Case: 1:15-cv-40162 As of: 07/07/2019 02:00 PM EDT 1 of 30
CASREF,STAYED
United States District Court District of Massachusetts (Boston) CIVIL DOCKET FOR CASE #: 1:15−cv−40162−GAO

Briggs et al v. Massachusetts Department of Correction et al Assigned to: Judge George A. OToole, Jr Referred to: Magistrate Judge Judith G. Dein Cause: 42:1218(2) Americans with Disabilities Act
Plaintiff

Date Filed: 11/24/2015 Jury Demand: Defendant Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Leonard Briggs

represented by Deborah Golden Washington Lawyers' Committee for Civil Rights & Urban 350 S. Grand Avenue 11 DuPont Circle, NW Suite 400 Washington, DC 20036 (202) 319−1000 Email: deborah_golden@washlaw.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Katherine V. Mackey Wilmer Cutler Pickering Hale and Dorr LLP (Bos) 60 State Street Boston, MA 02109 617−526−6993 Email: katherine.mackey@wilmerhale.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa J. Pirozzolo Wilmer Hale LLP 60 State Street Boston, MA 02109 617−526−6388 Fax: 617−526−5000 Email: lisa.pirozzolo@wilmerhale.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Philip Fornaci Washington Lawyers' Committee for Civil Rights 350 S. Grand Avenue 11 Dupont Circle, NW, Suite 400 Washington, DC 20036 202−319−1000 Email: phil_fornaci@washlaw.org TERMINATED: 06/28/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Alathea E. Porter United States Attorney's Office MA 1 Courthouse Way Suite 9200 Boston, MA 02210 617−748−3318

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Email: alathea.porter@usdoj.gov TERMINATED: 11/21/2016
Alexandra B. Lavin Wilmer Cutler Pickering Hale and Dorr LLP (Bos) 60 State Street Boston, MA 02109 617−526−6989 Email: alexandra.lavin@wilmerhale.com ATTORNEY TO BE NOTICED
Elizabeth D. Matos Prisoners' Legal Services 10 Winthrop Square, 3rd Flr. Boston, MA 02110 617−482−2773 Email: lmatos@plsma.org ATTORNEY TO BE NOTICED
James R. Pingeon Prisoners Legal Services Inc. 10 Winthrop Sq. Boston, MA 02110 617−482−2773 Fax: 617−451−6383 Email: jpingeon@plsma.org ATTORNEY TO BE NOTICED
Jessica L. Lewis Wilmer Cutler Pickering Hale and Dorr LLP (Bos) 60 State Street Boston, MA 02109 617−526−6906 Email: jessica.lewis@wilmerhale.com ATTORNEY TO BE NOTICED
Jocelyn M. Keider Wilmer Hale LLP 60 State Street Boston, MA 02109 617−526−6823 Email: jocelyn.keider@wilmerhale.com ATTORNEY TO BE NOTICED
Lindsay Kosan Wilmer Cutler Pickering Hale and Dorr LLP (Bos) 60 State Street Boston, MA 02109 617−526−6934 Email: lindsay.kosan@wilmerhale.com ATTORNEY TO BE NOTICED
Rachel L. Gargiulo Wilmer Cutler Pickering Hale and Dorr LLP (Bos) 60 State Street Boston, MA 02109 617−526−6105 Email: rachel.gargiulo@wilmerhale.com TERMINATED: 08/16/2018 ATTORNEY TO BE NOTICED

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Seth Moskowitz Wilmer Cutler Pickering Hale and Dorr LLP (Bos) 60 State Street Boston, MA 02109 617−526−6162 Email: seth.moskowitz@wilmerhale.com TERMINATED: 09/05/2018 ATTORNEY TO BE NOTICED

Tatum A. Pritchard Prisoners' Legal Services 10 Winthrop Square, 3rd Flr. Boston, MA 02110 617−482−2773 Fax: 617−451−6383 Email: tpritchard@plsma.org ATTORNEY TO BE NOTICED

William J. Durkin Wilmer Cutler Pickering Hale and Dorr LLP (Bos) 60 State Street Boston, MA 02109 617−526−6763 Email: william.durkin@wilmerhale.com TERMINATED: 11/29/2018 ATTORNEY TO BE NOTICED

Plaintiff George Skinder

represented by Deborah Golden (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Katherine V. Mackey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa J. Pirozzolo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Philip Fornaci (See above for address) TERMINATED: 06/28/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Alathea E. Porter (See above for address) TERMINATED: 11/21/2016

Alexandra B. Lavin (See above for address) ATTORNEY TO BE NOTICED

Elizabeth D. Matos (See above for address) ATTORNEY TO BE NOTICED

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Plaintiff Louis Markham

James R. Pingeon (See above for address) ATTORNEY TO BE NOTICED
Jessica L. Lewis (See above for address) ATTORNEY TO BE NOTICED
Jocelyn M. Keider (See above for address) ATTORNEY TO BE NOTICED
Lindsay Kosan (See above for address) ATTORNEY TO BE NOTICED
Rachel L. Gargiulo (See above for address) TERMINATED: 08/16/2018 ATTORNEY TO BE NOTICED
Seth Moskowitz (See above for address) TERMINATED: 09/05/2018 ATTORNEY TO BE NOTICED
Tatum A. Pritchard (See above for address) ATTORNEY TO BE NOTICED
William J. Durkin (See above for address) TERMINATED: 11/29/2018 ATTORNEY TO BE NOTICED
represented by Deborah Golden (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine V. Mackey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa J. Pirozzolo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip Fornaci (See above for address) TERMINATED: 06/28/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Alathea E. Porter (See above for address) TERMINATED: 11/21/2016

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Alexandra B. Lavin (See above for address) ATTORNEY TO BE NOTICED

Elizabeth D. Matos (See above for address) ATTORNEY TO BE NOTICED

James R. Pingeon (See above for address) ATTORNEY TO BE NOTICED

Jessica L. Lewis (See above for address) ATTORNEY TO BE NOTICED

Jocelyn M. Keider (See above for address) ATTORNEY TO BE NOTICED

Lindsay Kosan (See above for address) ATTORNEY TO BE NOTICED

Rachel L. Gargiulo (See above for address) TERMINATED: 08/16/2018 ATTORNEY TO BE NOTICED

Seth Moskowitz (See above for address) TERMINATED: 09/05/2018 ATTORNEY TO BE NOTICED

Tatum A. Pritchard (See above for address) ATTORNEY TO BE NOTICED

William J. Durkin (See above for address) TERMINATED: 11/29/2018 ATTORNEY TO BE NOTICED

Plaintiff Francis McGowan

represented by Deborah Golden (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Katherine V. Mackey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa J. Pirozzolo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Philip Fornaci (See above for address) TERMINATED: 06/28/2019 LEAD ATTORNEY

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PRO HAC VICE ATTORNEY TO BE NOTICED

Alathea E. Porter (See above for address) TERMINATED: 11/21/2016

Alexandra B. Lavin (See above for address) ATTORNEY TO BE NOTICED

Elizabeth D. Matos (See above for address) ATTORNEY TO BE NOTICED

James R. Pingeon (See above for address) ATTORNEY TO BE NOTICED

Jessica L. Lewis (See above for address) ATTORNEY TO BE NOTICED

Jocelyn M. Keider (See above for address) ATTORNEY TO BE NOTICED

Lindsay Kosan (See above for address) ATTORNEY TO BE NOTICED

Rachel L. Gargiulo (See above for address) TERMINATED: 08/16/2018 ATTORNEY TO BE NOTICED

Seth Moskowitz (See above for address) TERMINATED: 09/05/2018 ATTORNEY TO BE NOTICED

Tatum A. Pritchard (See above for address) ATTORNEY TO BE NOTICED

William J. Durkin (See above for address) TERMINATED: 11/29/2018 ATTORNEY TO BE NOTICED

Plaintiff Eric Roldan

represented by Deborah Golden (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Katherine V. Mackey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa J. Pirozzolo (See above for address)

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LEAD ATTORNEY ATTORNEY TO BE NOTICED

Philip Fornaci (See above for address) TERMINATED: 06/28/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Alathea E. Porter (See above for address) TERMINATED: 11/21/2016

Alexandra B. Lavin (See above for address) ATTORNEY TO BE NOTICED

Elizabeth D. Matos (See above for address) ATTORNEY TO BE NOTICED

James R. Pingeon (See above for address) ATTORNEY TO BE NOTICED

Jessica L. Lewis (See above for address) ATTORNEY TO BE NOTICED

Jocelyn M. Keider (See above for address) ATTORNEY TO BE NOTICED

Lindsay Kosan (See above for address) ATTORNEY TO BE NOTICED

Rachel L. Gargiulo (See above for address) TERMINATED: 08/16/2018 ATTORNEY TO BE NOTICED

Seth Moskowitz (See above for address) TERMINATED: 09/05/2018 ATTORNEY TO BE NOTICED

Tatum A. Pritchard (See above for address) ATTORNEY TO BE NOTICED

William J. Durkin (See above for address) TERMINATED: 11/29/2018 ATTORNEY TO BE NOTICED

Plaintiff Rolando Jimenez

represented by Deborah Golden (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

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Katherine V. Mackey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa J. Pirozzolo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip Fornaci (See above for address) TERMINATED: 06/28/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Alathea E. Porter (See above for address) TERMINATED: 11/21/2016
Alexandra B. Lavin (See above for address) ATTORNEY TO BE NOTICED
Elizabeth D. Matos (See above for address) ATTORNEY TO BE NOTICED
James R. Pingeon (See above for address) ATTORNEY TO BE NOTICED
Jessica L. Lewis (See above for address) ATTORNEY TO BE NOTICED
Jocelyn M. Keider (See above for address) ATTORNEY TO BE NOTICED
Lindsay Kosan (See above for address) ATTORNEY TO BE NOTICED
Rachel L. Gargiulo (See above for address) TERMINATED: 08/16/2018 ATTORNEY TO BE NOTICED
Seth Moskowitz (See above for address) TERMINATED: 09/05/2018 ATTORNEY TO BE NOTICED
Tatum A. Pritchard (See above for address) ATTORNEY TO BE NOTICED
William J. Durkin (See above for address) TERMINATED: 11/29/2018 ATTORNEY TO BE NOTICED
Plaintiff

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Jennifer Ward

represented by Deborah Golden (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Katherine V. Mackey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa J. Pirozzolo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Philip Fornaci (See above for address) TERMINATED: 06/28/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Alathea E. Porter (See above for address) TERMINATED: 11/21/2016

Alexandra B. Lavin (See above for address) ATTORNEY TO BE NOTICED

Elizabeth D. Matos (See above for address) ATTORNEY TO BE NOTICED

James R. Pingeon (See above for address) ATTORNEY TO BE NOTICED

Jessica L. Lewis (See above for address) ATTORNEY TO BE NOTICED

Jocelyn M. Keider (See above for address) ATTORNEY TO BE NOTICED

Lindsay Kosan (See above for address) ATTORNEY TO BE NOTICED

Rachel L. Gargiulo (See above for address) TERMINATED: 08/16/2018 ATTORNEY TO BE NOTICED

Seth Moskowitz (See above for address) TERMINATED: 09/05/2018 ATTORNEY TO BE NOTICED

Tatum A. Pritchard (See above for address) ATTORNEY TO BE NOTICED

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William J. Durkin (See above for address) TERMINATED: 11/29/2018 ATTORNEY TO BE NOTICED

V.
Defendant
Massachusetts Department of Correction

represented by Dennis N. D'Angelo Attorney General's Office 18th Floor One Ashburton Place Boston, MA 02108 617−963−2881 Email: dennis.d'angelo@mass.gov TERMINATED: 06/24/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Vincent DiGangi Massachusetts Attorney General's Office 18th Floor, Room 1813 1 Ashburton Place Boston, MA 02108 6177−727−2593 Email: tom.digangi@massmail.state.ma.us TERMINATED: 10/25/2016 LEAD ATTORNEY
Timothy M. Pomarole Massachusetts Department of Correction Legal Division 70 Franklin Street, Suite 600 Boston, MA 02210 617−951−2069 Email: timothy.pomarole@massmail.state.ma.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anna Rachel Dray−Siegel Office of the Attorney General Administrative Law Division One Ashburton Place Boston, MA 02108 617−963−2022 Email: anna.rachel.dray−siegel@state.ma.us ATTORNEY TO BE NOTICED
Kate R. Isley Attorney General's Office 18th Floor One Ashburton Place Boston, MA 02108 617−963−2776 Email: kate.isley@state.ma.us TERMINATED: 06/24/2019 ATTORNEY TO BE NOTICED
Kirk G. Hanson Office of the Massachusetts Attorney General Government Bureau/Administrative Law Division One Ashburton Place

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Boston, MA 02108 617−963−2974 Email: kirk.hanson@state.ma.us TERMINATED: 06/24/2019 ATTORNEY TO BE NOTICED

Defendant Commissioner Carol Higgins O'Brien

represented by Dennis N. D'Angelo (See above for address) TERMINATED: 06/24/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas Vincent DiGangi (See above for address) TERMINATED: 10/25/2016 LEAD ATTORNEY

Timothy M. Pomarole (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anna Rachel Dray−Siegel (See above for address) ATTORNEY TO BE NOTICED

Kirk G. Hanson (See above for address) TERMINATED: 06/24/2019 ATTORNEY TO BE NOTICED

Defendant
Deputy Commissioner Katherine A. Chmiel

represented by Dennis N. D'Angelo (See above for address) TERMINATED: 06/24/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas Vincent DiGangi (See above for address) TERMINATED: 10/25/2016 LEAD ATTORNEY

Timothy M. Pomarole (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anna Rachel Dray−Siegel (See above for address) ATTORNEY TO BE NOTICED

Kirk G. Hanson (See above for address) TERMINATED: 06/24/2019 ATTORNEY TO BE NOTICED

Defendant Superintendent Kelly Ryan

represented by Dennis N. D'Angelo (See above for address) TERMINATED: 06/24/2019 LEAD ATTORNEY

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ATTORNEY TO BE NOTICED

Thomas Vincent DiGangi (See above for address) TERMINATED: 10/25/2016 LEAD ATTORNEY

Timothy M. Pomarole (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anna Rachel Dray−Siegel (See above for address) ATTORNEY TO BE NOTICED

Kirk G. Hanson (See above for address) TERMINATED: 06/24/2019 ATTORNEY TO BE NOTICED

Defendant Acting Super. Paul Henderson

represented by Dennis N. D'Angelo (See above for address) TERMINATED: 06/24/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas Vincent DiGangi (See above for address) TERMINATED: 10/25/2016 LEAD ATTORNEY

Timothy M. Pomarole (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anna Rachel Dray−Siegel (See above for address) ATTORNEY TO BE NOTICED

Kirk G. Hanson (See above for address) TERMINATED: 06/24/2019 ATTORNEY TO BE NOTICED

Defendant Superintendent Steven O'Brien

represented by Dennis N. D'Angelo (See above for address) TERMINATED: 06/24/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas Vincent DiGangi (See above for address) TERMINATED: 10/25/2016 LEAD ATTORNEY

Anna Rachel Dray−Siegel (See above for address) ATTORNEY TO BE NOTICED

Kate R. Isley

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(See above for address) TERMINATED: 06/24/2019 ATTORNEY TO BE NOTICED

Kirk G. Hanson (See above for address) TERMINATED: 06/24/2019 ATTORNEY TO BE NOTICED

Timothy M. Pomarole (See above for address) ATTORNEY TO BE NOTICED

Defendant Superintendent Sean Medeiros

represented by Dennis N. D'Angelo (See above for address) TERMINATED: 06/24/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas Vincent DiGangi (See above for address) TERMINATED: 10/25/2016 LEAD ATTORNEY

Timothy M. Pomarole (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anna Rachel Dray−Siegel (See above for address) ATTORNEY TO BE NOTICED

Kate R. Isley (See above for address) TERMINATED: 06/24/2019 ATTORNEY TO BE NOTICED

Kirk G. Hanson (See above for address) TERMINATED: 06/24/2019 ATTORNEY TO BE NOTICED

Defendant
Massachusetts Partnership for Correctional Healthcare, LLC TERMINATED: 06/27/2018

represented by John G. Bagley Morrison Mahoney LLP 1500 Main Street, Suite 2400 PO Box 15387 Springfield, MA 01115−5387 413−737−4373 Fax: 413−739−3125 Email: jbagley@morrisonmahoney.com TERMINATED: 03/29/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melissa J. Garand Koufman & Frederick, LLP 145 Tremont Street, 4th Floor Boston, MA 02111 617−423−2212 Fax: 857−317−2393 Email: mg@kflitigators.com

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LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victor J. Koufman Koufman & Frederick, LLP 145 Tremont Street Boston, MA 02111 978−745−2212 Fax: 978−745−9157 Email: vkoufman@kflawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Curtis L.S. Carpenter Morrison Mahoney LLP 250 Summer Street Boston, MA 02210 617−439−7589 Fax: 617−342−4841 Email: ccarpenter@morrisonmahoney.com TERMINATED: 02/13/2018 ATTORNEY TO BE NOTICED
George J. Puddister Koufman & Frederick, LLP 145 Tremont Street, 4th Flr. Boston, MA 02111 617−423−2212 Email: gp@kflitigators.com ATTORNEY TO BE NOTICED
John P. Graceffa Morrison Mahoney LLP 250 Summer Street Boston, MA 02210 617−737−8854 Fax: 617−342−4936 Email: jgraceffa@morrisonmahoney.com TERMINATED: 03/27/2018 ATTORNEY TO BE NOTICED
Tory A. Weigand Morrison, Mahoney, & Miller LLP 250 Summer Street Boston, MA 02210−1181 617−737−8827 Fax: 617−342−4947 Email: tweigand@morrisonmahoney.com TERMINATED: 03/26/2018 ATTORNEY TO BE NOTICED
William J. Flanagan Morrison, Mahoney, & Miller LLP 250 Summer Street Boston, MA 02210−1181 617−439−7500 Fax: 617−342−4887 Email: jflanagan@morrisonmahoney.com TERMINATED: 03/27/2018 ATTORNEY TO BE NOTICED
Mediator
Judge M. Page Kelley

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Date Filed 11/24/2015
11/24/2015 11/24/2015 11/25/2015 11/25/2015 11/25/2015 12/04/2015 12/07/2015 12/07/2015
12/07/2015 12/07/2015 12/29/2015
12/29/2015
01/04/2016

# Docket Text
1 COMPLAINT against All Defendants Filing fee: $ 400, receipt number 0101−5860226 (Fee Status: Filing Fee paid), filed by Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward. (Attachments: # 1 Civil Cover Sheet, # 2 Attachment to Civil Cover Sheet, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons, # 8 Summons, # 9 Summons, # 10 Summons)(Pirozzolo, Lisa) (Attachment 1 replaced on 11/25/2015) (Burgos, Sandra). (Entered: 11/24/2015)
2 NOTICE of Appearance by Alexandra B. Bonneau on behalf of Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward (Bonneau, Alexandra) (Entered: 11/24/2015)
3 NOTICE of Appearance by Alathea E. Porter on behalf of Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward (Porter, Alathea) (Entered: 11/24/2015)
4 Case transferred to Eastern Division (Boston).(Burgos, Sandra) (Entered: 11/25/2015)
5 Case transferred in from Central Division (Worcester) on 11/25/2015 Case Number 4:15−cv−40162. (Abaid, Kimberly) (Entered: 11/25/2015)
6 ELECTRONIC NOTICE of Case Assignment. Judge George A. OToole, Jr assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Judith G. Dein. (Abaid, Kimberly) (Entered: 11/25/2015)
7 NOTICE of Appearance by Elizabeth D. Matos on behalf of Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward (Matos, Elizabeth) (Entered: 12/04/2015)
8 NOTICE of Appearance by Tatum A. Pritchard on behalf of Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward (Pritchard, Tatum) (Entered: 12/07/2015)
9 Summons Issued as to All Defendants. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Halley, Taylor) (Entered: 12/07/2015)
10 NOTICE of Appearance by William J. Flanagan on behalf of Massachusetts Partnership for Correctional Healthcare, LLC (Flanagan, William) (Entered: 12/07/2015)
11 NOTICE of Appearance by Curtis L.S. Carpenter on behalf of Massachusetts Partnership for Correctional Healthcare, LLC (Carpenter, Curtis) (Entered: 12/07/2015)
12 AFFIDAVIT OF SERVICE Executed by Rolando Jimenez, Louis Markham, Jennifer Ward, George Skinder, Leonard Briggs, Francis McGowan, Eric Roldan. Massachusetts Partnership for Correctional Healthcare, LLC served on 12/18/2015, answer due 1/8/2016. Acknowledgement filed by Rolando Jimenez; Louis Markham; Jennifer Ward; George Skinder; Leonard Briggs; Francis McGowan; Eric Roldan. (Bonneau, Alexandra) (Entered: 12/29/2015)
13 AFFIDAVIT OF SERVICE Executed by Rolando Jimenez, Louis Markham, Jennifer Ward, George Skinder, Leonard Briggs, Francis McGowan, Eric Roldan. Massachusetts Department of Correction served on 12/29/2015, answer due 1/19/2016. Acknowledgement filed by Rolando Jimenez; Louis Markham; Jennifer Ward; George Skinder; Leonard Briggs; Francis McGowan; Eric Roldan. (Bonneau, Alexandra) (Entered: 12/29/2015)
14 Assented to MOTION for Extension of Time to January 15, 2016 to File Answer re 1 Complaint,, by Massachusetts Partnership for Correctional Healthcare, LLC.(Carpenter, Curtis) (Entered: 01/04/2016)

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01/04/2016 01/15/2016 01/19/2016 01/20/2016
01/21/2016 01/27/2016 01/27/2016 01/27/2016 01/27/2016 01/27/2016 01/27/2016 03/04/2016 03/04/2016

15 Judge George A. OToole, Jr: ELECTRONIC ORDER entered granting 14 Motion for Extension of Time to Answer re 1 Complaint,, Massachusetts Partnership for Correctional Healthcare, LLC answer due 1/15/2016. (Lyness, Paul) (Entered: 01/04/2016)
16 ANSWER to 1 Complaint,, with Jury Demand by Massachusetts Partnership for Correctional Healthcare, LLC.(Carpenter, Curtis) (Entered: 01/15/2016)
17 MOTION for Leave to Appear Pro Hac Vice for admission of Deborah Golden Filing fee: $ 100, receipt number 0101−5934269 by Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward. (Attachments: # 1 Affidavit of Deborah Golden)(Bonneau, Alexandra) (Entered: 01/19/2016)
18 Judge George A. OToole, Jr: ELECTRONIC ORDER entered granting 17 Motion for Leave to Appear Pro Hac Vice Added Deborah M. Golden. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Lyness, Paul) (Entered: 01/20/2016)
19 NOTICE of Appearance by Thomas Vincent DiGangi on behalf of Katherine A. Chmiel, Paul Henderson, Carol Higgins O'Brien, Massachusetts Department of Correction, Sean Medeiros, Steven O'Brien, Kelly Ryan (DiGangi, Thomas) (Entered: 01/21/2016)
20 WAIVER OF SERVICE Returned Executed by Rolando Jimenez, Louis Markham, Jennifer Ward, George Skinder, Leonard Briggs, Francis McGowan, Eric Roldan. Carol Higgins O'Brien waiver sent on 12/29/2015, answer due 2/29/2016. (Bonneau, Alexandra) (Entered: 01/27/2016)
21 WAIVER OF SERVICE Returned Executed by Rolando Jimenez, Louis Markham, Jennifer Ward, George Skinder, Leonard Briggs, Francis McGowan, Eric Roldan. Katherine A. Chmiel waiver sent on 12/29/2015, answer due 2/29/2016. (Bonneau, Alexandra) (Entered: 01/27/2016)
22 WAIVER OF SERVICE Returned Executed by Rolando Jimenez, Louis Markham, Jennifer Ward, George Skinder, Leonard Briggs, Francis McGowan, Eric Roldan. Kelly Ryan waiver sent on 12/29/2015, answer due 2/29/2016. (Bonneau, Alexandra) (Entered: 01/27/2016)
23 WAIVER OF SERVICE Returned Executed by Rolando Jimenez, Louis Markham, Jennifer Ward, George Skinder, Leonard Briggs, Francis McGowan, Eric Roldan. Paul Henderson waiver sent on 12/29/2015, answer due 2/29/2016. (Bonneau, Alexandra) (Entered: 01/27/2016)
24 WAIVER OF SERVICE Returned Executed by Rolando Jimenez, Louis Markham, Jennifer Ward, George Skinder, Leonard Briggs, Francis McGowan, Eric Roldan. Sean Medeiros waiver sent on 12/29/2015, answer due 2/29/2016. (Bonneau, Alexandra) (Entered: 01/27/2016)
25 WAIVER OF SERVICE Returned Executed by Rolando Jimenez, Louis Markham, Jennifer Ward, George Skinder, Leonard Briggs, Francis McGowan, Eric Roldan. Steven O'Brien waiver sent on 12/29/2015, answer due 2/29/2016. (Bonneau, Alexandra) (Entered: 01/27/2016)
26 MOTION to Certify Class by Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward.(Pirozzolo, Lisa) (Entered: 03/04/2016)
27 MEMORANDUM in Support re 26 MOTION to Certify Class filed by Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward. (Attachments: # 1 Exhibit 1 − Declaration of Eric Roldan, # 2 Exhibit 2 − Declaration of Francis McGowan, # 3 Exhibit 3 − Declaration of George Skinder, # 4 Exhibit 4 − Declaration of Jennifer Ward, # 5 Exhibit 5 − Declaration of Leonard Briggs, # 6 Exhibit 6 − Declaration of Louis Markham, # 7 Exhibit 7 − Declaration of Rolando S. Jimenez)(Pirozzolo, Lisa) (Entered: 03/04/2016)

Case: 1:15-cv-40162 As of: 07/07/2019 02:00 PM EDT 17 of 30

03/10/2016 03/10/2016 03/16/2016 03/17/2016 03/29/2016 03/29/2016 03/31/2016 04/04/2016 04/13/2016 04/14/2016 04/15/2016 05/03/2016 05/09/2016 05/18/2016
06/29/2016

28 NOTICE of Appearance by Kirk G. Hanson on behalf of Katherine A. Chmiel, Paul Henderson, Carol Higgins O'Brien, Massachusetts Department of Correction, Sean Medeiros, Steven O'Brien, Kelly Ryan (Hanson, Kirk) (Entered: 03/10/2016)
29 ANSWER to 1 Complaint,, with Jury Demand by Katherine A. Chmiel, Paul Henderson, Carol Higgins O'Brien, Massachusetts Department of Correction, Sean Medeiros, Steven O'Brien, Kelly Ryan.(Hanson, Kirk) (Entered: 03/10/2016)
30 MOTION for Extension of Time to April 1, 2016 to File Response/Reply as to 26 MOTION to Certify Class by Katherine A. Chmiel, Paul Henderson, Carol Higgins O'Brien, Massachusetts Department of Correction, Sean Medeiros, Steven O'Brien, Kelly Ryan.(DiGangi, Thomas) (Entered: 03/16/2016)
31 Judge George A. OToole, Jr: ELECTRONIC ORDER entered granting 30 Motion for Extension of Time to File Response/Reply re 26 MOTION to Certify Class Responses due by 4/1/2016 (Halley, Taylor) (Entered: 03/17/2016)
32 Second MOTION for Extension of Time to File Response/Reply as to 26 MOTION to Certify Class by Katherine A. Chmiel, Paul Henderson, Carol Higgins O'Brien, Massachusetts Department of Correction, Sean Medeiros, Steven O'Brien, Kelly Ryan.(Hanson, Kirk) (Entered: 03/29/2016)
33 MEMORANDUM in Opposition re 32 Second MOTION for Extension of Time to File Response/Reply as to 26 MOTION to Certify Class filed by Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward. (Pirozzolo, Lisa) (Entered: 03/29/2016)
34 Judge George A. OToole, Jr: ELECTRONIC ORDER entered granting 32 Motion for Extension of Time to File Response/Reply re 26 MOTION to Certify Class Responses due by 4/15/2016 (Lyness, Paul) (Entered: 03/31/2016)
35 Opposition re 26 MOTION to Certify Class filed by Massachusetts Partnership for Correctional Healthcare, LLC. (Carpenter, Curtis) (Entered: 04/04/2016)
36 NOTICE of Appearance by Anna Rachel Dray−Siegel on behalf of Katherine A. Chmiel, Paul Henderson, Carol Higgins O'Brien, Massachusetts Department of Correction, Sean Medeiros, Steven O'Brien, Kelly Ryan (Dray−Siegel, Anna) (Entered: 04/13/2016)
37 ELECTRONIC NOTICE Setting Hearing on Motion 26 MOTION to Certify Class : Motion Hearing set for 5/18/2016 02:00 PM in Courtroom 22 before Judge George A. OToole Jr.. Please mark your calendars accordingly. (Lyness, Paul) (Entered: 04/14/2016)
38 Opposition re 26 MOTION to Certify Class filed by Katherine A. Chmiel, Paul Henderson, Carol Higgins O'Brien, Massachusetts Department of Correction, Sean Medeiros, Steven O'Brien, Kelly Ryan. (Attachments: # 1 Exhibit A)(Hanson, Kirk) (Entered: 04/15/2016)
39 Judge George A. OToole, Jr: ELECTRONIC ORDER entered. The plaintiffs are invited to file a reply brief addressing the arguments raised in the DOC defendants brief (dkt. no. 38). Any such reply brief shall be filed on or before May 13, 2016.(Halley, Taylor) (Entered: 05/03/2016)
40 REPLY to Response to 26 MOTION to Certify Class filed by Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward. (Pirozzolo, Lisa) (Entered: 05/09/2016)
41 Electronic Clerk's Notes for proceedings held before Judge George A. OToole, Jr: Motion Hearing held on 5/18/2016 re 26 MOTION to Certify Class filed by Louis Markham, Rolando Jimenez, Jennifer Ward, Francis McGowan, Leonard Briggs, George Skinder, Eric Roldan. The court takes the matter under advisement. (Court Reporter: Debra Lajoie at ylajoied@yahoo.com.)(Attorneys present: For Plaintiffs: Lisa Pirozzolo; For Defendants: Kirk Hanson, Curtis Carpenter) (Lyness, Paul) (Entered: 05/18/2016)
42 Judge George A. OToole, Jr: OPINION AND ORDER entered denying 26 Motion to Certify Class (Halley, Taylor) (Entered: 06/29/2016)

Case: 1:15-cv-40162 As of: 07/07/2019 02:00 PM EDT 18 of 30

06/29/2016 07/25/2016 07/25/2016 07/25/2016 07/25/2016 07/25/2016 07/25/2016 07/25/2016 07/25/2016 07/25/2016
07/25/2016 08/01/2016
09/01/2016
10/11/2016 10/25/2016 10/31/2016 11/07/2016 11/21/2016 12/07/2016

43 Set Hearings: Scheduling Conference set for 8/1/2016 02:00 PM in Courtroom 22 before Judge George A. OToole Jr.. (Halley, Taylor) (Entered: 06/29/2016)
44 JOINT SUBMISSION pursuant to Local Rule 16.1 by Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward.(Porter, Alathea) (Entered: 07/25/2016)
45 CERTIFICATION pursuant to Local Rule 16.1 by Leonard Briggs.(Porter, Alathea) (Entered: 07/25/2016)
46 CERTIFICATION pursuant to Local Rule 16.1 by Rolando Jimenez.(Porter, Alathea) (Entered: 07/25/2016)
47 CERTIFICATION pursuant to Local Rule 16.1 by Louis Markham.(Porter, Alathea) (Entered: 07/25/2016)
48 CERTIFICATION pursuant to Local Rule 16.1 by Francis McGowan.(Porter, Alathea) (Entered: 07/25/2016)
49 CERTIFICATION pursuant to Local Rule 16.1 by Eric Roldan.(Porter, Alathea) (Entered: 07/25/2016)
50 CERTIFICATION pursuant to Local Rule 16.1 by George Skinder.(Porter, Alathea) (Entered: 07/25/2016)
51 CERTIFICATION pursuant to Local Rule 16.1 by Jennifer Ward.(Porter, Alathea) (Entered: 07/25/2016)
52 CERTIFICATION pursuant to Local Rule 16.1 by the Massachusetts Department of Correction, Carol Higgins O'Brien, Katherine Chmiel, Kelly Ryan, Sean Medeiros, Steven O'Brien, and Paul Henderson. (Hanson, Kirk) Modified on 7/25/2016 (Jones, Sherry). (Entered: 07/25/2016)
53 CERTIFICATION pursuant to Local Rule 16.1 by Massachusetts Partnership for Correctional Healthcare LLC. (Carpenter, Curtis) (Entered: 07/25/2016)
54 Electronic Clerk's Notes for proceedings held before Judge George A. OToole, Jr: Scheduling Conference held on 8/1/2016. Fact discovery to be completed by 6/1/17. ( Status Conference set for 2/6/2017 02:00 PM in Courtroom 22 before Judge George A. OToole Jr..). (Court Reporter: Marcia Patrisso at m.patrisso@outlook.com.)(Attorneys present: For Plaintiffs: Alathea Porter; For Defendants: Kirk Hanson, Curtis Carpenter) (Lyness, Paul) (Entered: 08/01/2016)
55 Joint MOTION for Protective Order by Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A to Proposed Order)(Pirozzolo, Lisa) (Entered: 09/01/2016)
56 Judge George A. O'Toole, Jr: ORDER entered granting 55 Motion for Protective Order (Halley, Taylor) (Entered: 10/12/2016)
57 NOTICE of Withdrawal of Appearance by Thomas Vincent DiGangi (DiGangi, Thomas) (Entered: 10/25/2016)
58 NOTICE of Appearance by Dennis N. D'Angelo on behalf of Katherine A. Chmiel, Paul Henderson, Carol Higgins O'Brien, Massachusetts Department of Correction, Sean Medeiros, Steven O'Brien, Kelly Ryan (D'Angelo, Dennis) (Entered: 10/31/2016)
59 NOTICE of Appearance by Jocelyn M. Keider on behalf of Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward (Keider, Jocelyn) (Entered: 11/07/2016)
60 NOTICE of Withdrawal of Appearance by Alathea E. Porter (Porter, Alathea) (Entered: 11/21/2016)
61 Joint MOTION to Amend 56 Order on Motion for Protective Order by Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Keider, Jocelyn) (Entered: 12/07/2016)

Case: 1:15-cv-40162 As of: 07/07/2019 02:00 PM EDT 19 of 30

12/27/2016 01/10/2017 01/11/2017 01/25/2017
01/25/2017 01/26/2017 01/26/2017 01/26/2017 01/26/2017 01/26/2017
02/06/2017
02/06/2017

