INTERPRETER,LC17,TERMED
U.S. District Court District of Idaho (LIVE Database)Version 6.2.2 (Boise − Southern)
CIVIL DOCKET FOR CASE #: 1:12−cv−00030−BLW

Smith v. Reinke et al Assigned to: Judge B. Lynn Winmill Referred to: Judge Dee V Benson (Settlement) Cause: 42:12101 Americans with Disabilities Act
Plaintiff

Date Filed: 01/23/2012 Date Terminated: 01/29/2015 Jury Demand: Defendant Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Randolph O. Smith ASL INTERPRETER, Debbie Arment, debbiearment@gmail.com, 208−630−3200 and Brenna Andrew, bandrew7@gmail.com, 208−934−8564, Elizabeth Morgan, dandhalliance@gmail.com, 509−769−9328

represented by Randolph O. Smith INTERPRETER Debbie Arment, Brenna Andrew, Elizabeth Morgan Email: debbiearment@gmail.com PRO SE
Amy Cunningham Disability Rights Idaho 1246 Yellowstone Avenue, Ste. A3 Pocatello, ID 83201 (208) 232−0922x3 Fax: (208) 232−0938 Email: amy@disabilityrightsidaho.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Courtney Rose Holthus DisAbility Rights Idaho 4477 Emerald Street, Ste. B−100 Boise, ID 83706 208−336−5353x19 Email: courtney@disabilityrightsidaho.org ATTORNEY TO BE NOTICED

J Carl Mickelsen DisAbility Rights Idaho 200 South Almon St., Suite 101 Moscow, ID 83843 (208) 882−0962 Fax: (208) 883−4241 Email: carl@disabilityrightsidaho.org TERMINATED: 05/17/2012 ATTORNEY TO BE NOTICED

Mary Jo Butler DisAbility Rights Idaho 4477 Emerald St #B−100 Boise, ID 83706 (208) 336−5353 Fax: (208) 336−5359 Email: maryjo@disabilityrightsidaho.org TERMINATED: 02/04/2014 ATTORNEY TO BE NOTICED

V. Defendant Brent Reinke

represented by

Defendant Johanna Smith

Krista Lynn Howard Office of Attorney General POB 83720 Boise, ID 83720−0010 (208) 332−3095 Email: krista.howard@ag.idaho.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leslie Marie Hayes Idaho Attorney General's Office 954 W. Jefferson, 2nd Floor Boise, ID 83702 208−334−4538 Email: leslie.hayes@ag.idaho.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Alan Kubinski IDAHO DEPT OF CORRECTION 1299 N Orchard #110 Boise, ID 83706 (208) 658−2117 Fax: (208) 327−7485 Email: mkubinsk@idoc.idaho.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Michael Loomis OFFICE OF ATTORNEY GENERAL 1299 N Orchard Ste 10 Boise, ID 83706 (208) 658−2097 Fax: 1−208−327−7485 Email: wloomis@idoc.idaho.gov TERMINATED: 09/18/2014 ATTORNEY TO BE NOTICED
represented by Krista Lynn Howard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leslie Marie Hayes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Alan Kubinski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Michael Loomis (See above for address) TERMINATED: 09/18/2014 ATTORNEY TO BE NOTICED

Date Filed 01/23/2012

# Docket Text
1 COMPLAINT against Brent Reinke, Johanna Smith ( Filing fee $ 350 receipt number 0976−839600.), filed by Randolph O. Smith. (Attachments: # 1 Cover Sheet Cover

01/24/2012 02/02/2012 02/13/2012 02/15/2012 02/17/2012 03/12/2012 04/16/2012 05/16/2012 05/17/2012 09/13/2012
09/13/2012 09/13/2012
09/25/2012 09/26/2012 09/28/2012

