BILL LANN LEE

Assistant Attorney General

Civil Rights Division

JOHN L. WODATCH

RENEE M. WOHLENHAUS

KATE M. NICHOLSON

Disability Rights Section

Civil Rights Division

U.S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 307-0663

MICHAEL J. YAMAGUCHI

United States Attorney

Northern District of California

MARY BETH UITTI

Assistant United States Attorney

450 Golden Gate Ave.

San Francisco, CA 94102

\(415\) 436-7200

Attorneys for Amicus Curiae United States

**UNITED STATES DISTRICT COURT**

**NORTHERN DISTRICT OF CALIFORNIA**

**SAN JOSE DIVISION**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**ANTHONY PADILLA, et al., ) Civil No. C-98 20309 RMW EAI**

**Plaintiffs, ) CLASS ACTION**

**)**

**) MEMORANDUM OF [AMICUS CURIAE]{.underline}**

**) UNITED STATES IN SUPPORT OF**

**v. ) PLAINTIFFS\' MOTION FOR PRELIMINARY**

**) INJUNCTION**

**TIMOTHY RYAN, Chief of )**

**Corrections of the Santa Clara ) Date: July 31, 1998**

**Dept. of Corrections, et al., ) Time: 9:00 A.M.**

**Defendants. ) Dept.: 6**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_) Judge:
Ronald M. Whyte**

**TABLE OF CONTENTS**

I. INTRODUCTION 1

II\. STATEMENT OF CASE 1

A. Background 1

B. Experiences of Class Members 5

Criss Brown 5

Jill Brown 6

Anthony Padilla 7

Bruce Lambert 8

III\. ARGUMENT 9

A. The ADA and The Rehabilitation Act Prohibit Discrimination on the\
Basis of Disability 9

B. Standards for Granting Preliminary Injunctive Relief 11

C. The Plaintiffs are Very Likely to Succeed on the Merits 11

1\. [The Plaintiffs are Qualified Individuals with
Disabilities]{.underline} 11

2\. [The DOC Has Discriminated Against the Plaintiffs]{.underline} 13

3\. [The DOC Has Violated the Rehabilitation Act]{.underline} 17

4\. [The DOC Has Also Violated the ADA by Failing to Notify\
Class Members of Their Rights Under the Act and to Ensure\
That They Can Obtain Information Regarding Accessible
Services]{.underline} 18

D. Many Federal Courts Have Granted Preliminary Injunctive Relief Under\
Both the ADA and the Rehabilitation Act In Similar Circumstances 19

E. The Required Actions Do Not Constitute An Undue Burden or\
Fundamental Alteration, or Pose Unreasonable Safety Risks 21

F. The DOC\'s Discrimination Causes Ongoing, Actual Injury, and\
Contravenes the Public Interest In Preventing Discrimination 24

IV\. CONCLUSION 26

**TABLE OF AUTHORITIES**

[CASES:]{.underline}

[Aikins v. Mt. Helena Hosp.]{.underline}, 843 F. Supp. 1329 (N.D. Cal.
1994) 12,19

[Alexander v. Choate]{.underline}, 469 U.S. 287 (1985) 17

[Armstrong v. Wilson]{.underline}, 124 F.3d 1019 (9th Cir. 1997)
10,12,21,24

[Benda v. Grand Lodge of the Int\'l Ass\'n of Machinists]{.underline},
584 F.2d 308 (9th Cir. 1978),

[cert. dismissed]{.underline}, 441 U.S. 937) 11

[Bonner v. Lewis]{.underline}, 857 F.2d 559 (9th Cir. 1988) 11,20

[Bragdon v. Abbott]{.underline}, \_\_U.S.\_\_, 1998 WL 332958 (June 25,
1998) 13

[Bullock v. Gomez]{.underline}, 929 F. Supp. 1299 (C.D. Cal. 1966) 21,22

[Chalk v. United States Dist. Ct.]{.underline}, 840 F.2d 701 (9^th^ Cir.
1988) 24,25

[Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc.]{.underline},

467 U.S. 837 (1984) 13

[Clarkson v. Coughlin]{.underline}, 898 F. Supp. 1019 (S.D.N.Y. 1995)
12-13,18-19

[Concerned Parents to Save Dreher Park Ctr. v. West Palm
Beach]{.underline},

846 F.Supp. 986 (S.D. Fla. 1994) 25

[Crawford v. Indiana Dep't of Corrections]{.underline}, 115 F.3d 481
(7th Cir. 1997) 22

[Crawford v. University of California]{.underline}, 440 F. Supp. 1046
(M.D.N.C. 1977) 19

[Cupolo v. Bay Area Rapid Transit]{.underline}, 1997 WL 901909 (N.D.
Cal. Sept. 29, 1997) 11,24-25

[Diamontiney v. Borg]{.underline}, 918 F.2d 793 (9^th^ Cir. 1990) 11

[Doe v. Judicial Nominating Comm'n]{.underline}, 906 F. Supp. 1534 (S.D.
Fla. 1995) 24

[Duffy v. Riveland]{.underline}, 98 F. 3d 447 (9^th^ Cir. 1996) passim

[Fennell v. Simmons]{.underline}, 951 F. Supp. 706 (N.D. Ohio 1997)
11,22

[Fiedler v. American Multi-Cinema, Inc.]{.underline}, 871 F. Supp. 35
(D.D.C. 1994) 13

[Gates v. Rowland]{.underline}, 39 F.3d 1439 (9th Cir. 1994) 22,23

[Hanson v. Sangamon Co. Sheriff\'s Dep't]{.underline}, 991 F. Supp. 1059
(C.D. Ill. 1998) 11,13,20

[Innovative Health Sys., Inc. v. City of White Plains]{.underline},

931 F. Supp. 222 (S.D.N.Y. 1996), [aff'd]{.underline}, 117 F.3d 37 (2d
Cir. 1997) 13,24-24

[Niece v. Fitzner]{.underline} , 922 F. Supp. 1208 (E.D. Mich. 1996) 12

[Onishea v. Hopper]{.underline}, 126 F.3d 1323 (11th Cir. 1997),

[vacated]{.underline}, 133 F.3d 1377 (11^th^ Cir. 1998) 22

[Outlaw v. City of Dothan]{.underline}, 1993 WL 735802 (M.D. Ala. April
27, 1993) 11

[Oxford House-Evergreen v. City of Plainfield]{.underline},

769 F. Supp. 1329 (D.N.J. 1991) 24

[Pennsylvania Dept. of Corrections v. Yeskey]{.underline}, \_\_
U.S.\_\_,

1998 WL 309065 (June 15, 1998) 10,12,22

[Phillipines v. Marcos]{.underline}, 818 F.2d 1473 (9^th^ Cir. 1987) 11

[Pyles v. Kamka]{.underline}, 491 F. Supp. 204 (D. Md. 1980) 21

[Raines v. Florida]{.underline}, 983 F. Supp. 1362 (N.D. Fla. 1997) 12

[Randolf v. Rogers]{.underline}, 980 F. Supp 1051 (E.D. Mo. 1997)
12,13,20

[Rewolinski v. Morgan]{.underline}, 896 F. Supp. 879 (E.D. Wis. 1995)
20,25

[Rodeo Collection v. West Seventh]{.underline}, 812 F.2d 1215 (9^th^
Cir. 1987) 11

[Rothschild v. Grottenthaler]{.underline}, 907 F.2d 286 (2d Cir. 1990)
12

[Sullivan v. Vallejo City Unified School Dist]{.underline},

731 F. Supp. 947 (E.D. Cal. 1990) 24,25

[Thomas Jefferson Univ. v.]{.underline} [Shalala]{.underline}, 512 U.S.
504 (1994) 13

[Tugg v. Towey]{.underline}, 864 F. Supp. 1201 (S.D. Fla. 1201) 19,24

[Turner v. Safley]{.underline}, 482 U.S. 78 (1987) 22

[FEDERAL STATUTES]{.underline}:

Rehabilitation Act, Section 504, 29 U.S.C. § 794 1,10,13

Americans with Disabilities Act, 42 U.S.C. §§ 12101 [et seq]{.underline}
9

42 U.S.C. § 12101 10,20,24

42 U.S.C. § 12102 11,14

42 U.S.C.§ 12115 12

42 U.S.C. § 12131-34 1

42 U.S.C. § 12132 10

42 U.S.C. §12134 13

42 U.S.C.§ 12206 13

[FEDERAL REGULATIONS]{.underline}:

28 C.F.R. pt. 35, App. A (1997) passim

28 C.F.R. § 35.101 19

28 C.F.R. § 35.104 12,14

28 C.F.R. § 35.106 1,18

28 C.F.R. § 35.130 13,16

28 C.F.R. § 35.160 1,13-15

28 C.F.R. § 35.161 17

28 C.F.R. § 35.163 1,18

28 C.F.R. § 35.164 21

28 C.F.R. § 42.503 1,17,18

[STATE STATUTES:]{.underline}

Cal. Penal Code § 851(b) 1

[STATE REGULATIONS]{.underline}:

California Code of Regulations, Title 15 1-3

Guidelines to California Code of Regulations, Title 15 (May 1998) 2-3

[OTHER]{.underline}:

Tom Humphries, [A Basic Course in American Sign Language]{.underline} 1
(1980) 5

U.S. Department of Justice, [The Americans with Disabilities
Act]{.underline}

[Title II Technical Assistance Manual]{.underline} (November 1993 and
Supp. 1994) passim

