CONMAG,PRISNR,REOPEN
United States District Court Middle District of Pennsylvania (Scranton) CIVIL DOCKET FOR CASE #: 3:18−cv−00943−MCC

Yeh v. United States Bureau of Prisons et al Assigned to: Magistrate Judge Martin C. Carlson Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 05/03/2018 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: U.S. Government Defendant

John TC Yeh

represented by Mary C. Vargas Stein & Vargas, LLP 840 First Street NE, Third Floor Washington, DC 20002 240−793−3185 Email: Mary.Vargas@steinvargas.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anna P Bitencourt National Association of the Deaf Law & Advocacy Center 8630 Fenton Street Suite 820 Silver Spring, MD 20910 240−650−2832 Email: anna.bitencourt@nad.org ATTORNEY TO BE NOTICED

Mi S Stein Stein & Vargas, LLP 10 G Street NE, Suite 600 Washington, DC 20002 202−510−9553 Email: michael.stein@steinvargas.com ATTORNEY TO BE NOTICED

V. Defendant United States Bureau of Prisons
Defendant

represented by Michael Butler United States Attorney's Office 228 Walnut Street Suite 220 Harrisburg, PA 17108 717−221−4482 Email: Michael.J.Butler@usdoj.gov ATTORNEY TO BE NOTICED
Richard D Euliss U.S. Attorney's Office, Middle District of Pennsylvania 228 Walnut Street Suite 220 Harrisburg, PA 17108 717−614−4912 Email: richard.d.euliss@usdoj.gov ATTORNEY TO BE NOTICED

Mark S. Inch in his official capacity as Director of the United States Bureau of Prisons
Defendant Michael Carvajal in his official capacity as Regional Director of the United States of Bureau of Prisons, Northeast Region
Defendant J. E. Krueger in his official capacity as Warden of FCI Schuylkill

represented by Michael Butler (See above for address) ATTORNEY TO BE NOTICED
Richard D Euliss (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Butler (See above for address) ATTORNEY TO BE NOTICED
Richard D Euliss (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Butler (See above for address) ATTORNEY TO BE NOTICED
Richard D Euliss (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/03/2018 05/03/2018 05/03/2018 05/04/2018
05/15/2018 05/16/2018 06/13/2018 06/13/2018

# Docket Text
1 COMPLAINT against Michael Carvajal, Mark S. Inch, J. E. Krueger, United States Bureau of Prisons ( Filing fee $400, Receipt Number 0314−4417412), filed by John TC Yeh. (Attachments: # 1 Civil Cover Sheet)(ao) (Entered: 05/04/2018)
2 MOTION for Preliminary Injunction by John TC Yeh. (Attachments: # 1 Proposed Order)(ao) (Entered: 05/04/2018)
3 EXHIBITS A−I by John TC Yeh re 2 MOTION for Preliminary Injunction. (Attachments: # 1 Exhibit(s) B, # 2 Exhibit(s) C, # 3 Exhibit(s) D, # 4 Exhibit(s) E, # 5 Exhibit(s) F, # 6 Exhibit(s) G, # 7 Exhibit(s) H, # 8 Exhibit(s) I)(ao) (Entered: 05/04/2018)
4 Summons Issued as to Michael Carvajal, Mark S. Inch, J. E. Krueger, United States Bureau of Prisons and provided TO ATTORNEY ELECTRONICALLY VIA ECF for service on Defendant(s)in the manner prescribed by Rule 4 of the Federal Rules of Civil Procedure. (NOTICE TO ATTORNEYS RECEIVING THE SUMMONS ELECTRONICALLY: You must print the summons and the attachment when you receive it in your e−mail and serve them with the complaint on all defendants in the manner prescribed by Rule 4 of the Federal Rules of Civil Procedure). (Attachments: # 1 Summons Packet) (ao) (Entered: 05/04/2018)
5 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Anna P Bitencourt on behalf of John TC Yeh Attorney Anna Bitencourt Emilio is seeking special admission. Filing fee $ 50, receipt number 0314−4427821.. (Bitencourt, Anna) (Entered: 05/15/2018)
DOCKET ANNOTATION: Anna Bitencourt is active with the MD state court. (lh) (Entered: 05/16/2018)
6 SUMMONS Returned Executed by John TC Yeh. United States Bureau of Prisons served on 5/8/2018, answer due 7/9/2018. (Attachments: # 1 Exhibit(s))(Vargas, Mary) (Entered: 06/13/2018)
7 SUMMONS Returned Executed by John TC Yeh. (Attachments: # 1 Exhibit(s))(Vargas, Mary) (Entered: 06/13/2018)

