United States District Court, M.D. Louisiana
LAWRENCE LEVY, ET AL.
LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS AND JAMES LEBLANC
RULING AND ORDER
W. deGRAVELLES UNITED STATES DISTRICT COURT.
matter comes before the Court on the Motion for Summary
Judgment (Doc. 55) filed by Plaintiffs Lawrence Levy, Cedric
Hammond, and Bradley Casto (collectively, the
"plaintiffs"). Defendants Louisiana Department of
Public Safety and Corrections ("LDPSC) and James LeBlanc
(collectively, the "defendants") oppose the motion.
(Doc. 61). The plaintiffs have filed a reply brief in support
of their motion. (Doc. 64). On January 31, 2019, the Court
heard oral argument on the motion. (Docs. 86 & 90). After
careful consideration of the parties" arguments, the
facts in the record, and the applicable law, and for the
following reasons, the plaintiffs' motion (Doc. 55) is
following facts are undisputed in the record unless otherwise
indicated. Plaintiffs Lawrence Levy, Cedric Hammond, and
Bradley Casto filed this lawsuit on August 16, 2016, alleging
systemic deficiencies in the provision of accommodations for
hearing-impaired probationers and parolees by LDPSC; its
Secretary, Defendant James LeBlanc; and the LDPSC's
Division of Probation and Parole ("DPP"). (Doc. 1).
Their complaint alleges that the defendants have failed to
provide certain accommodations for hearing-impaired offenders
in violation of the Americans with Disabilities Act
("ADA") and Section 504 of the Rehabilitation Act
of 1973 (''RA"). (Id. at
1-2). Specifically, they allege that the defendants have
failed to: provide access to qualified American Sign Language
("ASL") interpreters, inform them of probation or
parole requirements, adequately communicate with the
plaintiffs, and provide accommodations during required DPP
programs. (Id. at 12-15). The plaintiffs are subject
to the supervision of DPP either through parole (in the case
of Levy and Hammond) or a sentence of probation (Casto).
(Id. at 6-9). They are all hearing-impaired and
claim that they are only able to communicate effectively
through ASL. (Doc. 55-1 at 1; Doc. 55-2 at 1; Doc. 55-3 at
a division of LDPSC which supervises individuals who have
been sentenced to probation or who are on parole after
release from prison. (Doc. 55-5 at 7-8; Doc. 55-11 at 2). DPP
officers meet with probationers and parolees at their homes,
workplaces, and on site at DPP offices. (Doc. 55-7 at 5 &
8). The officers are responsible for monitoring the
offenders' compliance with the terms and conditions of
their supervision. (Doc. 55-8 at 5). They also track their
attendance at required DPP programs. (Doc. 55-7 at 7). A
violation of the terms of one's supervision may result in
an extension of the term of probation or parole and/or
incarceration. (Doc. 55-5 at 19-20; Doc. 55-9 at 7-8).
LDPSC and DPP Regulations
has promulgated several regulations with respect to the
provision of aids and services for hearing-impaired offenders
under its supervision. (Doc. 55-5 at 24-27; Doc. 55-15; Doc.
55-16). LDPSC adopted the regulations after an investigation
by the U.S. Department of Justice 0'DO.T) into
LDPSC's failure to provide the necessary services for
hearing-impaired offenders. (Doc. 55-13). As a result of the
investigation, DOJ and LDPSC formulated an agreement in 2008
which included certain improvements to LDPSC's provision
of aids and services to its hearing-impaired supervisees.
(Id. at 1-6).
resulting regulations define "effective
communication'' as communication with disabled
persons that is "as effective as communication with
others," which includes the furnishing of aids and
services "where necessary to afford qualified
individuals with disabilities an equal opportunity to
participate in or benefit from the services, programs and
activities of the Department." (Doc. 55-15 at 3). They
also provide that LDPSC "shall provide qualified sign
language or oral interpreters when necessary for effective
communication with, or effective participation in,
departmental programs and activities by employees, offenders
and visitors who are deaf or hearing-impaired."
(Id. at 7). A DPP policy applicable to probationers
and parolees mandates that interpreters must be provided
"as warranted, to ensure effective communication."
which includes "the intake process, office visits and
preliminary hearings conducted in the field." as well as
required programs. (Doc. 55-16 at 3-4).
determine whether a probationer or parolee is
hearing-impaired and needs an ASL interpreter, the
regulations require DPP to conduct an "initial
communication assessment" within 48 hours of the intake
interview. (Doc. 55-15 at 5-6). DPP staff must also provide
the offender with a "Request for Accommodation"
form and perform a follow-up assessment within 10 weeks of
the initial assessment. (Id. at 6). The policy then
requires yearly assessments. (Id.). "[P]rior to
explaining the conditions of probation or parole," DPP
staff must determine "how best the offender
communicates," such as through sign language. (Doc.