62 Judge George A. O'Toole, Jr: ORDER entered granting 61 Motion to Amend (Halley, Taylor) (Entered: 12/28/2016)
63 NOTICE of Appearance by Seth Moskowitz on behalf of Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward (Moskowitz, Seth) (Entered: 01/10/2017)
64 NOTICE of Withdrawal of Appearance by Alexandra B. Bonneau (Bonneau, Alexandra) (Entered: 01/11/2017)
65 Transcript of Scheduling Conference held on August 1, 2016, before Judge George A. OToole. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Marcia Patrisso at m.patrisso@outlook.com Redaction Request due 2/15/2017. Redacted Transcript Deadline set for 2/27/2017. Release of Transcript Restriction set for 4/25/2017. (Scalfani, Deborah) (Entered: 01/25/2017)
66 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 01/25/2017)
67 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM as to Count I and II of Plaintiffs' Complaint by Massachusetts Partnership for Correctional Healthcare, LLC.(Carpenter, Curtis) (Entered: 01/26/2017)
68 MEMORANDUM in Support re 67 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM as to Count I and II of Plaintiffs' Complaint filed by Massachusetts Partnership for Correctional Healthcare, LLC. (Attachments: # 1 Exhibit 1)(Carpenter, Curtis) (Entered: 01/26/2017)
69 MOTION to Compel Document Production and Supplemental Interrogatory Responses from Defendant MPCH by Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward.(Keider, Jocelyn) (Entered: 01/26/2017)
70 MEMORANDUM in Support re 69 MOTION to Compel Document Production and Supplemental Interrogatory Responses from Defendant MPCH filed by Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward. (Keider, Jocelyn) (Entered: 01/26/2017)
71 DECLARATION re 69 MOTION to Compel Document Production and Supplemental Interrogatory Responses from Defendant MPCH by Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Keider, Jocelyn) (Entered: 01/26/2017)
72 Opposition re 69 MOTION to Compel Document Production and Supplemental Interrogatory Responses from Defendant MPCH filed by Massachusetts Partnership for Correctional Healthcare, LLC. (Attachments: # 1 Exhibit A: Plaintiffs Written Discovery Requests, # 2 Exhibit B: E−mail from Attorney Alathea Porter, # 3 Exhibit C: MPCHs Response to Plaintiffs Request for Production of Documents, # 4 Exhibit D: Affidavit of Curtis L.S. Carpenter, # 5 Exhibit E: MPCHs Answers to Interrogatories, # 6 Exhibit F: Letter from Attorney Alexandra Bonneau dated November 7, 2016, # 7 Exhibit G: Letter from Attorney Alexandra Bonneau dated December 9, 2016, # 8 Exhibit H: E−mail from counsel for DOC, dated January 20, 2017, # 9 Exhibit I: E−mail from counsel for MPCH, dated January 25, 2016, # 10 Exhibit J: E−mail from counsel for MPCH, dated January 26, 2016)(Carpenter, Curtis) (Entered: 02/06/2017)
73 Joint MOTION for Extension of Time to 2/21/2017 to File Opposition to MPCH's Motion to Dismiss by Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward.(Moskowitz, Seth) (Entered: 02/06/2017)

Case: 1:15-cv-40162 As of: 07/07/2019 02:00 PM EDT 20 of 30

02/06/2017
02/06/2017 02/16/2017 02/21/2017
02/21/2017 02/21/2017 03/06/2017
03/10/2017
03/10/2017 03/21/2017 03/31/2017 03/31/2017

74 Electronic Clerk's Notes for proceedings held before Judge George A. OToole, Jr: Status Conference held on 2/6/2017, ( Status Conference set for 3/6/2017 02:00 PM in Courtroom 22 before Judge George A. OToole Jr..). The motion for extension of time (73) is granted. Motions terminated: 73 Joint MOTION for Extension of Time to 2/21/2017 to File Opposition to MPCH's Motion to Dismiss filed by Louis Markham, Rolando Jimenez, Jennifer Ward, Francis McGowan, Leonard Briggs, George Skinder, Eric Roldan. (Court Reporter: Marcia Patrisso at m.patrisso@outlook.com.)(Attorneys present: For Plaintiffs: Lisa Pirozzolo, Jocelyn Keider; For Defendants: Dennis D'Angelo, Curtis Carpenter) (Lyness, Paul) (Entered: 02/06/2017)
75 Set/Reset Deadlines as to 67 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM as to Count I and II of Plaintiffs' Complaint. Responses due by 2/21/2017 (Lyness, Paul) (Entered: 02/06/2017)
76 NOTICE of Appearance by Kate R. Isley on behalf of Massachusetts Department of Correction, Sean Medeiros, Steven O'Brien (Isley, Kate) (Entered: 02/16/2017)
77 Transcript of Scheduling Conference held on February 6, 2017, before Judge George A. OToole. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Marcia Patrisso at m.patrisso@outlook.com Redaction Request due 3/14/2017. Redacted Transcript Deadline set for 3/24/2017. Release of Transcript Restriction set for 5/22/2017. (Scalfani, Deborah) (Entered: 02/21/2017)
78 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 02/21/2017)
79 Opposition re 67 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM as to Count I and II of Plaintiffs' Complaint filed by Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward. (Moskowitz, Seth) (Entered: 02/21/2017)
80 Electronic Clerk's Notes for proceedings held before Judge George A. OToole, Jr: Status Conference held on 3/6/2017, ( Status Conference set for 5/1/2017 02:00 PM in Courtroom 22 before Judge George A. OToole Jr..). (Court Reporter: Joan Daly at joanmdaly62@gmail.com.)(Attorneys present: For Plaintiffs: Jocelyn Keider, Seth Moskowitz; For Defendants: Dennis D'Angelo, Kate Isley, Curtis Carpenter) (Lyness, Paul) (Entered: 03/06/2017)
81 REDACTED Transcript of Status Conference held on March 6, 2017, before Judge George A. OToole. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Joan Daly at joanmdaly62@gmail.com Redaction Request due 3/31/2017. Redacted Transcript Deadline set for 4/10/2017. Release of Transcript Restriction set for 6/8/2017. (Scalfani, Deborah) (Additional attachment(s) added on 4/7/2017: # 1 Redacted) (Scalfani, Deborah). Modified on 4/7/2017 (Scalfani, Deborah). (Entered: 03/10/2017)
82 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 03/10/2017)
83 NOTICE of Intent to Request Redaction by Jocelyn M. Keider re 81 Transcript, (Keider, Jocelyn) (Entered: 03/21/2017)
84 Transcript Redaction Request re 81 Transcript, by attorney Jocelyn M. Keider. (Keider, Jocelyn) (Entered: 03/31/2017)
85 Joint MOTION to Redact 81 Transcript, by Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward.(Keider, Jocelyn) (Entered: 03/31/2017)

Case: 1:15-cv-40162 As of: 07/07/2019 02:00 PM EDT 21 of 30

04/07/2017 05/01/2017
05/04/2017 05/04/2017 05/04/2017 05/05/2017
05/08/2017 05/10/2017 05/12/2017 05/12/2017 05/18/2017 05/22/2017

86 Judge George A. OToole, Jr: ELECTRONIC ORDER entered granting the Joint Motion for Redaction of Electronic Transcript 85 . The transcript of the March 6, 2017 status conference shall be redacted as outlined in the parties Redaction Request. The unredacted transcript shall remain on the docket under seal. (Lyness, Paul) (Entered: 04/07/2017)
87 Electronic Clerk's Notes for proceedings held before Judge George A. OToole, Jr: Status Conference held on 5/1/2017; discovery disputed addressed mostly stemming for documents production (electronic and paper); Court will assign the Magistrate Judge for purposes of discovery, and defer on any request for extension of discovery until case returned by the Magistrate Judge; scheduling a hearing re 67 Motion to Dismiss is to be determined. (Court Reporter: Marcia Patrisso at m.patrisso@outlook.com.)(Attorneys present: Carpenter, D'Angelo, Isley, Keider, and Moskowitz) (Lovett, Jarrett) (Entered: 05/01/2017)
88 Judge George A. OToole, Jr: ELECTRONIC ORDER entered. REFERRING CASE to Magistrate Judge Judith G. Dein Referred for: Discovery (d). Further information: management of all discovery issues..(Lyness, Paul) (Entered: 05/04/2017)
89 Assented to MOTION for Leave to Appear Pro Hac Vice for admission of Philip Fornaci Filing fee: $ 100, receipt number 0101−6612442 by Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward. (Attachments: # 1 Exhibit A)(Keider, Jocelyn) (Entered: 05/04/2017)
90 NOTICE of Appearance by Jessica L. Lewis on behalf of Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward (Lewis, Jessica) (Entered: 05/04/2017)
91 Judge George A. O'Toole, Jr: ELECTRONIC ORDER entered granting 89 Motion for Leave to Appear Pro Hac Vice Added Philip Fornaci. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Halley, Taylor) (Entered: 05/05/2017)
92 ELECTRONIC NOTICE issued requesting courtesy copy of 71 Affidavit in Support of Plaintiffs' Motion to Compel and 72 Defendant's Opposition to Plaintiffs' Motion to Compel. Counsel who filed these documents is requested to submit a courtesy copy to Magistrate Judge Dein by 5/15/17. The documents must be clearly marked as a Courtesy Copy, reflect the document numbers assigned by CM/ECF, and the exhibits must be tabbed. (Dambrosio, Jolyne) (Entered: 05/08/2017)
93 ELECTRONIC NOTICE SETTING HEARING on 69 Plaintiffs' MOTION to Compel Document Production and Supplemental Interrogatory Responses from Defendant MPCH: Motion Hearing set for 5/23/2017 11:00 AM in Courtroom 15 before Magistrate Judge Judith G. Dein. (Dambrosio, Jolyne) (Entered: 05/10/2017)
94 Transcript of Status Conference held on May 1, 2017, before Judge George A. OToole. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Marcia Patrisso at m.patrisso@outlook.com Redaction Request due 6/2/2017. Redacted Transcript Deadline set for 6/12/2017. Release of Transcript Restriction set for 8/10/2017. (Scalfani, Deborah) (Entered: 05/12/2017)
95 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 05/12/2017)
96 Joint MOTION for Extension of Time to September 15, 2017 to Complete Discovery (Fact Discovery) by Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward.(Keider, Jocelyn) (Entered: 05/18/2017)
97 NOTICE of Withdrawal of Appearance by Deborah Golden (Golden, Deborah) (Entered: 05/22/2017)

Case: 1:15-cv-40162 As of: 07/07/2019 02:00 PM EDT 22 of 30

05/23/2017 05/23/2017 05/23/2017
06/28/2017
06/28/2017 08/01/2017 08/03/2017 08/14/2017 08/15/2017 08/16/2017 08/16/2017
08/31/2017

98 Magistrate Judge Judith G. Dein: ORDER entered withdrawing 69 Plaintiffs' Motion to Compel, and granting 96 Joint Motion to Extend Case Deadlines. (Dambrosio, Jolyne) (Entered: 05/23/2017)
99 ELECTRONIC NOTICE OF HEARING. Status Conference set for 9/12/2017 10:00 AM in Courtroom 15 before Magistrate Judge Judith G. Dein. See Docket No. 98 for details. (Dambrosio, Jolyne) (Entered: 05/23/2017)
100 Electronic Clerk's Notes for proceedings held before Magistrate Judge Judith G. Dein: Status Conference held on 5/23/2017.; case called; #96 Motion to compel is withdrawn; Counsel report case type, status of discovery; court adopts discovery schedule and sets next conference for 9/12/17 @ 10:00am. (Court Reporter: Digital Recording.) To order a copy of this Digital Recording, please go to http://www.mad.uscourts.gov/attorneys/Magistrate−Audio.htm . For a transcript of this proceeding, contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.(Attorneys present: Moskowitz, Carpenter, D'Angelo and Isley) (Quinn, Thomas) (Entered: 05/26/2017)
101 Transcript of Status Conference held on May 23, 2017, before Magistrate Judge Judith G. Dein. The Transcript may be purchased through Karen Aveyard at k.aveyard@comcast.net, viewed at the public terminal, or viewed through PACER after it is released. No Reporter Used. Digital Recording transcribed by Karen Aveyard. Redaction Request due 7/19/2017. Redacted Transcript Deadline set for 7/31/2017. Release of Transcript Restriction set for 9/26/2017. (Scalfani, Deborah) (Entered: 06/28/2017)
102 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 06/28/2017)
103 STATUS REPORT (Joint) by Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward. (Moskowitz, Seth) (Entered: 08/01/2017)
104 ELECTRONIC NOTICE OF HEARING. Status Conference set for 8/16/2017 10:30 AM in Courtroom 15 before Magistrate Judge Judith G. Dein. (Dambrosio, Jolyne) (Entered: 08/03/2017)
105 Assented to MOTION to Take Deposition from Incarcerated Named Plaintiffs by Katherine A. Chmiel, Paul Henderson, Carol Higgins O'Brien, Massachusetts Department of Correction, Sean Medeiros, Steven O'Brien, Kelly Ryan.(Hanson, Kirk) (Entered: 08/14/2017)
106 Magistrate Judge Judith G. Dein: ELECTRONIC ORDER entered granting 105 Defendants' Assented to Motion to Take Deposition from Incarcerated Named Plaintiffs. (Dambrosio, Jolyne) (Entered: 08/15/2017)
107 Magistrate Judge Judith G. Dein: ORDER entered. SCHEDULING ORDER: Status Conference set for 9/12/2017 10:00 AM in Courtroom 15 before Magistrate Judge Judith G. Dein. (Dambrosio, Jolyne) (Entered: 08/16/2017)
108 Electronic Clerk's Notes for proceedings held before Magistrate Judge Judith G. Dein: Status Conference held on 8/16/2017. case called; counsel report current discovery status; USMJ Dein modified the discovery schedule and set the next conference for 9/12/17 @ 10:00am. (Court Reporter: Digital Recording.) To order a copy of this Digital Recording, please go to http://www.mad.uscourts.gov/attorneys/Magistrate−Audio.htm . For a transcript of this proceeding, contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.(Attorneys present: Moskowitz, Pritchard, Keider, Isley and Carpenter) (Quinn, Thomas) (Entered: 08/18/2017)
109 MOTION to Amend 107 Scheduling Order Paragraph Two Only by Massachusetts Partnership for Correctional Healthcare, LLC.(Carpenter, Curtis) (Entered: 08/31/2017)

Case: 1:15-cv-40162 As of: 07/07/2019 02:00 PM EDT 23 of 30

09/01/2017 09/05/2017 09/07/2017 09/12/2017
09/12/2017 09/14/2017
09/14/2017 09/25/2017
09/25/2017 10/26/2017 11/14/2017 11/17/2017

110 Opposition re 109 MOTION to Amend 107 Scheduling Order Paragraph Two Only and Request for Hearing filed by Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward. (Attachments: # 1 Affidavit of Seth Moskowitz, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4)(Moskowitz, Seth) (Entered: 09/01/2017)
111 STATUS REPORT (Joint) by Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward. (Moskowitz, Seth) (Entered: 09/05/2017)
112 Magistrate Judge Judith G. Dein: ELECTRONIC ORDER entered finding as moot 109 Defendant's Motion to Amend 107 Scheduling Order Paragraph Two Only. The parties may continue to negotiate until the hearing on 9/12/17. The document production shall be discussed at the Status Conference. (Dambrosio, Jolyne) (Entered: 09/07/2017)
113 Electronic Clerk's Notes for proceedings held before Magistrate Judge Judith G. Dein: Status Conference held on 9/12/2017. case called; Counsel report current status of electronic discovery production with the deadline of 9/27/17; USMJ Dein orders Dft. to begin rolling production of outstanding discovery and sets next conference for 11/21/17 @ 10:15am. (Court Reporter: Digital Recording.) To order a copy of this Digital Recording, please go to http://www.mad.uscourts.gov/attorneys/Magistrate−Audio.htm . For a transcript of this proceeding, contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.(Attorneys present: Moskowitz, Pirozzolo,Pritchard, Isley D'Angelo, Carpenter and Flangan) (Quinn, Thomas) (Entered: 09/12/2017)
114 Magistrate Judge Judith G. Dein: ORDER entered. SCHEDULING ORDER: Status Conference set for 11/21/2017 10:15 AM in Courtroom 15 before Magistrate Judge Judith G. Dein.(Quinn, Thomas) (Quinn, Thomas). (Entered: 09/12/2017)
115 Transcript of Status Conference held on August 16, 2017, before Magistrate Judge Judith G. Dein. The Transcript may be purchased through Karen Aveyard at k.aveyard@comcast.net, viewed at the public terminal, or viewed through PACER after it is released. No Reporter Used. Digital Recording transcribed by Karen Aveyard. Redaction Request due 10/5/2017. Redacted Transcript Deadline set for 10/16/2017. Release of Transcript Restriction set for 12/13/2017. (Scalfani, Deborah) (Entered: 09/14/2017)
116 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 09/14/2017)
117 Transcript of Status Conference held on September 12, 2017, before Magistrate Judge Judith G. Dein. The Transcript may be purchased through Karen Aveyard at k.aveyard@comcast.net, viewed at the public terminal, or viewed through PACER after it is released. No Reporter Used. Digital Recording transcribed by Karen Aveyard. Redaction Request due 10/16/2017. Redacted Transcript Deadline set for 10/26/2017. Release of Transcript Restriction set for 12/26/2017. (Scalfani, Deborah) (Entered: 09/25/2017)
118 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 09/25/2017)
119 NOTICE of Appearance by John G. Bagley on behalf of Massachusetts Partnership for Correctional Healthcare, LLC (Bagley, John) (Entered: 10/26/2017)
120 STATUS REPORT Joint by Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward. (Moskowitz, Seth) (Entered: 11/14/2017)
121 NOTICE of Appearance by Rachel L. Gargiulo on behalf of Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer

Case: 1:15-cv-40162 As of: 07/07/2019 02:00 PM EDT 24 of 30

11/20/2017 11/21/2017 11/21/2017
11/27/2017 11/29/2017 11/30/2017
12/11/2017
12/11/2017 12/11/2017 01/03/2018 01/08/2018 01/08/2018

Ward (Gargiulo, Rachel) (Entered: 11/17/2017)
122 ELECTRONIC NOTICE RESETTING HEARING (LOCATION ONLY): The Status Conference scheduled for 11/21/2017 at 10:15AM before Magistrate Judge Judith G. Dein will be held in Courtroom 8 on the 3rd Floor. (Dambrosio, Jolyne) (Entered: 11/20/2017)
123 Magistrate Judge Judith G. Dein: ORDER entered. SCHEDULING ORDER: Status Conference set for 1/8/2018 10:15 AM in Courtroom 15 before Magistrate Judge Judith G. Dein. (Dambrosio, Jolyne) (Entered: 11/21/2017)
124 Electronic Clerk's Notes for proceedings held before Magistrate Judge Judith G. Dein: Status Conference held on 11/21/2017. case called; counsel report current discovery status and seek to extend fact discovery date; USMJ Dein set next conference for 1/8/18 @ 10:15am. (Court Reporter: Digital Recording.) To order a copy of this Digital Recording, please go to http://www.mad.uscourts.gov/attorneys/Magistrate−Audio.htm . For a transcript of this proceeding, contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov. (Quinn, Thomas) (Entered: 11/21/2017)
125 NOTICE of Appearance by William J. Durkin on behalf of Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward (Durkin, William) (Entered: 11/27/2017)
126 Assented to MOTION for Leave to Appear Pro Hac Vice for admission of Katherine V. Mackey Filing fee: $ 100, receipt number 0101−6905019 by Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward. (Attachments: # 1 Exhibit Certification of Katherine V. Mackey)(Moskowitz, Seth) (Entered: 11/29/2017)
127 Judge George A. O'Toole, Jr: ELECTRONIC ORDER entered granting 126 Motion for Leave to Appear Pro Hac Vice Added Katherine V. Mackey. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Halley, Taylor) (Entered: 11/30/2017)
128 Transcript of Status Conference held on November 21, 2017, before Magistrate Judge Judith G. Dein. No Reporter Used. Digital Recording transcribed by Karen Aveyard. The Transcript may be purchased through Karen Aveyard at k.aveyard@comcast.net, viewed at the public terminal, or viewed through PACER after it is released. Redaction Request due 1/2/2018. Redacted Transcript Deadline set for 1/11/2018. Release of Transcript Restriction set for 3/12/2018. (Scalfani, Deborah) (Entered: 12/11/2017)
129 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 12/11/2017)
130 NOTICE of Appearance by Tory A. Weigand on behalf of Massachusetts Partnership for Correctional Healthcare, LLC (Weigand, Tory) (Entered: 12/11/2017)
131 STATUS REPORT (Joint) by Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward. (Moskowitz, Seth) (Entered: 01/03/2018)
132 Magistrate Judge Judith G. Dein: ORDER entered. SCHEDULING ORDER: Status Conference set for 3/15/2018 10:00 AM in Courtroom 15 before Magistrate Judge Judith G. Dein. (Dambrosio, Jolyne) (Entered: 01/08/2018)
133 Electronic Clerk's Notes for proceedings held before Magistrate Judge Judith G. Dein: Status Conference held on 1/8/2018. case called; counsel report current discovery status and seek to extend the discovery schedule; USMJ Dein adopts the proposed schedule and sets next conference for 3/15/18 @ 10:00am. (Court Reporter: Digital Recording.) To order a copy of this Digital Recording, please go to http://www.mad.uscourts.gov/attorneys/Magistrate−Audio.htm . For a transcript of this

Case: 1:15-cv-40162 As of: 07/07/2019 02:00 PM EDT 25 of 30

01/18/2018
01/18/2018 01/22/2018 02/09/2018 02/22/2018 02/26/2018 03/12/2018 03/12/2018 03/14/2018 03/15/2018
03/19/2018
03/19/2018

proceeding, contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov. (Quinn, Thomas) (Entered: 01/09/2018)
134 Transcript of Status Conference held on January 8, 2018, before Magistrate Judge Judith G. Dein. The Transcript may be purchased through Karen Aveyard at k.aveyard@comcast.net, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: No Reporter Used. Redaction Request due 2/8/2018. Redacted Transcript Deadline set for 2/20/2018. Release of Transcript Restriction set for 4/18/2018. (Scalfani, Deborah) (Entered: 01/18/2018)
135 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 01/18/2018)
136 NOTICE of Appearance by Lindsay Kosan on behalf of Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward (Kosan, Lindsay) (Entered: 01/22/2018)
137 NOTICE of Withdrawal of Appearance by Curtis L.S. Carpenter (Carpenter, Curtis) (Entered: 02/09/2018)
138 Joint MOTION for Extension of Time to March 23, 2018 to complete Fact Discovery (and other deadlines) by Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward.(Moskowitz, Seth) (Entered: 02/22/2018)
139 Magistrate Judge Judith G. Dein: ELECTRONIC ORDER entered granting 138 Joint Motion for Extension of Deadlines. (Dambrosio, Jolyne) (Entered: 02/26/2018)
140 NOTICE of Appearance by John P. Graceffa on behalf of Massachusetts Partnership for Correctional Healthcare, LLC (Graceffa, John) (Entered: 03/12/2018)
141 STATUS REPORT (Joint) by Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward. (Moskowitz, Seth) (Entered: 03/12/2018)
142 ELECTRONIC NOTICE of Hearing. Status Conference set for 3/15/2018 10:00 AM in Courtroom 15 before Magistrate Judge Judith G. Dein. (Quinn, Thomas) (Entered: 03/14/2018)
143 Electronic Clerk's Notes for proceedings held before Magistrate Judge Judith G. Dein: Status Conference held on 3/15/2018. case called; counsel report current discovery status and seek referral to ADR in late April−May; counsel shall contact deputy clerk Quinn with specific mediation requests; If a settlement is not reached, the parties shall file a joint proposed schedule within one week following completion of the mediation. (Court Reporter: Digital Recording.) To order a copy of this Digital Recording, please go to http://www.mad.uscourts.gov/attorneys/Magistrate−Audio.htm . For a transcript of this proceeding, contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov. (Quinn, Thomas) (Entered: 03/15/2018)
144 Transcript of Status Conference held on March 15, 2018, before Magistrate Judge Judith G. Dein. The Transcript may be purchased through Karen Aveyard at k.aveyard@comcast.net, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: No Reporter Used. Audio Recording transcribed by Karen Aveyard. Redaction Request due 4/9/2018. Redacted Transcript Deadline set for 4/19/2018. Release of Transcript Restriction set for 6/18/2018. (Scalfani, Deborah) (Entered: 03/19/2018)
145 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 03/19/2018)

Case: 1:15-cv-40162 As of: 07/07/2019 02:00 PM EDT 26 of 30

03/26/2018 03/26/2018 03/26/2018 03/26/2018 03/27/2018 03/27/2018 03/28/2018 03/30/2018
04/03/2018 04/04/2018 05/08/2018
05/11/2018 05/14/2018 05/15/2018

146 NOTICE of Appearance by Victor J. Koufman on behalf of Massachusetts Partnership for Correctional Healthcare, LLC (Koufman, Victor) (Entered: 03/26/2018)
147 NOTICE of Appearance by George J. Puddister on behalf of Massachusetts Partnership for Correctional Healthcare, LLC (Puddister, George) (Entered: 03/26/2018)
148 NOTICE of Withdrawal of Appearance by Tory A. Weigand for defendant, Massachusetts Partnership for Correctional Healthcare, LLC (Weigand, Tory) (Entered: 03/26/2018)
149 NOTICE of Appearance by Melissa J. Garand on behalf of Massachusetts Partnership for Correctional Healthcare, LLC (Garand, Melissa) (Entered: 03/26/2018)
150 NOTICE of Withdrawal of Appearance by William J. Flanagan (Flanagan, William) (Entered: 03/27/2018)
151 NOTICE of Withdrawal of Appearance by John P. Graceffa (Graceffa, John) (Entered: 03/27/2018)
152 NOTICE of Withdrawal of Appearance by John G. Bagley (Bagley, John) (Entered: 03/28/2018)
153 Judge George A. OToole, Jr: ELECTRONIC ORDER entered. After review of the parties' submissions, the Court determines that the issues presented by the motion to dismiss should be resolved on a more developed factual record. The Motion to Dismiss as to Counts I and II (dkt. no. 67) is therefore DENIED without prejudice. (Lyness, Paul) (Entered: 04/02/2018)
154 Assented to MOTION for Extension of Time of Expert Discovery Deadlines by Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward.(Moskowitz, Seth) (Entered: 04/03/2018)
155 Magistrate Judge Judith G. Dein: ELECTRONIC ORDER entered granting 154 Plaintiffs' Assented to Motion for Extension of Expert Discovery Deadlines. (Dambrosio, Jolyne) (Entered: 04/04/2018)
156 ELECTRONIC ORDER REFERRING CASE TO ADR PROGRAM. Magistrate Judge Dein: After consultation with counsel, I find this matter appropriate for ADR and, accordingly, refer this case for mediation. (Dambrosio, Jolyne) (Entered: 05/08/2018)
157 Notice of assignment to ADR Provider. Judge M. Page Kelley appointed.(Garvin, Brendan) (Entered: 05/11/2018)
158 Assented to MOTION for Extension of Time to June 8, 2018 to serve Defendants expert reports (and extend other deadlines) by Massachusetts Department of Correction.(D'Angelo, Dennis) (Entered: 05/14/2018)
159 ELECTRONIC NOTICE of Hearing. Alternative Dispute Resolution Hearing set for 6/22/2018 09:30 AM in Courtroom 24 before Magistrate Judge M. Page Kelley. Telephone Conference re mediation set for 6/18/2018 02:00 PM in Courtroom 24 before Magistrate Judge M. Page Kelley. Counsel wishing to be heard may participate by calling 1−866−434−5269 and entering Access Code 7576465. Counsel are advised to dial in to the teleconference number five minutes before the hearing. INSTRUCTIONS − Counsel and principals are directed to be present and to have full settlement authority. They should be prepared to stay until 6:00 p.m. A brief mediation memorandum addressing both the merits of the case and the filing party's settlement position should be submitted to patricia_macdougall@mad.uscourts.gov no later than June 14, 2018 (preferably via email to patricia_macdougall@mad.uscourts.gov or to her attention via hand delivery to the Chambers of Mag. Judge Kelley, Suite 7−410). The mediation memorandum should be marked "Confidential − Not for Docketing" and is not to be served upon opposing parties. Counsel are asked to accommodate this date. In the event that you believe the case is not ripe for mediation at this time, or if the date poses a serious conflict, please confer with opposing counsel and email Kellyann Moore (kellyann_moore@mad.uscourts.gov) and request another date. Please email Patricia MacDougall with any other mediation related issues(Moore, Kellyann)(Moore, Kellyann) (Entered: 05/15/2018)

Case: 1:15-cv-40162 As of: 07/07/2019 02:00 PM EDT 27 of 30

05/15/2018 06/05/2018 06/07/2018 06/14/2018 06/15/2018 06/18/2018 06/18/2018
06/22/2018 06/26/2018 06/27/2018 06/28/2018 07/26/2018

160 Magistrate Judge Judith G. Dein: ELECTRONIC ORDER entered granting 158 Defendants' Assented to Motion for Extension of Deadlines. Expert discovery completed by 8/3/18; Summary Judgment & Daubert Motions due 10/22/18; Oppositions due 10/22/18; Replies due 11/5/18. (Dambrosio, Jolyne) (Entered: 05/15/2018)
161 Assented to MOTION for Extension of Time to to June 12, 2018 to to serve Defendants' expert reports (and to extend another expert discovery deadline) by Katherine A. Chmiel, Paul Henderson, Carol Higgins O'Brien, Massachusetts Department of Correction, Sean Medeiros, Steven O'Brien, Kelly Ryan.(Hanson, Kirk) (Entered: 06/05/2018)
162 Magistrate Judge Judith G. Dein: ELECTRONIC ORDER entered granting 161 Defendants' Assented to Motion to Extend Deadlines for Serving Expert Reports. All other deadlines remain the same. (Dambrosio, Jolyne) (Entered: 06/07/2018)
163 Emergency MOTION for Extension of Time to June 20, 2018 to File Mediation Memorandum (Assented to) by Massachusetts Partnership for Correctional Healthcare, LLC.(Koufman, Victor) (Entered: 06/14/2018)
164 Magistrate Judge M. Page Kelley: ELECTRONIC ORDER entered granting 163 Assented To Emergency Motion Motion. Defendant Massachusetts Partnership for Correctional Healthcare, LLC shall file its confidential mediation memorandum on or before the close of business on Wednesday, June 20, 2018. (MacDougall, Patricia) (Entered: 06/15/2018)
165 NOTICE of Appearance by Alexandra B. Lavin on behalf of Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward (Lavin, Alexandra) (Entered: 06/18/2018)
166 Electronic Clerk's Notes for proceedings held before Magistrate Judge M. Page Kelley: Telephone Conference held on 6/18/2018. Counsel and the Court go over the upcoming mediation. Mediation set for 6/22/18 at 9:30AM in courtroom 24 in front of Magistrate Judge Kelley. (Court Reporter: SEALED Digital Recording.) To order a copy of this Digital Recording, please go to http://www.mad.uscourts.gov/attorneys/Magistrate−Audio.htm . For a transcript of this proceeding, contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.(Attorneys present: Lisa J. Pirozzolo, Alexandra B. Lavin, Lindsay Kosan, Rachel L. Gargiulo, Tatum A. Pritchard and James Pingeon for plaintiffs and Anna Rachel Dray−Siegel, Kirk G. Hanson for defendants and Melissa J. Garand and Victor J. Koufman for Massachusetts Partnership for Correctional Healthcare, LLC) (Belmont, Kellyann) (Entered: 06/18/2018)
168 ELECTRONIC NOTICE of Hearing. Status Conference re mediation set for 7/26/2018 11:00 AM in Courtroom 24 before Magistrate Judge M. Page Kelley. Counsel may appear by phone. Counsel wishing to be heard may participate by calling 1−866−434−5269 and entering Access Code 7576465.(Belmont, Kellyann) (Entered: 06/22/2018)
169 Joint MOTION to Stay by Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward.(Kosan, Lindsay) (Entered: 06/26/2018)
170 STIPULATION of Dismissal by Massachusetts Partnership for Correctional Healthcare, LLC. (Garand, Melissa) (Entered: 06/27/2018)
171 Judge George A. O'Toole, Jr: ELECTRONIC ORDER entered granting 169 Motion to Stay (Halley, Taylor) (Entered: 06/28/2018)
172 Electronic Clerk's Notes for proceedings held before Magistrate Judge M. Page Kelley: Status Conference via telephone held on 7/26/2018. Parties discuss progress since mediation. The Court sets a further Telephone Conference for 8/30/2018 11:45 AM in Courtroom 24 before Magistrate Judge M. Page Kelley. Counsel wishing to be heard may participate by calling 1−866−434−5269 and entering Access Code 7576465. (Court Reporter: Sealed Digital Recording.) You must seek leave of court to order transcript or recording. (Attorneys present: Various) (Belmont, Kellyann) (Entered: 07/26/2018)

Case: 1:15-cv-40162 As of: 07/07/2019 02:00 PM EDT 28 of 30

08/15/2018 08/30/2018
09/04/2018 09/06/2018 09/07/2018 09/07/2018 09/07/2018 10/02/2018
10/25/2018
10/26/2018 11/01/2018 11/27/2018 11/27/2018