06/13/2018 06/13/2018 06/13/2018 06/13/2018 06/13/2018 06/18/2018 06/18/2018 06/22/2018 06/22/2018 07/03/2018 07/09/2018
07/10/2018 07/11/2018
07/23/2018 07/23/2018 07/23/2018 07/24/2018 07/24/2018

8 SUMMONS Returned Executed by John TC Yeh. (Attachments: # 1 Exhibit(s))(Vargas, Mary) (Entered: 06/13/2018)
9 SUMMONS Returned Executed by John TC Yeh. (Attachments: # 1 Exhibit(s))(Vargas, Mary) (Entered: 06/13/2018)
10 SUMMONS Returned Executed by John TC Yeh. Mark S. Inch served on 5/8/2018, answer due 7/9/2018. (Attachments: # 1 Exhibit(s))(Vargas, Mary) (Entered: 06/13/2018)
11 SUMMONS Returned Executed by John TC Yeh. Michael Carvajal served on 5/9/2018, answer due 7/9/2018. (Attachments: # 1 Exhibit(s))(Vargas, Mary) (Entered: 06/13/2018)
12 Summons Returned Unexecuted by John TC Yeh as to J. E. Krueger. (Attachments: # 1 Exhibit(s))(Vargas, Mary) (Entered: 06/13/2018)
13 SUMMONS Returned Executed by John TC Yeh. J. E. Krueger served on 5/7/2018, answer due 7/6/2018. (Attachments: # 1 Exhibit(s), # 2 Exhibit(s))(Vargas, Mary) (Entered: 06/18/2018)
14 STATUS REPORT by John TC Yeh. (Vargas, Mary) (Entered: 06/18/2018)
15 SCHEDULING ORDER A Telephonic Case Management Conference is set for 7/9/2018 at 3:00 PM before Magistrate Judge Martin C. Carlson. Signed by Magistrate Judge Martin C. Carlson on June 22, 2018. (kjn) (Entered: 06/22/2018)
16 ACKNOWLEDGEMENT RECEIVED from USAO − Order Scheduling Telephone Status Conference. (kjn) (Entered: 06/22/2018)
Set/Reset Hearings: The Telephonic Status Conference is RESCHEDULED to 7/10/2018 at 11:00 AM before Magistrate Judge Martin C. Carlson. (kjn) (Entered: 07/03/2018)
17 MOTION for Extension of Time to to Respond to Complaint and Motion for Injunctive Relief by Michael Carvajal, United States Bureau of Prisons. (Attachments: # 1 Proposed Order, # 2 Certificate of Nonconcurrence)(Butler, Michael) (Entered: 07/09/2018)
18 SPECIAL ADMISSIONS FORM APPROVED as to Anna Bitencourt, Esq.Signed by Magistrate Judge Martin C. Carlson on July 10, 2018. (kjn) (Entered: 07/10/2018)
20 ORDER granting in part and dyenying in part 17 MOTION for Extension of Time to to Respond to Complaint and Motion for Injunctive Relief filed by Michael Carvajal, United States Bureau of Prisons. On or before Tuesday, July 24, 2018, the defendant shall file a response to the motion for preliminary injunction and a status report. The plaintiff may file a reply brief in further support of the motion for preliminary injunction on or before Tuesday, August 7, 2018. The Court shall convene a hearing on the motion for preliminary injunction on Friday, August 10, 2018, at 10:00 a.m. The hearingshall be held in Courtroom Number 5 on the 11th Floor of the United States Federal Court in Harrisburg, Pennsylvania. Signed by Magistrate Judge Martin C. Carlson on July 11, 2018. (kjn) (Entered: 07/11/2018)
21 MOTION to Exceed Page Limitation by Michael Carvajal, Mark S. Inch, J. E. Krueger, United States Bureau of Prisons. (Attachments: # 1 Certificate of Nonconcurrence, # 2 Proposed Order)(Butler, Michael) (Entered: 07/23/2018)
22 BRIEF IN SUPPORT re 21 MOTION to Exceed Page Limitation filed by Michael Carvajal, Mark S. Inch, J. E. Krueger, United States Bureau of Prisons.(Butler, Michael) (Entered: 07/23/2018)
23 ORDER granting 21 Motion for Leave to File Excess Pages. Signed by Magistrate Judge Martin C. Carlson on July 23, 2018. (kjn) (Entered: 07/23/2018)
DOCKET ANNOTATION: Per request of counsel, doc. 24 deleted. (ve) (Entered: 07/24/2018)
24 BRIEF IN OPPOSITION re 2 MOTION for Preliminary Injunction filed by Michael Carvajal, Mark S. Inch, J. E. Krueger, United States Bureau of Prisons. (Attachments: # 1 Exhibit(s) A, # 2 Exhibit(s) B, # 3 Exhibit(s) C)(Butler, Michael) (Entered:

