Rosenthal v. Mo. Dep't of Corr., Case No. 2:13-cv-04150
| Decision Date | 19 February 2016 |
| Docket Number | Case No. 2:13-cv-04150 |
| Parties | KEVIN ROSENTHAL Plaintiff, v. MISSOURI DEPARTMENT OF CORRECTIONS, et al., Defendants. DEONTA DUDLEY, Intervenor. |
| Court | U.S. District Court — Western District of Missouri |
Pending before the Court is Defendants' Motion for Summary Judgment (Doc. No. 134), which is considered below. For the reasons stated below, the motion is granted in part and denied in part.
Plaintiff filed the pending action on June 11, 2013. Intervenor Dudley joined the suit in 2014. Plaintiff and Intervenor are deaf persons who have been in the custody of the Missouri Department of Corrections (MDOC). Defendants are (1) MDOC, (2) George Lombardi (Director, MDOC), (3) Ed Davis (Superintendent, Ozark Correctional Center (OCC))1, (4) James Hurley (Superintendent, Northeast Correctional Center (NECC)); and (5) various John Doe defendants. In the First Amended Complaint, Plaintiff and Intervenor Deonta Dudley sought declaratory and injunctive relief, as well as damages, for alleged discrimination by Defendants. First Amended Complaint, Doc. No. 60, pp. 6-9.
The First Amended Complaint contains fifteen counts: Count I - violation of the Americans with Disabilities Act (ADA); Count II - violation of the Rehabilitation Act (RA); Count III - class-wide claim for injunctive relief under 42 U.S.C. § 1983; Count IV - Plaintiff's individual claim for damages under 42 U.S.C. § 1983; Count V - Intervenor's individual claim for damages under 42 U.S.C. § 1983; and Counts VI - XV - Plaintiff and Intervenor's individual claims against various John Doe defendants under 42 U.S.C. § 1983.
On October 16, 2014, the Court entered an order granting in part Defendants' motion to dismiss as to Plaintiff Rosenthal's claims for injunctive relief in Counts I, II and III, and denied in part the motion to dismiss as to Intervenor Dudley's claims for the same relief. On November 18, 2014, the Court entered an Order denying claimants' motion for class certification. On March 12, 2015, the Court entered an order granting in part Defendants' motion for judgment on the pleadings as relates to dismissal of claims against Defendants Lombardi, Davis, and Hurley in their individual capacities in Counts I and II, as well as Count III in its entirety, and denying in part Defendants' motion for judgment on the pleadings as to Counts IV through XV. See Order, Doc. No. 131. Notably, the Court found that Defendants' arguments as to Counts IV through XV would be better heard on summary judgment, where a full record could be made as to (1) whether the claims stated by claimants are completely duplicative and thereby subsumed by the ADA and RA; and/or (2) whether Defendants were personally involved in the alleged violations such that they could be found liable under Section 1983.
In their motion for summary judgment, Defendants argue, among other things, that (1) Intervenor Dudley has not adduced sufficient evidence to support any violation of the ADA or RA; (2) claimants have not adduced sufficient evidence of a constitutionalviolation sufficient to state a claim under 42 U.S.C. § 1983; (3) claimants have not adduced evidence showing personal involvement of Lombardi, Davis, or Hurley in any constitutional violation; (4) Lombardi, Davis, and Hurley are entitled to qualified immunity; and (5) the claims against the "John Doe" defendants must be dismissed, as none have been identified and joined in this suit.
Rosenthal graduated from high school in 1989 and attended less than a year of college. After leaving college, Rosenthal began working. Rosenthal considers himself to have a profound deafness, and was born with his current level of deafness. Rosenthal's parents and two brothers do not know how to communicate using American Sign Language (ASL). Rosenthal, however, communicates with his parents and brothers by reading their lips and by writing notes back and forth. Rosenthal is able to read, and was able to read the MDOC's written responses to Rosenthal's grievances.
Plaintiff Rosenthal testified that he can talk to people he is working with by using "really easy English words, maybe second or third grade kind of English" so the other people can understand him when he speaks. Doc. No. 140, Ex. 1, Depo. of Plaintiff, at 9:10-16. Plaintiff, however, indicates that written and verbal English is not his primary form of communication. Doc. No. 140, Ex. 2, Affidavit of Plaintiff, ¶ 8. When Rosenthal was at Ozark Correctional Center ("OCC"), he would communicate with Ralph Schultz ("Schultz"), who is employed at OCC as a grievance officer, by writing back and forth with each other. Doc. No. 134, Ex. F, Rosenthal Depo., at 61:4-11, Doc. No. 140, Ex. 1,62:1-11; see also Doc. No. 134, Ex. H, Schultz Depo., at 82:9-83:6.2 If Rosenthal could not understand a word written by Schultz, Schultz would use a different word that meant the same thing as the word that Rosenthal could not understand. Doc. No. 134, Ex. F, Rosenthal Depo., at 61:4-11, Doc. No. 140, Ex. 1, 62:1-11. Plaintiff, however, indicates by affidavit, that he does not have the necessary English skills to completely understand what others are saying by note taking. Doc. No. 140, Ex. 2, ¶ 9.