173 NOTICE of Withdrawal of Appearance by Rachel L. Gargiulo (Gargiulo, Rachel) (Entered: 08/15/2018)
174 Electronic Clerk's Notes for proceedings held before Magistrate Judge M. Page Kelley: Telephone Conference held on 8/30/2018. Parties discuss progress since the last telephone conference. Defendants will give preliminary results to plaintiffs by 9/17 and the parties will have a conference the week of 9/24. The Court sets a further Telephone Conference for 10/2/2018 03:30 PM in Courtroom 24 before Magistrate Judge M. Page Kelley.Counsel wishing to be heard may participate by calling 1−866−434−5269 and entering Access Code 7576465. (Court Reporter: Sealed Digital Recording.) You must seek leave of court to order transcript or recording. (Attorneys present: Various) (Belmont, Kellyann) (Entered: 08/30/2018)
175 NOTICE of Withdrawal of Appearance by Seth Moskowitz (Moskowitz, Seth) (Entered: 09/04/2018)
176 Joint MOTION to Stay All Discovery and Court Deadlines Until 10/31/2018 by Katherine A. Chmiel, Paul Henderson, Carol Higgins O'Brien, Massachusetts Department of Correction, Sean Medeiros, Steven O'Brien, Kelly Ryan.(Hanson, Kirk) (Entered: 09/06/2018)
177 Judge George A. OToole, Jr: ELECTRONIC ORDER entered granting 176 Motion to Stay (Lyness, Paul) (Entered: 09/07/2018)
178 Set/Reset Deadlines: Discovery to be completed by 10/31/2018 (Lyness, Paul) (Entered: 09/07/2018)
179 Notice of correction to docket made by Court staff. Correction: Entry 178 corrected because: Discovery is stayed until 10/31/18 and not be concluded by 10/31/18. (Lyness, Paul) (Entered: 09/07/2018)
180 Electronic Clerk's Notes for proceedings held before Magistrate Judge M. Page Kelley: Telephone Conference re ongoing mediation held on 10/2/2018. Counsel inform the Court of progress. Court sets a further Telephone Conference for 10/25/2018 11:30 AM in Courtroom 24 before Magistrate Judge M. Page Kelley. Counsel wishing to be heard may participate by calling 1−866−434−5269 and entering Access Code 7576465. (Court Reporter: Sealed Digital Recording.) (Court Reporter: Digital Recording.)You must seek leave of court to order transcript or recording.(Attorneys present: Various) (Belmont, Kellyann) (Entered: 10/02/2018)
181 Electronic Clerk's Notes for proceedings held before Magistrate Judge M. Page Kelley: Telephone Conference re ongoing mediation held on 10/25/2018. Counsel informs the Court of the status of the progress. Court sets a further Telephone Conference for 11/27/2018 02:00 PM in Courtroom 24 before Magistrate Judge M. Page Kelley. Counsel wishing to be heard may participate by calling 1−866−434−5269 and entering Access Code 7576465. (Court Reporter: Digital Recording.)You must seek leave of court to order transcript or recording.(Attorneys present: Various) (Belmont, Kellyann) (Entered: 10/25/2018)
182 Joint MOTION to Stay (Joint Motion to Extend Stay) by Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward.(Kosan, Lindsay) (Entered: 10/26/2018)
183 Judge George A. O'Toole, Jr: ELECTRONIC ORDER entered granting 182 MOTION to Stay (Joint Motion to Extend Stay) (Halley, Taylor) (Entered: 11/01/2018)
184 NOTICE of Withdrawal of Appearance by William J. Durkin (Durkin, William) (Entered: 11/27/2018)
185 Electronic Clerk's Notes for proceedings held before Magistrate Judge M. Page Kelley: Telephone Conference re ongoing mediation held on 11/27/2018. Counsel inform the Court of their progress. Defendants will respond to plaintiff's 11/21 letters by 12/14. Court will hold a further in person meeting 1/7 and or 1/10 and counsel will inform the Court what dates work for the all the parties and who will attend. (Court Reporter: Sealed Digital Recording.)You must seek leave of court to order transcript or recording. (Attorneys present: Various) (Belmont, Kellyann) (Entered: 11/28/2018)

Case: 1:15-cv-40162 As of: 07/07/2019 02:00 PM EDT 29 of 30

12/20/2018 01/31/2019 03/15/2019 03/15/2019 03/21/2019 04/19/2019 04/23/2019 04/23/2019
04/25/2019 05/17/2019 05/24/2019 05/28/2019
06/20/2019 06/21/2019 06/21/2019 06/21/2019

186 ELECTRONIC NOTICE of Hearing.Further Alternative Dispute Resolution Hearing set for 1/7/2019 09:30 AM in Courtroom 24 before Magistrate Judge M. Page Kelley. Counsel to inform Court who will attend. (Belmont, Kellyann) (Entered: 12/20/2018)
188 Joint MOTION to Extend Stay by Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward.(Kosan, Lindsay) (Entered: 01/31/2019)
189 Judge George A. O'Toole, Jr: Electronic Order entered GRANTING 188 Joint Motion to Extend Stay to the extent it requests a stay of discovery and other case deadlines through March 15, 2019. The Clerk shall set a status conference before the District Judge for April 23, 2019 at 3:00 p.m. (Halley, Taylor) (Entered: 03/15/2019)
190 Set Hearings: Status Conference set for 4/23/2019 03:00 PM in Courtroom 22 before Judge George A. O'Toole Jr. (Halley, Taylor) (Entered: 03/15/2019)
191 ELECTRONIC NOTICE of Hearing. Further Alternative Dispute Resolution Hearing set for 4/19/2019 10:00 AM in Courtroom 24 before Magistrate Judge M. Page Kelley. (MacDougall, Patricia) (Entered: 03/21/2019)
193 REPORT of Alternative Dispute Resolution Provider Magistrate Judge M. Page Kelley: Mediation is ongoing. (Belmont, Kellyann) (Entered: 04/19/2019)
194 NOTICE of Appearance by Timothy M. Pomarole on behalf of Katherine A. Chmiel, Paul Henderson, Carol Higgins O'Brien, Massachusetts Department of Correction, Sean Medeiros, Steven O'Brien, Kelly Ryan (Pomarole, Timothy) (Entered: 04/23/2019)
195 Electronic Clerk's Notes for proceedings held before Judge George A. OToole, Jr: Status Conference held on 4/23/2019. Counsel to file a brief with amended deadlines. ( Status Conference set for 9/11/2019 02:00 PM in Courtroom 22 before Judge George A. OToole Jr..). (Court Reporter: Kathleen Silva at kathysilva@verizon.net.)(Attorneys present: For Plaintiffs: Lisa Pirozzolo, Lindsay Kosan Tatum Pritchard. For Defendants: Timothy Pomarole, Kirk Hanson) (Lyness, Paul) (Entered: 04/23/2019)
196 Joint MOTION for Order to Grant the Parties' Request for Entry of Joint Proposed Schedule by Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward. (Attachments: # 1 Text of Proposed Order)(Kosan, Lindsay) (Entered: 04/25/2019)
197 NOTICE of Appearance by James R. Pingeon on behalf of Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward (Pingeon, James) (Entered: 05/17/2019)
198 Joint MOTION for Extension of Time to May 28, 2019 to to File Settlement Documentation and Related Motions by Katherine A. Chmiel, Paul Henderson, Carol Higgins O'Brien, Massachusetts Department of Correction, Sean Medeiros, Steven O'Brien, Kelly Ryan.(Hanson, Kirk) (Entered: 05/24/2019)
199 MOTION for Settlement −Preliminary Approval, MOTION to Certify Class for Plaintiffs, MOTION for Hearing −Fairness by Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward. (Attachments: # 1 Exhibit 1 Joint Class Certification Proposal, # 2 Exhibit 2 Settlement Agreement, # 3 Exhibit 3 Proposed Notice, # 4 Supplement Memorandum in Support of Motion)(Pirozzolo, Lisa) (Entered: 05/28/2019)
200 Assented to MOTION for Extension of Time to Extend Case Deadlines by Leonard Briggs, Rolando Jimenez, Louis Markham, Francis McGowan, Eric Roldan, George Skinder, Jennifer Ward.(Kosan, Lindsay) (Entered: 06/20/2019)
201 NOTICE of Withdrawal of Appearance by Kirk G. Hanson (Hanson, Kirk) (Entered: 06/21/2019)
202 NOTICE of Withdrawal of Appearance by Dennis N. D'Angelo (D'Angelo, Dennis) (Entered: 06/21/2019)
203 NOTICE of Withdrawal of Appearance by Kate R. Isley (Isley, Kate) (Entered: 06/21/2019)

Case: 1:15-cv-40162 As of: 07/07/2019 02:00 PM EDT 30 of 30

06/27/2019 06/28/2019
06/28/2019

204 NOTICE of Withdrawal of Appearance by Philip Fornaci (Fornaci, Philip) (Entered: 06/27/2019)
205 Judge George A. OToole, Jr: ELECTRONIC ORDER entered GRANTING 196 Joint Motion for Order to Grant the Parties Request for Entry of Joint Proposed Schedule, as modified by 200 Assented to Motion for Extension of Time to Extend Case Deadlines; GRANTING nunc pro tunc 198 Joint Motion for Extension of Time to May 28, 2019 to File Settlement Documentation and Related Motions. (McDonagh, Christina) (Entered: 06/28/2019)
206 Judge George A. OToole, Jr: ORDER entered. SCHEDULING ORDER entered: Plaintiffs will conduct any deposition(s) based on Defendants supplemental production by July 22, 2019; Plaintiffs shall file any supplemental expert report(s) and any reply expert report(s) by August 2, 2019; Defendants shall file any rebuttal expert report(s) to Plaintiffs supplemental expert report(s) by September 9, 2019; expert discovery shall be completed by October 21, 2019; the parties shall file any motions for summary judgment and any Daubert motions by December 9, 2019, any oppositions to which shall be filed by January 6, 2020, with any replies filed by January 20, 2020.(McDonagh, Christina) (Entered: 06/28/2019)

 
 Case 1:15-cv-40162-GAO Document 1 Filed 11/24/15 Page 1 of 49

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

LEONARD BRIGGS, GEORGE SKINDER, LOUIS )

MARKHAM, FRANCIS MCGOWAN, ERIC

)

ROLDAN, ROLANDO S. JIMENEZ, AND

)

JENNIFER WARD, on behalf of themselves and all )

others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

MASSACHUSETTS DEPARTMENT OF

)

CORRECTION; CAROL HIGGINS O’BRIEN,

)

COMMISSIONER OF THE MASSACHUSETTS )

DEPARTMENT OF CORRECTION; KATHERINE )

CHMIEL, DEPUTY COMMISSIONER OF

)

CLASSIFICATION, PROGRAMS, AND REENTRY )

DIVISION; KELLY RYAN SUPERINTENDENT )

OF MCI-SHIRLEY; SEAN MEDEIROS,

)

SUPERINTENDENT OF MCI-NORFOLK;

)

STEVEN O’BRIEN, SUPERINTENDENT OF THE )

MASSACHUSETTS TREATMENT CENTER;

)

PAUL HENDERSON, ACTING

)

SUPERINTENDENT OF MCI-FRAMINGHAM; )

AND MASSACHUSETTS PARTNERSHIP FOR )

CORRECTIONAL HEALTHCARE,

)

)

Defendants.

)

C.A. No. __________________

CLASS ACTION COMPLAINT I. INTRODUCTION 1. This is a class action lawsuit based on the willful and deliberate refusal of the Defendants to comply with federal laws protecting the rights of Plaintiffs and similarly situated individuals who are deaf or hard of hearing in the custody of the Massachusetts Department of Correction (“DOC”).