07/26/2018 08/07/2018 08/07/2018 08/10/2018 08/13/2018 08/13/2018
08/16/2018
08/17/2018 08/21/2018 08/27/2018 09/04/2018 09/07/2018
09/14/2018 09/18/2018 10/02/2018 10/03/2018
10/04/2018

07/24/2018)
25 Writ of Habeas Corpus ad Testificandum Issued as to John TC Yeh for August 10, 2018 at 10:00 a.m.. Signed by Magistrate Judge Carlson 7/26/2018. (kjn) (Entered: 07/26/2018)
26 REPLY BRIEF re 2 MOTION for Preliminary Injunction filed by John TC Yeh. (Attachments: # 1 Exhibit A)(Vargas, Mary) (Entered: 08/07/2018)
27 STATUS REPORT by United States Bureau of Prisons. (Butler, Michael) (Entered: 08/07/2018)
28 EXHIBITS by Michael Carvajal, Mark S. Inch, J. E. Krueger, United States Bureau of Prisons from Preliminary Injunction Hearing held 8/10/2018. (Attachments: # 1 Exhibit(s))(kjn) (Entered: 08/10/2018)
30 Writ of Habeas Corpus ad Testificandum for John TC Yeh Returned Executed on 8/10/18. (dmn) (Entered: 08/13/2018)
31 Second MOTION for Extension of Time to Respond to Complaint and Motion for Injunctive Relief by Michael Carvajal, Mark S. Inch, J. E. Krueger, United States Bureau of Prisons. (Attachments: # 1 Proposed Order, # 2 Certificate of Nonconcurrence)(Butler, Michael) (Entered: 08/13/2018)
32 ORDER − IT IS HEREBY ORDERED as follows: On or before Tuesday, August 21, 2018, the defendant shall file a comprehensive status report. The defendants motion for enlargement of time in which to answer he complaint, (Doc. 31), is GRANTED, and the Defendants may nswer the complaint on or before August 27, 2018. A telephonic case management conference will be held in the above−captioned case on September 5, 2018 at 1:00 p.m. SEE ORDER FOR COMPLETE DETAILS. Signed by Magistrate Judge Martin C. Carlson on August 16, 2018. (kjn) (Entered: 08/16/2018)
33 NOTICE of Appearance by Richard D Euliss on behalf of Michael Carvajal, Mark S. Inch, J. E. Krueger, United States Bureau of Prisons (Euliss, Richard) (Entered: 08/17/2018)
34 STATUS REPORT Update per Court's August 16, 2018 Order by United States Bureau of Prisons. (Butler, Michael) (Entered: 08/21/2018)
35 Defendants Affirmative Defenses and ANSWER to 1 Complaint by United States Bureau of Prisons.(Butler, Michael) (Entered: 08/27/2018)
36 STATUS REPORT by United States Bureau of Prisons. (Butler, Michael) (Entered: 09/04/2018)
38 SCHEDULING ORDER − A telephonic Case Management Conference is set for 10/3/2018 10:00 AM before Magistrate Judge Martin C. Carlson. SEE ORDER FOR COMPLETE DETAILS. Signed by Magistrate Judge Martin C. Carlson on September 7, 2018. (kjn) (Entered: 09/07/2018)
39 CASE MANAGEMENT PLAN by John TC Yeh. (Vargas, Mary) (Entered: 09/14/2018)
40 STATUS REPORT by Michael Carvajal, Mark S. Inch, J. E. Krueger, United States Bureau of Prisons. (Euliss, R) (Entered: 09/18/2018)
41 STATUS REPORT by United States Bureau of Prisons. (Butler, Michael) (Entered: 10/02/2018)
43 ORDER − On or before Tuesday, October 16, 2018, the defendant shall file acomprehensive status report. A telephonic case management conference will be held in the above−captioned case on October 17, 2018 at 11:30 a.m. SEE ORDER FOR COMPLETE DETAILS. Signed by Magistrate Judge Martin C. Carlson on October 3, 2018. (kjn) (Entered: 10/03/2018)
Reset Hearing: Telephone Status Conference RESCHEDULED TO 10/22/2018 at 10:00 AM before Magistrate Judge Martin C. Carlson. (kjn) (Entered: 10/04/2018)