55-16 at 4).¶a probationer or parolee is determined to
be hearing-impaired, staff must use an appropriate aid or
service to ensure effective communication. (Id.).
The regulations discourage the use of inmates to interpret in
"many-if not most-situations," even though they
"may possess the skill level necessary to provide
interpreting services," due to impartiality,
"confidentiality, privacy and security reasons/* (Doc.
55-15 at 4).
LDPSC and DPP do not perform a communication assessment to
determine whether a probationer or parolee is
hearing-impaired and needs an ASL interpreter, or at any time
thereafter. (Doc. 90 at 29; see also Docs. 55-1 at
2, 55-2 at 2 & 55-3 at 2). Nor did they provide a
"Request for Accommodation" form to the plaintiffs
during the intake process. (Doc. 55-1 at 3: Doc. 55-2 at 2;
Doc. 55-3 at 2). According to the plaintiffs, instead of
providing qualified ASL interpreters during intake meetings,
when the terms and conditions of parole or probation are
explained to the offenders, LDPSC and DPP typically rely on
family or friends of the offender to serve as
interpreters. (Doc. 55-5 at 9-10; Doc. 55-3 at 2). ASL
interpreters are often not provided during meetings with
probation officers and are never provided for "field
visits"-trips by supervising officers to an
offender's home or workplace. (Doc. 55-1 at 2; Doc. 55-2
at 3; Doc. 55-3 at 2; Doc. 55-7 at 9). In lieu of ASL
interpreters, probation and parole officers often communicate
with their supervisees through written notes, text messages,
or speaking. (Doc. 55-1 at 2-3; Doc. 55-2 at 3-4; Doc. 55-3
at 2-3; Doc. 55-5 at 10-11; Doc. 55-7 at 16).
sign language interpreting, LDPSC also employs inmates who
participate in its "American Sign Language Interpreter
Program" through Video Remote Interpreting
("VRI"), which records an off-premises interpreter
by streaming video. (Doc. 55-1 at 2; Doc. 55-2 at 4-5; Doc.
55-5 at 13-14; Doc. 55-17 at 6). LDPSC policy requires the
inmate interpreters to be approved by its ADA Coordinator, to
pass the Registry of Interpreters for the Deaf, Inc.
("RID") National Interpreters Certification test,
and to complete a 225-hour internship "under the
direction of Sign Language Services International, Inc."
(Doc. 55-17 at 6). Dr. Dennis Cokely, a professor of American
Sign Language and Modern Languages and former two-term RID
president, testified that there is "no evidence"
that the inmate interpreters who participated in this program
were members of or certified by RID. (Doc. 55-14 at 39). The
inmate interpreters were therefore "not formally bound
to the RID's Code of Professional Conduct and its most
critical tenant which binds members to maintain
confidentiality." (Id.). Inmate interpreters
are occasionally employed for meetings with officers and
required programs. (Doc. 55-5 at 12 & 28; Doc. 55-1 at 2
& 4; Doc. 55-2 at 4-5). In some instances, the plaintiffs
have lodged complaints about the use of inmate interpreters
and requested qualified interpreters, but LDPSC and DPP have
not granted these requests. (Doc. 55-1 at 2 & 4; Doc.
55-2 at 5; Doc. 55-3 at 2). The plaintiffs have also taken
issue with the use of VR1 due to its poor quality and their
difficulty seeing the screen. (Doc. 55-1 at 4; Doc. 55-2 at
October 15, 2014, Hammond met with his parole officer, who
arrested him after examining his cell phone and concluding
that he had committed a parole violation by viewing material
prohibited by the terms of his parole. (Doc. 55-2 at 3). The
officer provided Hammond with a form, which he signed but did
not understand. (Id.). The form admitted the
violation and waived any right to a hearing and legal
counsel. (Docs. 55-26 & 55-2 at 3). The form also
represented that Hammond agreed to a 10-day sentence of
incarceration for the purported violation. (Docs. 55-26 &
55-2 at 3). Similarly, during field visits, Hammond and
Levy's parole officer provided them with a form asking
them to elect between use of an ASL interpreter during field
visits or waiver of the right to an interpreter. (Doc. 55-1
at 3; Doc. 55-2 at 4). No interpreter was present to explain
the forms. (Doc. 55-1 at 3; Doc. 55-2 at 4). Finally, at
another meeting at a DPP office, Levy's officer informed
him that he would face arrest if he attended a presentation
regarding deaf access to justice in prisons because the
program was located within L000 feet of a park. (Doc. 55-24
at 5-6). The officer instructed Levy to bring his own
interpreter, but none was present. (Id.).
