Jarboe v. Md. Dep't of Pub. Safety & Corr. Servs., Civil Action No. ELH-12-572

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
Writing for the CourtEllen Lipton Hollander
PartiesCHRISTOPHER JARBOE, et al., on behalf of themselves and all others similarly situated, Plaintiffs, v. MARYLAND DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES (DPSCS), et al., Defendants.
Docket NumberCivil Action No. ELH-12-572
Decision Date13 March 2013

CHRISTOPHER JARBOE, et al., on behalf of themselves
and all others similarly situated, Plaintiffs,

Civil Action No. ELH-12-572


Date: March 13, 2013


Five Maryland state prisoners who are profoundly deaf have brought this three-count putative class action against several Maryland state entities and officials, alleging violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131 et seq. (Count I); the Rehabilitation Act, 29 U.S.C. §§ 794 et seq. (Count II); and the right of free speech guaranteed by the First Amendment (made applicable to the states by the Fourteenth Amendment), pursuant to 42 U.S.C. § 1983 (Count III).1 Plaintiffs seek an award of damages, with prejudgment interest and attorneys' fees, as well as preliminary and permanent injunctive relief. In particular, they seek to enjoin the defendants from violating plaintiffs' constitutional free speech rights and from "refusing to provide the proper interpretive services, [telecommunications devices for the deaf ('TDDs')], videophones and other hearing devices" that plaintiffs maintain are "required for deaf and hard of hearing inmates" in order "to fully participate in the programs offered by the

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federally funded [state] prison system" and "to fully participate in and benefit from the programs offered by [the defendant] public entities." Complaint at 37-38 (ECF 1).2

The named plaintiffs are Christopher Jarboe, Carroll Connelly, Vander Davis, Gary Denmark, and Garfield Redd. They seek to represent a class composed of "all deaf or hard of hearing inmates who currently are or will in the future be in the custody or supervision of" the Maryland Department of Public Safety and Correctional Services ("DPSCS" or the "Department"). Complaint ¶ 14.3 Plaintiffs have sued six state entities and six individual defendants who are the principal officers for the six entities. The defendants consist of two groups: the "Correctional Defendants" and the "DLLR Defendants."

The Correctional Defendants consist of DPSCS, which is the Maryland state agency responsible for the operation of prisons and pre-release centers; the Department's Secretary, Gary D. Maynard; the Maryland Division of Corrections ("DOC"), which is the division of DPSCS responsible for operation of the state prison system; J. Michael Stouffer, the Commissioner of DOC; the Maryland Correctional Institute - Jessup ("MCI-J"), a medium-security correctional institute located in Jessup, Maryland, that plaintiffs allege houses most, but not all, deaf and hard-of-hearing DPSCS inmates; Dayena Corcoran, the Warden of MCI-J; Western Correctional Institution ("WCI"), a maximum-security correctional institution located in Cumberland, Maryland, that plaintiffs allege houses some deaf and hard-of-hearing DPSCS inmates, including those who rely on wheelchairs or other mobility devices; J. Philip Morgan,

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the Warden of WCI; Maryland Correctional Enterprises ("MCE"), the division of DPSCS responsible for training and employing inmates who perform vocational services in business units in the state prison system; and Stephen M. Shiloh, the Chief Executive Officer of MCE. The "DLLR Defendants" are the Maryland Department of Labor, Licensing, and Regulation ("DLLR"), Division of Workforce Development and Adult Learning (Correctional Education) ("DWDAL"), which is the Maryland agency responsible for providing educational programs to DPSCS inmates; and Paulette Francois, the Assistant Secretary for DWDAL. All of the individual defendants have been sued in their official capacities. The wardens of MCI-J and WCI, Ms. Corcoran and Mr. Morgan, were also sued in their individual capacities.

Pending before the Court are two pre-discovery motions, one filed by the DLLR Defendants and the other by the Correctional Defendants (the "Motions"). See "DLLR Motion" (ECF 25); "Correctional Motion" (ECF 29).4 The Motions are styled as motions to dismiss; the DLLR Motion is also styled, in the alternative, as one for summary judgment. Both Motions are supported by exhibits. They have been fully briefed, and no hearing is necessary to resolve them. See Local Rule 105.6.5 For the reasons that follow, I will deny both Motions.


