Armstrong v. Brown, C 94–2307 CW.

• Decision Date: 04 June 2013
• Docket Number: No. C 94–2307 CW.,C 94–2307 CW.
• Citation: 939 F.Supp.2d 1012
• Parties: John ARMSTRONG, et al., on behalf of themselves and as representatives of the class, Plaintiffs, v. Edmund G. BROWN, Jr., Governor of the State of California; California Department of Corrections and Rehabilitation; Michael Minor, Director of the Division of Juvenile Justice; Dr. Jeffrey A. Beard, Secretary of the California Department of Corrections and Rehabilitation; Jennifer Shaffer, the Executive Officer of the Board of Parole Hearings; Diana Toche, Acting Director of the Division of Correctional Health Care Services; Chris Meyer, Director of the Division of Facility Planning, Construction and Management; Kathleen Dickinson, Director of Adult Institutions; and Dan Stone, Director of Division of Adult Parole Operations, Defendants.
• Court: U.S. District Court — Eastern District of California

939 F.Supp.2d 1012

John ARMSTRONG, et al., on behalf of themselves and as representatives of the class, Plaintiffs,

v.Edmund G. BROWN, Jr., Governor of the State of California; California Department of Corrections and Rehabilitation; Michael Minor, Director of the Division of Juvenile Justice; Dr. Jeffrey A. Beard, Secretary of the California Department of Corrections and Rehabilitation; Jennifer Shaffer, the Executive Officer of the Board of Parole Hearings; Diana Toche, Acting Director of the Division of Correctional Health Care Services; Chris Meyer, Director of the Division of Facility Planning, Construction and Management; Kathleen Dickinson, Director of Adult Institutions; and Dan Stone, Director of Division of Adult Parole Operations, Defendants.

No. C 94–2307 CW.

United States District Court,

N.D. California.

June 4, 2013.

Donald H. Specter, Sara Linda Norman, Alison Hardy, Corene T. Kendrick, Penny Marie Godbold, Rebekah B. Evenson, Warren E. George, Jr., Prison Law Office, Arlene Brynne Mayerson, Linda D. Kilb, Disability Rights Education & Defense Fund, Inc., Berkeley, CA, Michael William Bien, Blake Thompson, Ernest James Galvan, Gay Crosthwait Grunfeld, Kenneth Michael Walczak, Lisa Adrienne Ells, Michael Louis Freedman, Rosen Bien Galvan & Grunfeld LLP, Geoffrey T. Holtz, Bingham McCutchen LLP, Shawn Hanson, Akin Gump Strauss Hauer & Feld LLP, Caroline Nason Mitchell, Jones Day, Jennifer Lee Jonak, Lukens Law Group, San Francisco, CA, Mark Raymond Feeser, Attorney at Law, San Luis Obispo, CA, Megan Hagler, Attorney at Law, San Rafael, CA, for Plaintiffs.

Paul Brian Mello, Hanson Bridgett LLP, Danielle Felice O'Bannon, Jay Craig Russell, Rochelle C. East, Scott John Feudale, Kyle Anthony Lewis, Giam Minh Nguyen, Janelle M. Smith, Jay Michael Goldman, Michael James Quinn, Attorney

General's Office, Jose Alfonso Zelidon–Zepeda, Department of Justice, San Francisco, CA, for Defendants.

ORDER GRANTING MOTION FOR A FURTHER ENFORCEMENT ORDER AND DENYING MOTION TO HOLD DEFENDANTS IN CONTEMPT OF COURT (Docket No. 2236)

CLAUDIA WILKEN, District Judge.

Plaintiffs move to enforce, and hold Defendants in contempt for violating, the Court's prior orders, on the basis that Defendants have consistently failed to provide sign language interpreters (SLIs) during education and vocational programs at the Substance Abuse Treatment Facility (SATF) and for failing to provide SLIs during psychiatric technicians' rounds for patients housed in administrative segregation housing units. Defendants oppose Plaintiffs' motion. For the reasons set forth below, the Court GRANTS the motion to enforce its prior orders and DENIES the motion to hold Defendants in contempt.

BACKGROUND

In a series of orders between 1996 and 2002, the Court found that Defendants' treatment of prisoners with disabilities violated the American with Disabilities Act (ADA) and section 504 of the Rehabilitation Act.

On January 3, 2001, Defendants issued the amended Armstrong Remedial Plan (ARP) setting forth their own policies and plans to come into compliance with their obligations under these federal laws. See Kendrick Decl. ¶ 2, Ex. 1(ARP).