53 years-old and lost all of the hearing in his right ear as
a child. (Doc. 55-1 at 1). He has partial hearing loss in his
left ear. (Id.). Because he can "read and speak
very little English"' and is "not good at
writing." ASL is his primary method of communication.
(Id.). He struggles "understanding things
unless they are explained to [him] in ASL."
(Id.). Levy has been supervised by both Sarah
Bordelon and Jamie Oertel. (Id. at 2). Levy
requested an ASL interpreter multiple times for his meetings
with Bordelon by writing notes, but Bordelon would
"ignore [his] request or not answer it," and one
was never provided. (Id.). On one occasion at a
meeting at Bordelon's office, interpretive services were
provided through VRI, but Levy suspected the interpreter was
an inmate. (Id.). "[S]ome of the signs were
wrong" and Levy was forced to "keep asking the
inmate interpreter to repeat things, but he would still miss
things.'' (Id. at 2-3). This led to
"misunderstandings" and prevented Levy from
communicating "sensitive information."
(Id. at 3). According to Levy, while Bordelon
attempted to communicate through written notes, he did not
"understand everything she was trying to tell
[him]." (Id.). He requested an interpreter for
home visits, but Bordelon explained "that there was no
money to pay for one." (Id.). It was difficult
for him to communicate with her by text message because his
English is "poor." (Id. at 4).
required to attend monthly classes as a condition of his
parole. (Doc. 55-1 at 4). According to Levy, when inmate
interpreters were provided using VRI at required classes,
their "sign language skills were not good" and it
was "not easy to see the interpreter on the video."
(Id. at 4). A qualified ASL interpreter was
occasionally present at the classes, but not often.
(Id.). Without a qualified ASL interpreter, Levy
"cannot effectively communicate at these classes and
[does] not fully understand what is being taught."
is 58 years-old and was born deaf. (Doc. 55-2 at 1). He is
able to read "very basic English, but it is
difficult'" for him, and he cannot liprcad.
(Id.). During Hammond's meetings with Bordelon,
no interpreter has ever been provided despite the fact that
he has requested one. (Id. at 3). According to
Hammond. Bordelon told him (hat "interpreters were too
expensive." (Id.). Bordelon communicates with
him through written notes, but has "not understood
everything she has tried to tell [him]." (Id.).
When Bordelon arrested Hammond for a purported parole
violation during a home visit, she requested that he sign a
form admitting the violation without providing an interpreter
or informing him that he had the right to request one.
(Id.). On June 8, 2015, Bordelon arrested Hammond
during an office visit for testing positive for cocaine,
again without an interpreter present. (Id. at 4).
Bordelon attempted to communicate with Hammond through
written notes and eventually provided an inmate interpreter
through VRI after the arrest. (Id.). Hammond
"did not understand the interpreter because his ASL
skills were poor." (Id.).
is also required to take classes as a condition of his
parole. (Doc. 55-2 at 4). Interpreter services are provided
at the classes through VRI with inmate interpreters.
(Id.). However, the "quality of the inmate
interpreters is not good" and Hammond cannot
"always understand what they are saying."
(Id.). He has explained to Bordelon that he could
not understand the inmate interpreter, that the VRI screen
was "too small, and the connection was not good and made
it difficult to understand the inmate interpreter."
(Id. at 4-5).
is 30 years-old and is completely deaf in his left ear. (Doc.
55-3 at I). He lost 90 percent of the hearing in his right
ear as a five-year-old child. (Id.). He can
"only communicate effectively using ASL" and has
"a very limited vocabulary and knowledge of verbal
English." (Id.}. Casto is supervised by Corey
Bennett. (Id. at 2). During his intake appointment,
he requested an ASL interpreter but one was not provided.
(Id.). His wife attempted to interpret but, as a
result, he "only understood some of the terms of [his]
probation/' (Id.). Casto has requested a
qualified interpreter for home and office meetings with
Bennett, but one has never been provided. (Id.).
Instead, he must "try to communicate through verbal
English even though [his] hearing is extremely poor and [his]
understanding of verbal English is very limited;'
(Id.). Casto is required to attend counseling
classes twice per ...