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2. The Defendants named in this case have failed to comply with federal law, including the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq., the Rehabilitation Act, 29 U.S.C. § 794 et seq., the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc-1 et seq., and the Constitution of the United States. 3. Through their policies and practices, Defendants discriminate against deaf and hard of hearing individuals in DOC custody. They have done this by denying deaf and hard of hearing individuals adequate, equally effective, and reliable means of communication, leaving Plaintiffs isolated and unable to communicate with others, including their loved ones outside of prison. Defendants’ failure to provide adequate access to auxiliary aids and services necessary to accommodate deaf and hard of hearing individuals in their custody deprives Plaintiffs of the ability to take advantage of educational, vocational, and rehabilitative programming, to receive equal access to medical and mental health services, and to participate in religious services. The DOC Defendants also fail to provide deaf and hard of hearing individuals in the DOC with adequate notification of important daily events and safety announcements, and to provide adequate interpretive services at administrative meetings and hearings, including disciplinary hearings, thus depriving them of the ability to adequately represent themselves and defend against undue punishment. In some cases, Plaintiffs have been disciplined due to their inability to hear instructions or announcements. In addition, the DOC Defendants discriminate against deaf and hard of hearing prisoners in work assignments. 4. As a result of Defendants’ discriminatory policies and practices, deaf and hard of hearing individuals in the Massachusetts DOC are:
(A) Prevented from fully and effectively communicating by telephone or other telecommunications means with family, friends, attorneys, and other advocates outside of prison;
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(B) Denied full access to educational, vocational, and rehabilitative programs and services for which they could receive good conduct deductions to reduce their overall incarceration time, improve their prospects for gaining parole release, and improve their prospects for successfully transitioning back into the community upon their release;
(C) Unable to fully access religious services; (D) Unable to fully access necessary and adequate medical treatment; (E) Excluded from full participation in medical, mental health, and counseling services and programs offered by the DOC and medical contractor Massachusetts Partnership for Correctional Healthcare (“MPCH”); (F) Unable to hear and understand safety announcements, fire alarms, and announcements for meals, prison counts, visits, appointments, and other important daily activities; (G) Denied the ability to meaningfully participate and represent themselves in disciplinary and other administrative proceedings and to defend against punishment resulting from their failure to hear instructions or announcements; and (H) Discriminated against in work assignments. 5. Plaintiffs seek declaratory and injunctive relief on their own behalf and on behalf of the class of all deaf and hard of hearing individuals in DOC custody for the harms they have suffered and continue to suffer as a result of the Defendants’ discrimination. II. JURISDICTION & VENUE 6. This Court has jurisdiction over Plaintiffs’ federal law claims pursuant to 28 U.S.C. §§ 1331, 1343, and 1367.
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7. Plaintiffs are entitled to declaratory and other relief deemed necessary and proper pursuant to 28 U.S.C. §§ 2201 and 2202. 8. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b), as a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in this District. III. THE PARTIES
A. Plaintiffs 9. Named Plaintiffs Leonard Briggs, George Skinder, Rolando S. Jimenez, Louis Markham, Francis McGowan, Eric Roldan, and Jennifer Ward (collectively, “Plaintiffs”) are men and women with a hearing disability who are currently under DOC custody and control. 10. Mr. Leonard Briggs has been profoundly deaf since birth; he is eighty years old. Plaintiff Briggs communicates via American Sign Language (“ASL”) and British Sign Language. English is his secondary language. He is currently incarcerated at MCI-Shirley, located at 1 Harvard Road, Shirley, MA 01464. 11. Mr. George Skinder has been diagnosed with profound hearing loss since he was three years old and communicates primarily via ASL. English is his secondary language. He is twenty-seven years old and requires bilateral hearing aids to enhance his hearing, though they cannot correct his hearing disability. He is currently incarcerated at MCI-Norfolk, located at 2 Clark Street, Norfolk, MA 02056. 12. Mr. Rolando S. Jimenez developed profound hearing loss in DOC custody and requires bilateral hearing aids. Plaintiff Jimenez is fifty-six years old. His primary language is Spanish; English is his secondary language. He is currently incarcerated at MCI-Norfolk, located at 2 Clark Street, Norfolk, MA 02056.
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13. Mr. Louis Markham was born deaf; he is sixty-three years old. He communicates via ASL. He is currently incarcerated at the Massachusetts Treatment Center located at Thirty Administration Road, Bridgewater, MA 02324. 14. Mr. Francis McGowan has been profoundly deaf since birth and communicates primarily via ASL. English is his secondary language. He is fifty-eight years old and is currently incarcerated at the Massachusetts Treatment Center located at Thirty Administration Road, Bridgewater, MA 02324. 15. Mr. Eric Roldan has been deaf since birth. Plaintiff Roldan requires bilateral hearing aids to enhance his ability to hear sounds and communicates via ASL. He is twenty-nine years old and is currently incarcerated at the Massachusetts Treatment Center located at Thirty Administration Road, Bridgewater, MA 02324. 16. Ms. Jennifer Ward has severe hearing loss and requires bilateral hearing aids. Her hearing disability is degenerative and could be corrected by surgical intervention. Plaintiff Ward communicates in English. She is forty-five years old and is currently incarcerated at MCIFramingham located at 99 Loring Avenue, Framingham, MA 01701.
B. Defendants 17. Defendant DOC is an executive department of the Commonwealth of Massachusetts responsible for the operation of the state prison system and for the care and custody of prisoners held in its eighteen facilities. It is a “public entity” within the meaning of the ADA, see 42 U.S.C. § 12131(1), and a recipient of federal funding within the meaning of the Rehabilitation Act, see 29 U.S.C. § 794. 18. Defendant Carol Higgins O’Brien is the Commissioner of the DOC. By statute, Defendant Higgins O’Brien’s responsibilities include the establishment and enforcement of standards relating to the care, custody, and safety of all persons confined in state correctional
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facilities. See M.G.L. c. 124, § 1. She is responsible for the administration of all state correctional facilities in accordance with federal and state law. Defendant Higgins O’Brien maintains an office at DOC Central Headquarters, 50 Maple Street, Suite 3, Milford, Massachusetts 01757. She is sued in her official capacity. 19. Defendant Katherine Chmiel is the Deputy Commissioner of Classification, Programs, and Reentry. Defendant Chmiel is responsible for the following divisions of the DOC: Health Services Division, Division of Inmate Training & Education, Division of Inmate Risk & Placement, Classification Division, Program Services Division, Victim Services, and Reentry Services Division. In this capacity, Defendant Chmiel oversees the ADA Coordinator for the DOC, who is a staff member in the Health Services Division, the DOC division responsible for ensuring the delivery of quality health care to all DOC prisoners. Defendant Chmiel maintains an office at DOC Central Headquarters, 50 Maple Street, Suite 3, Milford, Massachusetts 01757. She is sued in her official capacity. 20. Defendant Kelly Ryan is the Superintendent of MCI-Shirley. According to M.G.L. c. 125, § 14 and 103 DOC 101.01, the Superintendent of a prison is responsible for the custody and control of all prisoners and for the overall functioning of the institution. Defendant Ryan maintains an office at MCI-Shirley, 1 Harvard Rd, Shirley, Massachusetts 01464. She is sued in her official capacity. 21. Defendant Paul Henderson is the Acting Superintendent of MCI-Framingham. According to M.G.L. c. 125, § 14 and 103 DOC 101.01, the Superintendent of a prison is responsible for the custody and control of all prisoners and for the overall functioning of the institution. Defendant Henderson maintains an office at MCI-Framingham, 99 Loring Drive, P.O. Box 9007, Framingham, Massachusetts 01701. He is sued in his official capacity.
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22. Defendant Steven O’Brien is the Superintendent of the Massachusetts Treatment Center, which is located within the Bridgewater Correctional Complex. According to M.G.L. c. 125, § 14 and 103 DOC 101.01, the Superintendent of a prison is responsible for the custody and control of all prisoners and for the overall functioning of the institution. Defendant O’Brien maintains an office at the Massachusetts Treatment Center, 30 Administration Road, Bridgewater, Massachusetts 02324. He is sued in his official capacity. 23. Defendant Sean Medeiros is the Superintendent of MCI-Norfolk. According to M.G.L. c. 125, § 14 and 103 DOC 101.01, the Superintendent of a prison is responsible for the custody and control of all prisoners and for the overall functioning of the institution. Defendant Medeiros maintains an office at MCI-Norfolk, 2 Clark Street, Norfolk, Massachusetts 02056. He is sued in his official capacity. 24. Massachusetts Partnership for Correctional Healthcare, LLC is a Massachusetts entity contracted by the DOC to provide health services to the state prison population, beginning on July 1, 2013 and continuing to the present date. MPCH is owned by MHM Correctional Services, Inc. and the Centene Corporation, via their jointly held Missouri entity, Centurion Managed Care, LCC. Defendant MPCH has a business office at 110 Turnpike Road, Suite 308, Westborough, Massachusetts 01581. IV. STATEMENT OF FACTS 25. For more than ten years, deaf and hard of hearing prisoners, including Plaintiffs, have been seeking accommodations from the DOC. These prisoners’ continuing efforts, assisted by advocates and attorneys at Prisoners’ Legal Services (“PLS”), have included direct correspondence with DOC administrators, grievances, and Requests for Reasonable Accommodation of Special Needs filed per DOC policy (103 DOC 207).
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26. For example, on May 2, 2012, Defendant Chmiel attended a meeting on behalf of the DOC with advocates and organizations from across Massachusetts that serve the deaf and hard of hearing community concerning prison access issues. During this meeting, these advocates requested that DOC provide deaf and hard of hearing prisoners with access to video phones and other adaptive communication equipment, accessible programming and, in turn, the opportunity for deaf and hard of hearing prisoners to earn good conduct deductions from their sentences. 27. In November 2014, attorneys at PLS raised the communication needs of Plaintiffs with the DOC through written correspondence with the Superintendents of MCI-Shirley, the Massachusetts Treatment Center, and the Associate General Counsel at the DOC’s Legal Division. PLS attorneys also sought to attend meetings scheduled by the DOC involving several of the Plaintiffs, DOC facility administrators, and the Massachusetts Commission for the Deaf & Hard of Hearing. The DOC officials denied PLS’ requests. Following the meetings between December 2014 and March 2015, the Commission recommended accommodations for each of these Plaintiffs; the Defendants have failed to follow these recommendations. 28. In March 2015, PLS sent a letter to the Secretary of the Massachusetts Executive Office of Public Safety and Security, Defendant Higgins-O’Brien, and the MPCH Medical Director detailing the discrimination that deaf and hard of hearing prisoners face in DOC custody and the failure of the DOC and MPCH to provide full and equal access to communication, programs, services, activities, and notifications. It also specified actions necessary to remedy the disparate and unlawful treatment of deaf and hard of hearing prisoners by the DOC and MPCH. The letter was copied to the Massachusetts Attorney General, DOC General Counsel, counsel for MPCH, and the Commissioner of the Massachusetts Commission for the Deaf & Hard of Hearing. The
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letter further requested that the DOC and MPCH respond in writing within 30 days indicating how each planned to specifically address the violations described therein. 29. PLS only received one response to its March 2015 letter. On April 8, 2015, DOC Assistant Deputy Commissioner of Clinical Services suggested that dissatisfied deaf and hard of hearing prisoners file grievances or engage in the Request for Reasonable Accommodation of Special Needs Process, but failed to address any of the concerns raised or provide a plan of action for addressing them. Each of the Plaintiffs, as well as other deaf and hard of hearing prisoners, however, had already followed both of these processes without favorable results. Given Defendants’ systematic failure to comply with their legal obligations, the suggestion in the April 8th letter was totally inadequate. 30. The Defendants are aware of their obligations under federal law, as well as the United States Constitution, but have not remedied their ongoing pattern and practice of discrimination. The Defendants continue to engage in disability-based discrimination against deaf and hard of hearing individuals in at least six different areas: (a) ineffective access to telecommunications; (b) inadequate access to auxiliary aids and services; (c) inadequate and unequal access to programs and services, including medical and mental health treatment; (d) ineffective notification of prison alerts and announcements; (e) ineffective communication during administrative proceedings; and (f) inadequate access to prison vocational and employment opportunities.
A. Inadequate Access to Telecommunications 31. The telecommunications services that the DOC provides to deaf and hard of hearing prisoners for communicating with family, friends, attorneys, advocates, and other individuals outside of prison is inferior to the telecommunication services provided to hearing prisoners.
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32. Telecommunications are very important to individuals in DOC custody because maintaining family bonds and connections to one’s support network in the community has been shown to be one of the best ways of reducing recidivism. The ability to foster family and community ties motivates prisoners to improve themselves and helps prepare them to make a positive transition back to life in the community. 33. The Federal Communications Commission (“FCC”) has also recognized that family contact during incarceration is associated with lower recidivism rates and that prisoners’ access to telephone service that is fair, just, and reasonable “benefits society by making it easier for inmates to stay connected to their families and friends.” 79 Fed. Reg. 69682 (Nov. 21, 2014). The FCC further recognizes that lower recidivism rates “[m]eans fewer crimes, decreases the need for additional correctional facilities, and reduces the overall costs to society.” Id. Prisoner access to telephone services “also helps families and the estimated 2.7 million children of incarcerated parents in our nation, an especially vulnerable part of our society. Id. 34. Most deaf and hard of hearing individuals in DOC custody cannot use traditional telephones to communicate with individuals outside of prison.
1. Telecommunications Devices for the Deaf 35. The only telecommunications method currently available for deaf prisoners in the DOC are telecommunications devices for the deaf (“TDDs”), and even these are provided only on a limited basis in select facilities. TDDs are electronic devices for text communication via a telephone line to enable people with hearing and speech disabilities to communicate by phone. TDDs are also called teletypewriters (“TTYs”). Based on fifty-year-old technology, the TTY is basically a telephone equipped with a keyboard and a screen that displays text. For two parties
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to have a direct TTY conversation, both must have a TTY. TTYs cannot connect to a videophone. 36. Due to the fact that TTYs only enable written communications, they are by nature an unsatisfactory and ineffective means of communication for many deaf individuals. Writing usually does not provide effective communication for deaf individuals because ASL is their native language. English is generally considered a second language for most deaf persons who became deaf before acquiring language. Therefore, the reading and writing skill level of many deaf individuals, including several Plaintiffs and others incarcerated in DOC institutions, is generally much lower than that of hearing people. 37. TTY is inferior, outdated technology that does not allow effective communication for most deaf people. In fact, most people in the deaf community do not use or own such devices. TTY also requires users to take on the expense of maintaining a telephone land line. Most deaf individuals in the United States who use ASL have abandoned TTY technology, and now primarily utilize videophones. 38. Some deaf and hard of hearing prisoners who do not know ASL must still be provided TTYs in order to achieve equal access to telecommunications services. However, not every DOC facility has TTY services, and in the ones that do, the services are wholly inadequate for named Plaintiffs and class members to communicate effectively and equally, as compared to hearing prisoners. Furthermore, it takes approximately four times as long to communicate using a TTY than it does to communicate in a traditional telephone call. 39. This fact was recently recognized by the FCC. On November 5, 2015, the FCC released its Second Report and Order and Third Notice of Proposed Rulemaking in the Matter of Rates for Interstate Inmate Calling Services, Docket 12-375. In an effort to lower the burden on deaf
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and hard of hearing prisoners, the FCC implemented a mandatory discount requiring providers to charge no more than 25 percent of a regular ICS call for TTY-to-TTY calls.1 In addition, the Order clarifies that 47 U.S.C. § 225(c) and § 225 (b)(1) require that TTY-based telecommunication relay systems (TRS) and speech-to-speech (STS) be made available and accessible to individuals held in correctional facilities.2 40. Plaintiff Ward, who has bilateral hearing loss and is deaf in her left ear, has requested use of a TTY at MCI-Framingham because her parents own a TTY machine and her father and paternal grandparents are hearing impaired. Plaintiff Ward was informed that one did not exist. She has never used a TTY machine at MCI-Framingham and therefore has not been able to communicate effectively with her father or paternal grandparents for years. 41. The TTY at the Massachusetts Treatment Center where Plaintiffs Markham, McGowan, and Roldan are housed, is locked in the booking office. Access to the TTY is subject to the discretion of facility staff and it is often not made available until after business hours. Access is thus much more restricted than access to telephones for hearing prisoners. Similarly, at MCIShirley and MCI-Norfolk, the TTYs are kept in locked offices and can only be accessed by requesting an appointment; access is determined by the availability of staff and of the particular office. 42. Thus, even in facilities with a TTY, the equipment is not accessible to deaf and hard of hearing prisoners to the degree that telephones are accessible to hearing prisoners.
1 Second Report and Order and Third Notice of Proposed Rulemaking in the Matter of Rates for Interstate Inmate Calling Services at ¶227, Docket 12-375, Federal Communications Commission, Released November 5, 2015 and available at: http://transition.fcc.gov/Daily_Releases/Daily_Business/2015/db1105/FCC-15-136A1.pdf 2 Id. At ¶¶ 231-238.
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43. Moreover, according to Plaintiff Briggs, on multiple occasions when he attempted to use the TTY at MCI-Shirley, the call either did not connect or the connection was very poor.
2. Videophones 44. Videophones and free or low-cost internet-based video links (collectively, “videophones”) are replacing TTYs in the deaf and hard of hearing community because they allow deaf and hard of hearing individuals to communicate with one another directly in ASL. When using a videophone, callers can see each other, usually over an internet connection. As a result, many deaf households no longer own a TTY and have no way to accept a TTY call, as they rely exclusively on videophones for telecommunication. 45. Deaf individuals using videophones can also call a Video Relay Service (“VRS”) to place calls to people who do not understand ASL or do not have a videophone. The mechanics of VRS are very similar to those of traditional TTY relay service – the caller is routed to an interpreter, the caller gives the interpreter the number of the party he is trying to reach, and the interpreter then interprets the conversation into spoken English. 46. Videophones and VRS permit deaf people to use ASL instead of having to carry out every telephone call in written English through a TTY. 47. Provision of videophones would enable deaf prisoners to place telephone calls to deaf family and friends, the vast majority of whom no longer have TTY devices. 48. In its 2015 Order, the FCC strongly encourages correctional facilities to provide prisoners with communication disabilities with access to more advanced forms of TRS, such as videophones and captioned telephones, and to comply with their existing obligations under federal laws, “including Title II of the ADA, which require the provision of services to inmates
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with disabilities that are as effective as those provided to other inmates.”3 The FCC further acknowledges that some facilities have installed videophones and other forms of TRS, often as a result of litigation based on federal statutes, but strongly encourages facilities to make the necessary changes voluntarily without further litigation.4 49. Deaf individuals in DOC custody have repeatedly requested videophone access, but have been denied this access. Plaintiff Briggs and his advocates in the community have been pursuing this issue with DOC officials for well over five years. 50. Although the DOC has contracted with Sorenson Communications for video phones and VRS to be installed at select DOC facilities since August of 2014, the Defendants have yet to provide access to these devices and services at any of the DOC facilities throughout Massachusetts. 51. Videophone technology would enable the Plaintiffs and other class members to effectively communicate with family, friends, attorneys, advocates, and other parties outside of the DOC facilities in which they are housed to the same degree as prisoners without hearing disabilities. 52. However, due to the Defendants’ continuing failure to make videophone technology available, Plaintiffs and other deaf and hard of hearing prisoners who use ASL continue to suffer. For instance, aside from infrequent visits, Plaintiff Briggs has been unable to communicate with his three sons, five grandchildren, friends, and advocates in the community for over seven years.
3. Other Telecommunication Issues 53. Some prisoners housed in DOC facilities are hard of hearing but not deaf. A subset of these hard of hearing prisoners are able to use a traditional telephone provided the telephone has
3 Id. at ¶230 4 Id. at ¶ 230.
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either an internal or external amplification speaker and is compatible with hearing aids. In order for hard of hearing individuals to be able to effectively use such telephones, however, they must be allowed to use the devices in an environment that is shielded from ambient noise. Because hearing aids essentially amplify sound, it is difficult for hard of hearing individuals to hear an individual (on the telephone or otherwise) effectively when they are in an environment with background noise. 54. As a result, it is often difficult or impossible for Plaintiffs and other prisoners who suffer from hearing disabilities to communicate with their families, friends, attorneys, and advocates by phone because the amplification button is often not functioning properly or is simply not available on the telephone handsets provided. 55. For example, Plaintiff Jimenez had to keep his finger continuously on the telephone volume button to keep it at the highest level during his calls on some phones while he was housed at Bay State Correctional Facility5 in order to amplify the sound, which only slightly improved his ability to hear the individual on the other end of the call and left the telephone communication inadequate. When he uses phones with adjustable volume and a good hearing aid – which he, at times, has had to borrow from another prisoner – Plaintiff Jimenez can hear about fifty percent of his telephone conversations clearly. 56. Since his move to MCI-Norfolk in May 2015, Plaintiff Skinder has been able to use phones that have adjustable volume. By turning the volume of the telephone and his hearing aid all the way up, he estimates that he is able to discern roughly seventy-five percent of what the other person on the telephone is saying. Sadly, missing one quarter of the content of his telephone conversation is a vast improvement from his experience trying to use the telephones at
5 Plaintiff Jimenez was moved from Bay State Correctional Facility to MCI-Norfolk where he is currently housed in or around April 2015.
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MCI-Shirley, where he could only understand a small fraction of his conversations with family, friends, and advocates because the volume amplification function was inoperative. 57. For Plaintiff Ward, amplification only slightly enhances the sound when she communicates using the phones at MCI-Framingham. Additionally, because there is no door to the room where the telephone with the amplification function is stationed, there is often so much background noise that it makes it impossible for her to hear the person on the phone.
B. Inadequate Access to Auxiliary Aids and Services 58. Individuals in the custody of DOC are wholly dependent on the DOC and prison staff for all of their basic daily needs, including food, exercise, and safety. They rely on the DOC for education, vocational, and rehabilitative programming and medical, mental health, and religious services, among other things. Likewise, deaf and hard of hearing individuals in DOC custody are dependent on the DOC to provide hearing devices, interpreter services, and other auxiliary aids and services to be able to hear prison alerts, participate in all aspects of prison life, and avoid forced reliance on and exploitation by other prisoners. 59. As stated above, the DOC has contracted out health services for the state prison population to MPCH. Though the DOC cannot contract away its responsibilities to provide accommodations or equal access to programs and services in accordance with the requirements of federal and constitutional law, MPCH has the responsibility to comply with the same legal standards. 60. Per its contract with the DOC, MPCH’s responsibilities include, but are not limited to:
(A) Providing a comprehensive program of medical, dental, and mental health services to all prisoners and civilly committed persons in DOC custody;
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(B) Making all decisions with respect to the type, timing, and level of medical services needed by DOC prisoners, including the determination of whether a prisoner is in need of clinical care, referral to an outside specialist, or otherwise needs specialized care;
(C) The purchase or lease of patient-specific equipment that is recommended by a physician’s order, which shall then become the property of the DOC;
(D) Maintenance of medical devices prescribed by a clinician for a prisoner, which explicitly includes hearing assistance devices and other patient-specific equipment, in accordance with the manufacturer’s recommendations. This entails timely repair or replacement of such devices due to reasonably expected wear and tear;
(E) Regardless of the cause, timely repair or replacement of medically prescribed devices is a priority in all instances in which the loss, damage, or destruction thereof results, or is likely to result, in an adverse impact on the health of the prisoner or on the prisoners’ ability to participate in programs and activities within the facility; and
(F) Providing translation services to meet the needs of the prisoner population, with neither prisoners nor DOC staff utilized as translators. MPCH may utilize the DOC’s language line translation service or other translation services. 61. MPCH also plays a central role in the DOC’s Request for Reasonable Accommodation of Special Needs process. Under 103 DOC 207, such Requests may be initiated in two ways: by requesting a medically prescribed accommodation from medical staff or by completing the Request for Reasonable Accommodation of Special Need(s) form and submitting it to the ADA Coordinator at the institution. In determining whether a prisoners’ request is warranted, the ADA Coordinator is required to confer with appropriate medical staff and cannot substitute his
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or her judgment for that of medical staff when an accommodation has been prescribed. See 103 DOC 207.04. 62. Unfortunately, both the DOC and MPCH fail to provide appropriate auxiliary aids and services to deaf and hard of hearing prisoners. By failing to do so, the DOC and MPCH not only put these individuals at a disadvantage in terms of their personal development and rehabilitation by depriving them of DOC programming and services, but the Defendants also negatively impact their ability to maintain their personal health, earn good conduct deductions from their sentences, and earn parole release.
1. Hearing Devices 63. The Defendants have consistently failed to provide deaf and hard of hearing individuals in their custody with individual hearing devices that would enable them to hear prison alerts and participate in other aspects of prison life. 64. The DOC and MPCH have refused to provide medically required hearing aids to deaf and hard of hearing prisoners, in spite of the obvious adverse impacts upon the individual prisoners and in contravention of clear findings and recommendations of licensed audiologists. When provided, audiological testing for DOC prisoners takes place at Lemuel Shattuck Hospital; following the appointment, the audiologist transmits a report to medical staff at the evaluated prisoner’s facility. 65. For example, Plaintiffs Jimenez, Ward, and Skinder, who have severe to profound hearing loss in both ears, have been repeatedly denied access to two functioning hearing aids by MPCH and the DOC. The Defendants repeatedly refuse to promptly repair and maintain Plaintiffs’ bilateral hearing aids, often informing them that they only need one functioning hearing aid at a time, despite audiologist prescriptions to the contrary.
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66. Plaintiff Ward went over a year with ill-functioning hearing aids. The tubing in one of her aids had a hole in it. She was forced to make due by covering the hole with scotch tape to make her aid minimally functional. Although the tubing has now been replaced and both hearing aids have finally been adjusted, the amplification is still inadequate because Ms. Ward has not been provided with suitable batteries. Moreover, the audiologist prescribed new hearing aids for Ms. Ward, but she has been waiting several months to be taken to the doctor to be fitted for these new aids. 67. Plaintiff Jimenez similarly went over a year with only one hearing aid, which was old, cracked, ill-fitting, and did not function properly. He received new hearing aids in December 2014 that were not tailored to his particular hearing needs and much too weak. Moreover, these hearing aids stopped functioning entirely on or around August 3, 2015. Medical staff failed to have the aids properly repaired; to date, Plaintiff Jimenez is forced to use ill-functioning hearing aids. 68. Plaintiff Skinder was without a functional right hearing aid for over eighteen months. Prior to receiving a new left hearing aid in April 2015, he was left without any working hearing aids for almost two months. In or around July 2015, the tube in Plaintiff Skinder’s left hearing aid cracked and he requested a new one from medical staff. While he awaited an appropriate replacement tube, Mr. Skinder had to fashion an ill-fitting tube from old parts he could find to ensure that he had at least one partially-functioning hearing aid. It was not until October of 2015 that he received properly functioning hearing aids. 69. At times, MPCH and the DOC have adopted policies or practices that also prevent deaf and hard of hearing individuals in custody from having access to hearing aids that they already possess. For example, even though Plaintiff Ward entered the DOC with two hearing aids, she
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was forced to turn them into the facility because they were not issued by the DOC medical contractor, and it was only after two years that she was issued one functioning hearing aid. 70. Further, MPCH and the DOC fail to fix broken hearing devices promptly. Plaintiffs who utilize hearing aids have reported waiting weeks or longer to receive batteries needed in order for their hearing aids to function, and as mentioned above, several Plaintiffs have waited well over a year for at least one of their hearing aids to be repaired. 71. When Plaintiffs’ hearing devices are not functioning properly, their ability to communicate and understand their environment is seriously compromised. They are forced to observe the clock and other prisoners closely, taking their cues from them to ensure they are in the right place at the right time. This increases the danger that they face of exploitation and verbal and physical abuse from other prisoners. Plaintiffs’ inability to hear and understand orders, instructions, and announcements also places them at risk of receiving disciplinary tickets and being subject to staff uses of force for noncompliance with orders and instructions. In fact, on several occasions, Plaintiffs Ward and Skinder received disciplinary tickets due to their inability to hear instructions or announcements.
2. Interpreter Services 72. For deaf and hard of hearing individuals who rely on ASL as their primary form of communication, use of a qualified ASL interpreter is necessary to ensure effective and reliable communication between a deaf or hard of hearing individual and an individual who does not use ASL to communicate. 73. ASL is a complete, complex language that employs signs made with the hands and other movements, including facial expressions and postures of the body. It is a language distinct from English – it is not simply English in hand signals. It has its own vocabulary and its own rules for grammar and syntax. Accordingly, trained and qualified sign language interpreters are essential
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to providing deaf and hard of hearing ASL users with complete access to necessary information; staff or other prisoners with limited knowledge of ASL are not appropriate interpreters. 74. As noted above, writing usually does not provide effective communication for deaf or hard of hearing individuals whose primary language is ASL. English is generally considered a second language for most people who became deaf or suffered profound hearing loss before acquiring language. In addition, many deaf people acquire English as their second language later in life – past the critical period of language acquisition. The average deaf person reads at approximately a fourth grade level. 75. Lip-reading alone does not provide effective communication for most deaf and hard of hearing individuals; the upper limits of estimates for the accuracy of deaf individuals lip-reading sentences have been as low as 10% to 30% words correct. Lip-reading in English is extremely difficult because only a small fraction of the sounds used in the language are clearly visible on the mouth, and many sounds that are visible look identical on the lips. In addition to these inherent difficulties, the ability to accurately lip-read is affected by the speaker’s facial bone structure, facial musculature, facial hair, lighting, physical proximity to the speaker, and other external factors. Even if a primary ASL user were able to understand the sounds appearing on a speaker’s or an oral interpreter’s lips, for the reasons discussed above, he or she would not necessarily understand the English language or the speaker’s vocabulary. 76. Thus, provision of qualified sign language interpreter services is necessary to allow deaf individuals in DOC custody who use ASL to communicate effectively and accurately with DOC officials, DOC employees, and medical personnel. 77. Hard of hearing individuals and deaf individuals who do not communicate via sign language, like many late-deafened individuals, and who rely heavily on lip-reading require the
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services of qualified oral interpreters to ensure their access to effective communication. An oral interpreter presents on the lips and face, through the use of pace, translation, and expressions, what is being said to the deaf or hard of hearing consumer. Due to the difficulties inherent in lipreading noted above, unless the individual is trained as an oral interpreter, it is not a sufficient means of communication for deaf and hard of hearing individuals. 78. The Defendants fail to provide adequate access to both sign language and oral interpreters for deaf and hard of hearing individuals. 79. The DOC fails to provide these services to Plaintiffs in contravention of its Language Assistance Plan (“LAP”) and Interpreter Services Policy (103 DOC 488), which are specifically aimed at addressing the language needs of prisoners in DOC custody. 80. The DOC’s LAP exists to ensure that language will not prevent staff from communicating effectively with limited English proficient (“LEP”) individuals – a person who is unable to speak, read, write or understand English language at a level that allows him or her to interact effectively with DOC staff. The plan requires that the DOC Commissioner appoint LEP Coordinators and Institutional LEP Monitors responsible for identifying and addressing the needs of LEP individuals in the DOC. At each facility, the Superintendent and LEP Coordinators and Monitors are charged with, among other things, ensuring access to interpreter services pursuant to the DOC’s Interpreter Services Policy. 81. The Interpreter Services Policy specifically states that, when a prisoner requests an interpreter or a correctional staff member believes that one is needed, telephonic services shall be used. See 103 DOC 488.03. The policy prohibits the DOC from using other prisoners as interpreters in the following areas: Internal Perimeter Security, or Departmental investigations or questioning, Booking and Admissions, Health Services Unit (medical), Classification Boards,
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Inmate Grievances and Disciplinary Hearings. See 103 DOC 488.03(1) and (2). In addition, the policy mandates that interpreter services information be provided during the standard introduction at classification and discipline proceedings and admission and booking, and that the service be used during grievance interviews. See 103 DOC 488.03 (4) and (5). 82. Despite this clear guidance and the DOC Defendants’ knowledge of the language needs of deaf and hard of hearing individuals in their facilities, they have failed to provide a comparable alternative to the telephonic interpreter services – Video Remote Interpreting – that they are mandated to provide to other prisoners who are unable to effectively communicate in English.
a) Interpreters for Access to Medical Services 83. The DOC and MPCH are responsible for the medical care of all individuals incarcerated in DOC facilities. 84. Deaf and hard of hearing individuals who rely on ASL require sign language interpreters to communicate accurately and effectively with medical staff. Others who rely on lip-reading require oral interpreters or other auxiliary devices. 85. As noted above, per its contract, MPCH is responsible for setting up the type and timing of medical services that prisoners in DOC custody receive and for arranging translation services to meet said prisoners’ needs. This necessarily includes arranging translation services for the appointments MPCH schedules on a daily basis in every DOC facility. 86. However, deaf and hard of hearing prisoners are rarely, if ever, provided interpreters for medical and mental health appointments. 87. Despite requests for interpreters from Plaintiffs who rely on ASL, the fact that it should be obvious to medical providers that they cannot communicate without an interpreter, and the existence of Video Remote Interpreting technology, Plaintiffs have been prescribed medication
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and undergone surgery and medical procedures and testing, including audiology testing, for years almost entirely without ASL interpretation. 88. An ASL interpreter was provided for the first time for one of Plaintiff McGowan’s medical appointments at the Massachusetts Treatment Center sometime in the spring of 2015. However, the interpreter provided for his appointment was the same interpreter hired to interpret two classes per week for Plaintiffs Markham, McGowan, and Roldan as part of the Sex Offender Treatment Program. Rather than schedule the medical appointment before or after one of the classes attended by these three Plaintiffs, the Defendants cancelled the class so that she could serve as the interpreter for the medical appointment. 89. Plaintiff Briggs has never had an ASL interpreter for any medical appointment in a DOC facility. While he has been able to acquire some degree of understanding through writing notes back and forth with medical staff during standard medical appointments, this mode of limited and incomplete communication is not appropriate. Moreover, the absence of a qualified interpreter becomes significantly more problematic and potentially dangerous when issues arise that are new or out of the ordinary. This arrangement is made worse by Mr. Briggs’ poor eyesight and arthritis in his hands, which make written communication even more inappropriate. In addition, for several years, Plaintiff Briggs has been experiencing double vision in his left eye as a result of swelling of his optic nerve; he is also developing cataracts. To slow the progression of the cataract and reduce the swelling, he is supposed to receive eye injections administered at outside hospitals every five weeks, but these are often delayed. Due to the lack of consistent ASL interpretation, Plaintiff Briggs does not have a clear understanding of his diagnosis or any treatment plan. As a deaf individual, impairment of his eyesight is extremely concerning and loss thereof would be gravely debilitating.
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90. Plaintiff Markham has repeatedly requested an ASL interpreter in order to access mental health services to help him deal with stress and other issues and assist him in meeting rehabilitation goals. Still, he has never been provided an interpreter for mental health services. 91. Plaintiff Roldan has had two documented seizures at the Massachusetts Treatment Center. Neither DOC nor medical staff provided him with an ASL interpreter during medical appointments regarding the seizures. Moreover, medical staff prescribed Plaintiff Roldan medication, but did not tell him what it was or what it was meant to treat. As a consequence, he had no understanding of his medical diagnosis or for what, specifically, the medication is being prescribed until his counsel informed him that his medical records indicate that he was diagnosed with a seizure disorder. Furthermore, Plaintiff Roldan does not understand what preventative measures he should be taking aside from taking the prescribed medication and staying hydrated. 92. Plaintiffs routinely have to communicate with medical staff by making gestures, pointing at a diagram of the human body, writing out messages, or relying on interpretation by other prisoners with limited knowledge of ASL. These alternatives fail to ensure that deaf and hard of hearing prisoners understand their diagnoses and treatment, are able to provide informed consent, and are able to maintain privacy with regard to their medical information.
b) Interpreters for Access to Prison Programming 93. The Defendants provide educational, vocational, and rehabilitative programming and religious services, as well as a grievance process, for individuals in DOC custody. 94. Newly admitted prisoners must attend an orientation program that covers a broad range of topics important for each of them to understand, such as: telephone access, visiting procedures, mail, classification procedures, programming, reentry, access to medical services, disciplinary procedures, canteen services, prisoner counts and movement, recreation, personal property, facility and housing rules, grievance procedures, and emergency evacuation.
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95. The Defendants fail to provide deaf and hard of hearing prisoners with interpreters for prisoner programming, including orientation, unit meetings, and educational and vocational courses. 96. For example, during orientation, the Defendants did not provide ASL interpretation to any of the Plaintiffs whose primary language is ASL. 97. Plaintiff Briggs sought to participate in educational and rehabilitative programming for more than ten years, but, due to the absence of interpreters, he could not; now eighty years old, nearing the end of his sentence, and facing significant health issues, he feels that it is now too late. Plaintiff Markham repeatedly requested to participate in vocational programming, but has been prohibited from participating because of the lack of an ASL interpreter. Plaintiff Roldan has also been denied access to programming, and was even told to drop out of a class that was otherwise appropriate for him for lack of an ASL interpreter. Plaintiff Skinder has attempted to participate in a number of courses without the benefit of a qualified ASL interpreter; despite his requests, he has never been afforded an interpreter. Recently, Plaintiff Skinder took the admissions examination in hopes that he would be able to attend Boston University courses while at MCI-Norfolk. He was not afforded an ASL interpreter for this exam; despite getting high scores in mathematics, he was informed that he was not eligible to take courses due to his low scores in English. 98. Similarly, deaf and hard of hearing prisoners have been denied equal access to employment and vocational programming on the basis of their disability and the DOC Defendants’ unwillingness to provide accommodations. For example, Plaintiff Markham has been denied vocational opportunities such as woodshop at the Massachusetts Treatment Center because he has not had access to the requisite educational programming.
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99. The only DOC facility in Massachusetts that regularly provides access to some ASL interpretation is the Massachusetts Treatment Center. However, the interpreting is provided on a very limited basis for the required Sex Offender Treatment Program (“SOTP”) and took approximately five years of advocacy by deaf prisoners to obtain. The ASL interpreter currently provides interpreting for just three SOTP classes per week to Plaintiffs Markham, McGowan, and Roldan as a group and Plaintiffs report that the interpreter who does the majority of the ASL interpreting is difficult to understand and is often absent with no substitute provided for the classes. 100. Due to the unavailability of interpreting, Plaintiffs Markham, McGowan, and Roldan receive less sex offender treatment programming than hearing prisoners participating in the SOTP receive every week. Furthermore, the content they receive in each class is less than what hearing prisoners have access to because of the nature of the interpreting process. Accordingly, their progress in the program is hampered, negatively impacting the likelihood that they may face civil commitment proceedings at the completion of the sentences. 101. Having limited or no access to interpreting diminishes the ability of deaf and hard of hearing prisoners to benefit from educational, vocational, and rehabilitative programming; to become eligible for specialized correctional programming; to earn good conduct deductions from their sentences; to be classified to lower security facilities; and to qualify for parole release.
c) Interpreters for Religious Services 102. The Defendants do not provide an interpreter for religious services which, for example, Plaintiff McGowan would like to attend but cannot understand without an ASL interpreter.
d) Interpreters for PREA Information 103. The DOC Defendants also fail to comply with the Prison Rape Elimination Act (“PREA”) 42 U.S.C. §15607 et seq. and its implementing regulations, which require that deaf
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and hard of hearing prisoners have an equal opportunity to participate or benefit from all aspects of the DOC’s efforts to prevent, detect and respond to sexual abuse and sexual harassment. See 28 C.F.R. §115.16(b)-(c). 104. The implementing regulations specify that such steps “shall include, when necessary to ensure effective communication with inmates who are deaf or hard of hearing, providing access to interpreters who can interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary.” Id. The regulations also require that materials be provided in formats or through methods that ensure effective communication with prisoners with disabilities including those with limited reading skills. Id. 105. PREA explicitly forbids DOC reliance on prisoners as interpreters, readers or as other types of assistants except in emergency situations. Prisoners are required to receive sexual abuse prevention information at orientation and shortly after admission. 106. The DOC’s internal Sexually Abusive Behavior and Prevention Policy, 103 DOC 519, states that information regarding sexually abusive behavior and prevention will be provided to all incoming prisoners by written, verbal, and video presentations and translated into their own language when necessary. See 103 DOC 519. It also states that when literacy is presented as a problem, a staff member shall assist the prisoner in understanding the material. Id. 107. The DOC Defendants regularly fail to comply with federal PREA regulations and with their own internal policy as Plaintiffs, particularly those who rely on ASL, have never received sexual abuse prevention information with the benefit of an interpreter. Indeed, Plaintiff Briggs had never heard of PREA. Such a violation is particularly troubling in that deaf and hard of hearing prisoners are reportedly more victimized by sexual assault in prison due to their hearing impairment.
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3. Other Auxiliary Aids 108. Other auxiliary aids and services are also necessary to ensure the effective participation of deaf and hard of hearing prisoners in all aspects of prison life. 109. Some deaf and hard of hearing individuals in the DOC would be able to fully participate in educational, vocational, and rehabilitative programs, orientation, religious services, medical services, the grievance process, and other activities with the assistance of auxiliary aids, such as computer assisted real-time translation, videotext displays, and FM listening systems. 110. Plaintiffs Jimenez and Ward are among those who would benefit from these types of accommodations, but have not received them in spite of their requests. For instance, currently, Plaintiff Jimenez only attends church services on Sundays, as they are held in a small room where he is able to hear a portion of what is said. He would like to attend more services, but he is unable to understand church services held in the auditorium due to the background noise that his hearing aids cannot filter. 111. In addition, television programming available to prisoners at DOC facilities can be made accessible to those with hearing impairments through captioning. Captioning can be either open (viewable by all viewers) or closed (viewable only by those who opt to activate the caption chip within every television). 112. Officers at DOC facilities frequently fail to make captioning for deaf or hard of hearing prisoners available, even after it has been requested. For example, officers at the Massachusetts Treatment Center regularly show movies without closed captioning for Plaintiffs Markham, McGowan, and Roldan or claim that it is not available.
C. Access to Visual Notification of Alerts and Announcements 113. DOC institutions do not have effective systems for conveying the content of regular audio alerts and announcements to deaf and hard of hearing prisoners, placing them at risk of
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serious physical injury and other harms, including receipt of disciplinary tickets for noncompliance with orders and instructions of staff. 114. Plaintiffs have repeatedly experienced problems due to their inability to hear and understand the content of announcements, including missing meals, missing medical appointments and calls for the medication lines, missing or being late for visits with attorneys and loved ones, and confrontations with staff who believe that they are willfully not standing for count or following other instructions. 115. In addition, DOC facilities lack effective visual systems for notifying deaf and hard of hearing prisoners of emergency alarms and announcements, which also places them at risk of serious physical injury and other harms. 116. For example, the facilities at which Plaintiffs are housed – MCI-Shirley, MCI-Norfolk, the Massachusetts Treatment Center, and MCI-Framingham – all lack sufficient notification lights, displays, and signs for notifying Plaintiffs and other deaf and hard of hearing prisoners of emergencies and other announcements. In order to follow instructions and announcements that they cannot hear or understand, Plaintiffs must generally rely on other prisoners for direction or, if they can discern that an announcement has been made, try to guess what to do based on the time of day and other visual observations. Regarding standing for count, which occurs four times each day, for the last fifteen years, Plaintiff Briggs has had to watch the clock and repeatedly get up to look out his cell window to see if staff are coming. 117. While small emergency alarm notification lights exist in some areas of these facilities, none have been placed in crucial areas, including near and visible from Plaintiffs’ cells. 118. Plaintiffs and other deaf and hard of hearing individuals who use hearing aids are particularly vulnerable when they are not wearing them, like when they are in the shower or
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asleep, and other prisoners might not think or know to alert them. For example, there were at least two fire drills at the Massachusetts Treatment Center in 2014 during which Plaintiff Markham was left behind in his unit. On one of these two occasions, Plaintiff Roldan was also left behind as he was in the shower and could not hear the alarm without his hearing aids. Because of their vulnerability, several Plaintiffs feel compelled to regularly sleep wearing hearing aids, in spite of discomfort and the potential for negative health effects.
D. Failure to Provide Accommodations during Administrative Proceedings and Meetings
119. Deaf and hard of hearing prisoners cannot meaningfully engage in disciplinary, classification, and parole proceedings because they do not have access to accommodations necessary to facilitate their effective communication and participation. 120. If prisoners violate the rules and regulations of DOC facilities, they generally receive disciplinary tickets and are subject to disciplinary proceedings conducted by hearing officers, which can result in sanctions. Prisoners are entitled to have an opportunity to defend themselves, to learn the evidence against them, and to understand the parameters of their punishment. 121. However, when deaf and hard of hearing prisoners are denied interpreters and/or assistive listening devices or other auxiliary aids and services during disciplinary proceedings, they are unable to understand the officers conducting the proceedings, the evidence against them, or the results of the proceedings. Absent proper accommodations, prisoners are denied the ability to defend themselves and may be punished without complete understanding of the disciplinary sanctions the hearing officer renders, which may include a period of solitary confinement. 122. At least three of the Plaintiffs have received disciplinary tickets as a result of being unable to hear count or other announcements due to their hearing disabilities; interpreters were not provided during the resulting disciplinary proceedings. In addition, some of the Plaintiffs
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have been placed in solitary confinement following the receipt of disciplinary tickets, but have not been afforded interpreters prior to the imposition of such a harsh punishment. 123. Other administrative proceedings in which individuals in DOC custody commonly participate relate to classification – the process by which prisoners are assigned to particular facilities – and parole – the process by which prisoners can be granted early release under the supervision of the Parole Board. Both processes involve several steps during which the prisoners’ ability to understand and communicate are essential. 124. Unfortunately, when deaf and hard of hearing prisoners are denied interpreters and/or assistive listening devices or other auxiliary aids and services during classification and parole proceedings, they are unable to fully participate and advocate for themselves due to their hearing disabilities. 125. The DOC Defendants regularly fail to accommodate deaf and hard of hearing prisoners during classification and parole proceedings. Plaintiff Briggs, for example, must seek the assistance of other prisoners to serve as unqualified ASL interpreters during both classification and parole proceedings, impairing his ability to communicate and breaching his privacy.
E. Unequal and Improper Treatment by Correctional Officers 126. Correctional officers at DOC facilities throughout Massachusetts often do not recognize the difficulty that deaf and hard of hearing prisoners have communicating, and refuse to interact with them in a way that makes it possible to communicate. Some officers even single out deaf and hard of hearing prisoners for derogatory and abusive treatment based on their disability. 127. On information and belief, DOC facilities throughout the state typically do not train correctional officers on how to interact with deaf and hard of hearing individuals, nor do they adequately notify new officers which prisoners under their supervision suffer from such disabilities.
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128. Correctional officers at DOC facilities are often insensitive to the Plaintiffs’ disabilities. They have mocked their inability to hear, accused them of faking their disability, and attempted to humiliate them in front of other prisoners. Others officers refuse to acknowledge the Plaintiffs’ deafness. Officers occasionally yell at them in an attempt to communicate because they do not understand the limitations of their hearing abilities and sometimes cite them for misconduct when they fail to respond to instructions that they do not hear. Several Plaintiffs have had correctional officers repeatedly tell them that they are not “really deaf” and mock the manner in which they speak.
CLASS ACTION ALLEGATIONS 129. Plaintiffs Briggs, Skinder, Jimenez, Markham, McGowan, Roldan, and Ward bring this Complaint on their own behalves and on behalf of a class of persons similarly situated (“the Class”), pursuant to the provisions of Fed. R. Civ. P. 23(b)(2). Plaintiffs seek to certify a class of all individuals who are currently or will in the future be within the custody of the DOC and who: (i) the Defendants classify as deaf or hard of hearing or who notify the Defendants in writing, personally or through a family member or advocate, that he or she is deaf or hard of hearing; and (ii) require accommodations, including interpreters or other auxiliary aids or services to communicate effectively, to access Defendants’ programs and services, and/or to hear or understand telephone communications, alarms, instructions, or loudspeaker system announcements. 130. The Class is so numerous, and membership so fluid, that joinder of all members is impracticable. According to the DOC’s response to a public records request in 2014, the DOC determined that there were sixty-two deaf and hard of hearing prisoners in its custody as of June 2012. On information and belief, the number of deaf and hard of hearing prisoners currently in
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DOC custody is greater due to the aging prisoner population. Further, the Class is readily identifiable from information and records in the possession of the Defendants. 131. Numerous common questions of law and fact exist as to all members of the Class. These common questions include, but are not limited to: whether the DOC and named Defendants fail to provide adequate means for deaf or hard of hearing individuals to communicate with individuals outside of DOC facilities; whether the Defendants systematically fail to provide adequate access to individual hearing devices, sign language interpreters, and other auxiliary aids and services to individuals who are deaf or hard of hearing; whether the Defendants systematically fail to provide individuals who are deaf or hard of hearing with full and equal access to services, programs, or privileges comparable to access provided to hearing individuals in DOC custody; whether the Defendants impose a substantial burden on individuals’ religious exercise who are deaf or hard of hearing; whether the Defendants’ conduct has resulted in harm, and may result in serious future harm, to deaf or hard of hearing individuals by denying them effective communication with medical personnel; and whether the Defendants have caused harm, and may cause serious future harm, to deaf or hard of hearing individuals by failing to provide notification to them of prison warnings and announcements in a manner comparable to that provided to hearing individuals in DOC custody. 132. Plaintiffs’ claims are typical of the claims of the members of the Class. The policies and practices described in this Complaint, or lack thereof, apply equally to the named Plaintiffs and to all the other members of the Class, and the injuries suffered by the named Plaintiffs stem from the same policies and practices that affect all members of the Class. 133. Plaintiffs and Plaintiffs’ counsel will fairly and adequately protect and represent the interests of the Class. Plaintiffs’ interests are consistent with, and are not antagonistic to, the
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interests of the Class as a whole. Plaintiffs’ counsel are experienced in the protection and enforcement of the statutory and constitutional rights of incarcerated individuals, including deaf individuals. 134. Class action treatment is a fair and efficient method to adjudicate the controversy. Among other things, class treatment will permit a large number of similarly situated persons to prosecute their common claims in a single forum simultaneously, efficiently, and without the duplication of evidence, effort, and expense that multiple individual actions would engender. 135. Defendants have acted and refused to act on grounds generally applicable to the Class, thereby making appropriate final injunctive and declaratory relief with respect to the Class as a whole.
CLAIMS FOR RELIEF COUNT I
Discrimination on the Basis of a Disability in Violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.
(Against all Defendants by the Plaintiffs on behalf of themselves and the class of similarly situated individuals)
136. Plaintiffs hereby incorporate each preceding and succeeding paragraph as though fully set forth herein. 137. The purpose of the ADA 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). Title II of the ADA states that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Title III of the ADA states that “[n]o individual shall be discriminated against on the
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basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation….” 42 U.S.C. § 12182. 138. The claims under the ADA are brought against Defendants DOC and MPCH as departments, agencies, or instrumentalities of the State of Massachusetts, as well as against Defendants Higgins O’Brien, Chmiel, Ryan, Medeiros, O’Brien, and Henderson in their official capacities. To be clear, the DOC, which maintains custody and control over Plaintiffs, cannot contract away its liability for any violations of the ADA by MPCH, a private employer contracted to provide health care services to Massachusetts prisoners. 139. Defendants DOC and MPCH are “public entit[ies]” within the meaning of 42 U.S.C. § 12131(1)(B). In the alternative, MPCH constitutes a “place of public accommodation” within the meaning of 42 U.S.C. § 12181(7). 140. Plaintiffs are each a “qualified individual with a disability” within the meaning of Title II and Title III of the ADA. 42 U.S.C. §§ 12131(2), 12102(2). 141. By the actions of the Defendants described above, Plaintiffs have, by reason of such disability, been “excluded from participation in or be[en] denied the benefits of the services, programs, or activities of” public entities and have been subjected to discrimination by public entities, in violation of Title II of the ADA, 42 U.S.C. § 12132. To the extent that MPCH is deemed a place of public accommodation, rather than a public entity, MPCH’s actions have discriminated against Plaintiffs on the basis of their disabilities in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations” in violation of Title III of the ADA, 42 U.S.C. § 12182.
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142. At all times relevant to this action, the ADA was in full force and effect in the United States and Plaintiffs had a right not to be subjected to discrimination on the basis of their disability by the Defendants. 42 U.S.C. § 12132. 143. The U.S. Department of Justice (“DOJ”) regulation implementing Title II of the ADA requires the provision of effective communication as part of its nondiscrimination mandate. 28 C.F.R. § 35.160. This regulation states: “A public entity shall take appropriate steps to ensure that communications with applicants, participants, and members of the public, and companions with disabilities are as effective as communications with others.” 28 C.F.R. § 35.160(a); see 28 C.F.R. §36.303(c) (requiring public accommodations to ensure effective communication with individuals with disabilities). 144. In order to ensure effective communication, the ADA requires that “a public entity” furnish “appropriate auxiliary aids and services where necessary to afford individuals with disabilities…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); see 28 C.F.R. §36.303 (concerning the obligations of public accommodations). 145. Auxiliary aids and services include, but are not limited to, “qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments,” 42 U.S.C. § 12103, such as computer-aided transcription services, assistive listening systems, closed caption decoders, open and closed captioning, telecommunications devices for deaf persons (TDDs), videophones, and videotext displays. 28 C.F.R. § 35.104; see 28 C.F.R. § 36.303.
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146. In determining what type of auxiliary aid and service is necessary, “a public entity shall give primary consideration to the requests” of the individual with disabilities. 28 C.F.R. § 35.160(b)(2). 147. The Defendants have failed to give consideration to Plaintiffs’ reasonable requests for accommodations by denying them videophone services, visual alert and notification systems, and by denying their requests for interpreter services, individual hearing devices, and other auxiliary aids and services. 148. As a result, Plaintiffs have been unable to communicate effectively with individuals outside of prison. Plaintiffs are unable to equally access and participate in administrative proceedings, educational, vocational, and rehabilitative programming and medical, mental health, religious, and other DOC services. Plaintiffs are unable to equally participate in daily life and understand safety alerts and other notifications. and Plaintiffs are excluded from employment and vocational benefits and opportunities. 149. The Defendants’ failure to provide effective communication for individuals with hearing disabilities denied and continues to deny, on the basis of their disability, Plaintiffs the same access to Defendants’ services, benefits, activities, programs, or privileges as the access provided to hearing individuals. 150. As a proximate result of the Defendants’ violations of Plaintiffs’ rights under the ADA, Plaintiffs have suffered and continue to suffer from discrimination, unequal treatment, exclusion (including exclusion from Defendants’ services, benefits, activities, programs, and privileges), violations of their rights under the laws of the United States, unequal access to good conduct deductions to reduce their overall incarceration time and improve their prospects for gaining parole release, unnecessary disciplinary measures, injury to their health, financial loss, loss of
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dignity, frustration, humiliation, emotional pain and suffering, anxiety, trauma, and embarrassment. 151. The Defendants’ failure to comply with the ADA has resulted, and will continue to result, in harm to Plaintiffs, as Plaintiffs will continue to be in the custody or under the supervision of DOC, and will continue to attempt to use or avail themselves of the services, benefits, activities, programs, and privileges of the Defendants. This harm will continue unless and until the Defendants make modifications to their policies, practices, and procedures pursuant to the ADA.
COUNT II Discrimination on the Basis of a Disability in Violation of the
Rehabilitation Act, 29 U.S.C. § 794 et seq. (Against all Defendants by the Plaintiffs on behalf of themselves and
the class of similarly situated individuals) 152. Plaintiffs hereby incorporate each preceding and succeeding paragraph as though fully set forth herein. 153. The purpose of the Rehabilitation Act is to ensure that no “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). 154. The claims under the Rehabilitation Act are brought against Defendants DOC and MPCH as departments, agencies, or instrumentalities of the State of Massachusetts, as well as against Defendants Higgins O’Brien, Chmiel, Ryan, Medeiros, and Henderson in their official capacities as employees of DOC. To be clear, however, the DOC cannot contract away its liability for any violations of the Rehabilitation Act by MPCH, a private employer contracted to provide health care services to Massachusetts prisoners.
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155. Defendants DOC and MPCH receive federal financial assistance within the meaning of 29 U.S.C. § 794(a). 156. The operations of the Defendants are programs or activities within the meaning of 29 U.S.C. § 794(b). 157. Plaintiffs are each an “individual with a disability” within the meaning of the Rehabilitation Act, 29 U.S.C. § 705(20). 158. The DOJ regulation implementing the Rehabilitation Act clarifies the requirements for Federal financial recipients, including correctional facilities, stating: “A recipient that employs fifteen or more persons shall 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 the persons in the program receiving federal financial assistance.” 28 C.F.R. § 42.503(f). 159. Appropriate auxiliary aids under the DOJ regulations include, but are not limited to, “qualified interpreters…and telephonic devices.” 28 C.F.R. § 42.503(f). 160. The Defendants have discriminatorily impaired Plaintiffs’ ability to communicate effectively with medical personnel, prison staff, and individuals outside of prison and/or excluded Plaintiffs from educational, vocational, and rehabilitative programming and prison announcements and notifications. They have done this by failing to provide appropriate auxiliary aids and services in violation of the Rehabilitation Act. 161. The Defendants’ failure to provide appropriate auxiliary aids and services for individuals with hearing disabilities denied and continues to deny, on the basis of their disabilities, Plaintiffs the same access to Defendants’ services, benefits, activities, programs, or privileges as the access provided to hearing individuals.
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162. The failure to provide appropriate auxiliary aids and services, and the failure to provide comparable access to services, benefits, activities, programs or privileges are policies, regular practices, and/or customs of the Defendants. These failures are ongoing and continue to this date. 163. The Defendants’ failure to provide appropriate auxiliary aids and services has subjected Plaintiffs to discrimination on the basis of their disability in violation of their rights under the Rehabilitation Act, in ways that include, but are not limited to, the following:
a. Inadequate access to telecommunications devices; b. Inadequate access to sign language interpreters, individual hearing devices, and
other appropriate auxiliary aids and services to enable them to participate in administrative proceedings and to participate and benefit from Defendants’ programs, services, and activities; and c. Inadequate access to prison alarms and audio alerts and notifications. 164. The Defendants have also violated the Rehabilitation Act by excluding prisoners who are deaf or hard of hearing from Defendants’ employment and vocational benefits and opportunities. See 28 C.F.R. 42.503. 165. As a proximate result of Defendants’ violations of Plaintiffs’ rights under the Rehabilitation Act, Plaintiffs have suffered and continue to suffer from discrimination, unequal treatment, exclusion (including exclusion from Defendants’ services, benefits, activities, programs, and privileges), violations of their rights under the laws of the United States, unequal access to good conduct deductions to reduce their overall incarceration time and improve their prospects for gaining parole release, unnecessary disciplinary measures, injury to their health, financial loss, loss of dignity, frustration, humiliation, emotional pain and suffering, anxiety, trauma, and embarrassment.
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166. The Defendants’ failure to comply with the Rehabilitation Act has resulted in harm to Plaintiffs, and the Defendants are liable to Plaintiffs for harms suffered. The Defendants’ failure to comply with the Rehabilitation Act will continue to result in harm to Plaintiffs, as Plaintiffs will continue to be in the custody or under the supervision of DOC and will continue to attempt to use or avail themselves of the services, benefits, activities, programs, and privileges of Defendants. This harm will continue unless and until the Defendants make modifications to their policies, practices and procedures pursuant to the Rehabilitation Act.
COUNT III Violation of the Religious Land Use and Institutionalized Persons Act,
42 U.S.C. § 2000cc-1 et seq. (Against Defendants Higgins O’Brien, Chmiel, Ryan, Medeiros, O’Brien, and Henderson
by the Plaintiffs on behalf of themselves and the class of similarly situated individuals) 167. Plaintiffs hereby incorporate each preceding and succeeding paragraph as though fully set forth herein. 168. Under the RLUIPA, Governments may not impose substantial burdens on the religious exercise of institutionalized persons “even if the burden results from a rule of general applicability.” 42 U.S.C. § 2000cc-1(a). 169. The claims under RLUIPA are brought against Defendants DOC as a department, agency, or instrumentality of the Commonwealth of Massachusetts, as well as against Defendants Higgins O’Brien, Chmiel, Medeiros, Ryan, Henderson, and O’Brien in their official capacities as employees of the DOC. 170. As a department, agency, or instrumentality of the Commonwealth of Massachusetts, or officials of such entities, the Defendants are each a “government” within the meaning of RLUIPA. See 42 U.S.C. § 2000cc-5(4)
42