Rosenthal does not have any complaints regarding specific actions of Lombardi, but named Lombardi as a defendant in this matter due to Lombardi's role as Director of the MDOC. Doc. No. 134, Ex. F, Rosenthal Depo., at 29:1-31:4. Rosenthal does not have any complaints regarding specific actions of Ed Davis ("Davis") or James Hurley ("Hurley"). Id. at 31:5-25.
Rosenthal testified that he has had no problems with teletype (TTY) systems at some MDOC facilities, but has experienced problems with the TTY system at other MDOC facilities. Id. at 18:6-20:17. When the MDOC facilities switched to Securus for telephone access, the TTY calls had to be made collect, and because a TTY phone call would sometimes take three or four times longer than what a hearing person's call would take, it cost him a lot of money. Doc. No. 140, Ex. 1 at 53:6-22; 54:12-17; 19:25-20:5. Rosenthal testified that his deaf friends who were not incarcerated did not use TTY phones, but instead use videophones, "which is new technology." Id. at 58:15-59:1. Rosenthal testified NECC has fire alarms equipped with strobe lights, which have different lights for different notifications. Doc. No. 134, Ex. F, Rosenthal Depo., at 70:9-14.
Dudley graduated from high school, at the Missouri School for the Deaf, in 1993. After graduating from high school, Dudley began working and worked at the Hyatt Regency. Dudley worked at the Hyatt Regency for approximately a year or a year and a half, until he entered prison in 1995. While working at Hyatt Regency, Dudley communicated with co-workers by writing notes with "pen and paper," and using hand gestures. Doc. No. 134, Ex. G, Dudley Depo., at 10:3-11, 10:18-11:1. Additionally, his sister helped him do some sign communication, coming in to work with him "maybe two times." Id. at 10:9-17. Although he is able to read and write, Dudley testified that he is not "really smart with the English language." Id. at 12:22-13:5.
Dudley named Lombardi as a defendant in this case because Lombardi is the Director of the MDOC and signed MDOC Policy D5-5.1. Id. at 18:12-19:2. Dudley also stated that Lombardi is a defendant in this case because "because he discriminates against deaf [inmates] and their rights and the policies." Id. at 18:16-18. Dudley does not know Davis and does not know why Davis was named a defendant in this case. Id. at 19:3-8. Dudley named Hurley as a defendant in this case because Hurley was the Warden at NECC during that time that Dudley was housed there, and allegedly ignored Dudley's rights and complaints. Id. at 19:9-20:11. Dudley never directly talked with Hurley about Dudley's complaints, and never directly requested any accommodations from Hurley. Id.
Dudley testified that while housed at Fulton Correctional Center, a vibrating alarm clock was provided to him. Id. at 74:13-75:13. Dudley testified that vibrating alarm clocks were not provided to him at other MDOC facilities, but have been available for purchase. Id. Dudley testified that he has refused to purchase a vibrating alarm clockbecause he believes a vibrating alarm clock should be provided to him free of charge. Id.
The prison grievance process starts with the inmate filing an Informal Resolution Request, also called an "IRR." Id. at 14:13-18. A case worker will attempt to resolve the IRR with the inmate and, if no resolution is achieved, a written response is given to the inmate. Id. at 14:19-15:8. If the response is not acceptable to the inmate, the inmate can file a grievance. Id. MDOC staff then responds to the grievance and if the inmate disagrees with this response, then the inmate can file an appeal. Id. at 15:9-22. MDOC staff then responds to the appeal, which concludes the grievance process. Id. An inmate must file an IRR within 15 days of the event giving rise to the complaint. Id. at 16:3-9, 21:6-12. MDOC staff that review and respond to IRRs and grievances receive "special needs offender training," which consists of a 4 or 8 hour class. Id. at 79:1-6.
Cari Collins ("Collins") is employed with the MDOC as the Director of the Division of Human Services, and serves as the MDOC's ADA Coordinator. See Doc. No. 134, Ex. I, Collins Depo., at 4:20-6:13. As the ADA Coordinator, Collins provides assistance to MDOC staff, reviews grievances related to the Americans with Disabilities Act ("the "ADA"), and ensures that the MDOC is in compliance with the ADA. Id. at 8:24-10:8.
The MDOC has a policy, Policy D5-5.1, which concerns deaf offenders housed within a MDOC prison. Doc. No. 134, Ex. I, Collins Depo., at 17:16-18, 21:12-16; see also Exhibit 2 of the Collins Deposition, attached to Doc. No....
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