Arce v. O'Connell, 02 Civ. 1709(RWS).

• Decision Date: 13 April 2006
• Docket Number: No. 02 Civ. 1709(RWS).,02 Civ. 1709(RWS).
• Citation: Arce v. O'Connell, 427 F.Supp.2d 435 (S.D. N.Y. 2006)
• Parties: George ARCE, Plaintiff, v. James O'CONNELL, Joseph J. Costello, Roseann Mahoney, David Napoli, Skip Hughes, Dwight Hunt, Edward R. Donnelly and M. Kearney, Defendants.
• Court: U.S. District Court — Southern District of New York

Page 435

427 F.Supp.2d 435

George ARCE, Plaintiff, v. James O'CONNELL, Joseph J. Costello, Roseann Mahoney, David Napoli, Skip Hughes, Dwight Hunt, Edward R. Donnelly and M. Kearney, Defendants.

No. 02 Civ. 1709(RWS).

United States District Court, S.D. New York.

April 13, 2006.

Katten Muchin Rosenman, New York City (Joanna M. Bernard, Julie Pechersky, of Counsel), for Plaintiff.

Eliot Spitzer, Attorney General of the State of New York, New York City (Lisa Fleischmann, Julia Lee, Assistant Attorneys General, of Counsel), for Defendants.

OPINION

SWEET, District Judge.

Defendants James O'Connell, Joseph J. Costello, Roseann Mahoney, David Napoli, Skip Hughes, Dwight Hunt, Edward R. Donnelly, and M. Kearney (collectively, "Defendants"), all employees of the New York Department of Correctional Services ("DOCS"), have moved for summary judgment pursuant to Rule 56, Fed.R.Civ.P., against inmate plaintiff George Arce ("Arce" or "Plaintiff'). For the reasons set forth below, Defendants' motion for summary judgment is granted, and Arce's complaint is dismissed in its entirety.

Prior Proceedings

Arce commenced this action on March 5, 2002 by the filing of a pro se complaint. Arce, who contends that he is hearing impaired, alleged that Defendants violated his rights under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq., as well as the Eighth and Fourteenth Amendments, by failing to provide reasonable accommodations for his hearing impairment and retaliating against him after he filed grievances regarding the lack of such accommodations. Counsel was appointed to represent Arce on October 17, 2002.

Arce's status as a DOCS inmate who is purportedly hearing-impaired brings this action within the scope of the consent order and judgment entered by this Court in Clarkson v. Coughlin, 91 Civ. 1792(RWS) (the "Consent Decree"). Clarkson was commenced in this Court as a class action, brought on behalf of deaf and hard-of-hearing inmates in the custody of DOCS. In 1995 this Court granted summary judgment awarding declaratory relief, Clarkson v. Coughlin, 898 F.Supp. 1019 (S.D.N.Y.1995), and on June 6, 1996, the Court approved the Consent Decree, which granted extensive relief on behalf of the class (the "Clarkson Class"). Given the nature of Arce's claims, on April 11, 2003 this Court entered a consent order in this action and the companion cases of Figueroa v. Dean, No. 99 Civ. 12457(RWS), and Duquin v. Dean, No. 99 Civ. 12458(RWS), consolidating discovery and indicating that all three actions would be prosecuted as motions for contempt of the Consent Decree.

On January 20, 2004, Defendants filed a motion for summary judgment on the ground that Arce had failed to exhaust his administrative remedies under the Prisoner Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). Arce filed opposition to the motion on March 11, 2004, and oral arguments were heard on April 21, 2004.

On October 26, 2004, Defendants were granted leave to file an additional motion for summary judgment as well as a supplemental brief on the issue of exhaustion under the PLRA. Both papers were submitted on February 14, 2005 and Plaintiff's opposition was filed on May 12, 2005. Defendants filed a reply in support of their second motion for summary judgment on May 26, 2005, and oral arguments were heard June 8, 2005, on which date both motions were marked fully submitted.

Facts

The facts are taken from the record as well as both parties' Statements of Material Facts Pursuant to Local Civil Rule 56.1. The facts are not in dispute except as noted below.

Most relevant provisions of the Consent Decree are set forth in this Court's March 31, 2006 opinion in the companion case of Figueroa v. Dean, 425 F.Supp.2d 448 (S.D.N.Y.2006), familiarity with which is assumed.

At all times relevant to the complaint Arce was incarcerated at one of several DOCS facilities. Arce resided at Sullivan Correctional Facility ("Sullivan") from October 31, 2000 to June 15, 2001. He was then transferred to Fishkill Correctional Facility ("Fishkill"); transferred again to Downstate Correctional Facility ("Downstate") on or around June 19, 2001; and transferred to Midstate Correctional Facility ("Midstate") on or around June 26, 2001. On October 29, 2001, Arce was transferred to Wende Correctional Facility ("Wende"), where he resided until he was transferred to Eastern New York Correctional Facility ("Eastern") on April 13, 2004 for an extended assessment.