**I. INTRODUCTION**

Plaintiffs, who are deaf and rely on sign language for effective
communication, are past and present inmates of facilities of the Santa
Clara County Department of Corrections, and visitors to such facilities.
On behalf of themselves and all those similarly situated, plaintiffs
have filed this class action against various officials (in their
official capacities) of the County of Santa Clara and the Santa Clara
Department of Corrections (collectively, the \"DOC\"). Plaintiffs allege
that the DOC has engaged in ongoing violations of title II of the
Americans with Disabilities Act (\"title II\" or \"the ADA\"), 42 U.S.C.
§§ 12131-34, and section 504 of the Rehabilitation Act of 1973
(\"section 504\" or \"the Rehabilitation Act\"), 29 U.S.C. § 794, by
excluding deaf and hard of hearing inmates in Santa Clara County jails
from a wide range of correctional programs and services on the basis of
those inmates\' disabilities. Specifically, the plaintiffs allege that
the DOC has discriminated against deaf and hard of hearing inmates by
failing to provide appropriate auxiliary aids and services where
necessary for effective communication, 28 C.F.R. §§ 35.160(a),
42.503(b), (e), (f); by failing to provide notice to deaf and hard of
hearing inmates of their rights under the ADA, 28 C.F.R. § 35.106; and
by failing to make available, to deaf and hard of hearing inmates,
information about the existence and location of accessible services, 28
C.F.R. § 35.163(a). The plaintiffs seek preliminary and permanent
injunctive relief.

**II. STATEMENT OF THE CASE**

A. Background

The DOC is charged with administering Santa Clara County\'s correctional
system, which includes five correctional facilities. When arrested and
brought to one of these facilities, all inmates are entitled to certain
forms of communication with the outside world, and are required to
communicate with various jail officials, in a series of interviews, for
booking, for orientation, and to determine their eligibility for various
recreational and rehabilitative programs.

Initially, when brought in for booking, inmates have a statutory right
to three free phone calls. Cal. Penal Code § 851(b). Inmates are
entitled to use these phone calls to contact their attorneys, bail
bondsmen, family members, and others. Cal. Code of Regulations, Title 15
(Crime Prevention and Corrections), Rule 1067 (Access to Telephones),
Rule 1068 (Access to Courts and Counsel).[^1] In addition, once housed
in the jail, inmates generally have regular and ready access to
telephones.[^2] [See]{.underline} Declaration of James Vandivere
(\"Vandivere Dec.\") at ¶ 5; Declaration of Joseph Garcia ("Garcia
Dec.") at ¶ 7-8.[^3]

In addition to communicating with individuals outside the jail, inmates
go through a series of important interviews. For instance, medical staff
or other intake personnel interview inmates at booking to ascertain
their current medical and mental health status, including any necessary
treatment or medications, as well as exposure to HIV or other
communicable diseases. [See]{.underline} Title 15, Rule 1207 (Medical
Receiving Screening) (\"a screening shall be completed on all inmates at
the time of intake\"), and Rule 1051 (Segregation) (requiring
segregation of individuals with communicable diseases).[^4] In addition
to the medical interview, inmates also undergo a classification
interview to determine appropriate housing and activities.
[See]{.underline} Title 15, Rule 1050 (Classification Plan).[^5] [See
also]{.underline} Vandivere Dec. at ¶ 3-4; Garcia Dec. at ¶ 3-4. Inmates
also interview with Pretrial Release Services, the office which is
responsible for notifying the court in the event an inmate needs
interpreter services.[^6]

In addition to this series of interviews, inmates are also put through
an orientation to the jail consisting of video and written materials.
The Guidelines make clear the importance of the non-written
communication in this process, explaining that \"written material should
be accompanied by discussion of the material; simply giving an inmate a
written document does not guarantee that he or she will read or
understand it.\" Guidelines at 65. The Guidelines emphasize that people
newly received in jails are often \"in crisis,\" that they may be
frightened or disoriented, and encourage staff to \"tak\[e\] time to
listen and respond to individual needs.\" [Id]{.underline}. at 66.

Once admitted to the jail, inmates have access to a large variety of
programs ranging from recreation as simple as television viewing,
Vandivere Dec. at ¶ 6, or access to literature, to vocational and
educational courses, to counseling and rehabilitative courses such as
Alcoholics Anonymous, and drug rehabilitation. [See]{.underline} Title
15, Rule 1070 (Inmate/Family Service Programs); Rule 1061 (Inmate
Education Plan); Rule 1064 (Library Service); Rule 1066 (Books,
Newspapers, Periodicals); and Rule 1065 (Exercise and Recreation).
Finally, when necessary, inmates are also expected to participate in
disciplinary hearings. [See]{.underline} Title 15, Article 7
(Discipline).

In 1995, in response to several complaints regarding the treatment of
deaf inmates at DOC facilities, the DOC agreed to adopt a policy
ensuring that deaf and hard of hearing inmates would have equal access
to these communications and services.[^7] The following written notice
of rights was to be posted or provided to all inmates with hearing
impairments at booking:

1\. If you want a qualified sign language interpreter during booking,
one will be provided to you.

2\. You have the right to know the charges against you.

3\. Immediately upon being booked, you have the right to make and
complete three (3) free telephone calls free within the local dialing
area.

A. A call can be made to an attorney of your choice or the Public
Defender at 299-770.

B. A call can be made to a bail bond agency.

C. A call can be made to a relative or other person.

> A TDD/TTY Telecommunication or a telephone with an amplification
> device is available if you desire one to make your telephone
> calls.[^8]

4\. Upon being booked, you have the right to post bail or you may
qualify for an O.R. Release (a release on your own recognizance). This
will depend on the type of ties you have to the community, such as a
family or a job.

5\. You have the right to a qualified sign language certified
interpreter during any interrogation or interview.

Wilson Dec., Ex. D. In 1996, it became apparent that the policies agreed
to by the DOC were not being implemented or enforced. Wilson Dec. at ¶ 8
. Inmates reported that they did not receive notice of their rights, and
that TDDs were broken or otherwise unavailable. [Id]{.underline}. If
inmates did receive TDDs, it was after a wait of several days or weeks.
[Id]{.underline}. Inmates also reported a lack of qualified interpreters
for the interviews conducted at booking and while receiving medical
care. [Id]{.underline}.

**B. Experiences of Class Members**

[Plaintiff Criss Brown]{.underline}

Plaintiff Criss Brown is a 42 year-old deaf man who relies on American
Sign Language (ASL) for primary, face-to-face communication. Declaration
of Criss Brown at ¶ 3. He has only limited skills in speech, lipreading,
and reading and writing in English. [Id]{.underline}.[^9] Late in the
evening on Sunday, May 12, 1996, Mr. Brown was arrested by San Jose
Police. [Id]{.underline}. at ¶ 4. Once taken to the San Jose Main Jail,
Mr. Brown wrote a note requesting a sign language interpreter, and
officers just laughed. [Id]{.underline}. Brown was very confused about
what was happening: he had never been arrested before, and he did not
see and was not shown any notice of his legal rights under the ADA.
[Id]{.underline}.

At the jail, an officer handed Mr. Brown some forms. Mr. Brown again
wrote on the forms that he needed an ASL interpreter and a TDD.
[Id]{.underline}. at ¶ 5. When another officer wrote a note to him
pertaining to bail, Mr. Brown attempted to ask questions, as he was
interested in getting out of jail. [Id]{.underline}. Mr. Brown tried to
communicate by gesturing and writing but was very confused, and he again
requested an interpreter. [Id]{.underline}. On being refused, he became
frustrated and gave up, but did mime a request for a TDD hoping to call
about bail. [Id]{.underline}. Eventually, he was told he would have a
TDD in four hours, and was taken to a room to change into jail clothing,
where he experienced communica-tion difficulties with an officer who
refused even to write notes to him. [Id]{.underline}. Every day at meal
times and breaks, Brown asked officers for a TDD. [Id]{.underline}. at ¶
6. The officers typically just shrugged their shoulders. Mr. Brown asked
officers to assist him in making phone calls, but they refused.
[Id]{.underline}.

On Wednesday morning, Mr. Brown was taken to court, where there was no
interpreter. [Id]{.underline}. at ¶ 7. When he arrived, he saw a number
of inmates who were being addressed by a sheriff. [Id]{.underline}. Mr.
Brown tried to follow what was going on, with no luck, but the sheriff
did at least try to write notes back and forth with him. The sheriff
wrote, \"tomorrow, one thirty.\" Mr. Brown was under the impression that
he would meet with the public defender the following day.
[Id]{.underline}.

When Mr. Brown was returned to the jail, he requested a TDD, and was
told \"no.\" [Id]{.underline}. at ¶ 8. The next morning, when he asked
again, he got a hostile reception. [Id]{.underline}. He became
distraught, having had no contact with his wife or baby, and no idea
\"when or if \[he\'d\] see them again.\" [Id]{.underline}. He was also
afraid that he would be fired from his job, because he had not reported
to work since Monday, and had no way of contacting his boss.
[Id]{.underline}. Finally, an inmate who saw that he was upset offered
to assist him in calling his boss and a bail bondsman. [Id]{.underline}.
at ¶ 9. In the afternoon, Mr. Brown was taken from his cell to what he
believed was the meeting with the public defender. To his surprise, this
was his scheduled hearing, and the interpreter was late, so he did not
get to meet with the public defender at all. [Id]{.underline}. at ¶¶ 7,
9. On the day of his release, Mr. Brown was finally provided a TDD.
[Id]{.underline}. at ¶ 10.