Case 1:15-cv-40162-GAO Document 1 Filed 11/24/15 Page 43 of 49
171. Plaintiffs are “institutionalized persons” within the meaning of RLUIPA. See 42 U.S.C. § 2000cc-1. 172. The Defendants have deprived and continue to deprive Plaintiffs of their right to the free exercise of religion, as secured by RLUIPA, by unlawfully imposing a substantial burden on Plaintiffs’ religious exercise. They have done so by failing to provide interpreters or other means for enabling Plaintiffs to effectively communicate at weekly worship services. The substantial burden the Defendants have imposed on Plaintiffs’ religious exercise affects programs or activities that receive Federal financial assistance. 173. The Defendants’ failure to comply with RLUIPA has resulted, and will continue to result in, harm to Plaintiffs, as Plaintiffs will continue to be in DOC custody and continue to attempt to participate in weekly worship services unless and until Defendants make modifications to DOC policies, practices, and procedures pursuant to RLUIPA.
COUNT IV Violation of Free Exercise Rights under First and Fourteenth
Amendments to the United States Constitution (Against Defendants Higgins O’Brien, Chmiel, Ryan, Medeiros, O’Brien, and Henderson
by the Plaintiffs on behalf of themselves and the class of similarly situated individuals) 174. Plaintiffs hereby incorporate each preceding and succeeding paragraph as though fully set forth herein. 175. Defendants Higgins O’Brien, Chmiel, Ryan, Medeiros, O’Brien, and Henderson, acting under color of Massachusetts statutes and regulations, deprived and continue to deprive Plaintiffs of their free exercise of religion, as secured by the First and Fourteenth Amendments to the United States Constitution, and enforceable through 42 U.S.C. § 1983, by discriminating against Plaintiffs because of their hearing disabilities and mode of speech and substantially burdening their religious exercise.
43

Case 1:15-cv-40162-GAO Document 1 Filed 11/24/15 Page 44 of 49
176. The failure of Defendants Higgins O’Brien, Chmiel, Ryan, Medeiros, O’Brien, and Henderson to comply with the First and Fourteenth Amendments of the United States Constitution has resulted, and will continue to result in, harm to Plaintiffs, unless and until Defendants make modifications to their policies, practices, and procedures consistent with constitutional requirements, as Plaintiffs will remain in the custody of DOC.
COUNT V Violation of Free Speech Rights under the First and Fourteenth
Amendments to the United States Constitution (Against Defendants Higgins O’Brien, Chmiel, Ryan, Medeiros, O’Brien, and Henderson by the Plaintiffs on behalf of themselves and the class of similarly situated individuals) 177. Plaintiffs hereby incorporate each preceding and succeeding paragraph as though fully set forth herein. 178. Defendants Higgins O’Brien, Chmiel, Ryan, Medeiros, O’Brien, and Henderson, acting under color of Massachusetts statutes and regulations, deprived and continue to deprive Plaintiffs of their freedom of speech, as secured by the First and Fourteenth Amendments to the United States Constitution, and enforceable through 42 U.S.C. § 1983, by preventing Plaintiffs from effectively communicating with people outside of the prison. Despite multiple complaints in writing to DOC officials, the DOC – through the official actions of Defendants – has denied and continues to deny Plaintiffs access to telecommunications devices that would give them the ability and opportunity to communicate with people outside of prison. 179. The Defendants’ failure to comply with the First and Fourteenth Amendments of the United States Constitution has resulted, and will continue to result in, harm to Plaintiffs unless and until the Defendants make modifications to their policies, practices, and procedures consistent with constitutional requirements, as Plaintiffs will remain in the custody of DOC.
44

Case 1:15-cv-40162-GAO Document 1 Filed 11/24/15 Page 45 of 49
COUNT VI Violation of Rights to Privacy and Informed Consent under the First and Fourteenth
Amendments of the United States Constitution (Against all Defendants by the Plaintiffs on behalf of themselves and
the class of similarly situated individuals) 180. Plaintiffs hereby incorporate each preceding and succeeding paragraph as though fully set forth herein. 181. The Defendants, acting under color of Massachusetts statutes and regulations, by their policies, practices, and acts, deprived and continue to deprive Plaintiffs of their rights to privacy and informed consent, as secured by the First and Fourteenth Amendments to the United States Constitution, and enforceable through 42 U.S.C. § 1983, by forcing Plaintiffs to use unqualified sign language interpreters who are not bound to maintain confidentiality in the administration of medical treatment, and by providing medical treatment to Plaintiffs without the assistance of a qualified interpreter or other assistive devices such that Plaintiffs receive information sufficient to reach an informed judgement on whether to consent to a particular treatment and be free from unwanted medical treatment. 182. The Defendants’ failure to comply with the First and Fourteenth Amendments of the United States Constitution has resulted in, and will continue to result in, harm to Plaintiffs unless and until all Defendants make modifications to their policies, practices, and procedures consistent with constitutional requirements, as Plaintiffs will remain in the custody of DOC.
COUNT VII Violation of Right against Cruel and Unusual Punishment under the Eighth and
Fourteenth Amendments of the United States Constitution: Deliberate Indifference to Serious Medical Needs
(Against all Defendants by the Plaintiffs on behalf of themselves and the class of similarly situated individuals)
45

Case 1:15-cv-40162-GAO Document 1 Filed 11/24/15 Page 46 of 49
183. Plaintiffs hereby incorporate each preceding and succeeding paragraph as though fully set forth herein. 184. The Defendants, acting under color of Massachusetts statutes and regulations, by their policies, practices, and acts, violated and continue to violate the rights of Plaintiffs to be free from cruel and unusual punishment, as protected by the Eighth and Fourteenth Amendments to the United States Constitution, as enforceable through 42 U.S.C. § 1983, by being deliberately indifferent to Plaintiffs’ serious medical needs. The Defendants’ failure to provide qualified interpretive services and assistive devices during medical and mental health treatment rises to a systemic deficiency in all instances in which communication between the patient and medical personnel are essential to the efficacy of the treatment in question. 185. The Defendants’ failure to comply with the Eighth and Fourteenth Amendments of the United States Constitution has resulted in, and will continue to result in, harm to Plaintiffs unless and until all Defendants make modifications to their policies, practices, and procedures consistent with constitutional requirements, as Plaintiffs will remain in the custody of DOC.
COUNT VIII Violation of Right against Cruel and Unusual Punishment under the Eighth and
Fourteenth Amendments of the United States Constitution: Unsafe Conditions of Confinement
(Against Defendants Higgins O’Brien, Chmiel, Ryan, Medeiros, O’Brien, and Henderson by the Plaintiffs on behalf of themselves and a class of similarly situated individuals)
186. Plaintiffs hereby incorporate each preceding and succeeding paragraph as though fully set forth herein. 187. Defendants Higgins O’Brien, Chmiel, Ryan, Medeiros, O’Brien, and Henderson, acting under color of Massachusetts statutes and regulations, by their policies, practices, and acts, violated and continue to violate the rights of Plaintiffs to be free from cruel and unusual punishment, as protected by the Eighth and Fourteenth Amendments to the United States
46

Case 1:15-cv-40162-GAO Document 1 Filed 11/24/15 Page 47 of 49
Constitution, as enforceable through 42 U.S.C. § 1983, by failing to provide Plaintiffs with safe conditions of confinement in that Defendants have failed to take necessary safety precautions, install equipment, and establish procedures to ensure that Plaintiff are made aware of emergency alarms and announcements. Plaintiffs, who are unable to provide for their own safety while in DOC custody, have the right not to be subjected to the unreasonable threat of injury or death by fire and need not wait until actual casualties occur in order to obtain relief from such conditions. 188. The Defendants’ failure to comply with the Eight and Fourteenth Amendments of the United States Constitution has resulted in harm to Plaintiffs, and will continue to result in harm to Plaintiffs unless and until Defendants make modifications to their policies, practices, and procedures consistent with constitutional requirements, as Plaintiffs will remain in the custody of DOC.
COUNT IX Violation of Right to Due Process in Disciplinary Proceedings under the Fourteenth
Amendment of the United States Constitution (Against Defendants Higgins O’Brien, Chmiel, Ryan, Medeiros, O’Brien, and Henderson by the Plaintiffs on behalf of themselves and the class of similarly situated individuals) 189. Plaintiffs hereby incorporate each preceding and succeeding paragraph as though fully set forth herein. 190. Defendants Higgins O’Brien, Chmiel, Ryan, Medeiros, O’Brien, and Henderson, acting under color of Massachusetts statutes and regulations, by their policies, practices, and acts, violated and continue to violate Plaintiffs’ right to due process, as protected by the Fourteenth Amendments to the United States Constitution, as enforceable through 42 U.S.C. § 1983, by failing to provide Plaintiffs with interpretive services or other assistive devices during all stages of disciplinary proceedings.
47

Case 1:15-cv-40162-GAO Document 1 Filed 11/24/15 Page 48 of 49
191. The Defendants’ failure to comply with the Fourteenth Amendment of the U. S. Constitution has resulted, and will continue to result in, harm to Plaintiffs unless and until all Defendants are ordered by this Court to make modifications to their policies, practices, and procedures consistent with constitutional requirements, as Plaintiffs will remain in the custody of DOC.
PRAYER FOR RELIEF WHEREFORE, Plaintiff prays that the Court:
a. Certify this case as a Plaintiff class action pursuant to Fed. R. Civ. P. 23 (b)(2), certify that named Plaintiffs Briggs, Skinder, Jimenez, Markham, McGowan, Roldan, and Ward are proper representatives of the class, and appoint the undersigned as class counsel;
b. Adjudge and decree that the Defendants, by the organizations, systems, policies, practices, and conditions described above, have violated and continue to violate Title II of the ADA, Section 504 of the Rehabilitation Act, the Religious Land Use and Institutionalized Persons Act, and the Constitution of the United States;
c. Enjoin the Defendants from refusing to provide the proper interpretive services, TDD, videophones, and other assistive devices that are required for deaf and hard of hearing prisoners to fully participate in and benefit from the programs and services offered by these public entities, and required to ensure their physical safety;
d. Enjoin the Defendants from depriving Plaintiffs and Plaintiff Class members of the protections of Title II of the ADA, Section 504 of the Rehabilitation Act, the Religious Land Use and Institutionalized Persons Act, the First, 48

Case 1:15-cv-40162-GAO Document 1 Filed 11/24/15 Page 49 of 49

Eighth, and Fourteenth Amendments of the United States Constitution

pursuant to 42 U.S.C. § 1983;

e. Award reasonable attorneys’ fees and costs; and

f. Award Plaintiffs such other and further relief as the Court deems just and

proper.

Respectfully submitted,

Plaintiffs Leonard Briggs, George Skinder, Rolando S. Jimenez, Louis Markham, McGowan, Eric Roldan and Jennifer Ward,

By their attorneys,

Dated: November 24, 2015

/s/ Tatum Pritchard Tatum A. Pritchard, BBO #664502 tpritchard@plsma.org Elizabeth Matos, BBO #671505 lmatos@plsma.org Prisoners’ Legal Services 10 Winthrop Square, 3rd Floor Boston, MA 02110 (617) 482-2773

/s/ Lisa Pirozzolo Lisa J. Pirozzolo, BBO #561922 Alathea E. Porter, BBO#661100 Alexandra B. Bonneau, BBO #687785 Wilmer Cutler Pickering Hale and Dorr LLP 60 State Street Boston, MA 02109 (617) 526-6000

/s/ Deborah Golden Deborah Golden Elliot Mincberg Washington Lawyers' Committee for Civil Rights & Urban Affairs 11 DuPont Circle, NW, Suite 400 Washington, DC 20036 (202) 319-1000 Of Counsel

49

 
 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 15-40162-GAO
LEONARD BRIGGS, GEORGE SKINDER, LOUIS MARKHAM, FRANCIS MCGOWAN, ERIC ROLDAN, ROLANDO S. JIMENEZ, and JENNIFER WARD, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
MASSACHUSETTS DEPARTMENT OF CORRECTION; CAROL HIGGINS O’BRIEN, COMMISSIONER OF THE MASSACHUSETTS DEPARTMENT OF CORRECTION; KATHERINE CHMIEL, DEPUTY COMMISSIONER OF CLASSIFICATION, PROGRAMS, AND REENTRY DIVISION; KELLY RYAN, SUPERINTENDENT OF MCI-SHIRLEY; SEAN MEDEIROS, SUPERINTENDENT OF MCI-NORFOLK; STEVEN O’BRIEN, SUPERINTENDENT OF THE MASSACHUSETTS TREATMENT CENTER; PAUL
HENDERSON, ACTING SUPERINTENDENT OF MCI-FRAMINGHAM; and MASSACHUSETTS PARTNERSHIP FOR CORRECTIONAL HEALTHCARE,
Defendants.
OPINION AND ORDER June 29, 2016
O’TOOLE, D.J.
The plaintiffs contend that the Massachusetts Department of Correction (“DOC”), its
officers, and its contracted provider of healthcare services, Massachusetts Partnership for
Correctional Healthcare, fail to adequately accommodate the needs of deaf and hard of hearing
inmates in the DOC’s custody, in violation of a number of statutory and constitutional rights. The
plaintiffs have moved to certify a class of all present and future DOC inmates with hearing
impairments. That motion was fully briefed and the Court heard argument on the issues presented.
The plaintiffs make a strong argument that class treatment is appropriate for at least some,
and perhaps all, of their claims. Indeed, the DOC concedes that some of the claims are suitable for
class adjudication. However, the DOC argues that it is too early in this litigation—proceeding only

on the pleadings and without the benefit of any discovery—to know whether class certification is appropriate for all the claims, as the plaintiffs assert. The DOC suggests denying the present motion without prejudice, subject to its later renewal after additional discovery shines more light on which claims are suitable for class certification.
The DOC’s more cautious approach is the right one here. While a class should be certified at “an early practicable time” in the proceeding, see Fed. R. Civ. Pro. 23(c)(1)(A), the decision whether or not to certify a class should come only after a court has engaged in a “rigorous analysis” of the Rule 23 criteria, see Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351–52 (2011) (quoting Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 161 (1982)). The plaintiffs’ claims cover a variety of topics, from telecommunications services to hearing aids to American Sign Language translation during religious services. The plaintiffs—and the proposed class—experience a range of hearing impairments. There are too many unanswered factual questions at the moment to decide now to certify a class for all claims (or concomitantly, to decide that a class should not be certified for some claims).
All defendants have answered the Complaint; this case will now move into discovery, particularly including class discovery. When appropriate, the plaintiffs may refile their motion.
The plaintiffs’ Motion for Class Certification (dkt. no. 26) is DENIED without prejudice. It is SO ORDERED.
/s/ George A. O’Toole, Jr. United States District Judge
2

 
 Case 1:15-cv-40162-GAO Document 26 Filed 03/04/16 Page 1 of 4

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

LEONARD BRIGGS, GEORGE SKINDER, LOUIS )

MARKHAM, FRANCIS MCGOWAN, ERIC

)

ROLDAN, ROLANDO S. JIMENEZ, AND

)

JENNIFER WARD, on behalf of themselves and all )

others similarly situated,

)

) C.A. No. 1:15-cv-40162-GAO

Plaintiffs,

)

v.

)

MASSACHUSETTS DEPARTMENT OF

)

CORRECTION; CAROL HIGGINS O’BRIEN,

)

COMMISSIONER OF THE MASSACHUSETTS )

DEPARTMENT OF CORRECTION; KATHERINE )

CHMIEL, DEPUTY COMMISSIONER OF

)

CLASSIFICATION, PROGRAMS, AND REENTRY )

DIVISION; KELLY RYAN SUPERINTENDENT )

OF MCI-SHIRLEY; SEAN MEDEIROS,

) Oral Argument Requested

SUPERINTENDENT OF MCI-NORFOLK;

)

STEVEN O’BRIEN, SUPERINTENDENT OF THE )

MASSACHUSETTS TREATMENT CENTER;

)

PAUL HENDERSON, ACTING

)

SUPERINTENDENT OF MCI-FRAMINGHAM; )

AND MASSACHUSETTS PARTNERSHIP FOR )

CORRECTIONAL HEALTHCARE,

)

Defendants.

)

)

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Plaintiffs Leonard Briggs, George Skinder, Rolando S. Jimenez, Louis Markham, Francis

McGowan, Eric Roldan, and Jennifer Ward, on behalf of themselves and all others similarly

situated, move for class certification under Federal Rules of Civil Procedure 23(a) and 23(b)(2).

The proposed class consists of:

All individuals who are currently or will in the future be within the custody of the DOC and who: (i) the Defendants classify as deaf or hard of hearing or who notify the Defendants in writing, personally or through a family member or advocate, that he or she is deaf or hard of hearing; and (ii) require accommodations, including interpreters or other auxiliary aids or services to communicate effectively, to access Defendants’ programs and services, and/or to hear or understand telecommunications, alarms, instructions, or loudspeaker system announcements.

1

Case 1:15-cv-40162-GAO Document 26 Filed 03/04/16 Page 2 of 4

Plaintiffs further move for the appointment of the undersigned counsel as class counsel

pursuant to Federal Rule of Civil Procedure 23(g).

In the alternative, if the Court finds Plaintiffs have not established the requirements for

certification, Plaintiffs request class discovery.

REQUEST FOR ORAL ARGUMENT

Pursuant to Local Rule 7.1(d), Counsel respectfully asks the Court for a hearing on this

motion.

LOCAL RULE 7.1 CERTIFICATION

Pursuant to Local Rule 7.1(a)(2), I hereby certify that counsel for Plaintiffs conferred

with counsel for Defendants on the subject of this motion. Counsel for Defendants indicated that

they oppose Plaintiffs’ Motion.

Respectfully submitted,

Plaintiffs Leonard Briggs, George Skinder, Rolando S. Jimenez, Louis Markham, Eric Roldan, Francis McGowan, and Jennifer Ward,

By their attorneys,

Dated: March 4, 2016

/s/ Tatum A. Pritchard (with consent) Tatum A. Pritchard, BBO #664502 Elizabeth Matos, BBO #671505 PRISONERS’ LEGAL SERVICES 10 Winthrop Square, 3rd Floor Boston, MA 02110 (617) 482-2773 tpritchard@plsma.org lmatos@plsma.org

/s/ Lisa J. Pirozzolo Lisa J. Pirozzolo, BBO# 561922 Alathea E. Porter, BBO#661100 Alexandra B. Bonneau, BBO #687785 WILMER CUTLER PICKERING

2

Case 1:15-cv-40162-GAO Document 26 Filed 03/04/16 Page 3 of 4
HALE AND DORR, LLP 60 State Street Boston, MA 02109 (617) 526-6000 lisa.pirozzolo@wilmerhale.com alathea.porter@wilmerhale.com alexandra.bonneau@wilmerhale.com /s/ Deborah Golden (with consent) Deborah Golden (pro hac vice) WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS & URBAN AFFAIRS 11 DuPont Circle, NW Suite 400 Washington, DC 20036 (202) 319-1000
3

Case 1:15-cv-40162-GAO Document 26 Filed 03/04/16 Page 4 of 4 CERTIFICATE OF SERVICE
I hereby certify that this motion and its attachments filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) on March 4, 2016.
/s/ Lisa J. Pirozzolo Lisa J. Pirozzolo
4

 
 Case 1:15-cv-40162-GAO Document 199-2 Filed 05/28/19 Page 1 of 80
EXHIBIT 2

Case 1:15-cv-40162-GAO Document 199-2 Filed 05/28/19 Page 2 of 80

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

LEONARD BRIGGS, GEORGE SKINDER, LOUIS )

MARKHAM, FRANCIS MCGOWAN, ERIC

)

ROLDAN, ROLANDO S. JIMENEZ, AND

)

JENNIFER WARD, on behalf of themselves and all )

others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

MASSACHUSETTS DEPARTMENT OF

)

CORRECTION; CAROL A. MICI1,

)

COMMISSIONER OF THE MASSACHUSETTS )

DEPARTMENT OF CORRECTION; JENNIFER A. )

GAFFNEY*, DEPUTY COMMISSIONER OF

)

CLASSIFICATION, PROGRAMS, AND REENTRY )

DIVISION; COLETTE M. GOGUEN*,

)

SUPERINTENDENT OF MCI-SHIRLEY; STEVEN )

SILVA, SUPERINTENDENT OF MCI-NORFOLK; )

LISA MITCHELL, SUPERINTENDENT OF THE )

MASSACHUSETTS TREATMENT CENTER;

)

ALLISON HALLET*, SUPERINTENDENT OF

)

MCI-FRAMINGHAM;

)

AND MASSACHUSETTS PARTNERSHIP FOR )

CORRECTIONAL HEALTHCARE,

)

)

Defendants.

)

C.A. No. 1:15-cv-40162-GAO-JGD

SETTLEMENT AGREEMENT

1 These parties, named in their official capacities, have been substituted as successors in office, under Fed. R. Civ. P. 25(d).

Case 1:15-cv-40162-GAO Document 199-2 Filed 05/28/19 Page 3 of 80
TABLE OF CONTENTS I. PARTIES TO SETTLEMENT AGREEMENT ....................................................................... 1 II. PURPOSE OF SETTLEMENT AGREEMENT..................................................................... 1 III. DEFINITIONS....................................................................................................................... 1 IV. IDENTIFICATION AND TRACKING OF DEAF AND HARD-OF-HEARING
INMATES........................................................................................................................... 8 A. Identification of Deaf and Hard-of-Hearing Inmates Currently in DOC
Custody ................................................................................................................... 8 B. Intake Procedures Regarding Deaf and Hard-of-Hearing Inmates ............................. 9 C. Identification of Deaf and Hard-of-Hearing Inmates After Intake ........................... 12 D. Initial Assessment to Determine Appropriate Hearing-Related Auxiliary Aids
and Services .......................................................................................................... 13 E. Deaf and Hard-of-Hearing Inmates’ Retention of Approved Hearing-Related
Auxiliary Aids....................................................................................................... 18 F. Tracking Deaf and Hard-of-Hearing Inmates in DOC Custody................................ 19 G. Meetings with Institution ADA Coordinators Regarding Accommodations............ 21 V. CONTRACT MEDICAL PROVIDER’S CARE, TREATMENT, AND ACCOMMODATION OF DEAF AND HARD-OF-HEARING INMATES .................. 22 A. Audiologists’ or Other Qualified Hearing Specialists’ Recommendations .............. 22 B. Hearing Screening ..................................................................................................... 23 C. Hearing Aid Batteries................................................................................................ 24 D. Hearing Aid Repairs.................................................................................................. 24 VI. QUALIFIED SIGN LANGUAGE INTERPRETERS......................................................... 25 A. General Policy........................................................................................................... 25 B. Interpretation of Written Materials ........................................................................... 29 C. Methods for Providing Interpreter Services .............................................................. 30
1. Video Remote Interpreting ............................................................................ 30 2. On-Site Live Qualified Sign Language Interpreters ...................................... 31
i

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3. Choice Between On-Site Interpreter Services and VRI................................. 32 D. Off-site Medical Care................................................................................................ 32 E. Parole Hearings ......................................................................................................... 32 F. Use of Inmates as Interpreters for Deaf or Hard-of-Hearing Inmates ....................... 32 VII. INSTITUTIONAL WORK ASSIGNMENTS ................................................................... 34 VIII. TELECOMMUNICATION .............................................................................................. 34 A. General Policy........................................................................................................... 34 B. Telecommunication Services and Devices to Be Provided....................................... 35
1. Videophones & Video Relay Services........................................................... 35 2. Captioned Telephones.................................................................................... 38 3. Teletypewriters .............................................................................................. 39 4. Amplification Available on Traditional Telephones ..................................... 40 5. Hearing Aid Compatible Traditional Telephones.......................................... 40 C. Requesting Approval for and Access to Telecommunication Services and Devices.................................................................................................................. 40 D. Monitoring Communications .................................................................................... 42 E. Additional Time for Communication ........................................................................ 42 F. Cost for Use of Telecommunication Services and Devices....................................... 42 G. Responsibility for Maintaining Equipment............................................................... 42 H. Responsibility for Training Staff .............................................................................. 43 IX. VISUAL AND TACTILE NOTIFICATIONS.................................................................... 43 A. General Policy........................................................................................................... 43 B. Relaying Non-Emergency Information..................................................................... 43 1. Visual or Tactile Notification Systems .......................................................... 44 2. Vibrating Watches ......................................................................................... 45 3. Supplementary Non-Auditory Information Relay Systems........................... 45
ii

Case 1:15-cv-40162-GAO Document 199-2 Filed 05/28/19 Page 5 of 80
X. TRAINING ........................................................................................................................... 46 A. Training Provided to Covered Employees ................................................................ 46 B. Supplemental Training Provided to Institution ADA Coordinators.......................... 47
XI. REVISIONS TO RELEVANT DOC POLICIES IN ACCORDANCE WITH THIS AGREEMENT.................................................................................................................. 48
XII. HOUSING DETERMINATIONS...................................................................................... 55 XIII. MONITORING AND REPORTING................................................................................ 56
A. Settlement Monitor ................................................................................................... 56 B. DOC Records and Reports ........................................................................................ 58 C. Settlement Monitor’s Reports ................................................................................... 59 XIV. RELEASE AND SETTLEMENT OF CLAIMS .............................................................. 60 XV. FINAL APPROVAL.......................................................................................................... 60 XVI. DISPUTE RESOLUTION AND ENFORCEMENT........................................................ 61 XVII. FUNDING......................................................................................................................... 63 XVIII. NO ADMISSION OF LIABILITY................................................................................... 64 XIX. ATTORNEYS’ FEES AND COSTS ................................................................................ 64 XX. MISCELLANEOUS .......................................................................................................... 64 A. Governing Law ......................................................................................................... 64 B. Confidentiality........................................................................................................... 65 C. Entire Agreement ...................................................................................................... 65 D. Execution .................................................................................................................. 65 E. Non-Waiver ............................................................................................................... 66 F. Severability ................................................................................................................ 66 G. Amendments ............................................................................................................. 66 H. Term of Agreement ................................................................................................... 66 APPENDIX A................................................................................................................................70
iii

Case 1:15-cv-40162-GAO Document 199-2 Filed 05/28/19 Page 6 of 80
I. PARTIES TO SETTLEMENT AGREEMENT The Parties to this Settlement Agreement (“Agreement”) are: 1. Plaintiffs Leonard Briggs, George Skinder, Louis Markham, Francis McGowan, Eric Roldan, Rolando S. Jimenez, and Jennifer Ward; 2. Members of any class that is certified in this Action; and 3. Defendants Massachusetts Department of Correction; Carol A. Mici2, Commissioner of the Massachusetts Department of Correction; Jennifer A. Gaffney*, Deputy Commissioner of Classification, Programs, and Reentry Division; Colette M. Goguen*, Superintendent of MCI-Shirley; Steven Silva, Superintendent of MCI-Norfolk; Lisa Mitchell, Superintendent of the Massachusetts Treatment Center; Allison Hallet*, Superintendent of MCIFramingham.
II. PURPOSE OF SETTLEMENT AGREEMENT The Parties acknowledge and agree that this Agreement is intended to be a partial
settlement of the Action, resolving all claims in the Action except the Reserved Claims. III. DEFINITIONS
1. “408 Policy” refers to DOC’s policy 103 DOC 408, “Reasonable Accommodations for Inmates.”3
2. “Action” means the above-captioned action.
2 These Parties, named in their official capacities, have been substituted as successors in office, under Fed. R. Civ. P. 25(d).
3 References to any statutes, regulations, and policies by name or number in this Agreement shall be construed as references to those statutes, regulations, and policies as named or numbered as of the date that this Agreement is executed.

Case 1:15-cv-40162-GAO Document 199-2 Filed 05/28/19 Page 7 of 80
3. “ADA” means the Americans with Disabilities Act, codified at 42 U.S.C. §§ 12101 et seq., as amended by the ADA Amendments Act of 2008 (P.L. 110-325).
4. “ASL” means American Sign Language, a visual language that employs signs made by moving the hands combined with facial expressions and postures of the body with its own unique rules of grammar and syntax used predominantly in the United States and parts of Canada.
5. “Auxiliary Aids and Services” shall refer to equipment, devices, or services that facilitate Effective Communication as well as effective access to DOC programs, services and activities for individuals with hearing-related disabilities. Auxiliary Aids and Services for deaf and hard-of-hearing inmates include, but are not limited to the following: “Qualified interpreters on-site or through video remote interpreting (VRI) services; notetakers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and Captioned Telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing.” See 28 C.F.R § 35.104; see also 42 U.S.C. § 12103(1)(A).
6. “Captioned Telephone” or “CapTel” means a specialized telephone that permits verbal communication in the same manner as a traditional telephone and
2

Case 1:15-cv-40162-GAO Document 199-2 Filed 05/28/19 Page 8 of 80
automatically connects to a captioning service that transcribes the content of the conversation, which provides captions on the device’s built-in screen. 7. “Communication Access Realtime Translation” or “CART” means a real-time captioning service that is used by deaf and hard-of-hearing individuals who use English as their first language and/or their language of instruction. 8. “Contract Medical Provider” means any provider of medical, dental, or mental health treatment who is not an employee of DOC and who provides such services through a contractual agreement with DOC. 9. “Covered Employees” means all DOC employees with care and custody functions; DOC Contract Medical Provider employees; DOC contract substance use treatment provider employees; and DOC Education Program principals. 10. “Deaf” denotes individuals who cannot hear or who, as a result of hearing loss, are impaired in processing linguistic information through hearing, with or without amplification. 11. “Department ADA Coordinator for Inmates” means the individual designated by DOC who is responsible for coordinating DOC’s compliance with the ADA as it relates to inmates and the provisions of 103 DOC 408. 12. “Department Investigation” means DOC’s collection of evidence that supports, fails to support, or refutes an allegation, or provides clarification of what occurred during an incident, including alleged misconduct. 13. “Direct Threat” means a significant risk to the health or safety of the deaf or hardof-hearing inmate or others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of Auxiliary Aids and Services as provided in 28 CFR § 35.139.
3