Sheet, # 2 Summons Reinke Summons, # 3 Summons Warden Smith Summons)(Mickelsen, J)
2 Summons Issued as to Brent Reinke, Johanna Smith. (Print attached Summons for service.) (Attachments: # 1 Summons issued)(dks)
3 SUMMONS Returned Executed by Randolph O. Smith. Brent Reinke served on 1/30/2012, answer due 2/21/2012; Johanna Smith served on 1/30/2012, answer due 2/21/2012. (Attachments: # 1 Affidavit Proof of Service)(Mickelsen, J)
4 NOTICE of Appearance by William Michael Loomis on behalf of Brent Reinke, Johanna Smith (Loomis, William)
5 NOTICE of Assignment to Magistrate Judge and Requirement for Consent sent to counsel for Brent Reinke, Johanna Smith, Randolph O. Smith re 1 Complaint, 4 Notice of Appearance. Consent/Objection to Magistrate due by 4/19/2012. (jm)
6 ANSWER to 1 Complaint, Complaint by Brent Reinke, Johanna Smith.(Loomis, William)
7 REQUEST FOR REASSIGNMENT TO DISTRICT JUDGE AND REASSIGNMENT OF CASE. Case reassigned to Judge B. Lynn Winmill for all further proceedings. Judge Candy W Dale no longer assigned to case. Please use this case number on all future pleadings, 1:12−cv−30−BLW(jm)
8 Docket entry only − CONSENT to Magistrate Judge filed. (jm) (Entered: 04/17/2012)
9 SCHEDULING ORDER. ADR Plan to be filed by 8/31/2012. Factual Discovery due by 12/28/2012. Dispositive Motions due by 6/28/2013. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm) (Entered: 05/17/2012)
10 NOTICE of Substitution − Attorney Mary Jo Butler,Courtney Rose Stottler for Randolph O. Smith added. Attorney J Carl Mickelsen terminated. (Mickelsen, J)
11 DOCKET ENTRY ORDER − The parties have agreed to a settlement conference to be held in this matter on October 31, 2012. IT IS HEREBY ORDERED THAT this matter shall be referred to The Honorable Larry M. Boyle, U.S. Magistrate Judge for the District of Idaho, for the purpose of conducting a Settlement Conference. Local Rule 16.4. The Settlement Conference shall be held in Courtroom #1 on the 6th Floor of the James A. McClure Federal Building and U.S. Courthouse in Boise, Idaho, and shall begin at 9:30 a.m. A separate Settlement Questionnaire will be forthcoming from Judge Boyle, as well as a separate Order of Transport. If the parties have questions, they may contact Brandon Karpen, Judge Boyle's Law Clerk at 334−9010. Signed by Judge B. Lynn Winmill. (sbh)
Set Hearings: Settlement Conference set for 10/31/2012 09:30 AM in Boise − Courtroom 1 before Judge Larry M. Boyle. Per Order dkt #11.(cjm)
12 ORDER SETTING SETTLEMENT CONFERENCE re 11 Order. A settlement conference is set for 9:30 am (MDT), Wednesday, October 31, 2012, at the United States Courthouse in Boise, Idaho. Each party shall prepare and submit to the Court on or before Wednesday, October 24, 2012, at 5:00 p.m. (MDT), a candid summation of its assessment of the strengths of its case and the strengths of the opposing party's case.. Signed by Judge Larry M. Boyle. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb) (Entered: 09/14/2012)
13 MOTION Appoint ASL Interpreter Plaintiff's Motion to Appoint an ASL Interpreter Courtney Rose Holthus appearing for Plaintiff Randolph O. Smith. Responses due by 10/19/2012 (Attachments: # 1 Memorandum in Support)(Holthus, Courtney)
14 RESPONSE to Motion re 13 MOTION Appoint ASL Interpreter Plaintiff's Motion to Appoint an ASL Interpreter Defendants' Notice of Non−Opposition filed by Brent Reinke, Johanna Smith. Replies due by 10/15/2012.(Loomis, William)
15 DOCKET ENTRY ORDER granting 13 Motion for Attendance of an ASL Interpreter. The Clerk's office shall arrange for attendance and payment of an ASL interpreter at the settlement conference. Signed by Judge Larry M. Boyle. (caused to be mailed to

10/12/2012 10/12/2012 10/31/2012
10/31/2012 11/05/2012
11/15/2012
11/20/2012 12/26/2012 04/25/2013 04/29/2013 02/04/2014 02/19/2014 02/20/2014

non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (bk)
16 ORDER to Transport Prisoner. IDOC to take appropriate measures to transport Randolph Smith to Courtroom #1 in Boise on 10/31/2012 beginning at 9:00 a.m. for Settlement Conference at 9:30 a.m. (Notice sent to USMS) Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)
CERTIFICATE OF SERVICE by Clerk of Court of emailing 16 Order to Transport Prisoner to dbromley@idoc.idaho.gov, vbates@idoc.idaho.gov, sthompso@idoc.idaho.gov (cjm)
17 Minute Entry for proceedings held before Judge Larry M. Boyle: Settlement Conference held on 10/31/2012: The parties and their counsel met and engaged in meaningful negotiations. No settlement was reached at this time and the parties agreed to recess the conference for two weeks. The Settlement Conference will be continued on November 15, 2012, at 1:30 pm. The order granting attendance and payment of the ALS interpreter 15 shall remain in effect. (Court Reporter/ESR bk.) (bk)THESE MINUTES SHALL STAND AS THE ORDER OF THE COURT
Reset Hearings: re: 17 Minute Entry Settlement Conference set for 11/15/2012 01:30 PM in Boise − Courtroom 1 before Judge Larry M. Boyle. (krb)
18 ORDER to Transport ; IDOC to take appropriate measures to transport Randolph Smith to Courtrooom #1 on 11/15/12 for a second settlement conference set for 1:30 PM before The Honorable Larry M. Boyle. It will be necessary for the Idaho Department of Correction (IDOC) to transport inmate Randolph Smith on Thursday, November 15, 2012 at 1:00 p.m. (30 minutes ahead of the 1:30 p.m. conference start time)(Notice sent to USMS). Signed by Judge B. Lynn Winmill. (cc: dbromley@idoc.idaho.gov, vbates@idoc.idaho.gov, sthompson@idoc.idaho.gov; paper copy to USMS)(caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (ja)
19 Minute Entry for proceedings held before Judge Larry M. Boyle: On November 15, 2012, the Court reconvened the judicially supervised settlement conference. All counsel of record, Plaintiff, and a authorized representatives for Defendant, appeared, negotiated and participated in good faith. The parties committed to continued negotiations and will report to the should the case settle. (Court Reporter/ESR bk.) (bk)
20 STIPULATION Motion to Extend Discovery Deadlines by Randolph O. Smith. (Holthus, Courtney)
21 AMENDED SCHEDULING ORDER Discovery due by 6/28/2013. Dispositive Motions due by 8/30/2013. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
22 Joint MOTION for Extension of Time to Complete Discovery Courtney Rose Holthus appearing for Plaintiff Randolph O. Smith. Responses due by 5/20/2013 (Holthus, Courtney)
23 ORDER re: 22 Joint MOTION for Extension of Time to Complete Discovery . Discovery due by 9/30/2013. Dispostive Motions due by 11/29/2013. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)
24 NOTICE of Substitution − Attorney Amy Cunningham for Randolph O. Smith added. Attorney Mary Jo Butler terminated. (Holthus, Courtney)
25 MOTION to Strike 6 Answer to Complaint Defendants' Demand for Jury Trial Courtney Rose Holthus appearing for Plaintiff Randolph O. Smith. Responses due by 3/17/2014 (Attachments: # 1 Memorandum in Support Memorandum in Support of Motion to Strike Defendants' Demand for Jury Trial)(Holthus, Courtney)
26 NOTICE OF HEARING: A Telephonic Status Conference is set for 3/5/2014 at 10:00 AM before Judge B. Lynn Winmill for the purpose of setting a trial date. Plaintiff is