10/10/2018 10/16/2018 10/22/2018
10/29/2018 10/30/2018 11/13/2018 11/15/2018 11/27/2018
12/04/2018 12/11/2018 12/12/2018
12/12/2018 12/12/2018
12/14/2018 01/04/2019

44 NOTICE of Change of Address by Mary C. Vargas (Vargas, Mary) (Entered: 10/10/2018)
45 STATUS REPORT Per The Court's Order Of October 3, 2018 by United States Bureau of Prisons. (Butler, Michael) (Entered: 10/16/2018)
47 ORDER − 1. On or before Tuesday, November 13, 2018, the defendant shall file acomprehensive status report. A telephonic case management conference will be held in the above−captioned case on November 27, 2018 at 11:30 a.m. before the undersigned. Signed by Magistrate Judge Martin C. Carlson on October 22, 2018. (kjn) (Entered: 10/22/2018)
48 STATUS REPORT by John TC Yeh. (Vargas, Mary) (Entered: 10/29/2018)
49 STATUS REPORT to Respond to Plaintiff's October 29, 2018 Report by United States Bureau of Prisons. (Attachments: # 1 Exhibit(s), # 2 Attach. A to Ex. 1, # 3 Attach. B to Ex. 1)(Butler, Michael) (Entered: 10/30/2018)
50 STATUS REPORT by United States Bureau of Prisons. (Butler, Michael) (Entered: 11/13/2018)
51 STATUS REPORT Response and Reply by John TC Yeh. (Vargas, Mary) (Entered: 11/15/2018)
53 ORDER − IT IS HEREBY ORDERED as follows: 1. On or before Tuesday, December 4, 2018, the dft shall file a comprehensive status report addressing the matters outlined by the court at the preliminary injunction hearing and updating the court and the pltf on the progress being made to implement video−phonetechnology at FCI−Schuylkill. 2 2. In addition, if this status report discloses that the VRS system is now operational, the parties shall confer and provide a joint status report on or before December 11, 2018, providing the parties views regarding what further steps, if any, are necessary to conclude this litigation in a timely fashion. Signed by Magistrate Judge Martin C. Carlson on November 27, 2018. (kjn) (Entered: 11/27/2018)
54 STATUS REPORT per November 27, 2018 Order by United States Bureau of Prisons. (Butler, Michael) (Entered: 12/04/2018)
55 STATUS REPORT Joint Report by Plaintiff John TC Yeh and by United States Bureau of Prisons. (Butler, Michael) (Entered: 12/11/2018)
56 ORDER − IT IS HEREBY ORDERED as follows: 1. If the defendants intend to file any early dispositive motions, they should do so on or before January 2, 2019. Otherwise, Counsel and parties are instructed meet, confer, complete and file a revised case management plan on or before January 9, 2019. 2. Unless the parties request an in−person conference, a telephonic case management conference will be held in the above−captioned case on January 11, 2019 at 10:00 a.m. The plaintiff shall initiate the call. Signed by Magistrate Judge Martin C. Carlson on December 12, 2018. (kjn) (Entered: 12/12/2018)
Set Hearings: A Telephonic Case Management Conference is set for 1/11/2019 at 10:00 AM before Magistrate Judge Martin C. Carlson. (kjn) (Entered: 12/12/2018)
57 REPORT AND RECOMMENDATION re 2 MOTION for Preliminary Injunction filed by John TC Yeh − IT IS RECOMMENDED that the plaintiffs motion for preliminary injunction, be DENIED without prejudice to renewal if the specific relief sought, videophone access at FCI Schuylkill, is improperly terminatedor unreasonably curtailed. Objections to R&R due by 12/26/2018. Signed by Magistrate Judge Martin C. Carlson on December 12, 2018. (kjn) (Entered: 12/12/2018)
Set/Reset Hearings − The Telephonis Status Conference is RESCHEDULED to 1/15/2019 at 10:00 AM before Magistrate Judge Martin C. Carlson. (kjn) (Entered: 12/14/2018)
58 ORDER denying 2 Motion for Preliminary Injunction w/o prejudice; ADOPTING 57 Report and Recommendation of Magistrate Judge Carlson; REMANDING case to Magistrate Judge Carlson for further proceedingsSigned by Honorable James M. Munley on 1/4/19 (sm) (Entered: 01/04/2019)

