Randolph v. Rodgers, 4:94CV991 CDP.

• Decision Date: 10 October 1997
• Docket Number: No. 4:94CV991 CDP.,4:94CV991 CDP.
• Citation: 980 F.Supp. 1051
• Parties: Ronnie RANDOLPH, Plaintiff, v. Bill RODGERS et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

980 F.Supp. 1051

Ronnie RANDOLPH, Plaintiff, v. Bill RODGERS et al., Defendants.

No. 4:94CV991 CDP.

United States District Court, E.D. Missouri, Eastern Division.

October 10, 1997.

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Peter G. Yelkovac, Peper and Martin, St. Louis, MO, for Plaintiff.

Denise G. McElvein, Attorney General of Missouri, Asst. Atty. Gen., St. Louis, MO, for Defendants.

MEMORANDUM AND ORDER

PERRY, District Judge.

This matter is before the Court on the parties' crossmotions for summary judgment. Plaintiff, who is a hearing-impaired inmate in the Missouri Department of Corrections, alleges that the Missouri Department of Corrections and five of its officials violated his rights under various federal and state laws by failing to provide him with a sign language interpreter. Plaintiff's second amended complaint alleges due process and equal protection violations under 42 U.S.C. § 1983 (Counts I and II), violations of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq. (Count III), violations of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (Count IV), and violations of Mo. Ann. Stat. § 476.750 (Vernon Supp.1997) (Count V).

For the reasons set forth below, the Court will grant all defendants' motion for summary judgment on Counts I and II of plaintiff's complaint, and will grant the individual defendants' motion for summary judgment as to Counts III and IV. The Court will grant defendant Bowersox's motion for summary judgment as to Count V. The Court will grant plaintiff's motion for summary judgment as to the injunctive relief sought against the Missouri Department of Corrections on Counts III, IV and V. Remaining for trial are the plaintiff's claims for money damages against the Missouri Department of Corrections on Counts III and IV, and on plaintiff's claim for money damages against all defendants except Bowersox under Count V. Finally, the Court will certify the rulings herein for immediate appeal under 28 U.S.C. § 1292(b).

I. Facts

Plaintiff Ronnie Randolph is currently incarcerated at the Jefferson City Correctional Center ("JCCC") in Jefferson City, Missouri, and at the time he filed suit was incarcerated at Potosi Correctional Center ("PCC") in Potosi, Missouri. Defendants in this action are the Missouri Department of Corrections and Bill Rodgers, Don Roper, Paul Delo, Michael Bowersox, and Dora Schriro.

Defendant Bill Rodgers was employed as plaintiff's Correctional Classification Assistant at PCC. As such, Rodgers assisted plaintiff's caseworker. Rodgers also served as plaintiff's hearing officer during one of the disciplinary hearings at issue in this lawsuit.

Defendant Don Roper was employed as Associate Superintendent at PCC from 1989 to March 1995. In addition, he also served as ADA Coordinator at the time when the two challenged conduct violations were issued. Roper reviewed plaintiff's requests for a sign language interpreter.

Defendant Paul Delo was Superintendent of PCC from 1989 to August 1995 when Bowersox took over in that capacity. Delo reviewed and denied several of plaintiff's grievances requesting an interpreter. Plaintiff contends that, as current superintendent, defendant Mitchell Bowersox also had actual or constructive knowledge of plaintiff's request for a sign language interpreter because he had access to plaintiff's files.

Defendant Dora Schriro is the director of the Missouri Department of Corrections. She reviewed and denied one of plaintiff's requests for a sign language interpreter.

The alleged violations of plaintiff's rights occurred during plaintiff's incarceration at PCC for capital murder from 1989 to October 16, 1996; plaintiff was subsequently transferred to JCCC.

The undisputed evidence establishes that prison records showed, and defendants were at all times aware, that plaintiff was hearing impaired with speech problems. Additionally, the parties' expert witnesses in this case, Dr. Michael Valente, plaintiff's expert, and Dr. Eric Frederick, defendants' expert, both agree that plaintiff has a profound, bilateral sensorineural hearing loss, and that at this level of hearing loss, plaintiff cannot understand most speech spoken at an average conversational level. Both experts agree that the hearing aids provided by the Department of Corrections for plaintiff are insufficient for his level of hearing loss. The undisputed evidence shows that even with a more appropriate type of hearing aid, plaintiff would still have difficulty understanding most speech.