Each defendant was employed by DOCS at all times relevant to the complaint. James O'Connell ("O'Connell") was the acting Superintendent at Downstate, where Skip Hughes ("Hughes") was employed as the Inmate Grievance Supervisor. Corrections Officer Dwight Hunt ("Hunt") also worked at Downstate, and was assigned as a housing block officer in Unit 2-B. Joseph Costello ("Costello"), Roseann Mahoney ("Mahoney"), and David Napoli ("Napoli") were all employed at Midstate, as the Superintendent, Deputy Superintendent of Administrative Services, and Deputy Superintendent of Security, respectively. Edward Donnelly ("Donnelly") served as the Superintendent of Wende, where Martin Kearney ("Kearney") worked as a Corrections Captain.

Arce contends that he is a member of the inmate class protected by the Consent Decree, in that he is hard of hearing and has been discriminated against. The Consent Decree, which is to be interpreted consistent with the ADA and applicable federal regulations, defines a hard-of-hearing inmate as "a person incarcerated by [DOCS] who, because of a hearing impairment, is excluded from or unable to participate fully in activities, privileges or programs . . . which are available to all other New York state inmates." Consent Decree § 1(c). DOCS Directive No. 2612 ("Directive 2612"), titled "Inmates with Sensorial Disabilities," defines hard of hearing (also described as "functional hearing impairment") as "a hearing loss of at least 40 dB in the better ear unaided, as measured by the Pure Tone Audiometry (PTA-500, 1000, and 2000 Hz) or Speech Recognition Threshold (SRT), or functional hearing communication difficulties with proper amplification as determined by an audiologist."

Arce's Hearing Loss

Arce testified at deposition that when he was a teenager people often asked him, "can't you hear me?" He stated that at the time he did not believe he had a serious problem with his hearing. In 1965, Arce was drafted into the armed forces and underwent physical examinations. He testified that he was classified as 1-A, ready for service, although he claimed at deposition that he received the 1-A classification before the physical examinations, and did not recall whether his classification subsequently was changed.

Arce did not seek medical treatment for hearing loss until he was incarcerated. Indeed, although he was first incarcerated in 1974, the earliest DOCS record pertaining to Arce's hearing is a Chronological Entry Sheet from Sullivan, which contains an entry made by a corrections officer and dated November 20, 2000, stating, "Spoke to inmate in hall. Inmate claimed a hearing disability. No records on it." A DOCS Medical Problem List notes that on February 27, 2001, Arce was characterized as having a "severe hearing impairment However, a chronological entry dated April 20, 2001 states that the writer had "reviwed with medical recommended accommodations — according to audiological consultation dated 12/12/00 and 1/22/01 — with proper amplification he has functional hearing communication for daily listening needs at all facilities. . . . Inmate does not meet the criterion for functional hearing impaired under Directive 2612." The entry also appears to note that recommended accommodations included only hearing aids and preferred seating.

Arce has undergone repeated audiological exams to determine the extent of his purported hearing loss. The results have been highly inconsistent. Tests conducted in 2001 and 2002 found PTA thresholds ranging from 30 to 72 decibels in the left ear, and 48 to 63 decibels in the right ear. A March 11, 2002 entry in Wende health records remarked that Arce's inconsistent results indicated a "medical problem needing medical evaluation vs. invalid inmate response."

On April 13, 2004, Arce was transferred from Wende to Eastern for an extended assessment of his hearing loss. An initial consultation on May 25, 2004 found PTA thresholds of 67 decibels in the left ear and 63 decibels in the right ear, and recommended that Arce be provided with a range of accommodations including closed captioning, visual alarms, phone amplification and a shake awake alarm. However, after extended observation and repeated audiology consultations, it was determined that Arce "has a non-significant hearing loss" with PTA thresholds of 30 decibels in the left ear and 48 decibels in the right. The evaluation concluded that "Arce has functional hearing communication per daily listening needs at all facilities," and recommended only hearing aids and preferred seating as reasonable accommodations. This conclusion is consistent with DOCS records since 2001, which despite repeatedly characterizing Arce as having a "severe hearing impairment" do not recommend the use of accommodations other than hearing aids and preferred seating.

On October 29, 2004, Arce was taken to Montefiore Medical Center for audiological testing by Defendants' expert, Robert J. Ruben, M.D. ("Dr.Ruben"), an otolaryngologist with approximately 40 years experience. Dr. Ruben reported "many inconsistencies" in the audiometric evaluation, particularly with respect to Arce's responses to the PTA evaluation. Dr. Ruben characterized these responses as "not reliable." In contrast, Dr. Ruben found that Arce's ability to discriminate between words — another aspect of the audiological examination — was consistently excellent, and was equivalent to that found in persons having PTA thresholds of 0-10 decibels. Dr. Ruben noted that...