief or unsupported speculation and that such testimony assists the court in understanding the evidence. It is something that counsel may want to consider as the ADA is an extremely complex law and it may help to have an expert break it down.

6. § 1983 claims may also be a part of fact patterns involving the ADA/Rehabilitation Act. Particularly with respect to equal protection claims, the key is going to be what equal protection class persons with disabilities fall in. Remember, outside of employment what class people with disabilities fall into for purposes of equal protection jurisprudence is going to vary from case to case.

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