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Armstrong v. Brown

United States District Court, N.D. California

June 4, 2013

JOHN ARMSTRONG, et al., on behalf of themselves and as representatives of the class, Plaintiffs,
v.
EDMUND G. BROWN, JR., Governor of the State of California; CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION; MICHAEL MINOR, Director of the Division of Juvenile Justice; DR. JEFFREY A. BEARD, Secretary of the California Department of Corrections and Rehabilitation; JENNIFER SHAFFER, the Executive Officer of the Board of Parole Hearings; DIANA TOCHE, Acting Director of the Division of Correctional Health Care Services; CHRIS MEYER, Director of the Division of Facility Planning, Construction and Management; KATHLEEN DICKINSON, Director of Adult Institutions; and DAN STONE, Director of Division of Adult Parole Operations, Defendants

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[Copyrighted Material Omitted]

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For John Armstrong, Plaintiff: Donald H. Specter, Sara Linda Norman, LEAD ATTORNEYS, Alison Hardy, Corene T. Kendrick, Rebekah B. Evenson, Warren E. George, Prison Law Office, Berkeley, CA; Michael William Bien, LEAD ATTORNEY, Blake Thompson, Ernest James Galvan, Gay Crosthwait Grunfeld, Kenneth Michael Walczak, Lisa Adrienne Ells, Michael Louis Freedman, Rosen Bien Galvan & Grunfeld LLP, San Francisco, CA; Arlene Brynne Mayerson, Linda D. Kilb, Disability Rights Education & Defense Fund, Inc., Berkeley, CA; Geoffrey T. Holtz, Bingham McCutchen LLP, San Francisco, CA; Mark Raymond Feeser, Mark R. Feeser - Attorney at Law, San Luis Obispo, CA; Megan Hagler, Attorney at Law, San Rafael, CA; Penelope Marie Godbold, Prison Law Office, San Rafael, CA; Shawn Hanson, Akin Gump Strauss Hauer & Feld LLP, San Francisco, CA.

For James Amauric, Richard Ponciano, Jack Swensen, Plaintiffs: Donald H. Specter, Sara Linda Norman, LEAD ATTORNEYS, Prison Law Office, Berkeley, CA; Arlene Brynne Mayerson, Disability Rights Education & Defense Fund, Inc., Berkeley, CA; Ernest James Galvan, Gay Crosthwait Grunfeld, Rosen Bien Galvan & Grunfeld LLP, San Francisco, CA; Shawn Hanson, Akin Gump Strauss Hauer & Feld LLP, San Francisco, CA.

For Billy Beck, Judy Fendt, Walter Fratus, Gregory Sandoval, Darlene Madison, Peter Richardson, Steven Hill, Plaintiffs: Donald H. Specter, Sara Linda Norman, Warren E. George, LEAD ATTORNEYS, Prison Law Office, Berkeley, CA; Michael William Bien, LEAD ATTORNEY, Ernest James Galvan, Gay Crosthwait Grunfeld, Rosen Bien Galvan & Grunfeld LLP, San Francisco, CA; Arlene Brynne Mayerson, Disability Rights Education & Defense Fund, Inc., Berkeley, CA; Shawn Hanson, Akin Gump Strauss Hauer & Feld LLP, San Francisco, CA.

For David Rose, David Blessing, Elio Castro, Elmer Umbenhower, Raymond Hayes, Gene Horrocks, Kiah Mincey, Clifton Feathers, Willie Johnson, David Badillo, James Simmons, Plaintiffs: Donald H. Specter, LEAD ATTORNEY, Sara Linda Norman, Warren E. George, Prison Law Office, Berkeley, CA; Arlene Brynne Mayerson, Disability Rights Education & Defense Fund, Inc., Berkeley, CA; Caroline Nason Mitchell, Jones Day, San Francisco, CA; Ernest James Galvan, Gay Crosthwait Grunfeld, Michael William Bien, Rosen Bien Galvan & Grunfeld LLP, San Francisco, CA; Jennifer Lee Jonak, Lukens Law Group, San Francisco, CA; Shawn Hanson, Akin Gump Strauss Hauer & Feld LLP, San Francisco, CA.