Plaintiff communicates with prison officials through lipreading, gesturing, written notes, and limited verbal exchanges. Plaintiff has a very limited ability to speak. Several witnesses testified that they could understand plaintiff's speech so long as he did not get upset or excited and if he spoke slowly. These witnesses agreed that understanding plaintiff took a great deal of patience, experience, and familiarity with plaintiff, and that even with patience and extreme efforts on plaintiff's part it was still difficult to understand his speech. Plaintiff can read and write standard English, although he argues that neither his skills in writing nor reading are fluent. Plaintiff has been trained in, can use, and understands American Sign Language.

In 1989, plaintiff filed an inmate grievance requesting an interpreter: "1) for all stages of prison disciplinary procedures, 2) medical, 3) educational, 4) counseling, and 5) any program or activity that has to do with prison confinement ..." Although the grievance form is noted as received on November 16, 1989, is noted as reviewed on November 29, 1989, and is signed by defendant Delo, the portion of the form for the institution head's response is marked only "see attached." The parties are unable to produce any evidence regarding the response to this grievance. It is undisputed, however, that no sign language interpreter has ever been provided for plaintiff at the prison.

Similarly, on April 26, 1993, plaintiff submitted an Internal Resolution Request ("IRR") which stated:

This grievance is about not having a licensed or qualified interpreter for the deaf at PCC. I wish to have an interpreter for the following reasons: (1) for all stages of prison disciplinary proceedings, (2) Medical (3) education (4) counseling and (5) any programs or activities that has to do with prison confinement.

During certain dates of my confinement I received several conduct violations and wasn't permitted to tell my side of the incident because nobody understood what I was saying and I couldn't understand what I was receiving a conduct violation for. During appointments at medical and education the teachers and doctors does not understand what I'm trying to say and its hard to communicate with them, etc., etc.

In the "action requested" portion of this form, plaintiff stated:

I believe this problem could be corrected by having a licensed or qualified interpreter available at this institution or teach some sort of class on communications w/the deaf.

The evidence presented shows that defendants received this form and responded to it; the response is illegible, but it is undisputed that no interpreter was provided as a result of this request.

Plaintiff received two conduct violations in February of 1993, which were later expunged and no discipline was imposed. In each case he provided written statements of his position. His defense to one of the charges was that the correctional officer talked too fast and he did not understand her directions. Plaintiff's written statements from these hearings do not contain any request for a sign language interpreter at the hearings.

Plaintiff requested and received medical treatment on numerous occasions while he was incarcerated at PCC. He was able to communicate with the medical staff through gestures, lip reading and written communications. The only references in the medical records to his disability are several complaints about problems with his hearing aids.

Plaintiff participated in some educational courses while at PCC, and was evaluated by one instructor as reading at the eighth grade level. Plaintiff and the teacher relied on lip reading and writing to communicate with one another. Plaintiff did not ask the teacher to provide an interpreter for the classes. A later educational program required plaintiff to watch a video, but he could not understand what was being said on the video. Plaintiff also worked in various food service jobs at PCC, and was generally able to communicate with his supervisors and co-workers through gestures, lip reading, and written communications.

On February 16, 1994, plaintiff was given a conduct violation charging him with disobeying an order to return to his housing unit and insulting behavior. Following a hearing on February 18, 1994, plaintiff was found guilty and given thirty days in administrative segregation. Plaintiff did not specifically request an interpreter for this hearing. Plaintiff filed an IRR appealing this sanction. In that appeal he stated, among other things: "I did not curse out the officer, and anyone who knows me knows that there is a great amount of difficulty understanding what I am saying, or what I am being told, due to my being a deaf-mute. No one has ever made arrangements for correcting this communications dilemna [sic]." In the "Action Requested" section of the form he asked that the conduct violation be expunged and stated, "I also ask that effective immediately the Department of Corrections employ a capable staff person whom can assist me with my needs to communicate with the staff personnel." After this IRR was denied plaintiff filed a grievance, appealing the denial, and again stating "I ask that the Potosi Corr. Center hire/employ an interpreter for persons like myself, to insure `meaningful communications.'" Superintendent Delo denied the grievance.

On July 4, 1994, plaintiff received a...