Mr. Brown was extremely upset and traumatized by his experience at the
jail. [Id]{.underline}. at ¶ 11. If he had been a hearing person, he
might have been released as early as Monday, May 13. Instead, he missed
an entire week\'s work. Moreover, as the days dragged on, he grew more
confused, frustrated, anxious, and upset. [Id]{.underline}. When he
ultimately asked why he could not be placed with other inmates, he was
told, \"some are gay,\" which only added to his confusion.
[Id]{.underline}. He was cut off from communicating with his family and
friends, and was unable to have anything more than rudimentary,
gesturing communication with anyone while incarcerated.
[Id]{.underline}.

[Plaintiff Jill Brown]{.underline}

Jill Brown is the deaf wife of Criss Brown; she is 42 years old, her
English is also very limited, and she communicates in ASL. Declaration
of Jill Brown at ¶ 1, 2. On Sunday evening, May 12, 1998, she called a
crisis service to inquire about staying at a safe house because she was
afraid that her husband might physically abuse her. [Id]{.underline}. at
¶ 3. The crisis service advised her to contact the police, who would
take her to a shelter. [Id]{.underline}. She did so, but the police
arrived without a sign language interpreter, and, to her surprise, did
not take her to a shelter. Instead, they wrote a note informing her that
her husband would be arrested and taken to jail. [Id]{.underline}.

The next day, Ms. Brown received a call through the relay[^10] from a
jail employee, who she had assumed was assisting Mr. Brown in calling
her. [Id]{.underline}. at ¶ 4. She attempted to return the call, and was
confused at getting no response, but eventually guessed that it was
probably an answering machine-type message. [Id]{.underline}. When she
finally reached the jail, she spoke with a woman from the Own
Recognizance program, who asked her a number of questions, which she had
some difficulty understanding. [Id]{.underline}. She did understand that
her husband would be at the Main Jail, and that he might be there for up
to three days if he did not post bail. She also received more phone
numbers to call for information about her husband. [Id]{.underline}.

When Ms. Brown called those numbers using the relay, she experienced
considerable difficulty. [Id]{.underline}. at ¶ 4. One number seemed to
have an answering machine with no message. She tried another number five
times before it answered, and then was confused by a long outgoing
message that left several more phone numbers. [Id]{.underline}. When she
called what she thought was the correct number, she only got a series of
beeps and the phone hung up. Later, she again made several vain attempts
to call the jail. [Id]{.underline}. The next day, Ms. Brown went to the
jail in person to check on her husband. [Id]{.underline}. at ¶ 7. She
had called some of her husband\'s friends and realized that no one had
heard from him, and was very worried. [Id]{.underline}. When she arrived
at the visiting desk, the officer told her that she could not see him
until after his hearing on Thursday. She left feeling confused and upset
that he had to stay in jail even longer than she had been told.
[Id]{.underline}.

When by Wednesday evening, three days after his arrest, nobody had heard
from Mr. Brown, Ms. Brown was becoming extremely anxious.
[Id]{.underline}. at ¶ 8. On Thursday, she again tried to call the main
jail, but received the same confusing message. [Id]{.underline}. at ¶ 9.
After four such calls, she finally understood enough of the taped
message to get through to a person on the other end of the line, who
told her that her husband would be released late that night or early the
next day. [Id]{.underline}. She was relieved, but also concerned as to
how he would arrange for a ride without use of a TDD. She was told that
Chris Brown had access to a TDD any time he wanted to use one.
[Id]{.underline}. at ¶ 10.

[Plaintiff Anthony Padilla]{.underline}

Plaintiff Anthony Padilla is a 26 year-old deaf man who cannot speak and
communicates using ASL. He has only limited skills in lipreading and
English. Declaration of Anthony Padilla at ¶ 2-3. Mr. Padilla was booked
into the San Jose Main Jail on or about December 23, 1997, for allegedly
violating conditions of his parole; he remained incarcerated there until
April 1998. [Id]{.underline}. at ¶ 4.

At booking, the DOC placed Mr. Padilla with an officer who apparently
knew some sign language. Mr. Padilla struggled to understand the officer
through lipreading. [Id]{.underline}. at ¶ 5. What little he gathered
did not match the officer\'s signs, which made no sense in the context
of the situation. [Id]{.underline}. He was able, at best, to attain
limited, ineffective communication with the officer. [Id]{.underline}.
He was never provided a qualified interpreter. [Id]{.underline}.

While he was in the custody of the Main Jail, Mr. Padilla served as a
\"Trustee\" at the South Facility. [Id]{.underline}. at ¶ 5. As a result
of the policy requiring him to live where he worked, rather than
permitting him to live with other deaf inmates, he was isolated. He was
unable to participate in any social activities. [Id]{.underline}. at ¶
6. He could not watch television, because of the lack of captioning, nor
could he even reliably communicate with friends or family, because the
DOC did not provide him with TDDs for several days or weeks following a
request. [Id]{.underline}. at ¶ 6-7. Mr. Padilla was also pre-vented
from participating in substance abuse and other courses, which would
have served important rehabilitative functions for him.[^11]
[Id]{.underline}. at ¶ 10. The DOC refused his requests for qualified
sign language interpreters. [Id]{.underline}. at ¶ 9. Mr. Padilla was
never provided with notice of his rights. [Id]{.underline}. His time in
DOC\'s facilities was emotionally traumatizing because it was impossible
for him to com-municate with anyone --- within the jail, through sign
language, or outside, by phone. [Id]{.underline}. at ¶ 10.

[Plaintiff Bruce Lambert]{.underline}

Plaintiff Bruce Lambert is a 33 year old deaf man whose primary method
of communication is ASL. He has only very limited skills in speaking,
and reading and writing in English. Declaration of Bruce Lambert at ¶
2-3. Mr. Lambert was first in the custody of a DOC facility in May of
1993. During a second arrest, for parole violations, he was booked into
the San Jose Main Jail on December 23, 1996, where he remained in
custody for several days. He was also at the San Jose Main Jail for
approximately one month, in February and March of 1997, and for some
period during February and March 1998, as a result of transfers within
the prison system. [Id]{.underline}. at ¶ 4.

When he was taken to the San Jose Main Jail in December of 1996, Mr.
Lambert was mistreated by state patrol agents, who pushed him against a
glass door with enough force to knock him unconscious. [Id]{.underline}.
at ¶ 6. As a result of this and other injuries he sustained, Mr. Lambert
spent his first three days in jail receiving medical attention.
[Id]{.underline}. Although he needed a qualified interpreter to
communicate with medical staff, one was not provided. [Id]{.underline}.
During booking, Mr. Lambert was also forced to undergo the interviews
and screening without the assistance of a sign language interpreter.
[Id]{.underline}. at ¶ 7.

During his 1993 stay at the jail, Mr. Lambert was abused by officers of
the DOC. An officer physically assaulted him --- pushing him to the
floor, and placing him in a confinement cell --- because Mr. Lambert
failed to respond to remarks made by the officer. [Id]{.underline}. at ¶
5. Mr. Lambert failed to respond because the officer made the remarks
while Mr. Lambert was bent over picking up a pencil, and wholly unable
to see that someone was addressing him. [Id]{.underline}.

During his 1997 custody, the DOC provided Mr. Lambert with a defective
TDD that contin-ually garbled incoming and outgoing text. He was told
that it would be replaced with a functioning TDD, but it was not.
[Id]{.underline}. at ¶ 8. As a result, he was unable to contact his
friends, family members, or counsel. He never received a replacement
TDD. [Id]{.underline}. At no time while he was in custody did the DOC
provide a captioning device so that he could watch television with the
other inmates. [Id]{.underline}. at ¶ 11. He was cut off and isolated
from communicating in any meaningful way with other inmates, and, like
the other plaintiffs, also experienced considerable emotional turmoil.
[Id]{.underline}. at ¶ 13.

**III. ARGUMENT**

**A. The ADA and The Rehabilitation Act Prohibit Discrimination on the
Basis of Disability.**

The Americans with Disabilities Act, 42 U.S.C. § 12101 [et]{.underline}
[seq]{.underline}., is Congress\' most extensive piece of civil rights
legislation since the Civil Rights Act of 1964. Its purpose is to
provide \"a clear and comprehensive national mandate for the elimination
of discrimination against individuals with disabilities.\" 42 U.S.C. §
12101(b)(1). The ADA\'s coverage is accordingly broad \-- prohibiting
discrimination on the basis of disability in employment, state and local
government programs and services, transportation systems,
telecommunications, commercial facilities, and the provision of goods
and services offered to the public by private businesses. This action
involves title II of the ADA, which prohibits disability discrimination
by state and local governments.

In enacting the ADA, Congress extended the protections of section 504 of
the Rehabilitation Act of 1973, 29 U.S.C. § 794, the first federal
statute to provide broad prohibitions against discrimination on the
basis of disability. Although section 504 applies only to entities
(including state and local governments) which receive federal financial
assistance, the substantive provisions of section 504 and title II of
the ADA are very similar. Section 504 provides that

> \[n\]o otherwise qualified individual with a disability in the United
> States . . . shall, solely by reason of his or her disability, be
> excluded from the participation in, be denied the benefits of, or be
> subjected to discrimination under any program or activity receiving
> Federal financial assistance . . . .