02/05/2019 02/05/2019 02/15/2019 02/19/2019 02/19/2019 02/19/2019 02/28/2019 03/01/2019 03/04/2019
03/08/2019 03/08/2019 03/08/2019 03/20/2019 03/25/2019
03/26/2019 03/26/2019

59 MOTION for Judgment on the Pleadings by United States Bureau of Prisons. (Attachments: # 1 Proposed Order, # 2 Certificate of Nonconcurrence)(Butler, Michael) (Entered: 02/05/2019)
60 MOTION for Protective Order by United States Bureau of Prisons. (Attachments: # 1 Proposed Order, # 2 Certificate of Nonconcurrence)(Butler, Michael) (Entered: 02/05/2019)
61 Unopposed MOTION to Exceed Page Limitation re Brief in Support of Motion for Judgment on the Pleadings by United States Bureau of Prisons. (Attachments: # 1 Proposed Order, # 2 Certificate of Concurrence)(Butler, Michael) (Entered: 02/15/2019)
62 ORDER granting 61 Motion for Leave to File Excess Pages. Signed by Magistrate Judge Martin C. Carlson on February 19, 2019. (kjn) (Entered: 02/19/2019)
63 BRIEF IN SUPPORT re 59 MOTION for Judgment on the Pleadings filed by United States Bureau of Prisons.(Butler, Michael) (Entered: 02/19/2019)
64 BRIEF IN SUPPORT re 60 MOTION for Protective Order filed by United States Bureau of Prisons.(Butler, Michael) (Entered: 02/19/2019)
65 Unopposed MOTION for Extension of Time to seven (7) days, Unopposed MOTION to Exceed Page Limitation by John TC Yeh.(Bitencourt, Anna) (Entered: 02/28/2019)
66 ORDER granting Pltf's Motion for Extension of Time and to Exceed Page limitations. Pltf shall file his response to Dfts' Motions within 7 days from the date of entry of this Order. Signed by Magistrate Judge Martin C. Carlson on March 1, 2019. (kjn) (Entered: 03/01/2019)
67 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of proceedings held on 8/10/2018, before Judge Martin Carlson. Court Reporter Suzanne A. Halko, Telephone number 570−237−1867. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/25/2019. Redacted Transcript Deadline set for 4/4/2019. Release of Transcript Restriction set for 6/3/2019. (cr2, ) (Entered: 03/04/2019)
68 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Mi S Stein on behalf of John TC Yeh Attorney Michael Stein is seeking special admission. Filing fee $ 50, receipt number 0314−4696603.. (Stein, Mi) (Entered: 03/08/2019)
69 BRIEF IN OPPOSITION re 59 MOTION for Judgment on the Pleadings filed by John TC Yeh. (Attachments: # 1 Exhibit(s) Plaintiff's Exhibit A)(Bitencourt, Anna) (Entered: 03/08/2019)
70 BRIEF IN OPPOSITION re 60 MOTION for Protective Order filed by John TC Yeh.(Bitencourt, Anna) (Entered: 03/08/2019)
71 REPLY BRIEF re 59 MOTION for Judgment on the Pleadings filed by United States Bureau of Prisons. (Attachments: # 1 Exhibit(s) Ex. A, # 2 Exhibit(s) Ex. B, # 3 Unpublished Opinion(s), # 4 Unpublished Opinion(s))(Butler, Michael) (Entered: 03/20/2019)
72 MEMORANDUM ORDER 60 MOTION for Protective Order filed by United States Bureau of Prisons. The defendants motion for protective order (Doc. 60), is GRANTED in part, and discovery is STAYED pending resolution of the outstanding motion for judgment on the pleadings. The court will retain jurisdiction in this case, however, and this order is entered without prejudice to the plaintiff seeking expedited discovery or other relief in the event that the defendant curtails or eliminates Yehs videophone access. Signed by Magistrate Judge Martin C. Carlson on March 25, 2019. (kjn) (Entered: 03/25/2019)
73 MOTION for Leave to File Sur−Reply by John TC Yeh. (Attachments: # 1 Exhibit(s) Plaintiff's Exhibit A, # 2 Exhibit(s) Plaintiff's Exhibit B, # 3 Proposed Order)(Bitencourt, Anna) (Entered: 03/26/2019)
74 BRIEF IN OPPOSITION re 73 MOTION for Leave to File Sur−Reply, 59 MOTION for Judgment on the Pleadings filed by United States Bureau of Prisons.(Butler,

03/27/2019 03/27/2019 05/07/2019 05/15/2019
05/29/2019 06/12/2019 08/06/2019 08/06/2019
08/06/2019 08/20/2019
09/04/2019 09/05/2019 09/16/2019