02/24/2014 03/10/2014
03/11/2014 03/11/2014 03/12/2014 04/02/2014 04/14/2014 04/14/2014 04/14/2014 05/27/2014
05/28/2014 06/19/2014
06/19/2014

directed to initiate the conference call. The Court can be reached at 208−334−9145. (jlg)
27 DOCKET ENTRY NOTICE OF VACATED HEARING − The Telephonic Status Conference scheduled for March 5, 2014 is VACATED. The Status Conference will be rescheduled after the Court's ruling regarding 25 Motion to Strike Defendants' Demand for Jury Trial. (jlg)
28 DOCKET ENTRY ORDER − IT IS HEREBY ORDERED THAT the Motion to Strike 25 shall be referred to The Honorable Robert J. Bryan, Senior United States District Judge for the Western District of Washington, sitting by special designation. The Motion will be submitted on the briefs without oral argument. Signed by Judge B. Lynn Winmill (sbh).
29 RESPONSE to Motion re 25 MOTION to Strike 6 Answer to Complaint Defendants' Demand for Jury Trial filed by Brent Reinke, Johanna Smith. Replies due by 3/28/2014.(Loomis, William)
30 MOTION Empanel advisory jury William Michael Loomis appearing for Defendants Brent Reinke, Johanna Smith. Responses due by 4/4/2014 (Attachments: # 1 Memorandum in Support)(Loomis, William)
31 The Court hereby VACATES its March 11, 2014 order referring the pending motion to strike (Dkt. 25) to Judge Bryan. Signed by Judge B. Lynn Winmill. (mls)
32 MEMORANDUM in Opposition re 30 MOTION Empanel advisory jury filed by Randolph O. Smith. Replies due by 4/21/2014.(Holthus, Courtney)
33 REPLY to Response to Motion re 30 MOTION Empanel advisory jury filed by Brent Reinke, Johanna Smith.(Loomis, William)
34 REPLY to Response to Motion re 30 MOTION Empanel advisory jury filed by Brent Reinke, Johanna Smith.(Loomis, William)
CORRECTIVE ENTRY − The entry docket number 33 Reply to Response to Motion filed by Johanna Smith, Brent Reinke was filed incorrectly in this case. The filing party correctly filed at docket 34. (cjm)
35 MEMORANDUM DECISION AND ORDER. Plaintiff's unopposed Motion to Strike Defendant's Demand for a Jury Trial 25 is GRANTED. Defendant's Motion to Empanel an Advisory Jury 30 is DENIED.. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
36 NOTICE OF HEARING: A Telephonic Status Conference is set for 6/17/2014 at 11:00 AM before Judge B. Lynn Winmill for the purpose of setting a trial date. The Court can be reached at 208−3334−9145. (jlg)
37 ORDER SETTING TRIAL. Parties shall notify the Court on or before 12/8/2014 that the case has either settled or will definitely go to trial. (Motions in Limine due by 12/15/2014. Bench Trial set for 1/20/2015 09:00 AM in Boise − Courtroom 3 before Judge B. Lynn Winmill. Telephonic Pretrial Conference set for 1/6/2015 10:00 AM before Judge B. Lynn Winmill.). Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
38 ORDER VACATING REFERRAL, SETTING SETTLEMENT CONFERENCE AND SETTLEMENT QUESTIONNAIRE. IT IS HEREBY ORDERED THAT the Order of Referral filed on 9/13/2012 11 for the Honorable Larry M. Boyle to conduct a Settlement Conference is hereby vacated. This matter shall be referred for a Settlement Conference to Senior United States District Judge Dee V. Benson. Parties shall file a summation of its assessment of the strengths of it's case and the opposing party's case by 8/8/2014 at 5:00 p.m. (MT). (Settlement Conference set for 8/21/2014 09:30 AM in Boise − Courtroom 1 before Judge Dee V Benson.). Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