29 U.S.C. § 794(a). Similarly, title II of the ADA provides that

> no qualified individual with a disability shall, by reason of such
> disability, be excluded from participation in or be denied the
> benefits of the services, programs, or activities of a public entity,
> or be subjected to discrimination by any such entity.

42 U.S.C. § 12132. Not surprisingly, the same standards apply to both
laws except to the extent the ADA has adopted a different standard. 28
C.F.R. pt. 35, App. A at 466. [See]{.underline} [Armstrong v.
Wilson]{.underline}, 124 F.3d 1019, 1025 (9th Cir. 1997) (\"Congress has
directed that the ADA and \[section 504\] be construed consistently\").

Although some federal courts had held otherwise, the Supreme Court has
recently held that title II of the ADA "unmistakably" applies to
prisons. [See]{.underline} [Pennsylvania Dept. of Corrections v.
Yeskey]{.underline}, \_\_\_ U.S. \_\_\_, 1998 WL 309065, \*2 (June 15,
1998). The Ninth Circuit has also held that both section 504 and the ADA
apply to correctional facilities. [See]{.underline} [Duffy v.
Riveland]{.underline}, 98 F.3d 447 (9th Cir. 1996); [Bonner v.
Lewis]{.underline}, 857 F.2d 559, 562 (9th Cir. 1988).[^12]

**B. Standards for Granting Preliminary Injunctive Relief.**

In another case arising under the ADA, this Court stated the current
standard for grant of a preliminary injunction. [Cupolo v. Bay Area
Rapid Transit]{.underline}, 1997 WL 901909 (N.D. Cal. Sept. 29, 1997). A
party is entitled to a preliminary injunction if it establishes either:

\(1\) a combination of probable success on the merits and the
possibility of irreparable harm, or

\(2\) that there exist serious questions regarding the merits and the
balance of hardships tips sharply in its favor.

[Id]{.underline}. at \*3. [See also]{.underline} [Philippines v.
Marcos]{.underline}, 818 F.2d 1473, 1477 (9th Cir. 1987); [Rodeo
Collection v. West Seventh]{.underline}, 812 F. 2d 1215, 1217 (9th Cir.
1987). The requirements for granting a preliminary injunction exist
along a continuum: the necessity of showing irreparable harm diminishes
as success on the merits becomes more likely, and vice-versa.
[See]{.underline} [Diamontiney v. Borg]{.underline}, 918 F.2d 793,
795-96 (9th Cir. 1990); [Benda v. Grand Lodge of the Int\'l Ass\'n of
Machinists]{.underline}, 584 F.2d 308, 315 (9th Cir. 1978), [cert.
dismissed]{.underline}, 441 U.S. 937 (1979).

**C. The Plaintiffs are Very Likely to Succeed on the Merits.**

For their ADA and section 504 claims, plaintiffs must establish (1) that
they are individuals with disabilities; (2) that they are qualified; and
(3) that the defendants either excluded their participation or denied
them the benefits of a service, program, or activity, or otherwise
subjected them to discrimination on the basis of disability.
[Duffy]{.underline}, 98 F.3d at 455.

1\. [The Plaintiffs are Qualified Individuals with
Disabilities]{.underline}.

The plaintiffs meet the ADA\'s definition of disability because each has
a hearing impairment that substantially limits him or her in the major
life activity of hearing. 42 U.S.C.§ 12102(2)(A); 28 C.F.R. § 35.104.
[See]{.underline} [Duffy]{.underline}, 98 F.3d at 454, 455; [Clarkson v.
Coughlin]{.underline}, 898 F. Supp. 1019, 1032, 1036-37 (S.D.N.Y. 1995);
[Randolf v. Rogers]{.underline}, 980 F. Supp 1051, 1061 (E.D. Mo. 1997).
Moreover, all such plaintiffs who are, were, or will be incarcerated at
DOC facilities are \"qualified\" individuals with disabilities, because
they are \"eligible\" to be in prison, and to participate in various
prison programs and services.[^13] [See]{.underline}
[Yeskey]{.underline}, 1988 WL 309065 at \*3; [Armstrong]{.underline},
124 F.3d at 1024; [Duffy]{.underline}, 98 F.3d at 454-55.

Plaintiffs like Jill Brown --- the deaf wife of a deaf inmate --- are
also individuals with disabilities being denied the benefits of the
prison programs and services. To the extent the DOC holds some part of
its facilities open to the public for phone calls or limited visits,
callers or visitors such as Jill Brown meet the essential eligibility
requirements, and are qualified. 28 C.F.R. pt. 35, App. A. at 472 (if
entity provides information to the public upon request, essential
eligibility requirement is simply to request the information).[^14] In
addition, plaintiffs like Jill Brown are also persons associated with a
person with a disability --- typically, their deaf or hard of hearing
friends or family members --- and thus are separately protected under
the ADA provision prohibiting discrimination on the basis of association
with disabled persons: the DOC may not

> exclude or otherwise deny equal services, programs, or activities to
> an individual or entity because of the known disability of an
> individual with whom the individual or entity is known to have a
> relationship or association.

28 C.F.R. § 35.130(g).

2\. [The DOC Has Discriminated Against the Plaintiffs]{.underline}.

The Department of Justice has issued regulations implementing the
general mandate of non-discrimination, which provide the affirmative
steps an entity must take in order to ensure that it does not exclude
individuals with disabilities from enjoying opportunities to participate
or benefit that are equal to those provided to others.[^15]

Among other things, the regulation requires public entities to make
reasonable modifications to its policies and procedures, when such
modifications are necessary to avoid discrimination on the basis of
disability. 28 C.F.R. § 35.130(b)(7). The primary manner in which the
DOC has discriminated against the plaintiffs, however, lies in its
failure to effectively communicate with deaf inmates and deaf members of
the public. Title II requires entities to take affirmative steps to
ensure that \"communications with applicants, participants, and members
of the public with disabilities are [as effective as communications with
others]{.underline}.\" 28 C.F.R. § 35.160(a) (emphasis added).
[Hanson]{.underline}, 991 F. Supp. at 1063; [see]{.underline}
[Randolf]{.underline}, 980 F. Supp. at 1060; [Clarkson]{.underline}, 898
F. Supp. at 1038. To meet this requirement, the law provides that a
public entity

> shall furnish appropriate auxiliary aids and services where necessary
> to afford an individual with a disability an equal opportunity to
> participate in, and enjoy the benefits of, a service,
>
> program, or activity conducted by a public entity.

28 C.F.R. § 35.160(b)(1).

Examples of auxiliary aids and services for individuals who are deaf or
hard of hearing include qualified interpreters, assistive listening
systems, closed caption decoders, open and closed captioning,
telecommunication devices for the deaf (TDDs), telephones compatible
with hearing aids, written materials, and the exchange of written notes.
[See]{.underline} 42 U.S.C. § 12102(1)(A); 28 C.F.R. § 35.104. The list
of examples is large because people have different needs. A hard of
hearing individual may require a telephone that is compatible with
hearing aids, but that telephone will be of no use to someone who is
deaf and needs to use a TDD. The type of auxiliary aid or service that
is required may also vary depending on the kind of communication at
issue. For extremely simple communications, such as if a deaf inmate is
requesting a permit to go to the library, an exchange of written notes
is likely to suffice for most deaf people, assuming minimal literacy in
English.

For the variety of interviews conducted at or around \"booking,\"
medical care, courses, or hearings, however, a qualified interpreter is
likely to be required for effective communication with deaf inmates.
[See]{.underline} TA Manual § II-7.1000, ILLUSTRATION 2, at 5 (Supp.
1994) (the example provided to illustrate when an interpreter is
necessary is that of interviews or interrogations by municipal police
officers).[^16] The Justice Department formulated the definition of a
\"qualified interpreter\" specifically in response to concerns that
public entities might not understand the difference between a qualified
interpreter, and an individual who knows some sign or who can finger
spell. 28 C.F.R. pt. 35, App. A, at 473. A qualified interpreter must be
able to interpret effectively, accurately, and impartially both
receptively and expressively, using any necessary specialized
vocabulary. 28 C.F.R. § 35.104. TA Manual § II-7.1200 (\"a staff member
who signs \'pretty well\'" can not be used as an interpreter).[^17]

The ADA provides specific, practical guidance to public entities
regarding which type of auxiliary aid or service is needed in a given
situation. The ADA requires that a public entity give [primary
consideration]{.underline} to the requests of the individual. 28 C.F.R.
§ 35.160(b)(2) (emphasis added). Primary consideration means that the
public entity must generally honor the expressed choice of the
individual with the disability. [Id]{.underline}. The only exception to
this mandate is if the entity can demonstrate that an alternative is
available that is an \"equally effective means of communication.\"
[Id]{.underline}. [See]{.underline} [Duffy]{.underline}, 98 F. Supp. at
455; TA Manual § II-7.1100 at 39.[^18]

As the experience of the named plaintiffs amply demonstrates, the DOC
has discriminated by failing to consider plaintiffs\' requests and
denying class members equally effective communication. Indeed,
defendants\' practices foreclose virtually all available avenues of
communication. Plaintiff Criss Brown made continual and exhaustive
requests for a TDD and a qualified sign language interpreter. Far from
ensuring \"primary consideration,\" defendants\' officers paid so little
heed to his request that they just laughed. Meanwhile Mr. Brown had
neither an interpreter nor access to a TDD from the moment he was taken
from his home until his second court date, at the end of the week. As a
result, Mr. Brown was unable to post bail, to exercise his statutory
right to three phone calls, to contact his boss to explain his week of
absence, or to contact his family, friends, or counsel. Not only was he
denied a TDD, but several officers also refused to assist him in making
phone calls. Finally, Plaintiff Brown was forced to spend an entire week
in custody; had he been a hearing person, he would have had a chance to
make bail, perhaps as early as Monday.