Michael) (Entered: 03/26/2019)
75 ORDER granting Pltf's 73 Motion for Leave to File a Sur−Reply. Signed by Magistrate Judge Martin C. Carlson on March 27, 2019. (kjn) (Entered: 03/27/2019)
76 SUR REPLY to REPLY to Response to Motion re 59 MOTION for Judgment on the Pleadings filed by John TC Yeh. (Attachments: # 1 Exhibit(s) Plaintiff's Exhibit B)(Bitencourt, Anna) (Entered: 03/27/2019)
77 STATUS REPORT by John TC Yeh. (Vargas, Mary) (Entered: 05/07/2019)
78 REPORT AND RECOMMENDATION re 59 MOTION for Judgment on the Pleadings filed by United States Bureau of Prisons − IT IS RECOMMENDED THAT the defendants motion for judgment on the pleadings be DENIED, in part, tothe extent that it asserts that the court lacks jurisdiction to entertain this case under the RA, and DEFERRED, in part, to the extent that the defendants argue this case is moot, pending completion of all aspects of this custodial sentence. Finally, IT IS FURTHER RECOMMENDED that the parties stay any further merits discovery pending completion of the custodial component of Yehs sentence. Objections to R&R due by 5/29/2019. Signed by Magistrate Judge Martin C. Carlson on May 15, 2019. (kjn) (Entered: 05/15/2019)
79 OBJECTION to 78 Report and Recommendations of May 15, 2019. (Butler, Michael) (Entered: 05/29/2019)
80 REPLY BRIEF re 78 REPORT AND RECOMMENDATIONS re 59 MOTION for Judgment on the Pleadings filed by United States Bureau of Prisons Response to Defendants' Objection filed by John TC Yeh.(Bitencourt, Anna) (Entered: 06/12/2019)
81 MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable James M. Munley on 8/6/19. (sm) (Entered: 08/06/2019)
82 ORDER (memorandum filed previously as separate docket entry); ADOPTING REPORT AND RECOMMENDATION of Magistrate Carlson in part; Motion for judgment is DENIED re cause of action under the Rehabilitation Act/GRANTED re Mootnes; Clerk of Court is directed to enter judgment in favor of the dfts and CLOSE this case..Signed by Honorable James M. Munley on 08/06/19. (sm) (Entered: 08/06/2019)