For Flora Abrams, Joey Gough, Timothy Whisman, Plaintiffs: Donald H. Specter, LEAD ATTORNEY, Warren E. George, Prison Law Office, Berkeley, CA; Arlene Brynne Mayerson, Disability Rights Education & Defense Fund, Inc., Berkeley, CA; Caroline Nason Mitchell, Jones Day, San Francisco, CA; Ernest James Galvan, Gay Crosthwait Grunfeld, Michael William Bien, Rosen Bien Galvan & Grunfeld LLP, San Francisco, CA; Jennifer Lee Jonak, Lukens Law Group, San Francisco, CA; Shawn Hanson, Akin Gump Strauss Hauer & Feld LLP, San Francisco, CA.

For Robert Sillen, J. Clark Kelso, Receivers: Martin H. Dodd, LEAD ATTORNEY, Futterman Dupree Dodd Croley Maier LLP, San Francisco, CA.

For Robert Hecker, Ralph Coleman, Intervenor Pla: Michael William Bien, LEAD ATTORNEY, Rosen Bien Galvan & Grunfeld LLP, San Francisco, CA.

For Joseph C. Sandoval, Dir Dept of Corr James Gomez, Kyle McKinsey, Kevin Carruth, Marisela Montes, Deputy Director of the Parole and Community Services Division, Robert Presley, Secretary of the Youth and Corrections Agency of the State of California, California Board of Prison Term, Chairman James Nielsen, Gray Davis, Defendants: Paul Brian Mello, LEAD ATTORNEY, Hanson Bridgett LLP, San Francisco, CA; Danielle Felice O'Bannon, Attorney General's Office, CLS, San Francisco, CA; Jay Craig Russell, Office of the Attorney General, Correctional Law Section, San Francisco, CA; Jose Alfonso Zelidon-Zepeda, Department of Justice, San Francisco, CA; Rochelle C. East, Office of the Attorney General, San Francisco, CA.

For California Department of Corrections and Rehabilitation, Defendant: Danielle Felice O'Bannon, LEAD ATTORNEY, Attorney General's Office, CLS, San Francisco, CA; Scott John Feudale, LEAD ATTORNEY, California Attorney General's Office, Correctional Law Section, San Francisco, CA; Jay Craig Russell, Office of the Attorney General, Correctional Law Section, San Francisco, CA; Jose Alfonso Zelidon-Zepeda, Department of Justice, San Francisco, CA; Kyle Anthony Lewis, Department of Justice, Office of Attorney General, San Francisco, CA.

For Secretary James Tilton, Executive Director John Monday, Defendants: Danielle Felice O'Bannon, Attorney General's Office, CLS, San Francisco, CA; Jay Craig Russell, Office of the Attorney General, Correctional Law Section, San Francisco, CA; Jose Alfonso Zelidon-Zepeda, Department of Justice, San Francisco, CA; Rochelle C. East, Office of the Attorney General, San Francisco, CA.

For Edmund G. Brown, Jr., Governor of California, Defendant: Scott John Feudale, LEAD ATTORNEY, California Attorney General's Office, Correctional Law Section San Francisco, CA; Danielle Felice O'Bannon, Attorney General's Office, CLS, San Francisco, CA; Giam Minh Nguyen, California State Attorney General's Office, Correctional Law Section (CLS), San Francisco, CA; Janelle M. Smith, California State Attorney General's Office, San Francisco, CA; Jay Michael Goldman, California Department of Justice, Office of the Attorney General, San Francisco, CA; Jay Craig Russell, Office of the Attorney General, Correctional Law Section, San Francisco, CA; Michael James Quinn, California State Attorney General's Office, Correctional Law Section, San Francisco, CA.

For California Correctional Peace Officers Association, Amicus: Gregg McLean Adam, Esq., LEAD ATTORNEY, Carroll, Burdick & McDonough, LLP, Attorneys At Law, San Francisco, CA; Benjamin Cornelius Sybesma, California Correctional, Peace Officers' Association, West Sacramento, CA; Christine Albertine, California Correctional Peace Officers' Association, Legal Department, West Sacramento, CA; Jennifer Spencer Stoughton, Carroll, Burdick & McDonough LLP, San Francisco, CA; Ronald Yank, Oakland, CA.

For Edward Swanson, Court Expert, Miscellaneous: Edward W. Swanson, LEAD ATTORNEY, Swanson & McNamara LLP, San Francisco, CA.

OPINION

Page 1015

CLAUDIA WILKEN, United States District Judge.