In addition to the outright abuse Mr. Lambert suffered,[^19] he was also
denied effective communication. He was forced to spend his first three
days in jail under medical care, partially as a result of police
misconduct, without a qualified interpreter. Despite his requests, he
too was denied qualified interpreters or any means of effective
communication for the booking interviews, and was provided only
defective TDDs. He was also denied captioning equipment, so that he was
unable to join other inmates in watching television.[^20] As a result of
the DOC\'s practices, Mr. Lambert was forced to spend his entire time,
some six or more weeks, in isolation --- unable to communicate with
individuals within the jail, or in the outside community.

Similarly, defendants discriminated against Mr. Padilla. If he received
access to a TDD at all, it was after days or weeks of waiting. Moreover,
defendants\' refusal to provide qualified interpreters to Padilla
prevented him from participating in rehabilitative courses and
counseling, from which he would have benefitted greatly. The officer who
made some attempt at signing with Padilla during booking was not a
qualified interpreter, primarily because he was unable to communicate
effectively with Padilla. To the extent Mr. Padilla was able to
understand the booking officer at all, it was through lipreading. Due to
defendants\' failures to ensure effective communication with Mr.
Padilla, he was completely isolated for more than four months. He was
not housed with deaf inmates, and had no means of communicating with
hearing inmates.[^21] He could not even watch television, or participate
in any recreational or social activities along with other inmates.
Without ready access to TDDs, he could not call friends or family
members.

Finally, the DOC\'s pattern of failing to ensure effective communication
is also evidenced by the experience of Jill Brown, and the plaintiff
class of visitors or callers. Ms. Brown's efforts to discover
information about her husband\'s well-being and release date --- despite
a personal visit and dozens of attempts to call the jail --- were
unavailing. The one person she did speak with from the jail lead her to
believe that her husband would be released earlier than he was actually
released. This inconsistency simply added to her confusion. The DOC\'s
failure to provide effective communication to those deaf persons who
contact the jail could be remedied by establishing a separate TDD line,
or by re-working the recorded messages to be user friendly to someone
who calls through the relay.[^22]

3\. [The DOC Has Violated the Rehabilitation Act]{.underline}.

Defendants\' treatment of individuals with hearing impairments similarly
violates the Rehabilitation Act. As noted, the first two requirements
for stating a claim under the Rehabilitation Act, that plaintiffs have
disabilities and are \"otherwise qualified\" to receive services, are
identical to those under the ADA. [Duffy]{.underline}, 98 F.3d at 455
(deaf inmate satisfies first two elements of claim). The DOC receives
federal assistance, in part because they house federal prisoners.

Finally, the relevant anti-discrimination provision under the
Rehabilitation Act is also essentially the same as that under the
ADA.[^23] The Rehabilitation Act requires recipients of federal funding
to \"insure that communications . . . are effectively conveyed to those
having impaired . . . hearing." 28 C.F.R. § 42.503(b)(6)(e).
Specifically, the Rehabilitation Act requires that recipients of federal
funding.

> provide appropriate auxiliary aids to qualified handicapped persons
> with impaired sensory, manual, or speaking skills where a refusal to
> make such provision would discriminatorily [impair or
> exclude]{.underline} participation of such persons. . . .

28 C.F.R. § 42.503(b)(6)(f). As it does under the ADA, the DOC\'s
recurring practice of refusing to provide qualified interpreters,[^24]
TDDs, captioning, and other auxiliary aids and services plainly impairs
the ability of deaf inmates to participate in or benefit from prison
services or programs.

4\. [The DOC Has Also Violated the ADA by Failing to Notify Class
Members of Their Rights Under the Act and to Ensure That They Can Obtain
Information Regarding Accessible Services]{.underline}.

The ADA requires public entities to notify individuals with disabilities
of their rights as provided by the Act. 28 C.F.R. § 35.106.
Specifically, each public entity must

> make available to applicants, participants, beneficiaries, and other
> interested persons information regarding the provisions of this part
> and its applicability to the services, programs, or activities of the
> public entity.

[Id]{.underline}.[^25] Methods of providing this information may include
\"the publication of information in handbooks, manuals or pamphlets,\"
or \"the display of informative posters in service centers.\" 28 C.F.R.
pt 35, App. A at 474. None of the named plaintiffs saw or received from
the DOC notice of their rights in any form; the DOC\'s failure to
provide that notice contravenes the ADA. [See]{.underline} [Clarkson v.
Coughlin]{.underline}, 898 F. Supp. at 1038. Providing written notice is
not burdensome; the notice proposed by plaintiffs in earlier meetings
with the county is a simple, one-page, typewritten sheet.

The ADA contains a related requirement that specifically deals with
accommodations affecting communication.[^26] Entities must ensure that
they effectively communicate the availability of accessible services,
and the means by which individuals may obtain those services.
[Id]{.underline}. The\
DOC failed to provide any such information to all of the named
plaintiffs, despite the plaintiffs\' repeated requests for accessible
services. Criss Brown was sometimes forced to mime requests, when
defendants could have provided him with an accessible format for
requesting auxiliary aids simply by having available a pad and pen.
Similarly Jill Brown had no idea where to turn for accessible services.
Because of the DOC\'s non-compliance, the Browns were confused and
unable to communicate about Mr. Brown's incarceration, plans for his
release, or any other important family or employment issues.

There are some indications that defendants may have had a process for
requesting the use of a TDD after a deaf inmate is assigned to a housing
unit. Nevertheless, when the named plaintiffs attempted to follow such
procedures, they were made to wait [several days or weeks]{.underline}
to obtain equipment that was frequently defective. In contrast, hearing
inmates have regular and daily access to telephones. If defendants'
procedure is not implemented or is not effective, it does not comply
with the ADA. In [Aikins v. St. Helena Hospital]{.underline}, 843 F.
Supp. 1329, 1335 (N.D. Ca. 1994), the defendant had clear and posted
policies regarding how deaf individuals could obtain access to sign
language interpreters, TDDs, and other services, and argued, on that
basis, that it was in compliance with the Act. Where such policies were
not effective for plaintiff, however, the court disagreed, and denied
defendants\' motion. [Id]{.underline}. at 1336. The ADA\'s requirements
for procedures and notice are intended to assist in effectuating the
mandate of equal participation and equal benefit; they are not shields
that defendants can raise to insulate themselves from the law\'s
requirements. [See]{.underline} 28 C.F.R. § 35.101.

**D. Many Federal Courts Have Granted Preliminary Injunctive Relief
Under Both the ADA and the Rehabilitation Act In Similar
Circumstances**.

Several courts have liberally granted preliminary injunctive relief
under the Americans with Disabilities Act and the Rehabilitation Act to
plaintiffs seeking qualified sign language interpreters, TDDs, and other
appropriate auxiliary aids and services.[^27] The case most nearly on
point, because it addresses issues virtually identical to those
presented in this case, is [Clarkson v. Coughlin]{.underline}, 898 F.
Supp. 1019, 1032 (S.D.N.Y. 1995), where the court held with respect to a
Department of Correction\'s treatment of a class of deaf and hearing
impaired inmates:

> In their failure to provide notice of rights to accommodations and
> available assistance, to consult with disabled inmates as to the most
> effective form of accommodation, . . . . defendants have violated the
> ADA. By failing to provide interpretive services during reception and
> classification, through the absence or inadequacy of assistive
> communications devices for telephone and television, . . . defendants
> have violated both § 504 of the Rehabilitation Act and the ADA.

Accordingly, the court granted preliminary injunctive relief.
[Id]{.underline}. at 1035. Similarly, in this case, plaintiffs'
affidavits show that defendants have engaged in ongoing discrimination
by failing to provide class members with notice of their rights; by
failing to consult and instead rejecting outright plaintiffs\' requests
for accessible services; by failing to provide qualified interpreters
for reception or intake, and classification interviews, and by failing
to provide equivalent access to telephones and televisions. Each
successive plaintiff\'s statement of experiences is the mirror image of
a prior one; together, they provide a stark illustration of the forced
isolation and inferior treatment Congress sought to arrest in the
passage of the ADA. [See]{.underline} 42 U.S.C. §§ 12101(2), (5), (6).
In another parallel case, [Randolf v. Rogers]{.underline}, 980 F. Supp
1051, 1062 (E.D. Mo. 1997), the court found that defendants violated the
ADA as a matter of law, where a deaf inmate was denied qualified
interpreters for non-emergency medical care and classification-type
interviews, even where the facts demonstrated that he could communicate
in writing and there was no evidence of problems with his medical care.
The court found that because he had not had a \"full\" opportunity to
communicate, he was not thereby provided with \"full\" benefits.
[Id]{.underline}. at 1061.

