Bonner v. Lewis

• Decision Date: 13 September 1988
• Docket Number: No. 87-2663,87-2663
• Citation: 857 F.2d 559
• Parties: Nicki Arron BONNER, Plaintiff-Appellant, v. Mr. LEWIS, Director at ADOC; CPO Crowley; CPO Vega, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 559

857 F.2d 559

Nicki Arron BONNER, Plaintiff-Appellant, v. Mr. LEWIS, Director at ADOC; CPO Crowley; CPO Vega Defendants-Appellees.

No. 87-2663.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 11, 1988.

Decided Sept. 13, 1988.

Marc P. Charmatz and Sarah S. Geer, Washington, D.C., Joseph E. Abodeely, Phoenix, Ariz., Sy DuBow and E. Elaine Gardner, Washington, D.C., for plaintiff-appellant.

Lynne W. Abney, Phoenix, Ariz., for defendants-appellees.

Appeal from the United States District Court for the District of Arizona.

Before FARRIS, WIGGINS and TROTT, Circuit Judges.

FARRIS, Circuit Judge:

Nicki Arron Bonner is an inmate at the Arizona State Prison. He is deaf, mute, and suffers from a severe progressive vision loss which results in increasingly narrow tunnel vision. He has difficulty communicating with people who do not know American Sign Language. None of the personnel at the prison know sign language. Bonner has had several counseling sessions and administrative or disciplinary hearings while in prison. He has seen the prison psychologist. He has also received medical treatment, diagnosis, and medicine. In all of these contacts, he has been without the aid of a qualified interpreter.

Bonner claims that his inability to effectively communicate without a qualified interpreter severely inhibited his ability to participate in or benefit from these programs, hearings, or activities. He further alleges that he has made requests to prison officials for the services of a qualified interpreter "a thousand times" without results. Instead, prison authorities attempt to communicate with Bonner primarily through the use of a telecommunication device for the deaf. They also have designated prison inmates to serve as sign language interpreters.

The telecommunication device is designed to help deaf individuals communicate over the telephone. It is not designed for face to face communication where it acts basically as a typewriter. Bonner has a fourth grade reading ability. He alleges that because his reading and writing skills are poor, he is unable to communicate adequately through use of the telecommunication device.

Prison officials allege that Bonner requested the use of inmate interpreters. Bonner maintains that the inmate interpreters were forced upon him by prison officials against his wishes. It is not disputed that the inmate interpreters are not skilled in American Sign or trained in language interpretation. In addition, the use of inmate interpreters raises serious confidentiality concerns. Bonner claims that at least one of these inmates leaked information to the general prison population which could threaten his safety.

Prison officials recognize the imperfection of the methods utilized to communicate with Bonner, but contend that nothing more is constitutionally or statutorily required. Bonner disagrees. He filed suit pro se alleging that the failure of prison officials to provide him with a qualified interpreter constitutes a violation of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794. He also alleges violations of his constitutional rights to due process, equal protection, and the eighth amendment's prohibition against cruel and unusual punishment. Bonner seeks injunctive relief and damages.

On December 12, 1986, the district court dismissed Samuel Lewis, Director of the Arizona Department of Corrections as a defendant. On August 12, 1986, the district court granted summary judgment in favor of the remaining prison officials. Bonner appeals both orders.

I. STANDARD OF REVIEW

A grant of summary judgment is reviewed de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). The appellate court's review is governed by the same standard as that used by the trial court under Fed.R.Civ.P. 6(c). Darring, 783 F.2d at 876. Viewing the evidence in the light most favorable to the nonmoving party, the court must determine whether there are any genuine issues of material fact, and whether the district court applied the relevant substantive law correctly. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir.1986).

II. Section 504 of the Rehabilitation Act of 1973

In evaluating the district court's grant of summary judgment on the claim under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794, we consider: 1) whether section 504 was intended by Congress to encompass the provision of sign language interpreters for deaf inmates in state correctional facilities; and, if so, 2) whether there are any genuine issues of material fact which prevent summary judgment.

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794, states, in pertinent part:

No otherwise qualified individual with handicaps in the United States ... shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance ...