83 JUDGMENT entered in favor of United States Bureau of Prisons, et al and against the Plaintiff, John TC Yeh.Signed by Honorable James M. Munley on 8/6/19. (sm) (Entered: 08/06/2019)
84 MOTION for Attorney Fees by John TC Yeh. (Attachments: # 1 Proposed Order, # 2 Memo, # 3 Exhibit(s) Ex A Bitencourt Declaration, # 4 Exhibit(s) Ex B Patkin Affidavit, # 5 Exhibit(s) Ex B−1 Patkin CV, # 6 Exhibit(s) Ex B−2 Patkin Timesheet, # 7 Exhibit(s) Ex C Bitencourt Affidavit, # 8 Exhibit(s) Ex C−1 Bitencourt CV, # 9 Exhibit(s) Ex C−2 Bitencourt Timesheet, # 10 Exhibit(s) Ex D Rosenblum Affidavit, # 11 Exhibit(s) Ex D−1 Rosenblum CV, # 12 Exhibit(s) Ex D−2 Rosenblum Timesheet, # 13 Exhibit(s) Ex D−3 Rosenblum Costs, # 14 Exhibit(s) Ex E Vargas Affidavit, # 15 Exhibit(s) Ex E−1 Vargas CV, # 16 Exhibit(s) Ex E−2 Vargas Timesheet, # 17 Exhibit(s) Ex E−3 Vargas Costs, # 18 Exhibit(s) Ex F Stein Affidavit, # 19 Exhibit(s) Ex F−1 Stein CV, # 20 Exhibit(s) Ex F−2 Stein Timesheet)(Bitencourt, Anna) (Entered: 08/20/2019)
85 Unopposed MOTION for Extension of Time to to respond to Plaintiff's motion for attorneys' fees by United States Bureau of Prisons. (Attachments: # 1 Proposed Order)(Butler, Michael) (Entered: 09/04/2019)
86 ORDER granting 85 Motion to Extend Time to respond re m/atty fees− due 9/18/19. Signed by Honorable James M. Munley on 9/5/19 (sm) (Entered: 09/05/2019)
87 Second MOTION for Extension of Time to Respond to the Plaintiff's Motion for Attorneys Fees by Michael Carvajal, Mark S. Inch, J. E. Krueger, United States Bureau of Prisons. (Attachments: # 1 Certificate of Concurrence, # 2 Proposed Order)(Butler, Michael) (Entered: 09/16/2019)

09/17/2019 09/24/2019 09/24/2019
09/25/2019 10/08/2019
12/04/2019 12/11/2019 03/30/2020
04/30/2020
04/30/2020 06/16/2020 06/16/2020