Moreover, the Ninth Circuit Court of Appeals and other courts have faced
the precise factual situation presented in this case --- namely, the
denial by correctional officials of auxiliary aids and services such as
qualified interpreters, TDDs, or captioning, among others, [to deaf
inmates]{.underline}, and have found that the pattern of behavior
engaged in by defendants, if evidenced, constitutes a violation of the
ADA or the Rehabilitation Act, or both. [See]{.underline}
[Duffy]{.underline}, 98 F.3d at 456, 458 (where deaf inmate was denied
qualified interpreter, summary judgment in favor of officials was
improper); [Bonner]{.underline}, 857 F.2d at 564 (same under
Rehabilitation Act); [Hanson]{.underline}, 991 F. Supp. at 1063
(defendants\' failure to provide a qualified interpreter and TDD while
plaintiff was being processed at the jail, and had no opportunity to
arrange for bail, states a prima facie case). [Cf]{.underline}.
[Rewolinski v. Morgan]{.underline}, 896 F. Supp. 879 (E.D. Wis. 1995)
(plaintiffs\' allegation of defendants\' failure to provide
interpreters, and closed captioning for television, state sufficient
claim to proceed in forma pauperis).[^28]

**E. The Required Actions Do Not Constitute An Undue Burden or
Fundamental Alteration, or Pose Unreasonable Safety Risks.**

The prohibitions of discrimination regarding accessible communication do
not require an entity to \"take any action that it can demonstrate would
result in a fundamental alteration in the nature of a service, program,
or activity or undue financial or administrative burdens.\" 28 C.F.R. §
35.164. [See]{.underline} 28 C.F.R. pt. 35, App. A, at 483. Defendants
here would bear the burden of proof should they allege that providing a
sign language interpreter or other auxiliary aid presents a fundamental
alteration in the nature of the prison's program or undue financial or
administrative burdens. [Id]{.underline}. Notwithstanding any such
claims by defendants, it is unlikely that actions required by the ADA or
the Rehabilitation Act would fundamentally alter the jail setting, or
otherwise impose an undue burden on the DOC. The DOC itself negotiated
and agreed to these policies; it would be surprising if they now found
them burdensome or altering of the prison environment.[^29] Secondly, as
noted [supra]{.underline}, several courts have required the provision of
appropriate auxiliary aids or services in jail and prison settings. TDDs
and captioning devices typically cost less than \$300 each. If an act is
an undue burden, the public entity must still provide effective
communication to the \"maximum extent feasible\" --- in Santa Clara
County jails, however, some officers would not even assist deaf inmates
by writing notes, or in making phone calls. [Id]{.underline}.

Finally, because this case involves jail administration, it is important
to consider legitimate safety concerns. Although the plaintiffs\' rights
should be \"considered in light of effective prison administration,\"
[Bullock v. Gomez]{.underline}, 929 F. Supp. 1299, 1302-03 (C.D. Cal.
1996), the Department does not believe that the standards originally
articulated in [Turner v. Safley]{.underline}, 482 U.S. 78 (1987), for
constitutional cases should be added, as a judicially-created inquiry,
to ADA and Rehabilitation Act statutory claims.[^30] As discussed above,
the ADA and the Rehabilitation Act each provide statutory protections
and mechanisms for covered entities that allow them to evaluate requests
for an interpreter or other auxiliary aid or service and decide whether
or not responding to the request would present serious safety concerns
or otherwise damage serious penal interests. Security concerns are best
addressed within the statutory scheme, using the tools that Congress
created.[^31] [See]{.underline} [Crawford v. Indiana Dep't of
Corrections]{.underline}, 115 F.3d 481, 487 (7th Cir. 1997) (Posner, J.,
explaining that statutory \"\[t\]erms like \'reasonable\' and \'undue\'
are relative to circumstances, and the circumstances of a prison are
different than those of a school, an office, or a factory."); [Onishea
v. Hopper]{.underline}, 126 F.3d 1323, 1336 (11th Cir. 1997),
[vacated]{.underline}, 133 F.3d 1377 (11th Cir. 1998) (rejecting the
application of the [Turner]{.underline} test to the Rehabilitation Act,
reasoning that the [Turner]{.underline} test is \"duplicative of the
inquiry under the Act.\").[^32] Although the Ninth Circuit applied the
[Turner]{.underline} analysis in [Gates v. Rowland]{.underline}, 39 F.3d
1439, 1447-48 (9th Cir. 1994), to claims under the Rehabilitation
Act,[^33] it is questionable whether this standard applies to the ADA,
especially following [Yeskey]{.underline}. 1998 WL 309065. There, the
Supreme Court held unanimously, and without the hint of a limiting
principle, that the ADA applies to prisons.

[Turner]{.underline} establishes a four prong test for assessing the
reasonableness of prison policies that the Court adopted to balance its
vital role in protecting prisoners' constitutional rights with its
concern that a court not inject itself into decisions about prison
administration and legitimate security issues. [See]{.underline}
[Gates]{.underline}, 39 F.3d at 1447. We are not dealing in this action
with a prison policy designed to insure inmate safety, but with meeting
the communication needs of deaf and hard of hearing inmates, guaranteed
by the ADA, a statute that the Supreme Court has recently reaffirmed
protects prisoners. Providing interpreters and other auxiliary aids is,
moreover, likely to enhance the ability of the DOC to deal with safety
concerns. Jail administrators will be able to effectively screen
individuals with hearing impairments at booking, and gather the
necessary information from them. [Id]{.underline}. Individuals with
hearing impairments will be able to participate in rehabilitative
programs; and have access to their friends and families, which serves
rehabilitative ends. [Id]{.underline}.

In [Gates v. Rowland]{.underline}, 39 F.3d at 1447-48, the Ninth Circuit
adopted the [Turner]{.underline} test and upheld a policy denying HIV+
inmates from working in food service, with the rationale that \"the full
programming opportunities available to the general population\" are
still provided to such inmates \"except that they are not given food
service assignments.\" [Id]{.underline}. Citing [Turner]{.underline},
the Ninth Circuit found that legitimate penological concerns for safety
of other prisoners weighed against permitting HIV+ prisoners from having
the right to work in the food service. [Id]{.underline}. This case is
different. Here, the full programming opportunities are not available to
the plaintiffs, and DOC\'s failure to ensure effective communication
makes it more difficult for DOC to address legitimate security issues
(such as finding out, at booking, whether deaf inmates have any
contagious disease). Moreover, by denying deaf prisoners a sign language
interpreter for those communications which are important, the DOC is
effectively isolating them, and preventing them from exercising their
rights in virtually all circumstances within and outside of the
jail.[^34]

Prison is not a free environment, but it should not be worse for deaf
inmates than it is for anyone else. That is the point of the ADA, the
Rehabilitation Act, and even [Turner]{.underline} itself.
[See]{.underline} [Armstrong]{.underline}, 124 F.3d at 1025 (citing
[Turner]{.underline} for the proposition that \"rights against
discrimination are among the few rights that prisoners do not park at
the prison gates.\").

**F. The DOC\'s Discrimination Causes Ongoing, Actual Injury, and
Contravenes the Public Interest In Preventing Discrimination.**

Finally, the plaintiffs can demonstrate irreparable harm.[^35] In
[Cupolo v. Bay Area Rapid Transit]{.underline}, 1997 WL 901909 at \*5,
this Court opined that \"\[i\]njuries to individual dignity and
deprivations of civil rights constitute irreparable injury,\" citing
[Chalk v. United States Dist. Court]{.underline}, 840 F.2d 701, 710 (9th
Cir. 1988), and [Sullivan v. Vallejo City Unified School
Dist.]{.underline}, 731 F. Supp. 947, 961 (E.D. Cal. 1990). The
[Cupolo]{.underline} Court underscored the ADA\'s goals of \"equality of
opportunity\" and \"full participation\" and the fact that the behavior
of the defendant interfered with the ADA\'s accomplishment of those
goals. [Id]{.underline}. [See also]{.underline} 42 U.S.C. § 12101
(stating goals).

The same considerations are present in this case. According to the
statements of the plaintiffs, the DOC continually refused to provide
plaintiffs with qualified intepreters, TDDs, and captioning decoders,
even after plaintiffs\' counsel had spent time and energy negotiating a
specific policy of non-discrimination. Defendants apparently made no
effort whatsoever to put these policies into practice; they did not even
undertake the simple step of posting a notice of plaintiffs\' rights.
Plaintiffs have no reason to believe that class members will not
continue to suffer humiliation and irreparable injury.

These injuries are serious. Class members have been forced to endure
delays of several days in release from custody --- prior to being
convicted of any crime. There are few constraints on freedom more
profound than custody. More to the point, while in custody, Plaintiffs
have been forced into profound isolation, prevented from participating
in programs or services, from vital medical treatment and
rehabilitation,[^36] to recreation as basic as watching television.[^37]
Almost every avenue of communication has been closed to them: they are
prevented from communicating with family, friends, and the courts over
the phone, and are unable to communicate at anything more than a
gestural level with officers and other inmates. Not surprisingly, these
circumstances caused and continue to cause indignity, forced dependence,
and emotional turmoil.[^38]

Finally, in [Innovative Health Systems, Inc. v. City of White
Plains]{.underline}, 931 F. Supp. 222, 244 (S.D.N.Y. 1996), the court
applied reasoning similar to that in [Cupulo]{.underline} to find that
the balance of hardships weighed in the favor of a preliminary
injunction for violations of the ADA and the Rehabilitation Act.
Specifically, the court stated that discrimination on the basis of
disability converted the case into one warranting relief, especially
where the Acts provide courts with the express power to change the
discriminatory practices.