29 U.S.C. Sec. 794. The Supreme Court has held that section 504 guarantees "meaningful access" to programs or activities receiving federal financial assistance for otherwise qualified handicapped individuals. Alexander v. Choate, 469 U.S. 287, 301, 105 S.Ct. 712, 720, 83 L.Ed.2d 661 (1985). "[T]o assure meaningful access, reasonable accommodations in the ... program or benefit [receiving federal financial assistance] may have to be made." Id.

The applicability of section 504 to the provision of qualified sign language interpreters for deaf inmates in state correctional programs which receive federal financial assistance has not been tested specifically in the courts. However, under section 504, both the Seventh and Fifth Circuits have ordered the provision of sign language interpreters for deaf students who were otherwise qualified participants in programs receiving federal financial assistance. Jones v. Illinois Department of Rehabilitation Services, 689 F.2d 724 (7th Cir.1982) (Illinois Department of Rehabilitative Services had responsibility under section 504 for providing interpreter services to deaf college student at state university); University of Camenisch v. Texas, 616 F.2d 127 (5th Cir.1980) (district court properly granted preliminary injunctive relief ordering state university to procure and compensate a qualified interpreter to assist plaintiff, a deaf graduate student, in classes during school term), vacated and remanded on other grounds, 451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981); see also Barnes v. Converse College, 436 F.Supp. 635 (D.S.C.1977) (in motion for preliminary injunction, plaintiff who was otherwise qualified deaf college student, had probable right under section 504 to financial assistance for auxiliary aids such as interpreter); Crawford v. University of North Carolina, 440 F.Supp. 1047 (M.D.N.C.1977) (in motion for preliminary injunction, deaf graduate student had probable right under section 504 to auxiliary aids such as interpreter provided by the university).

Furthermore, the United States Department of Justice has promulgated regulations under section 504 which apply to correctional facilities receiving federal financial assistance. The regulations require those facilities to "... provide appropriate auxiliary aids to qualified handicapped persons with impaired sensory, manual, or speaking skills where refusal to make such provision would discriminatorily impair or exclude the participation of such persons.... Such auxiliary aids may include brailled and taped materials, qualified interpreters, readers and telephonic devices." 28 C.F.R. Sec. 42.503(f) (emphasis added). The Supreme Court has repeatedly emphasized that federal regulations are "an important source of guidance on the meaning of Sec. 504." School Board of Nassau County v. Arline, 480 U.S. 273, 107 S.Ct. 1123, 1127, 94 L.Ed.2d 307 (1987) (quoting Alexander v. Choate, 469 U.S. 287, 304 n. 24, 105 S.Ct. 712, 722 n. 24, 83 L.Ed.2d 661 (1985)); see also Consolidated Rail Corporation v. Darrone, 465 U.S. 624, 634 & nn.14-16, 104 S.Ct. 1248, 1254-55 & nn. 14-16, 79 L.Ed.2d 568 (1984).

Prison officials argue that it is unlikely that Congress ever intended that section 504 apply to prisoners. They argue that the legislative history emphasizes that the Act's purpose is to foster vocational rehabilitation and independent living, and that "inmates are hardly in need of help to live independently within their prisons."

First, as Bonner points out, the plain language of the Justice Department's implementing regulations, 28 C.F.R. Sec. 42.503, and the Act itself, which states that it applies to "any program or activity receiving Federal financial assistance," 29 U.S.C. Sec. 794 (emphasis added), belies their argument. Second, the Act's goals of independent living and vocational rehabilitation should in fact mirror the goals of prison officials as they attempt to rehabilitate prisoners and prepare them to lead productive lives once their sentences are complete. By ensuring that inmates have meaningful access to prison activities, such as disciplinary proceedings and counseling, the goals of both the institution and the Rehabilitation Act are served. See Sites v. McKenzie, 423 F.Supp. 1190, 1197 (N.D.W.Va.1976) (mentally handicapped prisoner alleging exclusion from prison vocational rehabilitation program due to his handicap granted summary judgment under section 504).

Even though Bonner's claim is potentially cognizable under section 504, summary judgment for the defendants is appropriate if there are no genuine issues of material fact supporting his position. In order to prove a section 504 violation, Bonner must demonstrate: (1) that, as a deaf, blind and mute plaintiff, he is a handicapped person under the Rehabilitative Act; (2) that he is otherwise qualified; (3) that the relevant program receives financial assistance; and (4) that the defendants' refusal to provide qualified interpreter services...