ORDER GRANTING MOTION FOR A FURTHER ENFORCEMENT ORDER AND DENYING MOTION TO HOLD DEFENDANTS IN CONTEMPT OF COURT (Docket No. 2236)

Plaintiffs move to enforce, and hold Defendants in contempt for violating, the Court's prior orders, on the basis that Defendants have consistently failed to provide sign language interpreters (SLIs) during education and vocational programs at the Substance Abuse Treatment Facility (SATF) and for failing to provide SLIs during psychiatric technicians' rounds for patients housed in administrative segregation housing units. Defendants oppose Plaintiffs' motion. For the reasons set forth below, the Court GRANTS the motion to enforce its prior orders and DENIES the motion to hold Defendants in contempt.

BACKGROUND

In a series of orders between 1996 and 2002, the Court found that Defendants' treatment of prisoners with disabilities violated the American with Disabilities Act (ADA) and section 504 of the Rehabilitation Act.

On January 3, 2001, Defendants issued the amended Armstrong Remedial Plan (ARP) setting forth their own policies and plans to come into compliance with their obligations under these federal laws. See Kendrick Decl. ¶ 2, Ex. 1 (ARP).

Among other things, the ARP addressed effective communication for deaf inmates. It recognized, " Because of the critical importance of communication involving due process or health care, the standard for equally effective communication is higher when these interests are involved." Kendrick Decl. ¶ 2, Ex. 1, 4, § II.E.2. The ARP mandates that an " inmate's ability to lip read shall not be the sole source used by staff as a means of effective communication involving due process or medical consultations, unless the inmate has no other means of communication." Id. at 6, § II.E.2.f. The ARP also provides, " Qualified sign language interpreters . . . will be provided for all due process functions and medical consultations that fall within the scope of those described below when sign language is the inmate's primary or only means of effective communication, unless the inmate waives the assistance of an interpreter, reasonable attempts to obtain one are not successful, and/or delay would pose a safety or security risk." Id. at 5, § II.E.2.d. In the event that " a qualified sign language interpreter is not available, or is waived by the inmate, and communication is attempted," staff are required to " employ the most effective form of communication available, using written notes; staff interpreters who are able to interpret effectively, accurately and impartially, both receptively and expressively, using any necessary specialized vocabulary; or any other appropriate means." Id. at 5-6. Covered medical consultations included, for example, those pertaining to " [e]xplanation of procedures, tests, treatment, treatment options, or surgery," and " mental health evaluations, group and individual therapy, counseling and other therapeutic activities." Id. at 6. The list of medical consultations is " neither exhaustive nor mandatory, and shall not imply that there are no other circumstances when it may be appropriate to provide interpreters for effective communication nor that an interpreter must always be provided in these circumstances." Id. The ARP also requires equal access for deaf prisoners, providing, " Accommodations shall be made to afford equal access to the court, to legal

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representation, and to health care services, for inmates/parolees with disabilities; e.g., vision, speech, hearing, and learning disabled." Id. at 7, § II.G. [1]

The federal ADA regulations define " qualified interpreter" as " an interpreter who . . . is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary." 28 C.F.R. § 35.104. The ARP defines " qualified sign language interpreter" to include " a person adept at American Sign Language." Kendrick Decl. ¶ 2, Ex. 1, 6, § II.E.3. Under the ARP, to " qualify as an ASL interpreter, an individual must pass a test and qualify in one of the five categories established by the National Association for the Deaf (NAD), one of the three categories established by the Registry of Interpreters for the Deaf (RID), or as a Support Services Assistant Interpreter from the California Department of Rehabilitation." Id. at 6-7. [2] Under the ARP, each institution is required " to establish a contract or service agreement with a local signing interpreter service organization in order to provide interpretive services for hearing impaired inmates during due process functions and medical consultations." Id.

The ARP further states, " It is the policy of CDC to ensure that all inmates, regardless of any type of disability, participate in educational/vocational, and work programs." Id. at 29, § IV.I.14.a. Thus, it provided, " Reasonable modifications/accommodations shall be provided to ensure access when appropriate for qualified inmates with disabilities to participate in all programs, services, or activities including vocational assignments," and " Reasonable modifications/accommodations shall be provided to ensure access to academic programs." Id. at 30, § IV.I.16-17; see also id. at 7, ยง II.F (" The Department shall provide reasonable accommodations or modifications for known physical or mental disabilities of qualified inmates/parolees." ). " Examples of reasonable accommodations include special equipment (such as ...


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