**IV. CONCLUSION**

For the foregoing reasons, the United States respectfully urges the
Court to grant the plaintiffs\' application for a preliminary
injunction.

Respectfully submitted this 26th day of June 1998.

Respectfully submitted,

MICHAEL J. YAMAGUCHI BILL LANN LEE

United States Attorney Assistant Attorney General

for Civil Rights

By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

MARY BETH UITTI John L. Wodatch

Assistant United States Attorney Chief Renee M. Wohlenhaus

California Bar No. \_\_\_\_\_\_\_\_\_\_\_ Acting Deputy Chief

450 Golden Gate Ave Kate M. Nicholson

San Francisco, CA 94102 Attorney

\(415\) 436-7200 U.S. Department of Justice

Civil Rights Division

Disability Rights Section

P.O. Box 66738

Washington, D.C. 20035-6738

Tel: (202) 514-5527

Attorneys for the United States

[^1]: ^?^Title 15 of the Cal. Code of Regulations is hereafter cited as
    \"Title 15.\" A copy is attached as Exhibit G to the Declaration of
    Amanda K. Wilson (hereafter \"Wilson Dec.\"), which plaintiffs have
    submitted to the Court. The importance of access to telephones is
    recognized by the state\'s own guidelines to Title 15, which note
    that \"inmates have a constitutional right to unimpeded access to
    attorneys and legal representation.\" Guidelines to California Code
    of Regulations, Title 15, Programs and Procedures Standards (May
    1998), at 64 (hereafter, \"the Guidelines\"). A copy of the
    Guidelines is attached as Exhibit H to Wilson Dec.

[^2]:
    > The Guidelines make clear the importance of ready access to
    > telephones, explaining that
    >
    > \[t\]he telephone is an effective tool for reducing tension and
    > anxiety in a detention facility. An adequate number of phones and
    > a generally open phone use policy allow inmates to maintain
    > contact with family and the community thereby avoiding many
    > incarceration and reentry problems.

    Guidelines at 63.

[^3]: ^?^A copy of the Vandivere and Garcia declarations, and other
    declarations referred to herein, have been submitted to the Court by
    plaintiffs.

[^4]: ^?^The Guidelines for the Medical and Mental Health standards
    imposed by Title 15 underscore the importance of these interviews.
    \"[\[T\]he jail must find out at the earliest possible point who is
    carrying a contagious disease, who is in need of medical attention,
    and/or who should not be admitted to the jail for medical/mental
    health reasons]{.underline}," and \"\[t\]he more information
    gathered through the screening, the better the likelihood that
    important issues will surface." Guidelines to California Code of
    Regulations, Title 15, Medical and Mental Health, Sanitation and
    Nutrition Standards (May 1998), at 31. (The Guidelines for medical,
    mental health, sanitation, and nutrition standards are published
    separately from the Guidelines for program and procedures standards;
    a copy of the Guidelines for the medical and mental health standards
    is attached as Exhibit I to Wilson Dec.) The Guidelines further
    advise that the medical interview be conducted in an environment
    that will \"increase the chances of the inmate discussing any
    potential problems.\" [Id]{.underline}.

[^5]: ^?^The Guidelines explain that this interview is necessary for the
    jail to maintain a \"classification system,\" which

    > should separate the sophisticated from the uninitiated, the
    > violent from the nonviolent, the passive from the aggressive. In
    > addition, the classification system should assist in identifying
    > security risks, . . . those requiring protective custody. . .
    > \[and\] those eligible for facility programs.

    Guidelines at 36.

[^6]: ^?^ Wilson Dec at ¶ 11; Garcia Dec. at ¶ 5.

[^7]: ^?^These policies resulted from negotiations with plaintiffs\'
    counsel and technical assistance from the NorCal Center on Deafness.
    Wilson Dec. at ¶ 7.

[^8]: ^?^ A TDD, or telecommunication device for the deaf, also called a
    TTY, makes it possible for persons who are deaf, hard of hearing, or
    who have speech impairments to communicate by telephone. Conversing
    with a TDD is very similar to a spoken conversation, except that it
    is typed and read, instead of spoken and heard. A TDD user places
    the telephone handset into a cradle on the TDD, and then types his
    or her conversation; the TDD converts the typed letters and symbols
    into sounds which are transmitted over the phone lines. The TDD at
    the other end of the line then translates the sounds (a series of
    high-pitched beeps) back into letters and symbols, which are shown
    on a small display screen on the TDD. Some TDDs also have a paper
    tape and the capacity to make a printed copy of the conversation.
    See Declaration of Michael Strong, Ph.D. (hereafter "Strong Dec.")
    at 11-12.

[^9]: ^?^American Sign Language is not based on English; the languages
    differ vastly in syntax and structure. [See]{.underline} Tom
    Humphries, [A Basic Course in American Sign Language]{.underline} 1
    (1980). [See also]{.underline} U.S. Department of Justice, [The
    Americans with Disabilities Act Title II Technical Assistance
    Manual]{.underline} (November 1993 and Supp. 1994) § II-7.1200 at 40
    (discussing qualified interpreters and different forms of
    communication by sign) (hereafter \"TA Manual\"). A copy of the TA
    Manual is attached to this memorandum as Exhibit A. [See
    also]{.underline} Strong Dec., Ex. 8.

[^10]: ^?^As required by title IV of the ADA, each state has a relay
    service that permits deaf people to call people or organizations
    that do not have TDDs. A relay call is made through an operator with
    a TDD, who types the spoken words of one party into the TDD, and
    then speaks the response from the TDD user.

[^11]: ^?^In addition to their innate importance, participation in these
    programs can also have an effect on sentencing, often leading to a
    more lenient sentence.

[^12]: ^?^A number of district courts have specifically applied the
    statutes to county and municipal correctional facilities. [Hanson v.
    Sangamon Co. Sheriff\'s Dep't]{.underline}, 991 F. Supp. 1059, 1062
    (C.D. Ill. 1998) (upholding claim where deaf man was processed at a
    county jail). [Fennell v. Simmons]{.underline}, 951 F. Supp. 706,
    713 (N.D. Ohio 1997) (squarely holding ADA applies to county jail);
    [Outlaw v. City of Dothan]{.underline}, 1993 WL 735802, at \*3 (M.D.
    Ala. April 27, 1993) (\"terms \[service, program, or activity
    include\] the jail and all of its facilities\").

[^13]: ^?^A \"qualified individual with a disability\" is an individual
    who \-- with or without accommodations such as \"the provision of
    auxiliary aids and services,\" or \"reasonable modifications to
    rules, policies, or practices\" --- meets the essential eligibility
    requirements for the receipt of services or participation in
    programs or activities provided by the public entity. 42 U.S.C.§
    12115(2); 28 C.F.R. § 35.104.

[^14]: ^?^As the Department\'s commentary to its regulation makes clear,
    \"\'\[t\]he \'essential eligibility requirements for participation
    in some activities covered under this part may be minimal.\" 28
    C.F.R. pt. 35, App. A. at 472. [See]{.underline} [Rothschild v.
    Grottenthaler]{.underline}, 907 F.2d 286, 290 (2d Cir. 1990) (deaf
    parents are qualified to have interpreters in activities at hearing
    child\'s school); [Raines v. Florida]{.underline}, 983 F. Supp.
    1362, 1372 (N.D. Fla. 1997); [Niece v. Fitzner]{.underline}, 922 F.
    Supp. 1208, 1218 (E.D. Mich. 1996) (cause of action under ADA for
    deaf fiancé of prison inmate); [Aikins v. Mt. Helena
    Hosp.]{.underline}, 843 F. Supp. 1329, 1337 (N.D. Cal. 1994)
    (supporting a claim against the hospital on behalf of the deaf wife
    of a patient at the hospital). [Cf]{.underline}. TA Manual §
    II-7.1000 (Supp. 1994) (the obligation to ensure effective
    communication is not limited to those who have a \"direct interest\"
    in the program at issue; example is courtroom spectators).

[^15]: ^?^Congress expressly authorized the Attorney General to issue
    regulations implementing both section 504 and title II of the ADA,
    and to provide technical assistance to entities covered by the ADA.
    [See]{.underline} 29 U.S.C. § 794(a); 42 U.S.C. §§ 12134(a), 12206.
    In view of Congress\' express delegation of authority to the
    Attorney General, the Department\'s regulations and interpretations
    should be accorded controlling weight unless they are arbitrary,
    capricious, or manifestly contrary to the statute. [Bragdon v.
    Abbott]{.underline}, U.S. , 1998 WL 332958 at \*14 (June 25, 1998);
    [Chevron U.S.A., Inc. v. Natural Resources Defense Council,
    Inc.]{.underline}, 467 U.S. 837, 844 (1984). The same is true of the
    preamble or commentary accompanying the regulations since both are
    part of the Department\'s official interpretation of the legislation
    and its regulations. [See]{.underline} [Thomas Jefferson Univ. v.
    Shalala]{.underline}, 512 U.S. 504, 512 (1994) (agency\'s
    interpretation of its own regulation is entitled to deference). The
    Department of Justice\'s Technical Assistance Manual is also
    entitled to deference. [See]{.underline} [Innovative Health Sys. v.
    City of White Plains]{.underline}, 931 F. Supp. 222, 233 n.4
    (S.D.N.Y. 1996), [aff'd]{.underline}, 117 F.3d 37 (2d Cir. 1997);
    [Fiedler v. American Multi-Cinema, Inc.]{.underline}, 871 F. Supp.
    35, 36-37 n.4 (D.D.C. 1994).