06/19/2014
06/20/2014 08/21/2014 09/18/2014 09/26/2014
09/30/2014 10/08/2014 10/08/2014 10/14/2014 10/14/2014 10/20/2014 10/24/2014 11/10/2014

39 ORDER TO TRANSPORT INMATE. IT IS ORDERED that the Idaho Department of Correction officials shall take appropriate measures to transport inmate Randolph O. Smith on 8/21/2014 to arrive at 9:00 a.m. The inmate shall be transported to the James A. McClure Federal Building and United States Courthouse, 550 West Fort Street, 6th Floor, Courtroom #1, Boise, Idaho. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
40 ORDER FOR INTERPRETER SERVICES. IT IS HEREBY ORDERED THAT interpreter services shall be provided for Plaintiff Smith, who is hearing impaired, as noted in § 255.10(c), with costs to be incurred at judiciary expense. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
41 Minute Entry for proceedings held before Judge Dee V Benson: Settlement Conference held on 8/21/2014 Case not settled. Time in Court 5 hours. (Court Reporter Ed Young.) (so) (Entered: 08/26/2014)
42 NOTICE of Substitution − Attorney Mark Alan Kubinski,Leslie Marie Hayes for Brent Reinke,Mark Alan Kubinski,Leslie Marie Hayes for Johanna Smith added. Attorney William Michael Loomis terminated. (Kubinski, Mark)
43 MOTION in Limine to Exclude Proffered Evidence or Argument Regarding the IDOC's Inmate Kiosks and Video Visitation Feature Courtney Rose Holthus appearing for Plaintiff Randolph O. Smith. Responses due by 10/20/2014 (Attachments: # 1 Memorandum in Support Memorandum in Support of Plaintiffs Motion in Limine, # 2 Affidavit Affidavit of Courtney R. Holthus in Support of Plaintiff's Motion in Limine, # 3 Exhibit Exhibit A, # 4 Exhibit Exhibit B, # 5 Exhibit Exhibit C, # 6 Exhibit Exhibit D, # 7 Exhibit Exhibit E, # 8 Exhibit Exhibit F, # 9 Exhibit Exhibit G, # 10 Exhibit Exhibit H, # 11 Exhibit Exhibit I)(Holthus, Courtney)
44 MOTION to Continue Trial Leslie Marie Hayes appearing for Defendants Brent Reinke, Johanna Smith. Responses due by 10/24/2014 (Attachments: # 1 Memorandum in Support, # 2 Affidavit of Juliet McKay, # 3 Affidavit of Leslie Hayes)(Hayes, Leslie)
45 DOCKET ENTRY ORDER: The Court hereby expedites the briefing schedule for the pending motion to continue trial (Dkt. 44) as follows: The response brief shall be filed by Tuesday, October 14, 2014 by 5:00 p.m., Mountain Time. The reply brief, if any, shall be filed within seven calendar days after the response brief is filed. Signed by Judge B. Lynn Winmill. (mls)
Set/Reset Deadlines as to 44 MOTION to Continue Trial. Responses due by 10/14/2014. (Per dkt #45) (st)
46 RESPONSE to Motion re 44 MOTION to Continue Trial Plaintiffs Response in Opposition to Defendants Motion to Continue Trial filed by Randolph O. Smith. Replies due by 10/31/2014. (Attachments: # 1 Affidavit Affidavit of Courtney R. Holthus In Support of Plaintiffs Response in Opp to Defendants Motion to Continue Trial)(Holthus, Courtney)
47 AMENDED DOCUMENT by Randolph O. Smith. Amendment to 43 MOTION in Limine to Exclude Proffered Evidence or Argument Regarding the IDOC's Inmate Kiosks and Video Visitation Feature Amended Affidavit of Courtney R. Holthus in Support of Motion in Limine. (Holthus, Courtney)
48 REPLY to Response to Motion re 44 MOTION to Continue Trial filed by Brent Reinke, Johanna Smith.(Hayes, Leslie)
49 MEMORANDUM DECISION AND ORDER. IT IS ORDERED that Defendants' Motion to Continue Trial 44 is DENIED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
50 NOTICE of Appearance by Krista Lynn Howard on behalf of All Defendants (Howard, Krista)

12/08/2014 12/09/2014
01/28/2015 01/29/2015 01/29/2015

51 STIPULATION re 37 Order, Set Deadlines/Hearings,,,, to continue trial by Brent Reinke, Johanna Smith, Randolph O. Smith. (Kubinski, Mark)
52 ORDER GRANTING STIPULATION TO CONTINUE TRIAL & TRIAL−SETTING ORDER. The 1/20/2014 trial in this action, as well as all deadlines set forth in the Court's 6/19/2014 Trial−Setting Order (Dkt. 37), are hereby VACATED. The pending motion in limine 43 is DEEMED MOOT. The parties shall notify the Court on or before 2/2/2015 that the case has either settled or will definitely go to trial. (Motions in Limine due by 2/9/2015. Bench Trial reset for 3/16/2015 09:00 AM in Boise − Courtroom 3 before Judge B. Lynn Winmill. Telephonic Pretrial Conference set for 2/24/2015 10:00 AM in Boise Chambers before Judge B. Lynn Winmill.). Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
53 STIPULATION of Dismissal with prejudice by Brent Reinke, Johanna Smith. (Kubinski, Mark)
54 ORDER FOR DISMISSAL WITH PREJUDICE. Based on the stipulation of the parties 53 , it is hereby ORDERED that this case be dismissed with prejudice. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
55 JUDGMENT. In accordance with the Order issued concurrently herewith, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that judgment be entered and that this case be dismissed in its entirety, with prejudice. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