As noted, plaintiffs' claims arise under the ADA, the Rehabilitation Act, and the First Amendment. It is helpful to provide some background as to these provisions and the nature of plaintiffs' claims.

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The ADA was enacted in 1990 "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities," 42 U.S.C. § 12101(b)(1), and "to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities." Id. § 12101(b)(2). Title II of the ADA, which is at issue here, prohibits public entities, including "any State or local government" and "any department, agency, special purpose district, or other instrumentality of a State or States or local government," id. § 12131(1), from discriminating "by reason of" disability against a "qualified individual with a disability." Id. § 12132.6

For purposes of Title II, a "qualified individual with a disability" is defined as an individual with a disability "who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." 42 U.S.C. § 12131(2). State prisoners, such as plaintiffs, may qualify as "qualified individual[s] with . . . disabilit[ies]," id., so as to come within the protection of Title II of the ADA. In Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206, 213 (1998), a unanimous Supreme Court held that "the plain text of Title II of the ADA unambiguously extends to state prison inmates."7 Although the Fourth Circuit "has not squarely addressed the issue," several

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circuits "have determined that § 12132's words 'or be subjected to discrimination by that entity' are meant to be a 'catch-all phrase that prohibits all discrimination by a public entity, regardless of the context'"—in other words, that Title II of the ADA applies to "'anything a public entity does.'" Seremeth v. Bd. of County Comm'rs of Frederick County, 673 F.3d 333, 338 (4th Cir. 2012) (citing cases) (citations omitted); see also Paulone v. City of Frederick, 787 F. Supp. 2d 360, 380-81 (D. Md. 2011) (collecting authority).

The Rehabilitation Act was enacted seventeen years prior to the ADA. Title II of the ADA is closely related to § 504 of the Rehabilitation Act, and to "the extent possible, [courts] construe similar provisions in the two statutes consistently." Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205, 214 (4th Cir. 2002). See Seremeth, 673 F.3d at 336 n.1 ("Claims under the ADA's Title II and the Rehabilitation Act can be combined for analytical purposes because the analysis is 'substantially the same.'") (citation omitted); Rogers v. Dept. of Health & Environmental Control, 174 F.3d 431, 433-34 (4th Cir. 1999) (stating that courts may apply Rehabilitation Act precedent in interpreting the ADA, and vice versa). Indeed, the statutes "share the same definitions of disability," id. at 433, and Title II of the ADA explicitly provides that "[t]he remedies, procedures, and rights" provided under § 504 of the Rehabilitation Act "shall be the remedies, procedures, and rights [that Title II of the ADA] provides to any person

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alleging discrimination on the basis of disability. . . ." 42 U.S.C. § 12133.8

Despite the general congruence of Title II of the ADA and § 504 of the Rehabilitation Act, there are two principal differences between the statutes. First, a plaintiff must show a different "causative link between discrimination and adverse action" under the two statutes. Baird ex rel. Baird v. Rose, 192 F.3d 462, 469 (4th Cir. 1999). Under Title II, a plaintiff need only prove discrimination "by reason of" disability. 42 U.S.C. § 12132. But, a successful Rehabilitation Act claim requires a showing of discrimination "solely by reason of" disability. 29 U.S.C. § 794(a) (emphasis added). See Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 498 n.17 (4th Cir. 2005) ("[W]e have recognized that the causation standards under Title II of the ADA and § 504 of the Rehabilitation Act are 'significantly dissimilar.'") (quoting Baird, 192 F.3d at 469).

The second significant difference between Title II and the Rehabilitation Act is that, as noted, Title II applies to any "public entity," while § 504 of the Rehabilitation Act applies only to federal agencies or to "any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). Thus, to show a violation of the Rehabilitation Act by a state, local, or private

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entity, a plaintiff must demonstrate that the "program or activity" at issue receives "Federal financial assistance."

"Program or activity" is defined in 29 U.S.C. § 794(b). In relevant part, it includes:

[A]ll of the operations of—
(1)(A) a department, agency, special purpose

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