Levy v. Louisiana Department of Public Safety and Corrections

          RULING AND ORDER

          JOHN W. deGRAVELLES UNITED STATES DISTRICT COURT.

         This 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 denied.

         I. BACKGROUND

         A. Facts

         The 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 1).

         DPP is 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).

         1. LDPSC and DPP Regulations

         LDPSC 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).

         The 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).

         To 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).

         2.Provision of Accommodations

         Currently, 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.^[1] (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).

         For 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 4-5).

         On 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.).

         3. Plaintiffs' Testimony

         Levy is 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).

         Levy is 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." (Id.).

         Hammond 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.).

         Hammond 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).

         Casto 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 ...