 
 DisAbility Rights Idaho J. Carl Mickelsen carl@disabilityrightsidaho.org Idaho State Bar #4553 200 South Almon St., Suite 101 Moscow, ID 83843 Phone: (208) 882-0962 (Voice/TDD) Fax: (208) 883-4241 Attorneys for Plaintiff

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

RANDOLPH SMITH

|

|

Plaintiff,

|

|

v.

|

|

BRENT REINKE and JOHANNA SMITH,

in their official capacities,

|

Defendants.

|

Case No.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

I. PRELIMINARY STATEMENT

1. This action arises under the Americans with Disabilities Act of 1990, as amended, 42

U.S.C. § 12101 et seq. (hereinafter “ADA”) and the Rehabilitation Act of 1973, as amended, 29

U.S.C. § 701 et seq. (hereinafter “Rehabilitation Act”). At issue is the failure of Defendants,

Idaho Department of Correction (IDOC) officials, to ensure that Plaintiff, Randolph Smith, an

inmate who is deaf, was provided an opportunity to effectively communicate with persons

outside the prison that was equal to that provided hearing inmates. Hearing inmates are provided

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Page 1

the use of standard telephones to communicate with persons outside the prison. Using a standard

telephone, hearing inmates can communicate with persons outside the prison using their primary

language. Moreover, in light of the continuing spread of this basic technology, using the

standard telephone hearing inmates have an ever increasing potential audience with whom they

can communicate. Because of his disability, Plaintiff cannot communicate using a standard

telephone. In recognition of this, the IDOC has provided him the use of a text telephone (TTY).

However, a TTY does not enable Plaintiff to communicate with deaf persons outside the prison

in a manner that is functionally equivalent to that afforded hearing inmates. A TTY does not

allow him to communicate in his primary language. Moreover, because of changing

technologies and trends, the actual number of persons he can contact using a TTY is continually

decreasing. In fact, the TTY is becoming increasingly obsolete and useless. In light of this,

Plaintiff requested that he be provided the use of a videophone. A videophone would allow him

to communicate with an increased number of people using his primary language. The request

for a videophone was denied. This denial violates Plaintiff’s rights under the ADA and the

Rehabilitation Act because it denies him, on the basis of his disability, an opportunity to

communicate with persons outside the prison that is equal to that provided to hearing inmates.

II. JURISDICTION AND VENUE

2. The Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331

and 1343(a)(4).

3. This action is authorized by 42 U.S.C. § 12133 and 29 U.S.C. § 794a.

4. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b) because

Defendants reside within the District of Idaho and the events and omissions giving rise to

Plaintiff’s claims occurred within this District.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Page 2

III. PARTIES

5. Plaintiff, Randolph Smith, is a deaf adult who is currently incarcerated at the Idaho State

Correctional Institution (ISCI) in Kuna, Idaho. At all times relevant to this Complaint, he has

been in the custody of the IDOC.

6. Defendant, Brent Reinke, is the Director of the IDOC, a state agency existing pursuant to

the laws of the State of Idaho. He is the chief administrative officer for the Board of Correction

which is charged with the control, direction and management of the State’s correctional facilities

as well as the care and maintenance of the prisoners in its custody. Mr. Reinke has been the

Director of the IDOC since 2007 and he is being sued in his official capacity.

7. Defendant, Johanna Smith, is the warden of the ISCI. As the facility head, she is

primarily responsible overseeing, managing and operating the ISCI on a day-to-day basis. Ms.

Smith has been the warden of the ISCI at all relevant times hereto. Ms. Smith is being sued in

her official capacity.

IV. FACTUAL ALLEGATIONS

8. Plaintiff is and has been deaf for all times relevant hereto.

9. Plaintiff’s primary language is American Sign Language (ASL) and he uses written

English as a secondary language.

10. ASL is a complex language that employs signs made with hands, facial expressions and

body language. It is distinct and different from English with its own vocabulary and rules for

grammar and syntax.

11. A “TTY,” a teletypewriter or text telephone, also known as a telecommunication device

for the deaf (“TDD”), is a telephone equipped with a keyboard and a display screen which allows

individuals to send and receive typed messages via the telephone line either directly to another

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Page 3

person with a TTY or indirectly to a person without a TTY through the use of a

Telecommunications Relay Service (TRS).

12. The TTY is a cumbersome, 60-year-old technology which can present a severe challenge

in effectively communicating for deaf persons for whom English is not their primary language.

13. Videophones enable videoconferencing and this allows communication directly in ASL

without having to translate every statement into written English. Videophone users can make

direct calls to one another or can call a person who is not deaf using a Video Relay Service

(VRS). The VRS connects to an interpreter to translate ASL into English and vice versa.

14. Communicating directly in ASL via a videophone allows for there to be a genuine

conversation on a par with that experienced by hearing inmates communicating via standard

telephones.