Case 1:15-cv-40162-GAO Document 199-2 Filed 05/28/19 Page 9 of 80
14. “DOC” shall refer to the Massachusetts Department of Correction, as established by Mass. Gen. Laws c. 27, § 1.
15. “DOC Facility” or “DOC Facilities” shall refer to any correctional facility owned, operated, administered or subject to the control of DOC.
16. “Effective Communication” means communication that is clear and understandable to persons with disabilities. For deaf and hard-of hearing inmates, Effective Communication is communication that is substantially as effective as communication with the general inmate population (see 28 C.F.R. § 35.160(a)). Effective Communication will, when necessary, include the provision of appropriate Auxiliary Aids and Services, such as Qualified Sign Language Interpreters. Effective Communication affords deaf and hard-of-hearing inmates an opportunity to participate in, and enjoy the benefits of, DOC’s services, programs, or activities in a manner that is substantially equal to the opportunity provided to similarly situated inmates who are neither deaf nor hard-of-hearing.
17. “Effective Date” shall mean the date upon which this Agreement is finally approved and entered by the Court or a motion to finally approve or enter the Agreement is granted, whichever occurs first, as recorded on the Court’s docket.
18. “Final Approval” shall refer to the Court’s entry of this Agreement as an Order of the Court following a hearing and finding that the Agreement is fair, reasonable an adequate, pursuant to Fed. R. Civ. P. 23(e).
19. “Hard-of-Hearing” denotes individuals who have reduced hearing ability ranging from mild to severe.
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20. “Inmate” means a committed offender or such other person as is placed in custody in a state correctional facility in accordance with law, as defined in Mass. Gen. Laws c. 125, § 1.
21. “IMS” means the Inmate Management System, DOC’s automated information system that provides processing, storage and retrieval of inmate-related information needed by DOC.
22. “Institution ADA Coordinator” means the individual at a particular DOC Facility responsible for ensuring that facility’s compliance with the ADA and 103 DOC 408 for inmates.
23. “MCDHH” means the Massachusetts Commission for the Deaf and Hard of Hearing, as established by Mass. Gen. Laws c. 6, § 192.
24. “On-site Medical Appointment” means a medical appointment that is conducted at a DOC Facility, including a medical appointment conducted by third parties in a DOC Facility.
25. “Personalized Program Plan” means a plan that charts the course of action for the inmate, the Correctional Program Officer, and the service providers on addressing the criminogenic needs of the inmate, progress made, and compliance issues. The plan begins at intake and is continuously updated based on the inmate’s risk, needs assessment, if applicable, and record review including but not limited to any secondary assessment.
26. “Plaintiffs’ Counsel” means attorneys-of-record for Plaintiffs in Briggs, et al. v. Massachusetts Department of Correction, et al., Case No. 15-cv-40162-GAO-JGD (D. Mass.), as of the date this Agreement is signed.
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27. “Primary Consideration” means that DOC must honor a deaf or hard-of-hearing inmate’s expressed choice(s) of accommodations when determining what types of auxiliary aids and/or services are necessary to ensure that the inmate is able to communicate effectively and have effective, meaningful, and substantially equal access to DOC programs, services, and activities, unless DOC can demonstrate (1) that another means of Effective Communication is available or (2) that the means chosen by the inmate would result in a fundamental alteration in the service, program, or activity, in undue financial and administrative burdens, or will result in actual risks or impairment of the safe operation of a DOC Facility or the service, program, or activity in accordance with 28 C.F.R. § 35.130(h).
28. “Qualified Hearing Specialist” means a licensed professional specializing in hearing loss, namely audiologists and physicians who specialize in the diagnosis and treatment of hearing loss (such as otologists and neurologists).
29. “Qualified Sign Language Interpreter” means a person who, via a video remote interpreting (“VRI”) service or an on-site appearance, can interpret effectively, accurately, and impartially, both receptively and expressively, using American Sign Language. See 28 C.F.R. § 35.104. For purposes of this Agreement, a Qualified Sign Language Interpreter is one who holds a current, valid certification and/or who has been screened and approved by one or more of the following organizations: a. Registry of Interpreters for the Deaf, Inc., a nationally based professional organization; b. National Association of the Deaf; and/or c. MCDHH.
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The Parties agree that other certifications that are the equivalent of those offered by the above organizations shall be considered valid minimum certification, so long as those certifications are kept current. 30. “Reserved Claims” means claims identified in the Complaint filed in this Action that have not been expressly resolved by this Agreement and that will be resolved through further litigation of this Action. The following are identified as Reserved Claims: a. Claims regarding the adequacy of DOC’s provision of notifications of
safety announcements, emergency alerts and alarms, and emergency evacuations to deaf and hard-of-hearing inmates. Included in such claims are Plaintiffs’ claims that: (1) DOC lacks effective visual systems for notifying deaf and hard-of-hearing inmates of emergency alarms and announcements, and (2) DOC has failed to take necessary safety precautions, install equipment, and establish procedures to ensure that deaf and hard-ofhearing inmates are made aware of emergency alarms and announcements. b. Claims for attorneys’ fees and costs, including claims for attorneys’ fees and costs associated with the claims that have been resolved by this Agreement. 31. “Teletypewriter” or “TTY” or “TDD” means teletypewriters or telecommunications devices for the deaf, which are devices for text communication over a telephone line designed for use by persons with hearing disabilities. 32. “Telecommunication Vendor” means a company that furnishes, installs, and maintains for DOC Facilities an inmate calling system, which includes instruments
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such as telephones, videophones, TTY/TDD devices, and Captioned Telephones, through a contractual agreement. 33. “Videophone” means a telecommunication device with a camera and a screen that allows for visual, real-time communication. 34. “Video Relay Service” or “VRS” means a video telecommunication service that allows persons who are deaf or hard-of-hearing to communicate over video telephones and similar technologies with hearing persons in real time, via a sign language interpreter. 35. “Video Remote Interpreting” or “VRI” means an interpreting service that uses video conference technology over dedicated lines or wireless technology offering a high-speed, wide-bandwidth video connection that delivers high-quality video images. See 28 C.F.R. § 35.160(d). IV. IDENTIFICATION AND TRACKING OF DEAF AND HARD-OF-HEARING INMATES A. Identification of Deaf and Hard-of-Hearing Inmates Currently in DOC Custody To ensure that all current deaf and hard-of-hearing inmates known to DOC and its Contract Medical Provider have been identified for the purposes of DOC’s provision of appropriate services to its inmate population and the monitoring of this Agreement, DOC shall complete a records audit within three (3) months of the Effective Date. This audit will consist of a search and review of the following: (1) records of all accommodations for current inmates related to hearing loss maintained by the Institution ADA Coordinators and the Department ADA Coordinator for Inmates as of the Effective Date; (2) records of all medical devices related to hearing loss (e.g., hearing aids, pocket talkers, FM systems, etc.) provided by DOC Contract Medical Providers from
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July 1, 2016 to the Effective Date; and (3) records of all audiological and otological consultations approved by DOC’s Contract Medical Provider from July 1, 2016 to the Effective Date.
In addition to conducting the foregoing records audit, within three (3) months of the Effective Date, DOC shall prominently display in all DOC Facility inmate housing units and medical units a notice informing inmates that they may request a hearing screening consistent with Section V(B) (Hearing Screening). This notice shall be prepared in both English and Spanish, as well as in any other “regularly encountered language” as defined by DOC’s Interpreter Services Policy, 103 DOC 488. DOC will provide Plaintiffs with a copy of this notice before it is posted. Plaintiffs may provide comments to DOC regarding the notice. It may be removed after being posted for sixty (60) calendar days. Inmates who do not have access to the posted notice due to various safety or other restrictions imposed on them shall receive a copy of the notice.
Based on the results of both the records audit and of any hearing screenings requested pursuant to the posted notice, DOC shall prepare a list of deaf and hard-of-hearing inmates who are currently in DOC custody. The Department ADA Coordinator for Inmates will maintain this list consistent with the requirements of Section IV(F) (Tracking Deaf and Hard-of-Hearing Inmates in DOC Custody).
B. Intake Procedures Regarding Deaf and Hard-of-Hearing Inmates Consistent with the 408 Policy, within twenty-four hours of a new inmate’s admission into DOC custody, DOC booking, orientation, or Contract Medical Provider staff shall ask the newly admitted inmate if he or she requires an accommodation for a disability and shall record the inmate’s response. As part of this process, DOC or Contract Medical Provider staff shall ask all newly admitted inmates whether he or she has hearing loss. For any inmate who self-identifies as deaf or hard-of-hearing, or who DOC or Contract Medical Provider staff believes may have a hearing disability, Contract Medical Provider staff shall ask: (1) whether the inmate has ever used
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a hearing aid or any other device or service to help him or her hear; (2) whether the inmate has ever used a sign language interpreter; (3) whether the inmate believes he or she would benefit from an accommodation to help him or her hear; and (4) whether the inmate’s primary language is ASL. The answers to these questions shall be recorded in a Hearing Accommodation Intake Questionnaire, which will be placed in the inmate’s medical record.
DOC staff responsible for intake shall provide all newly admitted inmates with a copy of an “Offender/Inmate Orientation to ADA” form, which will inform them of their rights under the ADA and provide an additional opportunity to request a reasonable accommodation for any disability. Additionally, to those inmates who self-identify as deaf or hard-of-hearing, or who DOC or Contract Medical Provider staff believes may have a hearing disability requiring accommodation, DOC staff shall provide a copy of: (1) the Inmates with Disabilities Notice of Rights Under the Americans with Disabilities Act; and (2) the 408 Policy. DOC shall also notify such inmates of all telecommunication services and devices available at DOC Facilities, in accordance with Section VIII(B) (Telecommunications Services and Devices to be Provided). DOC will ensure that all staff handling intake at each facility are trained regarding their responsibility to provide the above information prior to performing intake.
Whenever during the intake process any DOC staff or Contract Medical Provider staff become aware of any inmate who indicates he or she needs or who otherwise has been identified as potentially requiring a reasonable accommodation for his or her hearing disability, that DOC or Contract Medical Provider staff shall notify the inmate’s Institution ADA Coordinator as soon as practicable. If a deaf or hard-of-hearing inmate is unable to effectively read or communicate through written English, the Institution ADA Coordinator shall promptly provide the inmate with those auxiliary aids and/or services that have been identified in accordance with Section IV(D) (Initial Assessment to Determine Appropriate Hearing-Related Auxiliary Aids and Services)
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to enable the inmate to understand the 408 Policy and the Inmates with Disabilities Notice of Rights Under the Americans with Disabilities Act. For deaf or hard-of-hearing inmates whose primary language is ASL, DOC shall promptly provide Qualified Sign Language Interpreter services. The Institution ADA Coordinator shall maintain a monthly written record of all notifications as described above that have been received and all accommodations provided to deaf and hard-of-hearing inmates in keeping with this paragraph.
DOC shall require its Contract Medical Provider to promptly evaluate all newly admitted inmates who are identified as deaf and hard-of-hearing during intake within seventy-two (72) hours of admittance into DOC custody. Record of these evaluations shall be maintained in the inmates’ medical records. Deaf or hard-of-hearing inmates who have identified their primary language as ASL shall receive Qualified Sign Language Interpretation for the purposes of this initial medical evaluation, in accordance with Section VI (Qualified Sign Language Interpreters) and Section IV(D) (Initial Assessment to Determine Appropriate Hearing-Related Auxiliary Aids and Services).
The Institution ADA Coordinator shall ensure that deaf and hard-of-hearing inmates receive such Auxiliary Aids and Services that have been identified in accordance with Section IV(D) (Initial Assessment to Determine Appropriate Hearing-Related Auxiliary Aids and Services) to ensure Effective Communication during inmate orientation. All deaf or hard-ofhearing inmates whose primary language is ASL shall receive Qualified Sign Language Interpretation for the purposes of inmate orientation, interpretation of the Inmate Handbook, and interpretation of the notification regarding the telecommunication services and devices available to deaf and hard-of-hearing inmates at DOC Facilities. The Institution ADA Coordinator shall make a written record of any accommodations provided to deaf and hard-of hearing inmates for the purposes of orientation in each inmate’s ADA Folder.
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For deaf and hard-of-hearing inmates who can effectively communicate in written English, DOC will prepare, within six (6) months of the Effective Date of this Agreement, a video with closed captioning providing orientation information that is applicable to all facilities. The video shall be shown at all facilities during every inmate orientation session. Any site-specific information not included in the video shall be provided in writing to deaf and hard-of-hearing inmates who can effectively communicate in written English.
C. Identification of Deaf and Hard-of-Hearing Inmates After Intake At any time during his or her incarceration, a deaf or hard-of-hearing inmate may initiate a request for reasonable accommodation by: (1) making a verbal or written request to any DOC staff member; (2) making a verbal or written request to medical/mental health staff for a medicallyrelated accommodation; or (3) completing a Request for Reasonable Accommodation Form. If it is determined that a deaf or hard-of-hearing inmate requires auxiliary aids and/or services to enable him or her to effectively request reasonable accommodations or to effectively appeal the denial or modification of a request for reasonable accommodation, the Institution ADA Coordinator shall ensure that DOC provides such auxiliary aids and/or services. If, at any time during an inmate’s incarceration, the inmate informs a DOC staff member that he or she is having hearing difficulties or a DOC staff member observes that an inmate may be having hearing difficulties, the staff member should notify the inmate that: (1) he or she may seek accommodations per the 408 Policy; and (2) he or she may also submit a sick call slip requesting to be seen by the Contract Medical Provider for an evaluation. DOC will conduct training with staff members to inform them that if they are informed or observe that an inmate may be having hearing difficulties, the proper practice is for them to notify inmates of the options described above.
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If, at any time during an inmate’s incarceration, an Institution ADA Coordinator is informed by an inmate or a member of DOC staff or observes that an inmate may be having hearing difficulties, he or she shall notify the inmate that: (1) he or she may seek accommodations per the 408 Policy; and (2) he or she may also submit a sick call slip requesting to be seen by the Contract Medical Provider for an evaluation.
DOC’s Health Services Division shall ensure that its Contract Medical Provider conducts a hearing screening of any inmate not previously identified as deaf or hard-of-hearing who: (1) initiates a request for reasonable accommodation by reporting a hearing disability; (2) submits a sick call slip or makes a verbal report to medical staff concerning hearing issues; or (3) medical staff identifies as having potential hearing issues. DOC’s Contract Medical Provider shall conduct such hearing screening consistent with Section V(B) (Hearing Screening).
During the periodic physical examinations that must occur per DOC Policy 103 DOC 630.11, the Contract Medical Provider shall ask all inmates whether they have hearing difficulties and examine all inmates for hearing loss. Contract Medical Provider staff must record any relevant information, including any report or indication of hearing loss, in the inmate’s medical record.
D. Initial Assessment to Determine Appropriate Hearing-Related Auxiliary Aids and Services
For every inmate who has been identified as deaf or hard-of-hearing, DOC’s Department ADA Coordinator for Inmates or an Institution ADA Coordinator shall coordinate an assessment of the inmate’s hearing-related needs so that the inmate may effectively communicate and receive effective, meaningful, and substantially equal access to DOC programs, services and activities during his or her incarceration. The Department ADA Coordinator for Inmates or Institution ADA Coordinator shall initiate the assessment no later than five (5) days after an inmate has been identified as deaf or hard-of-hearing and shall complete the assessment within thirty (30) days
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thereafter, unless additional input about the nature of an inmate’s hearing needs has been sought but cannot be obtained within the 30 days. In situations where an assessment has not been completed within 30 days, DOC must ensure that it completes the assessment as soon as is feasible after the 30-day period has expired.
No more than five (5) days after an inmate has been identified as deaf or hard-of-hearing, the Institution ADA Coordinator shall meet with that inmate for the purposes of, among other things, (1) addressing the specific hearing-related accommodations available at DOC, in accordance with the terms of this Agreement, and (2) assessing the inmate’s need for such hearingrelated accommodations. If the inmate is deaf or hard-of-hearing and his or her primary language is ASL, a Qualified Sign Language Interpreter shall be present at this meeting. If the deaf or hardof-hearing inmate requires an alternative auxiliary aid or service to effectively participate in the meeting, it shall be provided.
At this meeting, the Institution ADA Coordinator and the deaf or hard-of-hearing inmate shall discuss, with the assistance of the Qualified Sign Language interpreter or other auxiliary aid where necessary, the inmate’s areas of hearing-related need (e.g., making phone calls, receiving instructions, participating in programming, etc.) and the inmate’s preferred method of communication and of receiving information (e.g., lip-reading, written language, ASL, etc.). The Institution ADA Coordinator shall provide the deaf or hard-of-hearing inmate with a list of hearing-related Auxiliary Aids and Services that have been approved for use in DOC Facilities in appropriate circumstances (e.g., interpreter services, CART, physical devices that have passed a security review). Where necessary, including when the deaf or hard-of-hearing inmate is unfamiliar with any of the listed auxiliary aids or services, the Institution ADA Coordinator shall explain the Auxiliary Aids and Services available to the deaf or hard-of-hearing inmate, including what hearing-related need area they may help address and how. The Institution ADA Coordinator
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and the deaf or hard-of-hearing inmate may also discuss any other topics that are relevant to the inmate’s hearing-related needs, including whether the inmate has previously used other auxiliary aids or services not included on the provided list of available accommodations to enable him or her to effectively communicate or receive information. The Institution ADA Coordinator shall document the substance discussed at this meeting, including the inmate’s preferred form of communication; the documentation will be stored in the inmate’s ADA folder.
Based on the information provided, the deaf or hard-of-hearing inmate shall indicate at the meeting which auxiliary aids or services he or she believes are necessary to enable him or her to effectively communicate and participate in any DOC programs, services, and activities for which he or she is eligible. The Institution ADA Coordinator shall document which Auxiliary Aids and Services the inmate has selected; the documentation will be stored in the inmate’s ADA folder. The inmate shall not be required to complete the Request for Reasonable Accommodation form.
The Institution ADA Coordinator shall review the deaf or hard-of-hearing inmate’s selection and, within no more than thirty (30) days and in accordance with Section XI (Revisions to Relevant DOC Policies in Accordance with this Agreement), ¶ 8, shall determine which accommodations shall be approved and provided to the deaf or hard-of-hearing inmate. In making this decision, the Institution ADA Coordinator shall give Primary Consideration to the preference expressed by the inmate for particular auxiliary aids or services, unless one of the exceptions set forth in Section XI (Revisions to Relevant DOC Policies in Accordance with this Agreement), ¶ 8, applies. Any decision to deny an auxiliary aid or service selected by an inmate must be based on an individualized assessment of the inmate, and not on any set guidelines, protocols, or threshold levels of hearing loss shown on an inmate’s audiogram. Notwithstanding the foregoing, in accordance with Section XI (Revisions to Relevant DOC Policies in Accordance with this Agreement), ¶ 2, for deaf or hard-of-hearing inmates whose primary language is ASL, the
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Institution ADA Coordinator shall approve and provide as soon as is feasible auxiliary aids in the form of Qualified Sign Language Interpreter services, the telecommunication services of the inmate’s choosing, and the visual and/or tactile notification device (e.g., facility-approved receiver/pager and vibrating watch) of the inmate’s choosing. The Institution ADA Coordinator shall document the approved auxiliary aids or services in the inmate’s ADA folder and in IMS. If the Institution ADA Coordinator denies or modifies any requested auxiliary aid or services, he or she shall document the reasons for such denial or modification in the inmate’s ADA folder. A deaf or hard-of-hearing inmate shall have the opportunity to appeal any such denial or modification to the Department ADA Coordinator for Inmates. Depending on the needs of the deaf or hard-ofhearing inmate, auxiliary aids and/or services will be made available to allow the inmate effective access to the appellate process. The Institution ADA Coordinator shall notify the Department ADA Coordinator for Inmates of (1) the inmate’s requested accommodations, (2) whether such requested accommodations were granted, denied, or modified, and (3) where a requested accommodation was denied or modified, the reasons therefor. The Department ADA Coordinator for Inmates shall document this information in the centralized database that he or she maintains.
In accordance with Section X(B) (Supplemental Training Provided to Institution ADA Coordinators), DOC shall coordinate with MCDHH or other community resources to provide Institution ADA Coordinators with supplemental training regarding the Auxiliary Aids and Services available to deaf and hard-of-hearing inmates. Additionally, DOC shall coordinate with MCDHH or other community resources to prepare approved language that Institution ADA Coordinators should use to explain the Auxiliary Aids and Services available to deaf and hard-ofhearing inmates.
Institution ADA Coordinators who have not yet received the supplemental training may initiate the initial assessment within five (5) days after an inmate has been identified as deaf or
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hard-of-hearing if they use this approved language. However, they may not either complete the initial assessment or issue any decision denying the preferred auxiliary aids or services sought by a deaf or hard-of-hearing inmate unless they (1) receive input from MCDHH or a qualified specialist recommended by MCDHH or (2) consult with an Institution ADA Coordinator from another DOC Facility who has already received the supplemental training or the Department ADA Coordinator for Inmates.
The Institution ADA Coordinator who has received the supplemental training may solicit input and/or assistance from MCDHH, a qualified specialist recommended by MCDHH, DOC’s Contract Medical Provider, or other community resources where he or she determines that such input or assistance would be helpful for determining which auxiliary aids or services would be appropriate for a particular deaf or hard-of-hearing inmate. If the Institution ADA Coordinator determines that input and/or assistance from MCDHH, a qualified specialist recommended by MCDHH, DOC’s Contract Medical Provider, or other community resources would be beneficial, the Institution ADA Coordinator shall solicit such input and/or assistance as soon as practicable. Factors that the Institution ADA Coordinator may consider in deciding whether such input and/or assistance would be beneficial include, but are not limited to: (1) whether the deaf or hard-ofhearing inmate is able to identify auxiliary aids and/or services that he or she believes are necessary in order to enable him or her to effectively communicate or to participate in proffered DOC programs, services, activities; (2) whether the Institution ADA Coordinator believes the inmate’s expressed preference for a particular accommodation or service should be denied; and (3) whether the deaf or hard-of-hearing inmate requests a hearing-related medical device that must be prescribed or provided by DOC’s Contract Medical Provider. The Institution ADA Coordinator shall also request input or assistance from MCDHH, or a qualified specialist recommended by MCDHH, for profoundly or severely hearing-impaired inmates, unless the inmate declines such
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input or assistance in writing. When an Institution ADA Coordinator requests and receives such input or assistance from MCDHH, documentation of the request(s) and response(s) from MCDHH, including any accommodations recommended by MCDHH, shall be included in the inmate’s ADA folder.
Additionally, DOC officials shall request to meet with MCDHH, or a qualified specialist recommended by MCDHH, twice a year to consult with DOC concerning the accommodations provided by DOC to deaf and hard-of-hearing inmates and best practices in the correctional context. MCDHH may request, and DOC shall provide, with the inmate’s written consent, access to documents showing the hearing-related accommodations provided to particular deaf or hard-ofhearing inmates to or at such meetings.
Any deaf or hard-of-hearing inmate who wishes to request accommodations prior to meeting with the Institution ADA Coordinator or request accommodations not documented in the inmate’s ADA folder, the centralized database maintained by the Department ADA Coordinator for Inmates, or in IMS may do so at any time in accordance with the Reasonable Accommodation Process. DOC shall provide such assistance as is necessary to aid a deaf or hard-of-hearing inmate in completing a request for reasonable accommodation.
Additionally, if an inmate arrives in DOC custody with a hearing-related medical device or hearing-related auxiliary aid, he or she shall be permitted to retain such assistive device pending intake assessment by Contract Medical Provider staff, absent security concerns.
E. Deaf and Hard-of-Hearing Inmates’ Retention of Approved Hearing-Related Auxiliary Aids.
Notwithstanding the provision of any auxiliary aid in accordance with the terms of this Agreement, DOC reserves the right to confiscate any auxiliary aid if the deaf or hard-of-hearing inmate for whom it has been approved intentionally damages and/or destroys said auxiliary aid, or
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intentionally misuses or alters said auxiliary aid in order to use it for an unintended purpose. If DOC confiscates an auxiliary aid under such circumstances, DOC shall take other action(s) to nevertheless ensure that the deaf or hard-of-hearing inmate receives effective access to DOC benefits or services.
DOC shall allow all deaf and hard-of-hearing inmates who utilize hearing aids to keep their hearing aids on their person if placed in restrictive housing, absent a legitimate health or security risk specifically related to the inmate’s retention of the hearing aid(s). If DOC denies a deaf or hard-of-hearing prisoner access to hearing aids on this basis, the reason for this decision must be documented in the inmate’s ADA Folder.
DOC shall ensure that, if a deaf or hard-of-hearing inmate who utilizes hearing aids is placed on a mental health watch, DOC’s Contract Medical Provider shall not confiscate his or her hearing aids unless the Contract Medical Provider determines that the inmate’s retention of the hearing aids presents a risk to the inmate’s health, safety, or security. If the Contract Medical Provider confiscates a deaf or hard-of-hearing inmate’s hearing aid(s) in such circumstances, the reason for that decision will be documented in the inmate’s medical records.
F. Tracking Deaf and Hard-of-Hearing Inmates in DOC Custody DOC shall employ the following procedures to track inmates in DOC custody who have been identified as deaf or hard-of-hearing, as well as what reasonable accommodations have been requested, approved, denied, and/or modified: x DOC shall note in IMS whether an inmate is deaf or hard-of-hearing as well as the
hearing-related medical restrictions and hearing-related accommodations for which an inmate has been approved. Hearing-related medical restrictions shall also be documented in IMS by Contract Medical Provider staff.
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x DOC shall note in IMS whether a deaf inmate’s preferred language is ASL and/or

that the inmate needs a Qualified Sign Language Interpreter for Effective

Communication.

x Each Institution ADA Coordinator shall document deaf and hard-of-hearing

inmates’ approved reasonable accommodations in a manner that will ensure that

the information will follow inmates if they transfer to another DOC Facility. Prior

to the transfer, or as soon as possible thereafter, the Institution ADA Coordinator

from a transferring facility shall contact the Institution ADA Coordinator at the

receiving facility to inform the latter that a deaf or hard-of-hearing inmate who has

been granted a reasonable accommodation will be or has recently arrived at his or

her facility. Record of this contact between ADA Coordinators shall be maintained

in the inmates’ ADA folder at the receiving facility.

x

A distinguishing mark, e.g., a red dot, shall be placed on the bed book card of the

inmate, identifying that they are deaf and/or hard-of-hearing, indicating that they

may need assistance in case of an emergency. This distinguishing mark shall follow

deaf and hard-of-hearing inmates to all DOC Facility placements.

x Deaf and hard-of-hearing inmates shall be offered an identification card or badge

indicating that the nature of their hearing disability that they are able to carry on

their person and present to staff and/or other inmates as necessary. Inmates may

decline to accept such an identification card or badge.

x Deaf and hard-of-hearing inmates shall be offered an identification sign indicating

the nature of their hearing disability that will be placed on their cell door. Inmates

may decline to accept such an identification sign.

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x The Department ADA Coordinator for Inmates shall maintain a centralized database that: (1) contains information regarding all requests for reasonable accommodation and whether the requests were granted, modified, or denied; and (2) documents which inmates have been identified as deaf or hard-of-hearing and the status of any related requests for reasonable accommodations. This information shall be updated at least monthly.
x Institution ADA Coordinators shall submit a monthly report to the Superintendent and the Department ADA Coordinator for Inmates that contains information regarding: (1) all Requests for Reasonable Accommodation made by deaf and hardof-hearing inmates, including the accommodations requested, whether the requests were granted, modified, or denied, and the reasons for any modification or denial; and (2) any accommodations approved for deaf and hard-of hearing inmates without submission of a Request for Reasonable Accommodation.
G. Meetings with Institution ADA Coordinators Regarding Accommodations 1. Meetings between the Institution ADA Coordinator and a deaf or hard-of-hearing inmate
whose primary language is ASL to discuss his or her request(s) for accommodations per the 408 Policy (103 DOC 408.07(3) and (5)-(7)) must be scheduled. Notwithstanding the foregoing, the Institution ADA Coordinator may meet with a deaf or hard-of-hearing inmate whose primary language is ASL to discuss accommodations without prior scheduling if qualified ASL interpreter services are available. 2. The Institution ADA Coordinator shall keep a written record of all scheduled meetings referenced in Paragraph IV(G)(1) above. This record shall include information regarding: (1) the date of the meeting; (2) a summary of the discussion; and (3) any accommodations provided during the meeting, including the name of any interpreter utilized.
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3. Whenever pursuant to the 408 Policy (103 DOC 408.07(3) and (5)-(7)) the Institution ADA Coordinator and a deaf or hard-of-hearing inmate whose primary language is not ASL have a discussion about his or her request(s) for accommodations, the Institution ADA Coordinator shall keep a written record of that conversation. This record shall include information regarding: (1) the date of the meeting; (2) a summary of the discussion; and (3) any accommodations provided during the meeting, including the name of any interpreter or CART provider utilized.
V. CONTRACT MEDICAL PROVIDER’S CARE, TREATMENT, AND ACCOMMODATION OF DEAF AND HARD-OF-HEARING INMATES A. Audiologists’ or Other Qualified Hearing Specialists’ Recommendations Recognizing that reasonable medical opinions may differ, DOC will ensure that its
Contract Medical Provider will follow audiologists’ and/or other Qualified Hearing Specialists’ recommendations for the care, treatment, and accommodation of deaf and hard-of-hearing inmates, unless the Contract Medical Provider determines, based on an individualized clinical assessment by a medical doctor, that implementation of a recommendation is not medically necessary for care and treatment of the inmate, and is not needed as an accommodation to enable that inmate to communicate and participate in DOC programs, services, and activities as effectively as hearing inmates. The Contract Medical Provider may not deviate from the audiologist’s and/or Qualified Hearing Specialist’s recommendations based on any administrative policy or practice that dictates a blanket approach to the treatment of deaf or hard-of-hearing inmates, such as the use of threshold levels of hearing loss in an inmate’s audiogram.
Where the Contract Medical Provider concludes that any part of the audiologist’s or other Qualified Hearing Specialist’s recommendations need not be followed, the provider must: (1) document the objective clinical basis for that conclusion in the deaf or hard-of-hearing inmate’s
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medical record; (2) establish an alternative treatment plan that is sufficient to provide the deaf or hard-of-hearing inmate with necessary care, treatment, and/or accommodations; (3) document the alternative treatment plan in the inmate’s medical records; and (4) promptly communicate both the conclusion and the alternative treatment plan to the deaf or hard-of-hearing inmate.
A deaf or hard-of-hearing inmate may seek further review of the Contract Medical Provider’s conclusion that an audiologist’s or other Qualified Hearing Specialist’s recommendations need not be followed, in accordance with DOC’s and the Contract Medical Provider’s policies, by first exhausting the medical grievance and appeal process, and, then, if still dissatisfied, by submitting a Request for Reasonable Accommodation pursuant to the 408 Policy.
B. Hearing Screening DOC will ensure that its Contract Medical Provider performs clinical assessments of all inmates who complain, verbally or in writing, to the Contract Medical Provider of hearing loss to determine whether they should receive audiological evaluations by an audiologist or other Qualified Hearing Specialists. If the Contract Medical Provider permits its clinicians to use a “whisper test” as part of these clinical assessments, the Contract Medical Provider must have an established, written procedure by which it must conduct a “whisper test,” the Contract Medical Provider clinician must follow this established procedure in administering the “whisper test,” and the Contract Medical Provider may not decline to refer an inmate for an audiological assessment based solely on the results of a “whisper test.” The Contract Medical Provider may consult with correctional staff about an inmate’s hearing loss but may not decline to refer an inmate for an audiological assessment solely because correctional staff do not confirm that the inmate has hearing difficulties. If the Contract Medical Provider determines that the inmate should receive an audiological evaluation by a Qualified Hearing Specialist, such evaluation shall be scheduled to occur as soon as possible, but no later than within 60 days of the date that the referral request is
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approved. DOC will not be considered in breach of this provision if any delay in scheduling the audiological evaluation is caused by circumstances outside of DOC’s or its Contract Medical Provider’s control, including if there is no appointment available within 60 days of the date that the referral request is approved. However, in situations where there is no appointment available within 60 days of the date that the referral request is approved, DOC must ensure that the audiological evaluation is scheduled as soon as is feasible after the 60-day period has expired.
C. Hearing Aid Batteries DOC, either directly or through its Contract Medical Provider, shall purchase and keep in stock appropriate types of hearing aid batteries and shall provide replacement batteries to inmates who need them as soon as possible, but no later than 24 hours after the inmate requests replacement batteries. Record of requests for replacement batteries and the provision of replacement batteries shall be maintained in the inmates’ medical records. D. Hearing Aid Repairs DOC will ensure that its Contract Medical Provider arranges for hearing aids to be sent to a hearing aid repair company as soon as possible, but in any event no later than one business day following: (1) an inmate’s submission of a “sick slip” requesting repair of his or her hearing aid; or (2) an inmate’s in-person request for repair of his or her hearing aid during an appointment with the Contract Medical Provider. DOC’s Contract Medical Provider shall inform the inmate as soon as possible when his or her hearing aid was sent for repair and when it is anticipated that the inmate will receive a working hearing aid. DOC, either directly or through its Contract Medical Provider, shall maintain written documentation of all hearing aid repairs, including information regarding the vendor used, the date the hearing aid was sent to the vendor, the date the hearing aid was returned to the DOC Facility, and the date the hearing aid was returned to the inmate. DOC will take appropriate steps to provide the means for Effective Communication with the inmate and
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allow the inmate to participate in and benefit from DOC programs, services, or activities during any period in which the inmate is without his or her hearing aid.