Among other things, the ARP addressed effective communication for deaf inmates. It recognized, “Because of the critical importance of communication involving due process or health care, the standard for equally effective communication is higher when these interests are involved.” Kendrick Decl. ¶ 2, Ex. 1, 4, § II.E.2. The ARP mandates that an “inmate's ability to lip read shall not be the sole source used by staff as a means of effective communication involving due process or medical consultations, unless the inmate has no other means of communication.” Id. at 6, § II.E.2.f. The ARP also provides, “Qualified sign language interpreters ... will be provided for all due process functions and medical consultations that fall within the scope of those described below when sign language is the inmate's primary or only means of effective communication, unless the inmate waives the assistance of an interpreter, reasonable attempts to obtain one are not successful, and/or delay would pose a safety or security risk.” Id. at 5, § II.E.2.d. In the event that “a qualified sign language interpreter is not available, or is waived by the inmate, and communication is attempted,” staff are required to “employ the most effective form of communication available, using written notes; staff interpreters who are able to interpret effectively, accurately and impartially, both receptively and expressively, using any necessary specialized vocabulary; or any other appropriate means.” Id. at 5–6. Covered medical consultations included, for example, those pertaining to “[e]xplanation of procedures, tests, treatment, treatment options, or surgery,” and “mental health evaluations, group and individual therapy, counseling and other therapeutic activities.” Id. at 6. The list of medical consultations is “neither exhaustive nor mandatory, and shall not imply that there are no other circumstances when it may be appropriate to provide interpreters for effective communication nor that an interpreter must always be provided in these circumstances.” Id. The ARP also requires equal access for deaf prisoners, providing, “Accommodations shall be made to afford equal access to the court, to legal representation, and to health care services, for inmates/parolees with disabilities; e.g., vision, speech, hearing, and learning disabled.” Id. at 7, § II.G.¹

The federal ADA regulations define “qualified interpreter” as “an interpreter who ... is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary.” 28 C.F.R. § 35.104. The ARP defines “qualified sign language interpreter” to include “a person adept at American Sign Language.” Kendrick Decl. ¶ 2, Ex. 1, 6, § II.E.3. Under the ARP, to “qualify as an ASL interpreter, an individual must pass a test and qualify in one of the five categories established by the National Association for the Deaf (NAD), one of the three categories established by the Registry of Interpreters for the Deaf (RID), or as a Support Services Assistant Interpreter from the California Department of Rehabilitation.” Id. at 6–7.² Under the ARP, each institution is required “to establish a contract or service agreement with a local signing interpreter service organization in order to provide interpretive services for hearing impaired inmates during due process functions and medical consultations.” Id.

The ARP further states, “It is the policy of CDC to ensure that all inmates, regardless of any type of disability, participate in educational/vocational, and work programs.” Id. at 29, § IV.I.14.a. Thus, it provided, “Reasonable modifications/accommodations shall be provided to ensure access when appropriate for qualified inmates with disabilities to participate in all programs, services, or activities including vocational assignments,” and “Reasonable modifications/accommodations shall be provided to ensure access to academic programs.” Id. at 30, § IV.I.16–17; see also id. at 7, § II.F (“The Department shall provide reasonable accommodations or modifications for known physical or mental disabilities of qualified inmates/parolees.”). “Examples of reasonable accommodations include special equipment (such as readers, sound amplification devices, or Braille materials), inmate or staff assistance, [and] bilingual or qualified sign language interpreters.” Id. at 7, § II.F.

On January 18, 2007, the Court found that Defendants had not met their obligations to comply with federal law and the Court's orders and continued to violate the rights of prisoners with disabilities in four significant areas. Docket No. 1045, 2. As relevant here, the Court found,

Contrary to law and the Armstrong Remedial Plan, defendants consistently and systemically deny sign language interpreters to deaf prisoners. Within designated prisons, the violations occur most frequently at deaf [prisoners'] medical and mental health appointments. Plaintiffs have also presented pervasive evidence of violations with regard to suicidal prisoners; in education, work, and other programming; and during classification hearings, harming deaf signers by forcing them to rely on ineffective and inadequate forms of communication such as lip reading and written notes. As such, deaf signers are unable to understand or comprehend significant due process proceedings and medical care provided to them.

Id. at 3. The Court ordered Defendants to “establish as permanent civil service positions qualified sign language interpreters for each prison designated to house prisoners whose hearing disabilities impact their placement (DPH)” and to “employ, through whatever salary is necessary, sufficient qualified interpreters to serve the needs of the DPH prisoners housed at each institution.” Id. at 8. The Court also required Defendants to comply with the policies and procedures contained in the ARP related to these issues, specifically including those regarding effective communication for deaf prisoners contained in Section II.E. Id. at 9.

On October 20, 2009, the Court found that “Plaintiffs have demonstrated that Defendants have violated the rights of prisoners with disabilities under the ADA and Section 504 by ... denying sign language interpreters to prisoners who need them in educational and substance abuse programs.” Docket No. 1661, 2. The Court found specifically that “Defendants continue to deny deaf inmates access to adequate sign language interpretation in educational programs” and that “sign language interpretation may not be adequate in Defendants' substance abuse programs.” Docket No. 1700, 5. The Court noted, for example, that in one instance, when an inmate complained that “her inmate interpreter cannot keep up with the course instructor,” in response, “Defendants provided her with written notes and lip...