15. Communicating through a VRS allows conversations to flow in near real time and in a

faster and more natural manner than through a text-based TRS.

16. Under the current technology one cannot place a call from a TTY to a videophone

through a relay service.

17. Videophones are rapidly replacing TTYs as the principal means for telecommunication in

households of individuals who are deaf.

18. The Idaho Telecommunications Relay Service handles intrastate TTY calls. Its traffic

declined approximately 73% from 2006 through 2010. Idaho Public Utilities Commission, Order

No. 32230 (2011).

19. According to the information posted by Rolka Loube Saltzer Associates in the VRS

Minutes Report, during this same period of time, there was approximately a 275% increase in the

use of VRS nationally. http://www.r-l-s-a.com/TRS/reports/VRSGrowth112010.pdf (last visited

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Page 4

December 8, 2011). Rolka Loube Saltzer Associates is the Interstate Telecommunications Relay

Service Fund Administrator appointed by the Federal Communications Commission.

20. As a consequence of this trend, many households of individuals who are deaf no longer

have a TTY and, since they rely exclusively on videophones for telecommunication, they have

no way to accept a TTY call.

21. The IDOC provides hearing inmates telephones to communicate with family, friends and

other persons outside the prison.

22. Telephones afford the opportunity for hearing inmates to communicate directly in their

primary language to persons outside the prison.

23. Telephone use has expanded to a point where currently, approximately 98% of people in

the U.S. live in households with telephones. As a consequence, hearing inmates are afforded the

opportunity via the telephone to communicate with virtually any family member, friend or other

person outside the prison.

24. On an undated “IDOC Offender Concern Form” addressed to Defendant Smith and Terrie

Rosenthal, an IDOC employee who was the Administrative Support Manager, Plaintiff identified

the following as his concern:

I am writing this concern as a formal request to update the mode of “telephone access”

for deaf people like me who depend solely on sign language as our primary language.

The TTY is becoming obsolete and I am unable to call many of my friends due to their

conversion to video phones that allows sign language to be transmitted. Due to this new

technology I am unable to contact my brother and the only TTY contact I have is also

experiencing problems with aging TTYs. I put in this request for updating the “deaf

phone system.”

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Page 5

In a response dated November 3, 2009, Plaintiff’s request was denied and he was told: “You

have a relay service option or writing letters.”

25. On an “Idaho Department of Correction Grievance Form” received November 19, 2009,

Plaintiff stated he had sent a concern form “regarding the use of the TTY becoming outdated. I

requested it due to the changing technology and the use of videophones. The TTY is becoming

obsolete and I can only call one person out of many.” Terrie Rosenthal responded: “I do not

understand why you are only able to call one person out of many. There is a relay service

available that utilized basic phone service without a TTY on the recipients end.” Upon review,

another IDOC employee stated: “You can make phone calls with the current system.” Plaintiff

appealed, stating: “The problem is you do not understand that the people I want to call are deaf;

have already upgraded to videophone service, and no longer have TTYs. The relay does not put

forward calls from one deaf person to another.” Defendant Smith, replied: “We are going to do

some research on this issue. I will let you know the outcome when we have more information.”

To date, Plaintiff has not been informed of an outcome stemming from the research.

26. On an “IDOC Offender Concern Form” dated January 22, 2010, Plaintiff claimed “that

the provision of a videophone is a reasonable modification of IDOC’s practices that is necessary

to protect my rights under the A.D.A.” The response to this, dated January 25, 2010, stated:

“You have exhausted all of your administrative remedies on this issue.”

27. On behalf of Plaintiff, DisAbility Rights Idaho (DRI) contacted the IDOC in April of

2010 by letter and requested that, based on the requirements of the ADA, they provide a

videophone for Plaintiff’s use. In that letter, DRI stated: “As you may be aware, TTYs, which are

what IDOC currently offers Mr. Smith in lieu of a telephone, are rapidly becoming obsolete and

falling into disuse. As a result of this, Mr. Smith’s ability to communicate with other deaf

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Page 6

persons is becoming increasingly limited. Aside from this, a TTY does not allow a deaf person

to communicate in their primary language – sign language – in a manner comparable to that

afforded hearing inmates via a telephone.”

28. In response to DRI’s request, Deputy Attorney General William Loomis stated: “The

ADA does not require state of the art technology as a method of reasonable accommodation.

Your letter also implies that Mr. Smith cannot reasonably communicate with other deaf persons.

As you can imagine, we disagree. Mr. Smith can write letters just like many other offenders do.

He can also have visitors. The fact of the matter is that he can communicate.”

29. In a letter dated May 6, 2010, DRI responded to Mr. Loomis, stating: “The regulations

implementing Title II prohibit a public entity from providing ‘a qualified individual with a

disability with an aid, benefit, or service that is not as effective in affording equal opportunity to

obtain the same result, to gain the same benefit, or to reach the same level of achievement as that

provided to others.’ 28 C.F.R. § 35.130(b)(1)(iii). Via telephone, non-deaf inmates are afforded

a means to communicate with others in their primary language. Mr. Smith is not provided a

comparable opportunity with a TTY since this does not transmit sign language. Via telephone,

non-deaf inmates can communicate with others using the prevailing technology and this affords

them the maximum number of possible interlocutors. Insofar as video phones have become the

prevailing technology among the deaf community, Mr. Smith is simply not provided a

comparable opportunity. To the contrary, the sphere of possible interlocutors is constantly being

diminished and this exacerbates the tremendous isolation he already experiences due to his

deafness.”