VI. QUALIFIED SIGN LANGUAGE INTERPRETERS

A. General Policy

DOC will provide Qualified Sign Language Interpreters consistent with the procedures set

forth in the 408 Policy and as required by relevant law, including the ADA. When it has been

determined, in accordance with the provisions of Section IV(D) (Initial Assessment to

Determine Appropriate Hearing-Related Auxiliary Aids and Services), that a deaf or hard-of-

hearing inmate needs a sign language interpreter to have communications that are substantially as

effective as communications by hearing inmates, DOC shall ensure that Qualified Sign Language

Interpreter services are available at the programs, appointments and/or major events listed below

without requiring the inmate to submit a request for accommodation pursuant to the 408 Policy:

x Inmate orientation;

x Classification hearings;

x Sex offender treatment programming;

x Medical appointments, evaluations, mental health services, and the bi-weekly

mental health rounds for inmates in Restrictive Housing, (but excluding routine

medical events like daily insulin shots or trips through the medication line) that

occur within DOC Facilities;

x

Inner Perimeter Security or other DOC investigations and related questioning (e.g.,

investigations into Prison Rape Elimination Act allegations);

x Disciplinary proceedings;

x Restrictive Housing proceedings at which the inmate has the opportunity to appear

in person;

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x Grievance interviews; x Scheduled meetings with the Institutional ADA Coordinator, Department ADA
Coordinator for Inmates, or Contract Medical Provider concerning requests for accommodations; x Educational and vocational classes in which the inmate is enrolled; x All programs included on the inmate’s Personalized Program Plan in the Need Areas of Substance Abuse, Criminal Thinking, Anger, Cognitive/Behavioral, Academic Education/Vocational, and Sex Offender Treatment; x Any other program in which the inmate is enrolled for which “earned time” may be awarded, leading to a possible reduction in sentence, or where a liberty interest may be implicated; x Programs and meetings concerning reentry and discharge planning. x Religious services; and x Any specific pre-release DOC program recommended by the Parole Board. For religious services, programs in the Personalized Program Plan Need Area of Low Risk Alternative that the inmate has accepted, and other programs that an inmate has signed up to attend (as opposed to being enrolled by DOC programming staff), DOC may engage in preliminary discussion(s) with the deaf or hard-of-hearing inmate to establish whether and how frequently the inmate intends to participate. DOC shall provide a Qualified Sign Language Interpreter to facilitate these preliminary discussions. Once it has been determined both that the inmate will attend and how frequently, DOC shall provide the deaf or hard-of-hearing inmate with Qualified Sign Language Interpreter services in accordance with that schedule without requiring that the inmate submit any subsequent requests for reasonable accommodation. The inmate should notify
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DOC if his or her anticipated schedule changes, requiring more or less frequent assistance from Qualified Sign Language Interpreters. With respect to the programs discussed in this paragraph, in the event that the inmate’s voluntary attendance, the inmate’s preference for an interpreter as opposed to another (or no) auxiliary aid, or the nature of the program changes, DOC may engage in another discussion with the deaf or hard-of-hearing inmate to reassess the provision of Qualified Sign Language Interpreters.
DOC shall also provide Qualified Sign Language Interpreter services in other situations as circumstances may warrant. Deaf and hard-of-hearing inmates may request Qualified Sign Language Interpretation for any DOC program, service, activity, appointment, or major event by initiating a Request for Reasonable Accommodation pursuant to the 408 Policy. Nothing in this Agreement is intended to permit DOC to categorically deny or prohibit Qualified Sign Language Interpretation to a deaf or hard-of-hearing inmate for any DOC program, service, activity, appointment, or major event. All such inmate requests for Qualified Sign Language Interpretation shall be considered and processed in accordance with the 408 Policy.
DOC shall be responsible for scheduling and overseeing the provision of Qualified Sign Language Interpreter services for all of the programs, appointments, and/or major events listed above and as circumstances may warrant. When circumstances prevent DOC from providing necessary interpreter services for the programs, appointments, and/or major events listed above, DOC must document in writing the reason(s) that such services could not be provided and must take any other action to nevertheless ensure that, to the maximum extent possible, the deaf or hardof-hearing inmate receives substantially equal access to the benefits or services provided by DOC.
DOC shall provide deaf and hard-of-hearing inmates with the opportunity to participate in the programs, appointments, and/or major events listed above, consistent with the opportunities for participation afforded to similarly situated hearing inmates, subject to the exceptions
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recognized in Section XI (Revisions to Relevant DOC Policies in Accordance with this Agreement), ¶ 8, of this Agreement. Deaf and hard-of-hearing inmates shall not remain on waiting lists for the above programs, appointments, and/or major events for longer than hearing inmates, due to the fact of their disability.
For programs and services that do not fall within the programs, appointments, and/or major events listed above, and for which DOC permits volunteers to provide or facilitate, DOC will notify the volunteer organization or facilitator, if it is aware, that the program and service will be attended by one or more deaf or hard-of-hearing inmates whose primary language is sign language and encourage the volunteer organization or facilitator to arrange for sign language interpretation and make any other accommodations to facilitate the deaf or hard-of-hearing inmate’s effective participation and communication.
Whether a sign language interpreter or other particular auxiliary aid or service is needed is based not only on the particular inmate’s method of communication, but also on the nature, length, context, and complexity of the communication. In determining what form of auxiliary aid or service is necessary, DOC shall give Primary Consideration to the request of the deaf or hard-ofhearing inmate. DOC shall not be required to provide a sign language interpreter at any particular program, appointment, and/or event if: (1) the inmate knowingly and voluntarily waives in writing his right to a Qualified Sign Language Interpreter; (2) DOC can demonstrate that another substantially equal and effective means of communication is available; or (3) provision of a Qualified Sign Language Interpreter would not be required under 28 C.F.R. § 35.164. To the extent that provision of a Qualified Sign Language Interpreter would not be required under 28 C.F.R. § 35.164, DOC must provide a written statement of the reasons for reaching that conclusion and must take any other action to nevertheless ensure that, to the maximum extent possible, the deaf or hard-of-hearing inmate receives the benefits or services provided by DOC.
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DOC shall not rely on any statements, including written statements, made or obtained without a qualified ASL interpreter from a deaf or hard-of-hearing inmate whose primary language is ASL during an Inner Perimeter Security Investigation, other DOC Investigation, or informal investigative interviews conducted by Inner Perimeter Security, a Superintendent’s Special Investigator, or the Internal Affairs Unit for purposes of disciplining said inmate. Nothing in this paragraph shall be interpreted to prevent DOC from responding as it deems appropriate in an emergency or rapidly developing situation, including when DOC must act quickly to prevent harm to the deaf or hard-of-hearing inmate, another inmate, staff, or the general public. In addition, nothing in this paragraph shall be interpreted to prevent DOC from relying on voluntary, unsolicited oral or written statements made by an inmate for the following purposes: (1) to discipline the inmate where the making of the statement itself is the violation, or (2) to initiate an investigation into a possible disciplinary infraction by the inmate.
B. Interpretation of Written Materials Where an inmate indicates that he or she so requires, DOC shall provide Qualified Sign Language Interpreter services to deaf and hard-of-hearing inmates whose primary language is ASL and who are unable to effectively understand written English or Spanish to permit those inmates to understand the content of written materials that DOC provides to all inmates, written communications from DOC to the deaf or hard-of-hearing inmate, and any forms that the inmate may need to complete. If a deaf or hard-of hearing inmate whose primary language is ASL participates in any program or class, except one that is run by an outside academic institution, that has a written requirement that is to be completed outside of program or class time, e.g., homework, DOC will provide the deaf or hard-of-hearing inmate with a reasonable accommodation for that written requirement. The reasonable accommodation may include providing a Qualified Sign Language
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Interpreter to permit the deaf or hard-of-hearing inmate to effectively complete the written requirement, or making an adjustment to the written requirement, e.g., allowing the work to be done in class or not in writing. However, Qualified Sign Language Interpretation shall not be provided to deaf and hard-of-hearing inmates for use during the Test of Adult Basic Education (TABE) reading and language components so that the resulting scores provide an accurate reflection of the inmate’s English language abilities.
C. Methods for Providing Interpreter Services 1. Video Remote Interpreting
Either directly or through its Contract Medical Provider, DOC shall provide access to ondemand video remote interpreting at On-site Medical Appointments (but excluding routine medical events like daily insulin shots or trips through the medication line), unless VRI is not appropriate based on the circumstances or the needs of the deaf or hard-of-hearing inmate. The provision of VRI for any On-site Medical Appointment shall meet the requirements set forth in 28 C.F.R. § 35.160(d)(1)-(4).
Either directly or through its Contract Medical Provider, DOC will provide VRI for use in unscheduled on-site medical emergencies where the exigencies of the situation permit. Life-saving medical care will never be delayed because no interpretation services are available.
If remote interpreting services are unavailable or not appropriate in the situation, DOC will work in conjunction with the Contract Medical Provider to secure an in-person sign language interpreter as soon as possible. The Contract Medical Provider may arrange for the provision of in-person interpreters at On-site Medical Appointments through the MCDHH, pursuant to the Massachusetts state contract for interpreter services that MCDHH manages, or through other available community resources (e.g., Partners Interpreting).
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2. On-Site Live Qualified Sign Language Interpreters DOC shall arrange for Qualified Sign Language Interpreter services and CART services for deaf and hard-of-hearing inmates through MCDHH, pursuant to the Massachusetts state contract for interpreter services that MCDHH manages. DOC shall consult with its contractual ASL interpreters, or shall contact MCDHH to arrange for Qualified Sign Language Interpreter services and CART services before scheduling meetings or hearings with deaf and hard-of-hearing inmates whose primary language is ASL, and before a deaf or hard-of-hearing inmate whose primary language is ASL begins attending a program in which he or she is enrolled. DOC has consulted with MCDHH to determine the most efficient methods for scheduling sign language interpreter and CART services and shall utilize those methods when arranging those services for deaf and hard-of-hearing inmates. Those methods include scheduling with MCDHH sign language interpreter and CART services as soon as reasonably possible after DOC becomes aware of the need for such services from MCDHH and identifying for MCDHH regularly occurring events so that MCDHH can schedule such services well in advance and on a regular basis. In addition, DOC shall also hire two sign language interpreters on a part-time, contract basis of up to 20 hours per week each to supplement interpreter services provided by MCDHH. If there is a material change, be it an increase or a decrease, in the number or DOC’s assessment of the needs of deaf and hardof-hearing inmates, DOC will re-evaluate the number and/or frequency of in-person sign language interpreters. Unforeseen circumstances outside of DOC’s control may occasionally prevent it from providing necessary interpreter services or auxiliary aids (e.g., institutional emergencies, institutional lock-downs, severe weather).
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3. Choice Between On-Site Interpreter Services and VRI DOC shall retain discretion to decide whether to provide Qualified Sign Language Interpreter services through on-site interpreters or through VRI, except when VRI is not appropriate based on the deaf or hard-of-hearing inmate’s needs or abilities. D. Off-site Medical Care DOC is not required to provide Qualified Sign Language Interpreter services or other communication access accommodations to deaf or hard-of-hearing inmates when those inmates receive medical care outside of a DOC Facility. When a deaf or hard-of-hearing inmate who relies on Qualified Sign Language Interpreter services or other auxiliary aids for Effective Communication requires medical care offsite, DOC shall require its Contract Medical Provider to inform all offsite medical providers of that deaf or hard-of-hearing inmate’s need for an interpreter or other auxiliary aid as soon as possible. E. Parole Hearings DOC is not required to provide Qualified Sign Language Interpreter services or other communication access accommodations to deaf or hard-of-hearing inmates at parole hearings because parole hearings are provided by the Massachusetts Parole Board, which is a separate public entity under Massachusetts law, not subject to DOC’s jurisdiction. See Mass. G.L. c. 27, § 4. When a deaf or hard-of-hearing inmate who relies on sign language interpreter services or other auxiliary aids for Effective Communication has a scheduled parole hearing, DOC shall inform the Massachusetts Parole Board of that deaf or hard-of-hearing inmate’s need for an interpreter or other auxiliary aid as soon as possible. F. Use of Inmates as Interpreters for Deaf or Hard-of-Hearing Inmates In accordance with 28 C.F.R. § 35.160(c)(1), DOC shall not require deaf and hard-ofhearing inmates to provide another inmate to interpret for them. Inmates shall not be used as
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interpreters for deaf or hard-of-hearing inmates in any of the areas listed in 103 DOC 488.03(1), except in an emergency situation in which institutional security or the health or safety of an individual, including the deaf or hard-of-hearing inmate, any other inmate, member of DOC or vendor staff, or member of the public, would be threatened if communication with the deaf or hardof-hearing inmate was delayed until a Qualified Sign Language Interpreter could be provided. If an inmate interprets for a deaf or hard-of-hearing in such emergency circumstances, DOC shall make available within a reasonable period of time a Qualified Sign Language Interpreter to review with the deaf or hard-of-hearing inmate the discussion conducted with the inmate interpreter.
If an inmate is used as an interpreter in an emergency situation, as described above, a written record shall be made of: (1) the name of the deaf or hard-of-hearing inmate, (2) the name of the inmate interpreting, (3) the name(s) of DOC or vendor staff whose communication required interpretation, (4) the date on which the interpretation occurred, and (5) the reason(s) that an inmate interpreter was used. If inmate interpretation is provided during a medical or mental health appointment or evaluation on an emergency basis, said written record shall be included in the deaf or hard-of-hearing inmate’s medical records.
If an inmate is used as an interpreter during an Inner Perimeter Security or other Department Investigation or for questioning related to such an investigation, all official notes concerning those communications shall be preserved.
A deaf or hard-of-hearing inmate shall never be asked or required to sign a waiver or release of his or her confidential CORI or medical information to an inmate serving as an interpreter.
If another inmate interprets for a deaf or hard-of-hearing inmate on an informal basis, neither the deaf or hard-of-hearing inmate nor the assisting inmate shall be subjected to disciplinary consequences solely because the assisting inmate provided interpretation.
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A deaf or hard-of-hearing inmate’s informal use of an inmate interpreter in a particular circumstance or use of an inmate interpreter in an emergency situation, as referenced above, shall not constitute or be construed as a general waiver of the deaf or hard-of-hearing inmate’s request for a Qualified Sign Language Interpreter or as a general waiver of the deaf or hard-of-hearing inmate’s confidentiality rights.
Deaf and hard-of-hearing inmates who request the assistance of another inmate to communicate during events and staff interactions for which DOC does not provide Qualified Sign Language Interpreters may, in DOC’s discretion, be assigned inmate companions. VII. INSTITUTIONAL WORK ASSIGNMENTS
DOC shall also provide deaf and hard-of-hearing inmates opportunities for institutional work assignments that are consistent with the opportunities for the same assignments afforded to hearing inmates, subject to the exceptions recognized in Section XI (Revisions to Relevant DOC Policies in Accordance with this Agreement), ¶ 8, of this Agreement. DOC shall retain the discretion to determine that certain work assignments present a Direct Threat of injury or death to the deaf or hard-of-hearing inmate or others and may choose not to provide the deaf or hard-ofhearing inmate a substantially equal opportunity to those work assignments on that basis. If DOC denies a deaf or hard-of-hearing inmate access to work assignments on this basis, the reason for that decision must be documented in the inmate’s ADA Folder. VIII. TELECOMMUNICATION
A. General Policy DOC shall provide deaf and hard-of-hearing inmates in its custody with access to telecommunication services and devices that enable Effective Communication with people outside of DOC Facilities that is substantially equal to the access to telecommunication services and devices that DOC provides to inmates without hearing disabilities. DOC shall list and describe all
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telecommunication services and devices available at a facility during an inmate’s orientation at that DOC Facility and in that DOC Facility’s inmate handbook.
B. Telecommunication Services and Devices to Be Provided By the dates specified below, DOC, through its Telecommunication Vendor, will make the telecommunication services and devices listed in Items 1 through 5 of Section VIII(B) (Telecommunication Services and Devices to Be Provided), available to facilitate Effective Communication between deaf and hard-of-hearing inmates and individuals outside of DOC Facilities. If unforeseen and unanticipated delays prohibit the provision of any of these Items by the dates specified, within ten days of DOC’s receipt of notice of a delay, DOC will provide a written explanation to Plaintiffs’ Counsel as to the source of the delay and a revised estimated timeline for the relevant telecommunication service(s) or device(s). These telecommunication services and devices shall be made available to deaf and hardof-hearing inmates in a manner that is consistent with DOC’s general policy governing inmate telephone access and use, 103 CMR 482, and other relevant regulations and policies, except where specifically stated otherwise. To be granted access to particular telecommunication service(s) or device(s), deaf and hard-of-hearing inmates must be approved for such access in accordance with the process set forth in Section VIII(C) (Requesting Approval for and Access to Telecommunication Services and Devices).
1. Videophones & Video Relay Services DOC will make videophone technology available at each of its facilities to those inmates who have been identified as deaf or hard-of-hearing and whose primary language is sign language. The purpose of the videophones is to enable approved inmates who communicate using sign language to effectively communicate with sign language speakers outside of DOC Facilities
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through point-to-point video communication and to effectively communicate with hearing individuals outside of DOC Facilities through the use of VRS.
a. Stationary Videophones Available at Each Facility DOC will ensure that at least one stationary videophone available at each DOC Facility with the exception of MCI-Shirley Minimum. The stationary videophone will be installed in a designated location at each facility, to be determined by each facility. The stationary videophone shall be available during the same hours, including nights and weekends, that hearing inmates have access to traditional phones, consistent with 103 CMR 482. Deaf and hard-of-hearing inmates who have been approved to use the stationary videophone must request access to the stationary videophone each time they wish to use it by communicating to their unit correctional officers either in writing, if they are able, or by using the ASL sign for “phone”. DOC personnel shall clearly communicate to each deaf inmate that the ASL sign for “phone” may be used to request access to the stationary videophone. Unit correctional officers will be trained to understand that an inmate signing in ASL “phone” is requesting access to the videophone. An approved inmate who requests access to a stationary videophone shall be provided such access as soon as possible and without delay, with the expectation that access will be provided within forty-five (45) minutes and that occasions in which access is not provided within 2 hours shall be the rare exception. In no event shall an approved inmate have to wait longer than two-and-a-half (2.5) hours, unless access must be prevented or delayed as permitted by 103 CMR 482. If an inmate’s access to a stationary videophone is prevented or delayed, DOC must notify the requesting inmate and provide access as soon as is feasible. The requirements of 103 DOC 482.07(1) shall apply to access to stationary videophones. DOC will ensure that there are staff members on each shift at each DOC Facility who know where the stationary videophone is located and the process by which deaf and hard-ofhearing inmates approved to use the videophone may access it. DOC shall ensure that the location
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designated for stationary videophone use at each facility does not result in such frequent or repeated interruptions or interference to approved inmates’ access and use that deaf and hard-ofhearing inmates are deprived of Effective Communication with persons outside of DOC Facilities that is substantially equal to the access to telecommunication services and devices that DOC provides to inmates without hearing disabilities.
b. Mobile Videophones Available in Housing Units No later than November 30, 2019, DOC shall make at least one mobile videophone available in each housing unit in which an approved deaf or hard-of-hearing inmate is housed in a manner that is consistent with DOC’s regulations governing telephone access and use (103 CMR 482). Such mobile videophone technology will be generally available for use during the same hours, including nights and weeks, that hearing inmates have access to traditional telephones. Once a deaf or hard-of-hearing inmate has been approved to use the videophone phone, the approved inmate shall not be required to request access to the mobile videophone in his or her housing unit each time he or she wishes to use it. Instead, an approved inmate’s authorization to use the videophones shall be associated with that inmate’s PIN number, as defined in the policy numbered 103 CMR 482.05. When, consistent with DOC regulations, telephones are not available for general inmate use, the mobile housing unit videophone shall be stored in a location to be determined by each individual DOC Facility. DOC will ensure that there are staff members on each shift in each housing unit in which an inmate approved to use videophones is housed who know where the mobile videophone is stored and are responsible for making it available in the housing unit for use in accordance with the foregoing. The presence of a mobile videophone on a deaf or hard-of-hearing inmate’s unit shall not prevent that inmate from accessing other types of telecommunication service(s) and device(s) that the inmate is approved to use. In addition, in the event that a mobile videophone is not fully functional, deaf and hard-of-hearing inmates approved
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for videophone use shall be able to request and access the stationary videophone installed at the inmate’s facility.
In order to make mobile videophones available in each housing unit in which an approved inmate is housed in accordance with the foregoing, DOC shall ensure that the necessary infrastructure has been updated or installed in each housing unit to permit use of the mobile videophone. In making any such necessary infrastructure modifications, DOC shall prioritize those housing units in which a deaf or hard-of-hearing inmate whose primary language is ASL currently is housed.
2. Captioned Telephones DOC will make at least one CapTel device available at each DOC Facility. DOC will provide additional CapTel devices in DOC Facilities when possible based on the location of analog telephone lines and availability of a suitable space for use thereof, as determined by DOC taking into consideration such factors as use of the space by correctional staff, operational needs, security concerns, technical needs and concerns, and the safe use and storage of the device. The portable CapTel device will be stored in a designated location at each facility, to be determined by each facility. The CapTel device shall be available during the same hours, including nights and weekends, that hearing inmates have access to traditional phones, consistent with 103 CMR 482. Deaf and hard-of-hearing inmates who have been approved to use the CapTel device must request access to the CapTel device each time they wish to use it. An approved inmate who requests access to a CapTel device shall be provided as soon as possible and without delay, with the expectation that access will be provided within forty-five (45) minutes, and occasions in which access is not provided within 2 hours shall be the rare exception. In no event shall an approved inmate have to wait longer than two-and-a-half (2.5) hours, unless access must be prevented or delayed as permitted by 103 CMR 482. If an inmate’s access to a CapTel device is prevented or delayed,
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DOC must notify the requesting inmate and provide access as soon as is feasible. The requirements of 103 DOC 482.07(1) shall apply to access to CapTel devices. DOC will ensure that there are staff members on each shift at each DOC Facility who know where the CapTel device(s) is stored and the process by which deaf and hard-of-hearing inmates approved to use the device may access it. DOC shall ensure that the location designated for CapTel use at each DOC Facility does not result in such frequent or repeated interruptions or interference to approved inmates’ access and use that deaf and hard-of-hearing inmates are deprived of Effective Communication with persons outside of DOC Facilities that is substantially equal to the access to telecommunication services and devices that DOC provides to inmates without hearing disabilities.
3. Teletypewriters DOC will ensure that at least one TTY device is available at each DOC Facility. The portable TTY device will be stored in a designated location at each facility, to be determined by each facility. The TTY device shall be available during the same hours, including nights and weekends, that hearing inmates have access to traditional phones, consistent with 103 CMR 482. Deaf and hard-of-hearing inmates who have been approved to use the TTY device must request access to the TTY device each time they wish to use it. An approved inmate who requests access to a TTY device shall be provided such access as soon as possible and without delay, with the expectation that access will be provided within forty-five (45) minutes, and occasions in which access is not provided within 2 hours shall be the rare exception. In no event shall an approved inmate have to wait longer than two-and-a-half (2.5) hours, unless access must be prevented or delayed as permitted by 103 CMR 482. If an inmate’s access to a TTY device is prevented or delayed, DOC must notify the requesting inmate and provide access as soon as is feasible. The requirements of 103 DOC 482.07(1) shall apply to access to TTY devices. DOC will ensure that there are staff members on each shift at each DOC Facility who know where the TTY device is
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stored and the process by which deaf and hard-of-hearing inmates approved to use the device may access it. DOC shall ensure that the location designated for TTY use at each DOC Facility does not result in such frequent or repeated interruptions or interference to approved inmates’ access and use that deaf and hard-of-hearing inmates are deprived of Effective Communication with persons outside of DOC Facilities that is substantially equal to the access to telecommunication services and devices that DOC provides to inmates without hearing disabilities.
4. Amplification Available on Traditional Telephones DOC will ensure that all traditional telephones provided for inmate use include a built-in user-controlled volume button that permits telephone users to amplify call volume.
5. Hearing Aid Compatible Traditional Telephones DOC will ensure that all traditional telephones provided for inmate use include handsets that are hearing aid compatible in accordance with Federal Communications Commission guidelines. C. Requesting Approval for and Access to Telecommunication Services and
Devices DOC will provide access to videophone, TTY, and/or CapTel services and devices to those deaf or hard-of-hearing inmates who have requested access thereto and whose requests have been approved, or to deaf or hard-of-hearing inmates who have been otherwise approved, in accordance with the procedures set forth in the 408 Policy. Deaf and hard-of-hearing inmates may be approved for and receive regular access to more than one of the above telecommunication service(s) or device(s). DOC shall maintain a record of a deaf or hard-of-hearing inmate’s approval to access certain telecommunication service(s) or device(s) in IMS as an open-ended medical restriction, subject to periodic reviews for appropriateness. In the event of a transfer, approvals for
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telecommunication service(s) and device(s) shall follow deaf and hard-of-hearing inmates from facility to facility.
Deaf and hard-of-hearing inmates who have been approved to access videophone, TTY, and/or CapTel services and devices shall not be required to submit a new Request for Reasonable Accommodation each time they wish to access the approved telecommunication service(s) and device(s). Once approved, deaf and hard-of-hearing inmates shall only require permission to use videophones on a particular occasion in the same limited circumstances in which other inmates require permission to use traditional telephones. For TTY and/or CapTel devices, once approved, deaf or hard-of-hearing inmates need only to informally notify DOC staff that they wish to access the device in question, and DOC staff shall permit and facilitate timely access thereafter, in keeping with the provisions above.
Inmates who have been identified as deaf or hard-of-hearing, either through selfidentification or identification by DOC or its Contract Medical Provider, shall be notified during booking and admission and at inmate orientation of all telecommunication services and devices available at DOC Facilities, so that they are aware of what technologies exist and may submit a Request for Reasonable Accommodation for approval to access the appropriate service(s) or device(s). A written description of all available telecommunication services and devices shall also be included in each facility’s Inmate Orientation Manual. If an inmate is later identified as deaf or hard-of-hearing while in DOC custody, either through self-identification or identification by DOC or its Contract Medical Provider, the Institutional ADA Coordinator or designee at the facility in which such inmate is housed shall notify the inmate of the telecommunication services and devices available so that the inmate may submit a Request for Reasonable Accommodation for approval to access the appropriate services and devices.
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D. Monitoring Communications All calls placed by inmates, including but not limited to those placed by deaf and hard-ofhearing inmates through videophones, CapTel devices, and TTY machines, will be subject to monitoring, recording, and storage, consistent with 103 CMR 482. E. Additional Time for Communication DOC agrees that it may be necessary to provide deaf and hard-of-hearing inmates with more time to use the services and devices listed in Items 1 through 3 of Section VIII(B) (Telecommunication Services and Devices to Be Provided) in order to provide them with equal access to Effective Communication. DOC therefore will allow deaf and hard-of-hearing inmates who have been approved to use videophones, TTY, and/or CapTel devices twice the amount of time to complete calls using such devices as is afforded to inmates who complete telephone calls using traditional telephones, subject to operational or security concerns or administrative constraints (e.g., institutional emergencies). F. Cost for Use of Telecommunication Services and Devices DOC agrees to make videophone, TTY, and CapTel services and devices available at no cost to deaf and hard-of-hearing inmates who have been approved to use such services and devices. G. Responsibility for Maintaining Equipment DOC, through its Telecommunication Vendor, will ensure that the telecommunication services and devices used to permit communication between deaf and hard-of-hearing inmates and people outside of DOC Facilities are in good working order. DOC will attempt to resolve complaints about any malfunctioning equipment within one week of receiving that complaint. To the extent services, equipment, and resources that are outside of DOC’s control are involved, DOC agrees to notify the relevant providers or companies of any equipment problems within one week
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and, to the extent necessary or possible under the circumstances, work with these third parties to expeditiously resolve the problem(s).
H. Responsibility for Training Staff DOC will ensure that designated DOC employees are adequately trained in the operation of the services and devices listed in Items 1 through 3 of Section VIII(B) (Telecommunication Services and Devices to Be Provided). IX. VISUAL AND TACTILE NOTIFICATIONS A. General Policy Deaf and hard-of-hearing inmates housed in DOC Facilities should not miss announcements, alarms, or any other auditory information delivered by DOC staff to the general inmate population solely because of their disability. B. Relaying Non-Emergency Information DOC shall provide an effective non-auditory alert system that will be used to notify deaf and hard-of-hearing inmates of prison-wide events (including by not limited to announcements, visitations, and count) and events specific to deaf and hard-of-hearing inmates. The non-auditory alert system must be capable of effectively alerting deaf and hard-of-hearing events in real time. As of the Effective Date of this Agreement, DOC intends to employ a non-auditory alert system that relies upon: (1) a visual or tactile notification system, and (2) in-person contact/communication between DOC staff and the deaf or hard-of-hearing inmate. DOC retains discretion as to which type of non-auditory alerts it shall employ and to change those systems as it deems necessary, including if new technology becomes available or if security concerns (either inmate-specific or institution-level) so require.
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1. Visual or Tactile Notification Systems As of the Effective Date of this Agreement, DOC has identified and beta-tested several visual/tactile notification systems that utilize a transmitter that can be triggered to send a signal to a receiver or pager unit. Based on this testing, DOC has identified for each of its facilities at least one such system that can function effectively at that facility to alert deaf and hard-of-hearing inmates to announcements and non-emergency events. The identified systems use a transmitter that can be manually triggered to send a signal to a corresponding receiver or pager unit. Depending on the system, the corresponding receiver or pager unit may vibrate, emit a flashing light, or display a short, typed message when manually triggered. When the receiver or pager unit has been activated, the deaf or hard-of-hearing inmate may seek additional information regarding the announcement or non-emergency alert from the DOC staff in the housing unit. DOC will employ a system that provides both a tactile or light alert and a short, typed message in those facilities where DOC has identified such a system that can function effectively. DOC staff shall convey any information to the inmate using simple written English, flash cards containing simple pictures and words, or other such means of simple communication to effectively convey to the deaf or hard-of-hearing inmate the substance of the announcement or non-emergency alert. DOC shall provide Plaintiffs’ Counsel with copies of the flash cards that it develops for such purpose. In accordance with Section XI (Revisions to Relevant DOC Policies in Accordance with this Agreement), ¶ 2, DOC shall offer either a receiver or pager unit, depending on what is operational in the inmate’s facility to deaf and hard-of-hearing inmates whose primary language is ASL without requiring the inmate to complete the Request for Reasonable Accommodation Form or follow the reasonable accommodation process. If a deaf or hard-of-hearing inmate whose primary language is ASL selects the receiver or pager unit available at the facility at which he or
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she is housed, it shall be provided to him or her and a transmitter unit shall be placed in each such inmate’s housing unit, which will be operated by DOC correctional staff within that unit. DOC staff responsible for operating the transmitter shall be properly trained in how to effectively use the technology and in accepted methods of communicating announcements or non-emergency alerts to the deaf or hard-of-hearing inmate.
2. Vibrating Watches DOC has also identified vibrating watches that a deaf or hard-of-hearing inmate can program to vibrate at certain times. In accordance with Section XI (Revisions to Relevant DOC Policies in Accordance with this Agreement), ¶ 2, DOC shall offer a vibrating watch to deaf and hard-of-hearing inmates whose primary language is ASL without requiring the inmate to complete the Request for Reasonable Accommodation Form or follow the reasonable accommodation process. If a deaf or hard-of-hearing inmate whose primary language is ASL selects the vibrating watch, it shall be provided to him or her.
3. Supplementary Non-Auditory Information Relay Systems In addition to the foregoing devices, DOC shall also publish the facility-specific schedule in the inmate handbook that each inmate receives when the inmate is housed in a specific facility and shall promptly post notice of any schedule changes in the housing unit of each deaf or hardof-hearing inmate whose primary language is ASL. Furthermore, DOC is in the process of updating the Master Antenna Television systems at each facility. When installation is complete, DOC shall configure each system such that facility announcements and schedules will be posted and may be viewed on a television tuned to a predetermined channel. Deaf and hard-of-hearing inmates who have access to a television may view any facility announcements or schedules by tuning to that channel.
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X. TRAINING A. Training Provided to Covered Employees DOC shall provide training as described below to Covered Employees. Subject to
collective bargaining requirements, DOC will provide this training to: (1) existing Covered Employees within six (6) months of the Effective Date of this Agreement, and (2) new Covered Employees within three (3) months of the date upon which they begin their employment. Thereafter, Covered Employees shall receive this training no less than once every two (2) years, or as pertinent changes in law require. DOC will incorporate this training into its regularly scheduled training programs for new and existing employees. DOC shall retain discretion to determine the manner and/or format in which such training shall be conducted. DOC shall update training materials to reflect pertinent changes in law. DOC shall retain discretion to consult with outside parties, including MCDHH, to prepare or present relevant training materials.
DOC shall maintain records regarding each training provided to Covered Employees, including information regarding attendance and/or completion of training for each Covered Employee and copies of the training materials and/or content provided.
The training to be provided to Covered Employees shall include the following topics: x the importance of Effective Communication and best practices for communicating
with deaf and hard-of-hearing inmates in accordance with the ADA’s Effective Communication requirements and other applicable standards and federal law; x the unique needs of and problems encountered by deaf and hard-of-hearing inmates; x deafness and hearing loss as a culture; x literacy issues that may impact deaf and hard-of-hearing inmates’ ability to communicate; x methods of identifying a deaf or hard-of-hearing inmate’s communication needs;
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x the potential limitations of lip-reading and note writing as modes of communication with deaf and hard-of-hearing inmates;
x the potential impact of hearing loss on deaf and hard-of-hearing inmates’ interactions with hearing correction officers;
x additional notification obligations that apply to correction officers when deaf or hard-of-hearing inmates are in their care and custody (this training shall only apply to DOC employees with care and custody functions);
x the proper use and role of Qualified Sign Language Interpreters; x directions for using various Auxiliary Aids and Services that may be provided to
enhance deaf and hard-of-hearing inmates’ ability to communicate effectively; x the need for additional time for uses of certain telecommunications devices, such
as TTY and CapTel; and x ADA standards and DOC policies and procedures as they relate to deaf and hard-
of-hearing inmates. This training may be delivered in electronic format to all Covered Employees other than DOC Deputies. This training shall be delivered by an in-person presenter to all DOC Deputies. B. Supplemental Training Provided to Institution ADA Coordinators In addition to the foregoing, DOC shall provide supplemental training as described below to all Institution ADA Coordinators. DOC will provide this training to: (1) existing Institution ADA Coordinators within three (3) months of the Effective Date of this Agreement, and (2) new Institution ADA Coordinators within three (3) months of the date upon which they assume the position of Institution ADA Coordinator.
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The supplemental training to be provided to Institution ADA Coordinators is such training sufficient to enable them to effectively explain the purpose and function of each available auxiliary aid and service to deaf and hard-of-hearing inmates so that deaf and hard-of-hearing inmates may make an informed request for Auxiliary Aids and Services in accordance with Section IV(D) (Initial Assessment to Determine Appropriate Hearing-Related Auxiliary Aids). This supplemental training shall include information regarding: (1) the Auxiliary Aids and Services available to deaf and hard-of-hearing inmates; (2) how such Auxiliary Aids and Services work, by including, to the extent possible, a demonstration of auxiliary aid devices; (3) the hearing-related communication access barrier(s) and/or need area(s) that each available auxiliary aid and service may help to address; (4) how to identify common communication access barriers and need areas for deaf and hard-of-hearing inmates; and (5) best practices for removing communication access barriers and providing reasonable accommodations to deaf and hard-of-hearing inmates.
DOC shall coordinate with MCDHH or other community resources to provide Institution ADA Coordinators with the supplemental training described here. This supplemental training shall be delivered to all Institution ADA Coordinators. XI. REVISIONS TO RELEVANT DOC POLICIES IN ACCORDANCE WITH THIS
AGREEMENT DOC will update its policies, including the 408 Policy, where necessary, for consistency with this Agreement. In particular, DOC shall revise its policies where necessary in accordance with the following: 1. Relevant provisions of the 408 Policy, and other DOC policies as necessary, shall clarify that, when an inmate has been identified as deaf or hard-of-hearing at any time during his or her incarceration, including at intake or by DOC’s Contract Medical Provider, in accordance with Section IV(D) (Initial Assessment to Determine Appropriate Hearing-