[^16]: ^?^In general, a qualified interpreter is likely to be required
    for someone who is deaf and uses sign language when the
    communication involved is comparatively important, lengthy, or
    complex and, thus, more conducive to confusion on the part of the
    deaf individual. TA Manual § II-7.1000 at 38; 28 C.F.R. pt. 35, App.
    A at 437.

[^17]: ^?^The Department chose a functional definition not in order to
    lower the qualifications required of interpreters, but to make the
    point that interpreting in certain contexts may require specialized
    terminology, or skills, over and above certification. 28 C.F.R. pt
    35, App. A at 473. [See]{.underline} TA Manual § II-7.1200. [See
    also]{.underline} Declaration of Nancy Fishberg.

[^18]: ^?^An entity should give the disabled person an opportunity to
    elect an appropriate aid or service, and the entity should give
    deference to that choice unless the entity can demonstrate that some
    other effective aid or service exists or that the means chosen would
    not be required under the title II regulation. Deference to the
    person's choice is desirable because of the range of disabilities.
    The public entity is responsible to provide the appropriate
    auxiliary aids and services. [See]{.underline} 28 C.F.R. § 35.160;
    28 C.F.R. Pt. 35, App. A at 473.

[^19]: ^?^Defendant\'s treatment of Mr. Lambert --- in which they
    misconstrued his failure to respond as impertinence or resistance
    --- is a scenario many police offices are trying to address. Many
    deaf people are killed because an officer misinterprets a deaf
    arrestee\'s failure to stop, or otherwise respond to a spoken order.
    On the street, this can be a difficult problem to address
    adequately, but in an institutional setting like this one, it can be
    avoided with adequate training.

[^20]: ^?^Captioning can either be open, where it is fully visible to
    everyone, or closed, where only those who have a captioning decoder
    see the captions. Many television programs have closed captioning,
    which can be viewed with the use of a closed captioning decoder.

[^21]: ^?^Deaf inmates should be housed with deaf inmates, where
    possible, even if it means returning them to a different housing
    arrangement at the end of the day\'s job or course work.
    Defendants\' current practices are a likely violation of the
    requirement to make reasonable modifications to policies, practices,
    or procedures. [See]{.underline} 28 C.F.R. § 35.130(b)(7).

[^22]: ^?^In addition to the general requirement regarding effective
    communication, defendants are also covered by 28 U.S.C. § 35.161
    (\"Where a public entity communicates by telephone, . . . TDDs or
    equally effective telecommunication systems shall be used to
    communicate with individuals with impaired hearing or speech.\").
    Entities that have extensive phone contact with the public are
    encouraged to use a TDD to comply with this section of the
    regulation. For entities that, nevertheless, chose to use the relay
    to comply with this part, they must be prepared to effectively
    accept and handle relayed calls in the normal course of business.
    [See]{.underline} TA Manual § II-7.2000 at 41.

[^23]: ^?^Accommodation must provide \"meaningful access\" to persons
    with disabilities. [Alexander v. Choate]{.underline}, 469 U.S. 287,
    301 (1985).

[^24]: ^?^\"Qualified interpreters\" are also required by the
    Rehabilitation Act. 28 C.F.R. § 42.503(b)(6)(f).

[^25]: ^?^ Although the Act allows department heads discretion regarding
    the manner of providing such notifications, an entity cannot simply
    choose to disregard the requirement. [Id]{.underline}.

[^26]: ^?^The regulation provides:

    > A public entity shall ensure that interested persons, including
    > persons with impaired vision or hearing, can obtain information as
    > to the existence and location of accessible services, activities,
    > and facilities.

    28 C.F.R. §35.163 (a).

[^27]: ^?^[See]{.underline}, [e.g.,]{.underline} [Tugg v.
    Towey]{.underline}, 864 F. Supp. 1201 (S.D. Fla. 1994) (grant of
    preliminary injunction requiring defendant to provide mental health
    counselors who were fluent in American Sign Language where even
    qualified interpreters did not ensure effective communication during
    therapy); [Crawford v. University of California]{.underline}, 440 F.
    Supp. 1047 (M.D.N.C. 1977) (granting preliminary injunction
    compelling provision of qualified sign language interpreter because
    of balance of hardships even where no clear private right of action
    had been found).

[^28]: ^?^For cases involving court-sanctioned injunctive relief in
    settlements which require the provision of qualified sign language
    interpreters and other appropriate auxiliary aids and services to
    deaf inmates, [see]{.underline} [Armstrong v. Wilson]{.underline},
    124 F.3d at 1025; [Pyles v. Kamka]{.underline}, 491 F. Supp. 204 (D.
    Md. 1980).

[^29]: ^?^With respect to administrative burdens, it should be noted
    that the County has a contract with a sign language interpreter
    service already in place. (A copy of a July 1997 letter, from John
    Longabaugh, Coordinator of Programs for the Disabled, stating that
    the County had entered into a contract for the provision of sign
    language interpreting services, is attached as Exhibit E to the
    Wilson Dec.)

[^30]: ^?^ At least one court has questioned the applicability of this
    kind of inquiry when a jail as opposed to a prison system is
    concerned, reasoning that such a facility is designed primarily to
    house individuals charged with, but not convicted of, criminal
    offenses (often not at the felony level). [Fennell v.
    Simmons]{.underline}, 951 F. Supp. 706 (N.D. Ohio 1997).

[^31]: ^?^ In [Turner]{.underline}, 482 U.S. at 78, the Supreme Court
    was concerned with judicial restraint in legislative and
    administrative matters: the ADA and the Rehabilitation Act are
    legislative enactments that are enforced by the Department of
    Justice. In fact, \"constitutionalizing\" these statutes robs
    Congress of its powers to enact statutes with specific requirements
    and remedies.

[^32]: ^?^Although the 11th Circuit has vacated the panel opinion in
    [Onishea]{.underline} pending rehearing en banc, the panel
    opinion\'s reasoning remains persuasive.

[^33]: ^?^ In [Duffy v. Riveland]{.underline}, 98 F.3d at 455, the Court
    of Appeals applied the test only to the plaintiff\'s Rehabilitation
    Act Claim, not to his ADA claim. But in [Bullock v.
    Gomez]{.underline}, 929 F. Supp. at 1306, the district court applied
    [Turner]{.underline} to both Acts. In [Bullock]{.underline}, the
    court did not, however, simply defer to the warden\'s testimony that
    the policy was necessary for security reasons. Instead, the court
    found flaws in the prison\'s rationale, and denied summary judgment
    for the prison.

[^34]: ^?^Moreover, in [Gates v. Rowland]{.underline}, the court
    emphasized the fact that prisoners live in a closed environment and
    thus can not chose where to eat. [Id]{.underline}. In society, deaf
    individuals are able to make the arrangements necessary to
    communicate with people who are not deaf, whether by owning TDDs, by
    using interpeters, or by communicating in American Sign Language
    with people who use that method of communication. In jail, the
    possibility of addressing those necessities is removed; the
    defendants\' practices effectively place deaf individuals in
    something like solitary confinement for no reason other than their
    deafness.

[^35]: ^?^[See generally]{.underline} [Doe v. Judicial Nominating
    Comm'n]{.underline}, 906 F. Supp. 1534, 1545 (S.D. Fla. 1995)
    (discrimination on the basis of disability is the type of harm that
    warrants injunctive relief).

[^36]: ^?^Exclusion from therapeutic programs constitutes irreparable
    harm. [See]{.underline} [Innovative Health Sys., Inc. v. City of
    White Plains]{.underline}, 931 F. Supp. at 241 (clients of a
    substance abuse program would be irreparably harmed by interference
    with treatment); [Tugg]{.underline}, 864 F. Supp at 1207
    (ineffective communication in counseling of deaf individuals is
    irreparable injury); [Oxford House-Evergreen v. City of
    Plainfield]{.underline}, 769 F. Supp. 1329 (D.N.J. 1991) (plaintiffs
    would be irreparably harmed if removed from a home for recovering
    alcoholics and drug addicts). For discussion of medical treatment
    [see]{.underline} cases cited [supra]{.underline}.

[^37]: ^?^In [Concerned Parents to Save Dreher Park Center v. West Palm
    Beach]{.underline}, 846 F. Supp. 986, 992 (S.D. Fla. 1994), the
    court found irreparable harm to plaintiffs with disabilities when
    the city eliminated social, athletic, and other leisure programs for
    people with disabilities. [See also]{.underline} [Rewolinski v.
    Morgan]{.underline}, 896 F. Supp. 879 (E.D. Wis. 1995).

[^38]: ^?^[Cupolo]{.underline}, 1997 WL 901909, at \*2, \*6
    ("substantial indignity and inconvenience\" constitutes irreparable
    harm); [Sullivan]{.underline}, 731 F. Supp. at 961 (injuries to a
    disabled person's dignity, self-respect, and ability to function as
    an independent person constitutes irreparable harm).
    [Cf]{.underline}. [Chalk]{.underline}, 840 F.2d at 709-10 (loss of
    emotional satisfaction from job in disability claim constitutes
    irreparable harm).