30. From approximately April, 2010 until July, 2011, the TTY Plaintiff was allowed to use

would not function on the telephone system the inmates were allowed to use due to an “upgrade”

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Page 7

of that system. During most of this period Plaintiff used the TTY from a telephone in one of the

prison offices. However, there were times when he was not given any access to a telephone that

would function with the TTY.

31. The federal Bureau of Prisons has recognized that “[t]elephone privileges are a

supplemental means of maintaining community and family ties that will contribute to an

inmate’s personal development.” 28 C.F.R. § 540.100. Telephones and other forms of

telecommunication help prepare inmates to make a positive transition back to civilian life once

their sentence has been completed.

32. In trying to secure a video phone for his use, Plaintiff has exhausted the available

administrative remedies utilizing IDOC’s grievance procedure.

V. CLAIMS FOR RELIEF

Claim 1: Americans with Disabilities Act

33. Plaintiff realleges and incorporates by reference all the foregoing paragraphs.

34. 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.

35. At all time relevant hereto, the IDOC and the ISCI have been “public entit[ies]” within

the meaning of the ADA. 42 U.S.C. § 12131(1).

36. At all time relevant hereto, Plaintiff, as an individual who is deaf, has been a “qualified

individual with a disability.” 42 U.S.C. § 12131(2).

37. At all times relevant to this action, the ADA was in full force and effect in the United

States and Plaintiff has had a right not to be subjected to discrimination on the basis of his

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Page 8

disability. 42 U.S.C. § 12132.

38. An aid, benefit, or service that the ISCI provides is the opportunity for inmates to

communicate with persons outside the prison telephonically.

39. The U.S. Department of Justice’s (DOJ) regulations implementing Title II of the ADA

state that a public entity, in providing any aid, benefit, or service, may not on the basis of

disability “[a]fford a qualified individual with a disability an opportunity to participate in or

benefit from the aid, benefit, or service that is not equal to that afforded others . . . .” 28 C.F.R. §

35.130(b)(1)(ii).

40. Providing Plaintiff a TTY in lieu of a telephone does not provide him the opportunity to

communicate with persons outside the prison telephonically that is equal to that afforded others

since – unlike a telephone for a hearing inmate – a TTY does not allow him to communicate in

his primary language with virtually all his family members, friends and other persons in his

community.

41. The DOJ’s regulations implementing Title II of the ADA state that a public entity, in

providing any aid, benefit, or service, may not on the basis of disability “[p]rovide a qualified

individual with a disability with an aid, benefit, or service that is not as effective in affording

equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of

achievement as that provided to others . . . .” 28 C.F.R. § 35.130(b)(1)(iii).

42. Providing Plaintiff a TTY in lieu of a telephone is not as effective in affording equal

opportunity to obtain the same result, to gain the same benefit, or to reach the same level of

achievement as that provided to others since a TTY – unlike a telephone for a hearing inmate –

does not allow him to communicate in his primary language with virtually all his family

members, friends and other persons in his community.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Page 9

43. The DOJ’s regulations implementing Title II of the ADA prohibit a public entity from

providing “different or separate aids, benefits or services to individuals with disabilities unless

such action is necessary to provide qualified individuals with disabilities with aids, benefits, or

services that are as effective as those provided to others.” 28 C.F.R. § 35.130(b)(1)(iv).

44. Plaintiff was provided a different or separate aid, benefit or service when he had to use

the TTY from a telephone in the prison office. This resulted not because it was necessary to

provide him with an aid, benefit, or service that was as effective as that provided to others but

because the TTY would not work on the regular inmate telephone system.

45. A service, program, or activity of the ISCI is providing inmates the opportunity to

communicate with persons outside the prison telephonically.

46. The DOJ’s regulations implementing Title II of the ADA require that a public entity

“shall furnish appropriate auxiliary aids and services where necessary to afford qualified

individuals with disabilities . . . an equal opportunity to participate in, and enjoy the benefits of, a

service, program, or activity of a public entity.” 28 C.F.R. § 35.160(b)(1).

47. A videophone is an auxiliary aid. 28 C.F.R. § 35.104.

48. Providing Plaintiff the use of a videophone is necessary in order to ensure him an equal

opportunity to participate in and enjoy the benefits of the opportunity afforded hearing inmates to

communicate with persons outside the prison telephonically for without the use of a videophone

he cannot communicate in his primary language with virtually all his family members, friends

and other persons in his community as can hearing inmates via a telephone.

49. For the foregoing reasons, the failure to provide Plaintiff a videophone or something

functionally equivalent has subjected Plaintiff to discrimination by reason of his disability in

violation of the ADA.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Page 10

50. As a result of the violation of his rights under the ADA, Plaintiff has suffered and

continues to suffer from unequal treatment and emotional pain and suffering due to his

increasing isolation stemming from the inability to effectively communicate with others outside

of the prison.