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Related Auxiliary Aids and Services), an assessment shall be made of the inmate’s hearing-related needs so that he or she may effectively communicate and receive effective, meaningful, and substantially equal access to DOC programs, services and activities during his or her incarceration. 2. Relevant provisions of the 408 Policy, and other DOC policies as necessary, shall clarify that, as set out in this Agreement and unless declined by the inmate, DOC shall provide deaf and hard-of-hearing inmates whose primary language is ASL with auxiliary aids in the form of: (1) Qualified Sign Language Interpreters at the events listed in Section VI(A) (General Policy); (2) telecommunications services (i.e. videophones, TTY, and/or CapTel); and (3) visual and/or tactile notification devices (e.g., vibrating pagers), without requiring the inmate to complete the Request for Reasonable Accommodation Form (103 DOC 408, Attachment A) or follow the reasonable accommodation process. DOC will provide such accommodations as soon as is feasible after identifying a deaf or hard-ofhearing inmate whose primary language is ASL. 3. Relevant provisions of the 408 Policy, and other DOC policies as necessary, shall clarify that DOC will provide appropriate auxiliary aids and/or services including, without limitation, Qualified Sign Language Interpretation and writing assistance, to deaf and hardof-hearing inmates who cannot effectively complete DOC’s reasonable accommodation process without such accommodations due to communication access issues. Depending on the needs of the deaf or hard-of-hearing inmate, auxiliary aids and/or services will be made available at all stages of DOC’s reasonable accommodation process, including to assist the inmate in: (1) completing the request form (103 DOC 408, Attachment A); (2) effectively communicating with the Institution ADA Coordinator; (3) effectively communicating with Contract Medical Provider staff conducting an evaluation related to a medically prescribed
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accommodation; (4) reading and fully understanding the content of a decision concerning a requested accommodation; and/or (5) completing the appeal form (103 DOC 408, Attachment B). Deaf and hard-of-hearing inmates who, by reason of their hearing disability, cannot effectively complete DOC’s reasonable accommodation process, shall not be required to submit a written request or complete DOC’s reasonable accommodation process in order to receive the assistance specified in (1) through (5) of this paragraph. 4. Relevant provisions of the 408 Policy, and other DOC policies as necessary, shall clarify that, among other factors, including those listed in 28 C.F.R. § 35.160(b)(2), DOC shall give Primary Consideration, as that term is defined in Section III (Definitions), ¶ 27, to deaf and hard-of-hearing inmates’ requested accommodations when determining what types of auxiliary aids and/or services are necessary to ensure that they are able to communicate effectively and have effective, meaningful, and substantially equal access to DOC programs, services, and activities. 5. Relevant provisions of the 408 Policy, and other DOC policies as necessary, shall clarify that DOC, either directly or through its Contract Medical Provider, shall provide to a deaf or hard-of-hearing inmate those auxiliary aids and/or services that have been approved as reasonable accommodations to facilitate his or her Effective Communication and/or participation in DOC programs, services, and activities. If the inmate’s hearing impairment has been identified as a clinical condition that is not expected to resolve or improve with time, DOC, either directly or through its Contract Medical Provider, shall designate such auxiliary aids and/or services as open-ended medical restrictions. The designation of an approved auxiliary aid and/or service as an open-ended medical restriction shall be subject to periodic review for appropriateness, including when and if the deaf or hard-of-hearing inmate transfers to another facility. The open-ended medical restriction shall remain active
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during periodic reviews for appropriateness and shall not be discontinued or modified unless and until the affected inmate is notified and given the opportunity to discuss the discontinuation or modification with the Institution ADA Coordinator. Any decision to discontinue or modify an existing open-ended medical restriction, including the reasons justifying the discontinuation or modification in keeping with Section XI (Revisions to Relevant DOC Policies in Accordance with this Agreement), ¶ 9, must be documented in writing. 6. In accordance with Section VI (Qualified Sign Language Interpreters), relevant provisions of the 408 Policy, and other DOC policies as necessary, shall clarify that, if a deaf or hard-of-hearing inmate submits a Request for Reasonable Accommodation requesting access to Qualified Sign Language Interpreters for particular programs, appointments, or events and that request is approved, DOC will ensure that Qualified Sign Language Interpreter services are available for all the programs, appointments, and/or major events listed in Section VI(A) (General Policy) without requiring subsequent Requests for Reasonable Accommodation to receive interpreter services. 7. Relevant provisions of the 408 Policy, and other DOC policies as necessary, shall clarify that DOC shall not assess the cost of approved accommodations to the disabled inmate, in accordance with 28 C.F.R. § 35.130(f). 8. Relevant provisions of the 408 Policy (which includes those sections numbered 103 DOC 408.01, 408.07, and 408.11), and other DOC policies as necessary, shall clarify that the exceptions to DOC’s obligation to make its programs, services, and activities accessible to disabled inmates (including deaf and hard-of-hearing inmates) are limited to those which are permitted under federal law, as well as any limitations or requirements incorporated
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therein, including 28 C.F.R. §§ 35.130(h), 35.139(a)-(b), 35.150(a)(3). These exceptions include that DOC need not provide accommodations in the following circumstances: (a) If the accommodation will result in a fundamental alteration in the nature of a
program, activity, or service or in undue financial or administrative burdens. The decision that an accommodation would result in a fundamental alteration or in undue financial or administrative burdens must be made by the Commissioner or his or her designee after considering all resources currently available for use in the funding and operation of DOC’s programs and services, and must be accompanied by a written statement of reasons documenting that conclusion, in accordance with 28 C.F.R. §§ 35.150(a)(3) and 35.164; (b) If the accommodation will result in actual risks or impairment of the safe operation of a DOC program, activity, or service, in accordance with 28 C.F.R. § 35.130(h); or (c) If the inmate seeking to participate in or benefit from the DOC program, activity, or service, poses a Direct Threat to the health or safety of the inmate or others. To determine whether an inmate poses a Direct Threat, DOC must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk, in accordance with 28 CFR § 35.139(b). 9. Relevant provisions of the 408 Policy (which may include those subsections numbered 103 DOC 408.05 and 408.07), and other DOC policies as necessary, shall clarify that the
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Commissioner or a designee shall document DOC’s basis for modifying or denying any requested accommodation. The Institution ADA Coordinator shall: (1) store this documentation in a designated Inmate ADA folder that shall follow the inmate if he or she transfers to another DOC Facility; and (2) shall give the inmate a hard copy of this documentation along with written notification of the decision modifying or denying the requested accommodation and notice of the inmate’s right to appeal within no more than three (3) days after the decision is rendered. 10. Relevant provisions of the 408 Policy (which may include those subsections numbered 103 DOC 408.01, 408.05, and 408.07), and other DOC policies as necessary, shall clarify that, if DOC is not required to provide the inmate’s requested accommodation under federal law, including for those reasons listed in Section XI (Revisions to Relevant DOC Policies in Accordance with this Agreement), ¶ 8, DOC will: (1) determine what alternative reasonable accommodation(s) can be provided to ensure that the deaf or hard-of-hearing inmate receives effective, meaningful, and substantially equal access to DOC programs, services, and activities; and (2) will provide the deaf or hard-of-hearing inmate with such alternative reasonable accommodation(s). 11. Relevant provisions of the 408 Policy, and other DOC policies as necessary, shall clarify that a determination by medical staff not to prescribe a medical order or medical accommodation to a deaf or hard-of-hearing inmate shall not preclude the Institution ADA Coordinator or Department ADA Coordinator from approving other accommodations that are necessary for the inmate’s Effective Communication or effective, meaningful, and substantially equal access to DOC programs, services, and activities. 12. Relevant provisions of the 408 Policy and/or other DOC policies as necessary, shall clarify that DOC will provide appropriate auxiliary aids and/or services including, without
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limitation, Qualified Sign Language Interpretation and writing assistance, to deaf and hardof-hearing inmates who need accommodation(s) to effectively complete DOC’s grievance process, in keeping with 103 CMR 491.07(1). Depending on the needs of the deaf or hardof-hearing inmate, auxiliary aids and/or services will be made available at all stages of DOC’s grievance process. A deaf or hard-of hearing inmate who is unable to initiate a grievance process in writing as a result of his or her hearing impairment may inform a Correctional Program Officer or the Institution ADA Coordinator that he or she requires assistance to initiate or complete the grievance process. Deaf and hard-of-hearing inmates who, by reason of their hearing disability, cannot effectively complete DOC’s grievance process, shall not be required to submit a written request or complete DOC’s reasonable accommodation process in order to receive the assistance specified this paragraph. 13. Relevant provisions of the 408 Policy, and other DOC policies as necessary, shall clarify that DOC will provide to deaf and hard-of-hearing inmates appropriate auxiliary aids and/or services, including, without limitation, Qualified Sign Language Interpretation and writing assistance, to ensure that they have effective access to Staff Access periods that is substantially equal to the access available to hearing inmates at the same DOC Facility; or, alternatively, that deaf and hard-of-hearing inmates have effective access to DOC staff who are available during Staff Access periods in a separate meeting at least as frequently as hearing inmates have access to such staff during Staff Access periods at the same DOC Facility. Deaf and hard-of-hearing inmates who, by reason of their hearing disability, cannot effectively access DOC’s Staff Access period, shall not be required to submit a written request or complete DOC’s reasonable accommodation process in order to receive the assistance specified above. However, where a deaf or hard-of-hearing inmate requires an auxiliary aid or services the use of which must be scheduled in advance (e.g., Qualified
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Sign Language Interpreters, CART services, etc.), DOC may engage in preliminary discussion(s) with the deaf or hard-of-hearing inmate to establish whether and how frequently the inmate intends to attend Staff Access periods. The inmate will be asked to notify DOC if his or her intent to attend changes. If the inmate does not attend Staff Access periods with the frequency he or she had previously indicated, DOC may have further discussion(s) with the inmates regarding attendance at Staff Access periods. XII. HOUSING DETERMINATIONS At a deaf or hard-of-hearing inmate’s annual classification hearing, DOC shall inquire whether the inmate would prefer to be housed in a correctional facility that already houses another deaf or hard-of-hearing inmate. If an inmate indicates such a preference, DOC will consider the inmate’s request at the classification hearing. DOC shall document the inmate’s request in the inmate’s classification report. If an inmate has made such a request and has been placed at a facility at which there are other deaf and hard-of-hearing inmates, the DOC staff responsible for making housing determinations at that facility will consider the inmate’s request in determining his or her housing unit placement after any orientation period. Additionally, once a deaf or hardof-hearing inmate has been placed at a facility, he or she may request to be housed with other deaf or hard-of-hearing inmates at that facility at any time by submitting a request to the facility Superintendent. DOC shall document the deaf or hard-of-hearing inmate’s request to the facility Superintendent and the facility Superintendent’s response thereto in IMS. Such facility and housing placements would be in the sole discretion of the DOC and would be considered only after DOC has taken into account the various factors upon which it relies in making facility and housing placement decisions, including, but not limited to: classification status; individual programming needs; medical, mental health and sex offender treatment needs; the need for reasonable accommodations; and conflicts between and among the inmate population
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(e.g., enemy situations, STG affiliations, protective custody situations, etc.). Nothing in this section shall be interpreted to limit DOC’s discretion to classify or house inmates in whatever correctional facility or housing unit it deems appropriate in keeping with the requirements of state and federal law. However, DOC will not place a deaf or hard-of-hearing inmate in a DOC Facility, housing unit, or cell in which it is unable to provide reasonable accommodations that ensure that the deaf or hard-of-hearing inmate is afforded access to DOC’s programs, services, and activities that is substantially equal to the access afforded to hearing inmates placed in the same DOC Facility, housing unit, cell, or status. Additionally, regardless of the DOC Facility in which a deaf or hard-of-hearing inmate is housed, said inmate retains all rights required by this Agreement and state and federal law. XIII. MONITORING AND REPORTING
A. Settlement Monitor 1. The Parties will consult to identify a Settlement Monitor that is reasonably acceptable to
both parties. The Settlement Monitor will serve to assess DOC’s compliance with the terms of the Agreement. If the Parties cannot timely agree upon the selection of a Settlement Monitor, each Party shall submit name(s) of proposed monitor(s), along with a summary of their qualifications, from which the Court may select the Settlement Monitor. 2. It is contemplated that Plaintiffs will pay for the fees and costs incurred by the Settlement Monitor and any consultants he or she retains out of any attorneys’ fees paid by the Commonwealth of Massachusetts as part of this litigation. To the extent any award of attorneys’ fees is insufficient to cover the fees and costs incurred by the Settlement Monitor and any consultants he or she retains, Plaintiffs reserve the right to seek such fees and costs from the Court. DOC will not pay fees and costs incurred by the Settlement Monitor or any consultants he or she retains unless so ordered by the Court.
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3. The Settlement Monitor shall have access to all DOC Facilities that house deaf or hard-ofhearing inmates, with reasonable notice, to conduct monitoring visits in order to assess DOC’s compliance with this Agreement. There shall be no more than three monitoring visits in each year that the Agreement is in effect. These visits may take up to three consecutive days each, and the Settlement Monitor may visit as many facilities as is practicable during each visit.
4. During each monitoring visit, the Settlement Monitor shall have access to meet with and interview personnel whose duties pertain to the provision of accommodations and services to deaf or hard-of-hearing inmates. The Settlement Monitor may ask DOC, through its inhouse counsel, to provide timely written responses to questions she may pose related to the implementation of this Agreement.
5. During each monitoring visit, the Settlement Monitor shall have a reasonable opportunity to conduct confidential interviews of deaf or hard-of-hearing inmates, or groups of such inmates (if a group setting does not present a safety or security concern), with the inmate or inmates’ written consent obtained on the date of the interview or in advance thereof, to assess whether they are receiving the accommodations and other services called for by the Agreement.
6. DOC shall designate one or more representatives with whom the Settlement Monitor shall conduct an in person or telephonic “exit interview.” The Settlement Monitor shall conduct the exit interview before the conclusion of each monitoring visit and at a time mutually convenient to the Settlement Monitor and DOC. Unless otherwise stated by the Settlement Monitor, any opinions or observations shared with DOC representatives during such exit interview shall be deemed to be preliminary and subject to revision.
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7. In addition to in-person interviews during monitoring visits, the Settlement Monitor may receive calls and correspondence from deaf or hard-of-hearing inmates, provided that deaf and hard-of-hearing inmates may only call the Settlement Monitor during regular hours when inmates have access to phones, consistent with 103 CMR 482. Such communications shall be treated as confidential and will be protected from discovery by DOC. B. DOC Records and Reports
1. Three times per year during the course of this Agreement, at intervals to be agreed upon by the parties, DOC will provide the Settlement Monitor and Plaintiffs’ Counsel with data and documents collected by the DOC and its Contract Medical Provider to track DOC’s compliance with the Agreement. This data will cover each DOC Facility that houses a deaf or hard-of-hearing inmate. The data and documents to be provided are set forth in Appendix A attached to this Agreement. Material and information provided in one report need not be repeated in subsequent reports; only new or updated information since the date of the last report must be provided.
2. The Settlement Monitor shall have access to any other relevant records or documents to assess compliance with this Agreement, except documents protected by attorney-client or work product privileges or any applicable protective order entered by the Court. If these documents are requested in conjunction with a monitoring visit, the DOC will provide these documents to the extent feasible within ten (10) days prior to the visit.
3. During the monitoring visits, the Settlement Monitor shall have reasonable access to current inmate records (subject to the inmate’s written consent), including inmate ADA folders, six-part files, and medical records. If the Settlement Monitor requests copies of any inmate’s ADA folder or other records, the DOC shall provide copies within thirty (30)
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business days of the request. Within thirty (30) days of the Effective Date, the parties shall agree to a procedure to ensure access to and the confidentiality of inmate records. 4. DOC shall also conduct an annual audit of its policies, practices and procedures to assess compliance with the terms of the Agreement and the ADA. The first such audit shall be completed within one (1) year of the Effective Date. At minimum, this audit shall address the issues described in the Settlement Monitor’s inspection checklist described in Section XII(C) (Settlement Monitor’s Reports), ¶ 2. C. Settlement Monitor’s Reports 1. The Settlement Monitor shall prepare bi-annual written reports on DOC’s efforts to meet the terms of this Agreement, and may also include additional advice, suggestions or proposals in the nature of quality assurance or quality improvement as she deems appropriate. The Settlement Monitor shall make her written report available to the DOC within thirty (30) days from the completion of her monitoring visit and the delivery by DOC of any documents requested by the Settlement Monitor at the monitoring visit, whichever is later, unless the time for submission is extended by agreement of the parties. Although DOC will give full consideration to advice, suggestions, and proposals offered by the Settlement Monitor, all decisions concerning the provision of accommodations and services to deaf and hard-of-hearing inmates will be made by DOC in accordance with the terms of this Agreement and statutory and other legal responsibilities. If the Settlement Monitor reports that DOC has not met the terms of any provision or provisions of this Agreement, she shall make recommendations as to actions she believes to be necessary to meet the terms of the provision(s). If DOC does not accept any recommendations made by the Settlement Monitor, it will explain its reasons to the Settlement Monitor and Plaintiffs’ Counsel.
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2. Six (6) months from the Effective Date, the Settlement Monitor shall develop an inspection checklist that canvasses all of the issues subject to the Agreement, and shall circulate it to Plaintiffs and DOC. The inspection checklist should serve as an aid for DOC to use as a self-audit instrument.
XIV. RELEASE AND SETTLEMENT OF CLAIMS In consideration of the representations, promises, and agreements set forth herein, the
sufficiency of which is hereby acknowledged, the individual Plaintiffs and members of any class that is certified in this Action, on behalf of themselves, their assignees, heirs, executors, family members, beneficiaries, administrators, successors in interest, and anyone acting, or claiming to act, on their behalf, hereby release and forever discharge the Commonwealth, the Executive Office of Public Safety and Security, DOC, and their current and former employees from any and all claims and causes of action arising out of the matters described in the Complaint filed in this Action, except for the Reserved Claims, through the term of the Agreement.
Nothing in this Agreement shall constitute a waiver by any individual class member other than the named Plaintiffs of any individual claim against DOC or against any individual defendant in a court of competent jurisdiction for monetary damages. XV. FINAL APPROVAL
For purpose of this Agreement and its Final Approval by the Court, the Parties agree to stipulate that this Action shall be maintained as a class action under Fed. R. Civ. P. 23, with the class defined as all individuals who are currently in DOC custody or in the future are placed in DOC custody, and who are currently or in the future become deaf or hard-of-hearing.
This Agreement shall be subject to the Final Approval of the Court. The Parties shall cooperate in presenting this Agreement to the Court for Final Approval and/or at any hearing under Fed. R. Civ. P. 23(e). If the Court grants Final Approval, the Parties stipulate that this Agreement
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shall not be construed as a consent decree or its equivalent. If the Court does not grant Final Approval, this Agreement shall be null and void and of no force and effect, and nothing herein shall be deemed to prejudice the position of any Party with respect to the Action or otherwise, and neither the existence of this Agreement, nor any of its terms or provisions, nor any of the negotiations or proceedings connected with it, shall be admissible in evidence, referred to for any purpose in the Action or in any other litigation or proceeding, or construed as an admission, presumption, or concession by DOC of any liability or the truth of any of the allegations of the Action. XVI. DISPUTE RESOLUTION AND ENFORCEMENT
This Agreement may be enforced only by the Parties hereto. Nothing contained in this Agreement is intended to or shall be construed to evidence an intention to confer any rights or remedies upon any persons other than the Parties hereto. The Court shall be the sole forum for the enforcement of this Agreement.
If Plaintiffs believe that DOC is not in substantial compliance, i.e., is in substantial noncompliance, with any provision of this Agreement, Plaintiffs, through Plaintiffs’ Counsel, shall provide DOC, in writing, notice of the specific reasons why it believes that DOC is not in substantial compliance with such provision or provisions, referencing the specific provision or provisions. Plaintiffs may not allege that DOC is not in substantial compliance based on minor or isolated delays in compliance. Plaintiffs may also not allege that DOC is not in substantial compliance without evidence of a pattern of non-compliance with regard to the particular provision or provisions. To the extent that Plaintiffs rely on observations or opinions of the Settlement Monitor to support an allegation that DOC is not in substantial compliance, Plaintiffs shall refer to the Settlement Monitor’s written reports or to portions thereof that support Plaintiffs’ belief. To the extent that Plaintiffs rely upon documents provided by DOC to support an allegation that DOC
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is in not in substantial compliance, Plaintiffs shall make reference to the specific documentation that supports Plaintiffs’ belief.
DOC shall have the opportunity to consult the Settlement Monitor with respect to Plaintiffs’ allegations that DOC is not in substantial compliance with any provision or provisions. Any such consultation must be in writing and shared with Plaintiffs’ Counsel. DOC shall provide Plaintiffs’ Counsel with a written response to the notification of alleged substantial noncompliance within thirty (30) days of receipt. DOC’s response shall contain a description of the steps it took to investigate the issues addressed in Plaintiffs’ notice, the results of the investigation, and, where DOC proposes corrective action, a specific plan for addressing the described issues. If no corrective action is proposed by reason of the unavailability of appropriated funds, the lack of receipt of appropriated funds, legal considerations, or for other reasons, DOC’s response shall specifically state those reasons as well as any statutes, regulations, evidence, or technical bases upon which it is relying in reaching such conclusion.
Plaintiffs will advise DOC of its acceptance or rejection of DOC’s response within seven (7) business days of its receipt. Either DOC or Plaintiffs, in any of the written submissions pursuant to this section, may request a meeting to discuss and attempt to resolve any matter addressed in the written submissions. DOC and Plaintiffs shall meet within fourteen (14) business days of receipt of a request to meet, unless a later meeting is agreed to by the Parties.
If DOC and Plaintiffs are not successful in their efforts to resolve the issue, they may jointly or independently seek relief from the Court to effect substantial compliance with the Agreement, but not through a petition for contempt.
If the Court finds that DOC is not in substantial compliance, i.e., is in substantial noncompliance, with a provision or provisions of the Agreement, it may enter an order consistent with equitable principles, but not an order of contempt, that is designed to achieve compliance.
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If Plaintiffs contend that DOC has not complied with an order entered under the immediately preceding paragraph, they may, after reasonable notice to DOC, move for further relief from the Court to obtain compliance with the Court’s prior order. In ruling on such motion, the Court may apply equitable principles and may use any appropriate equitable or remedial power available to it.
The Parties shall not seek termination of or otherwise challenge this Agreement or any order approving this Agreement during the time that the Court retains jurisdiction. Nothing in this paragraph shall limit the Parties’ rights to challenge or appeal any finding as to whether DOC is not in substantial compliance, i.e., is in substantial non-compliance, or any consequent order entered by the Court. XVII. FUNDING
The Parties acknowledge that full implementation of this Agreement may be subject to the availability and receipt of appropriated funds.
DOC agrees to make all possible good faith efforts to seek all necessary funding to implement fully the terms of this Agreement. In the event that DOC alleges that it is unable to fulfill any of its obligations under this Agreement because of inadequate appropriations by the Legislature or a lack of receipt of appropriated funds, the Parties shall meet and confer, and if necessary, consult the court.
In the event that the Parties remain unable to agree, Plaintiffs’ Counsel reserve all rights to seek remedial orders from the Court to effect substantial compliance with this Agreement under the Dispute Resolution and Enforcement procedures in Section XVI (Dispute Resolution and Enforcement) of this Agreement, and DOC reserves all rights to respond to any such requested relief.
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XVIII. NO ADMISSION OF LIABILITY Nothing in this agreement shall be construed in any way as an admission, presumption, or
concession by DOC or any defendant of any liability or wrongdoing whatsoever. DOC specifically disclaims any liability or wrongdoing whatsoever on the part of itself, its agents, and its employees.
This Agreement may not be relied upon as precedent in any future claim. XIX. ATTORNEYS’ FEES AND COSTS
The Parties agree to negotiate in good faith Plaintiffs’ Counsel’s claim to reasonable attorneys’ fees and costs. If such negotiations are unsuccessful, Plaintiffs’ Counsel reserve all rights to seek reasonable attorneys’ fees and costs, including fees and costs associated with those claims resolved by this Agreement, and DOC reserves all rights to oppose any such petition for fees and costs.
Notwithstanding anything herein, the Parties agree that the Court’s failure to approve any fee award sought by Plaintiffs’ Counsel shall not be grounds for terminating this Agreement.
Plaintiffs’ Counsel reserve all rights to seek reasonable attorneys’ fees and costs for successful enforcement of this Agreement after Final Approval, and DOC reserves all rights to oppose any such petition for fees and costs. XX. MISCELLANEOUS
A. Governing Law This Agreement shall be deemed to be made and entered into in the Commonwealth of Massachusetts and shall in all respects be interpreted, enforced, and governed under the laws of said Commonwealth and the laws of the United States.
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B. Confidentiality No part of this Agreement is or will be considered confidential by the Parties. This Agreement will be made available by request under the Massachusetts Public Records Law, Mass. Gen. Laws c. 66, § 10, or Freedom of Information Act, 5 U.S.C. § 552. C. Entire Agreement This Agreement constitutes the entire agreement of the Parties and, except for any Protective Order entered by the Court, supersedes all prior agreements, representations, negotiations, and undertakings in this litigation not set forth or incorporated herein. Each Party represents and acknowledges that each Party is and has been represented by its own counsel. Each Party further represents and acknowledges that, in executing this Agreement, no Party relies or has relied upon any representations or statements made by any other Party or its counsel other than the promises and representations set forth in this Agreement. No other statement, promise, or agreement, either written or oral, made by any Party or agents of any Party this is not contained in this written Agreement, will be enforceable. This Agreement is the result of an arm’s-length negotiation. Since all Parties contributed substantially, materially, and cooperatively in drafting this Agreement, it shall not be more strictly construed against one Party than as against any other. D. Execution This Agreement may be executed in counterpart originals, all of which, when so executed and taken together, shall be deemed an original and all of which shall constitute one and the same instrument. Each counterpart may be delivered by email (as a PDF attachment) or facsimile, and an email or facsimile signature shall have the same force and effect as an original signature.
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E. Non-Waiver Failure by Plaintiffs to seek enforcement of this Agreement pursuant to its terms with respect to any instance or provision will not be construed as a waiver to such enforcement with regard to other instances or provisions. F. Severability Should any part, term, or provision of this Agreement be declared or be determined by any Court to be illegal, invalid, or otherwise unenforceable, the validity of the remaining parts, terms, or provisions shall not be affected thereby and said illegal, invalid, or other unenforceable part, term, or provision shall be deemed not to be part of this Agreement, unless the Court declines to approve this Agreement. However, if the severance of any illegal, invalid, or otherwise unenforceable part, term, or provision materially alters the rights or obligations of the parties hereunder, the Parties will attempt, through reasonable, good fair negotiations, to agree upon such other amendments to this Agreement as may be necessary to restore the Parties as closely as possible to the relative rights and obligations initially intended by them hereunder. G. Amendments Except as otherwise stated, this Agreement shall only be amended, revoked, changed, or modified through a written agreement executed by all Parties and approved by the Court. No waiver of any provision of this Agreement will be valid unless it is in writing and signed by the Party against whom such waiver is charged and approved by the Court. H. Term of Agreement The term of this Agreement shall commence upon the date of Final Approval by this Court and shall extend for three (3) years from said date of Final Approval. The Court’s jurisdiction shall terminate at the end of the three (3) year settlement period with respect to any provision or provisions of this Agreement for which there is no outstanding determination, or pending claim,
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Case 1:15-cv-40162-GAO Document 199-2 Filed 05/28/19 Page 72 of 80 that DOC is not in substantial compliance, i.e., is in substantial non-compliance. If the Court determines that there has been substantial non-compliance by DOC with a provision or provisions of this Agreement at any time during the three (3) year period of this Agreement, the Court’s jurisdiction with respect to such provision or provisions relating thereto shall continue for the remainder of the three (3) year period or for an additional period to be ordered by the Court of not more than two (2) years from the date of the Court’s finding that DOC is not in substantial compliance.
Subject to the provisions set forth in this section and in Section XVI (Dispute Resolution and Enforcement), this Agreement shall expire at the end of three (3) years from the date of Final Approval by the Court and the Action shall then be dismissed with prejudice.
However, DOC will continue to provide all accommodations required under law, including under the U.S. Constitution, the ADA, Section 504 of the Rehabilitation Act, and Massachusetts law, along with any other applicable federal and state laws, regardless of any term limit applicable to this Agreement.
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APPENDIX A
In accordance with the provisions of Section XIII(B) (DOC Records and Reports), ¶ 1, DOC shall provide the Settlement Monitor and Plaintiffs’ Counsel with the data and documents set forth below as required by the corresponding Agreement Provisions, noted below:
A. In accordance with Section IV (Identification and Tracking of Deaf and Hardof-Hearing Inmates)
1. All DOC and institutional policies and procedures that implement this Agreement, including Orientation manuals, handbooks, and forms provided to inmates. (Also in accordance with Section XI (Revisions to Relevant DOC Policies in Accordance with this Agreement)).
2. The records audit described in Section IV(A) (Identification of Deaf and Hard-ofHearing Inmates Currently in DOC Custody) of this Agreement.
3. A list of all deaf and hard-of-hearing inmates in DOC custody and the facility and unit where each such inmate is housed.
4. A copy of the IMS entry for each deaf and hard-of-hearing inmate identifying: (1) the severity of the inmate’s hearing disorder; (2) any of the inmate’s hearing-related medical restrictions; and (3) the hearing-related reasonable accommodations that have been approved for that inmate.
5. The monthly records that Section IV(F) (Tracking Deaf and Hard-of-Hearing Inmates in DOC Custody) of this Agreement requires each Institution ADA Coordinator to prepare, showing all notifications and accommodations provided under that Section.
6. The annual self-evaluations and compliance plans completed by each DOC institution Superintendent required, per the 408 Policy (103 DOC 408.03).
7. All audits conducted by DOC of its medical provider to ensure compliance with the requirements of this Agreement, including the requirement that the medical provider examine inmates for hearing loss as part of the periodic physical. (Also in accordance with Section V (Contract Medical Provider’s Care, Treatment, and Accommodation of Deaf and Hard-of-Hearing Inmates)).
8. A monthly list of all deaf and hard-of-hearing inmates who have been transferred, including the date of the transfer, and the name of the sending and receiving facility.
9. A list of all inmates for whom a distinguishing mark has been placed on his or her bed book card, identifying that they are deaf and/or hard-of-hearing, indicating that they may need assistance in case of an emergency.
10. A list of all deaf or hard-of-hearing inmates provided an identification badge or card indicating the nature of their hearing disability, and a list of all deaf or hard-of-hearing inmates who have declined the badge or card.
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11. A list of all deaf or hard-of-hearing inmates offered an identification sign on their cell door indicating the nature of their hearing disability, and a list of all deaf or hard-of-hearing inmates who have declined the sign.
12. Monthly reports showing all updates to the Centralized Database documenting: (1) all hearing-related Requests for Reasonable Accommodation(s) made by deaf and hard-ofhearing inmates and whether the requests were granted, modified, or denied; and (2) the list of inmates who have been identified as deaf or hard-of-hearing and the status of any hearing-related requests for accommodation(s).
13. The monthly reports submitted to the Superintendent and Department ADA Coordinator for Inmates by each Institution ADA Coordinator that contain information regarding: (1) all hearing-related Requests for Reasonable Accommodation(s) made by deaf and hardof-hearing inmates, including the nature of the hearing-related accommodations requested, whether the requests were granted, modified, or denied, and the reasons for any modification or denial; and (2) any hearing-related accommodations approved for deaf and hard-of hearing inmates without submission of a Request for Reasonable Accommodation.
14. A list showing the names and contact information of the Institution ADA Coordinators for each DOC Facility and the Department’s ADA Coordinator for Inmates.
15. A description of facts showing DOC’s compliance with the accommodation assessment provisions in Section IV(D) (Initial Assessment to Determine Appropriate HearingRelated Auxiliary Aids) of the Agreement that shall include documentation of: (1) any conversation with the deaf or hard-of-hearing inmate; (2) an explanation of the reason(s) if the deaf or hard-of-hearing inmate’s preferred accommodations were not approved; (3) documentation of any consultations with medical staff or outside consultants, such as MCDHH, and the names of the individuals consulted; (4) the recommendations of any outside consultants; and (5) whether the recommendations of outside consultants were approved, and, if not, an explanation of the reason(s) for why the recommendations were denied and what alternative accommodations have been provided to the inmate.
16. The written records of any scheduled meetings between the Institution ADA Coordinator and a deaf or hard-of hearing inmate to discuss Requests for Reasonable Accommodations, as referenced in Section IV(G) (Meetings with Institution ADA Coordinators Regarding Accommodations) of the Agreement.
B. In accordance with Section V (Contract Medical Provider’s Care, Treatment, and Accommodation of Deaf and Hard-of-Hearing Inmates)
17. The minutes from all Monthly ADA Committee Meetings and from all Bi-Monthly Deputy Meetings in which accommodations are discussed. The minutes from the Bi-Monthly Deputy Meetings shall be redacted to reflect only those portions of the minutes related to the discussion of hearing-related accommodations.
18. Monthly data showing: (1) all hearing screenings requested and conducted by DOC’s Contract Medical Provider, and, where a screening was requested and not conducted, a description of the reasons for the denial; (2) a list of all inmates who were recommended
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for an audiological consultation, and, where the consultation was not approved by the Contract Medical Provider’s Utilization Management, a summary of the reasons for the denial; (3) information concerning all audiological and otological consultations, including any recommendations by the audiologist or otologist for hearing aids or other medical devices; (4) the date when the hearing aid or other device was provided; and (5) if the recommendation of the audiologist or otologist was not approved, a description of the reasons for the denial. (Also in accordance with Section IV (Identification and Tracking of Deaf and Hard-of-Hearing Inmates)).
19. All guidelines or protocols used by DOC’s Contract Medical Provider to determine whether to order an audiological or otological consultation or to approve an audiologist’s or otologist’s recommendation for hearing aids or other medical device(s).
20. Documentation showing each instance in which DOC’s Contract Medical Provider provided an ASL interpreter, VRI, CART, or any other communication device to deaf and hard-of-hearing inmates during a medical or mental health appointment or session, including the name of the inmate, the date of the service, and the nature of the accommodation.
C. In accordance with Section VI (Qualified Sign Language Interpreters)
21. All notifications to volunteer organizations or facilitators that a given program or service may be attended by a deaf or hard-of-hearing inmate and any response, including whether a hearing-related accommodation was offered.
22. Monthly records showing: (1) the identity of all Qualified Sign Language Interpreters employed by DOC; (2) a log of the Qualified Sign Language Interpreters’ schedules, showing the date and locations in which they provided services; (3) the program or activity for which such services were provided; and (4) the name of the inmate who received interpretation.
23. Records showing all DOC requests for Qualified Sign Language Interpreters or CART services made to MCDHH, including: (1) the date of the request; (2) the response; (3) the date the service was provided; and (4) all invoices submitted by the interpreter.
24. Monthly records showing each instance in which an inmate received an ASL interpreter or CART services, including: (1) the name of the inmate for whom the service was provided; (2) the date the service was provided; (3) the reason it was provided; and (4) the name of the interpreter.
25. Monthly records reflecting: (1) all educational and vocational programs in which deaf inmates who rely upon sign language as their primary means of communication are enrolled; (2) whether the deaf inmate has been provided a Qualified Sign Language Interpreter during the program; and (3) if so, the name of the interpreter. If a Qualified Sign Language Interpreter was not provided, DOC shall document the reason(s) therefor, including the written statements required by Section VI(A) (General Policy) of the Agreement, documenting the reason(s) whenever circumstances prevented DOC from providing necessary interpreter services.
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26. Any written waivers showing that a deaf or hard-of-hearing inmate has declined Qualified Sign Language Interpreter services.
27. The written records documenting the use of an inmate as a non-Qualified Sign Language Interpreter for a deaf or hard-of-hearing inmate in an emergency situation.
D. In accordance with Section VIII (Telecommunication)
28. A description of facts showing DOC’s provision of access to TTY, CapTel, VRI, and videophone services as required by this Agreement, and data showing their use at each DOC Facility.
29. A list of: (1) all deaf and hard-of-hearing inmates who have requested permission to use a videophone, CapTel phone, or TTY device; (2) whether their request(s) were approved or denied; and (3) to the extent their request(s) were denied, the reason for the denial.
30. For each DOC Facility, the name of each deaf or hard-of-hearing inmate authorized to use videophones, CapTel phones, or TTY devices.
31. The location of the stationary videophone in each DOC Facility, the date it was installed, and a log showing its usage.
32. The location of each mobile videophone in each DOC Facility; the location of all mobile videophone jacks in each DOC Facility and the date of installation; and a log showing the mobile videophone’s usage.
33. The location where each CapTel phone is stored in each DOC Facility and a log showing its usage.
34. The location where each TTY device is stored in each DOC Facility and a log showing its usage.
E. In accordance with IX (Visual and Tactile Notifications)
35. A report describing any visual/tactile non-emergency notification system(s) that DOC has implemented and the date of implementation.
F. In accordance with X (Training)
36. Records regarding each training required by this Agreement, including information regarding attendance and/or completion of the training for each Covered Employee and copies of the training materials and/or content provided.
G. In accordance with XI (Revisions to Relevant DOC Policies in Accordance with this Agreement)
37. All hearing-related Requests for Reasonable Accommodation(s) that were denied because the requests were not required under 28 CFR § 35.164, including DOC’s written statements of the reasons for reaching that conclusion.
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Case 1:15-cv-40162-GAO Document 199-2 Filed 05/28/19 Page 80 of 80 H. In accordance with XIII (Monitoring and Reporting) 38. DOC’s annual audit that addresses its compliance with the provisions of this Agreement. 39. All deaf or hard-of-hearing inmates’ grievances and grievance appeals, including medical grievances, alleging facts that would violate the Agreement if true, and all responses, including a description of the resolution of the grievance. 40. The records of any disciplinary proceedings involving a deaf or hard-of-hearing inmate where the inmate’s hearing may have been at issue, including, but not limited to, all disciplinary proceedings concerning a deaf or hard-of-hearing inmate missing count, missing an announced appointment, being out of place, or not responding to orders or announcements. 41. A description of any time a deaf or hard-of-hearing inmate was denied an opportunity to participate in an inmate work program as a result of his or her hearing loss.
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