51. Defendants’ negligent discharge of their official duties were the proximate cause of the

aforementioned violation of Plaintiff’s rights under the ADA since they knew or should have

known that the opportunity provided deaf inmates to communicate with persons outside the

prison was not equal to that opportunity provided to hearing inmates.

Claim 2: Rehabilitation Act

52. Plaintiff realleges and incorporates by reference all the foregoing paragraphs.

53. The Rehabilitation Act provides that no otherwise qualified individual with a disability

“shall, solely by reason of her or his 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).

54. On information and belief, at all relevant times herein, the IDOC and the ISCI have been

recipients of federal financial assistance.

55. At all times relevant hereto, Plaintiff, as an individual who is deaf, has been a qualified

individual with a disability. 29 U.S.C. § 705(20).

56. At all times relevant to this action, the Rehabilitation Act was in full force and effect in

the United States and Plaintiff has had a right not to be subjected to discrimination on the basis

of his disability by Defendants. 29 U.S.C. § 794(a).

57. The ISCI and its various activities are “program[s] or activit[ies]” receiving federal

financial assistance required to comply with the Rehabilitation Act. 29 U.S.C. § 794(b).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Page 11

58. One of the ISCI’s specific programs or activities is providing the opportunity for inmates

to communicate with persons outside the prison telephonically.

59. The DOJ’s regulations implementing the Rehabilitation Act clarify that that it is

discriminatory to deny a qualified individual with a disability “an equal opportunity to achieve

the same benefits that others achieve in the program or activity . . . .” 28 C.F.R. § 42.503(b)(ii).

60. Providing Plaintiff a TTY in lieu of a telephone does not afford him an equal opportunity

to obtain the same benefit as that provided others since a TTY – unlike a telephone for a hearing

inmate – does not allow him to communicate in his primary language with virtually all his family

members, friends and other persons in his community.

61. The DOJ’s regulations implementing the Rehabilitation Act require that a recipient of

federal financial assistance “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 participation of such persons in a

program or activity . . . .” 28 C.F.R. § 42.503(f).

62. Auxiliary aids may include telephonic devices. 28 C.F.R. § 42.503(f).

63. The failure of the ISCI to provide an appropriate auxiliary aid, viz., a videophone, for

Plaintiff’s use discriminatorily impairs his participation in program of telephonic communication

with persons outside the prison by making such participation increasingly ineffectual.

64. For the foregoing reasons, the failure to provide Plaintiff a videophone or something

functionally equivalent has subjected Plaintiff to discrimination by reason of his disability in

violation of the Rehabilitation Act.

65. As a result of the violation of Plaintiff’s rights under the Rehabilitation Act, Plaintiff has

suffered and continues to suffer from unequal treatment and emotional pain and suffering due to

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Page 12

his increasing isolation stemming from the inability to effectively communicate with others outside of the prison. 66. Defendants’ negligent discharge of their official duties were the proximate cause of the aforementioned violation of Plaintiff’s rights under the Rehabilitation Act since they knew or should have known that the opportunity provided deaf inmates to communicate with persons outside the prison was not equal to that opportunity provided to hearing inmates.
VI. PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests the Court: 1. Adjudge and decree that a continuation of Defendants’ actions and inactions complained of herein will violate Plaintiff’s rights under the ADA and the Rehabilitation Act. 2. Order Defendants to comply with the requirements of the ADA and the Rehabilitation Act by ensuring that Plaintiff is provided the use of a videophone or some other comparable device under the same terms and conditions that telephones are provided to hearing inmates. 3. Award reasonable attorney fees, litigation expenses and costs pursuant to 42 U.S.C. § 12205 and 29 U.S.C. § 794a. 4. Retain jurisdiction of this matter until Defendants demonstrates that they have fully complied with the orders of this Court and that there is a reasonable assurance that they will continue to comply in the future absent continuing jurisdiction. 5. Grant Plaintiff such other relief as the Court deems just.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Page 13

RESPECTFULLY SUBMITTED this 23rd day of January, 2012.
DISABILITY RIGHTS IDAHO
___________/s/________________ BY: J. Carl Mickelsen Attorneys for Plaintiff

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Page 14

AO 440 (Rev. 12/09) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
________D__isDtricstroicftIodfah_o_________

Randolph Smith
Plaintiff
v. Brent Reinke
Defendant

) ) ) ) Civil Action No. ) ) )

SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address) Brent Reinke, Director Idaho Department of Correction 1299 N. Orchard St., Suite 110 Boise, ID 83706-2266

A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: J. Carl Mickelsen
c/o DisAbility Rights Idaho 200 S. Almon St., Suite 101 Moscow, ID 83843

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Date:

CLERK OF COURT
Signature of Clerk or Deputy Clerk

AO 440 (Rev. 12/09) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
_________D_isDtriisctrtiocft oIdfa_h_o________

Randolph Smith
Plaintiff
v. Johanna Smith
Defendant

) ) ) ) Civil Action No. ) ) )

SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address) Johanna Smith, Warden Idaho Department of Correction 1299 N. Orchard St., Suuite 110 Boise, ID 83706-2266

A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: J. Carl Mickelsen
c/o DisAbility Rights Idaho 200 S. Almon St., Suite 101 Moscow, ID 83843

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Date:

CLERK OF COURT
Signature of Clerk or Deputy Clerk