88 ORDER granting 87 dfts' Motion to Extend Time to respond to m/atty fees− due 9/25/19Signed by Honorable James M. Munley on 9/17/19 (sm) (Entered: 09/17/2019)
89 Unopposed MOTION to Exceed Page Limitation by Michael Carvajal, Mark S. Inch, J. E. Krueger, United States Bureau of Prisons. (Attachments: # 1 Proposed Order)(Butler, Michael) (Entered: 09/24/2019)
90 BRIEF IN OPPOSITION re 84 MOTION for Attorney Fees filed by Michael Carvajal, Mark S. Inch, J. E. Krueger, United States Bureau of Prisons. (Attachments: # 1 Exhibit(s) A, # 2 Exhibit(s) B, # 3 Exhibit(s) C)(Butler, Michael) (Entered: 09/24/2019)
91 ORDER granting 89 Motion for Leave to File Excess Pages re m/for atty fees.Signed by Honorable James M. Munley on 9/25/19 (sm) (Entered: 09/25/2019)
92 REPLY BRIEF re 84 MOTION for Attorney Fees filed by John TC Yeh. (Attachments: # 1 Exhibit(s) Ex A Bitencourt Declaration, # 2 Exhibit(s) Ex B Bitencourt Supplemental Affidavit, # 3 Exhibit(s) Ex C Stein Supplemental Affidavit)(Bitencourt, Anna) (Entered: 10/08/2019)
93 ORDER re 84 MOTION for Attorney Fees filed by John TC Yeh −w/attached N/C FormSigned by Honorable James M. Munley on 12/4/19. (sm) (Entered: 12/04/2019)
94 ORDER− CONSENT to Proceed Before US Magistrate Judge M. Carlson Approved. Signed by Honorable James M. Munley on 12/11/19. (sm) (Entered: 12/11/2019)
95 MEMORANDUM OPINION AND ORDER re 84 MOTION for Attorney Fees filed by John TC Yeh. IT IS ORDERED that the plaintiffs motion for attorneys fees, (Doc. 84), is GRANTED in part. IT IS FURTHER ORDERED that on or before May 1, 2020, the parties shall consult, confer and either present us with a stipulated fees amount consistent with this opinion, or make a joint submission identifying those fees matters which remain in dispute. Signed by Magistrate Judge Martin C. Carlson on March 30, 2020. (kjn) (Entered: 03/30/2020)
96 Unopposed MOTION for Extension of Time to Respond to March 30, 2020 Court Order by Michael Carvajal, Mark S. Inch, J. E. Krueger, United States Bureau of Prisons. (Attachments: # 1 Certificate of Concurrence, # 2 Proposed Order)(Butler, Michael) (Entered: 04/30/2020)
97 ORDER granting 96 Motion to Extend Time. Defendants have until June 1, 2020, to respond to the Courts Order of March 30, 2020. Signed by Magistrate Judge Martin C. Carlson on April 30, 2020. (kjn) (Entered: 04/30/2020)
98 Stipulated Proposed Order by Michael Carvajal, Mark S. Inch, J. E. Krueger, United States Bureau of Prisons. . (Butler, Michael) (Entered: 06/16/2020)
99 ORDER re: Attorney's Fees. Signed by Magistrate Judge Martin C. Carlson on June 16, 2020. (kjn) (Entered: 06/16/2020)

 
 Case 3:18-cv-00943-JMM-MCC Document 1 Filed 05/03/18 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHN TC YEH
Plaintiff,
v.
UNITED STATES BUREAU OF PRISONS,
MARK S. INCH, in his official capacity as Director of the United States Bureau of Prisons;
MICHAEL CARVAJAL, in his official capacity as Regional Director of the United States Bureau of Prisons Northeast Region;
and
J.E. KRUEGER, in his official capacity as Warden of FCI Schuylkill
Defendants.

§ § § § § § § § Civil Action No.: ______________ § § § § § § § § § § § § § § § § § § § §

COMPLAINT

Plaintiff, John TC Yeh (“Mr. Yeh”), by and through his undersigned counsel, files this

complaint against defendants the United States Bureau of Prisons (“BOP”), Mark S. Inch,

Michael Carvajal, and J.E. Krueger (collectively “Defendants”) alleging as follows:

PRELIMINARY STATEMENT

1. This lawsuit arises from Defendants’ failure to provide auxiliary aids to allow

effective communication as required by Section 504 of the Rehabilitation Act of 1973 (“Section

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504”), as amended, 29 U.S.C. § 794, to Mr. Yeh, a deaf individual in Defendants’ custody at the Federal Correctional Institution (“FCI”) Schuylkill Satellite Camp (“FCI Schuylkill” or “Schuylkill”) in Minersville, Pennsylvania. Specifically, Defendants have denied and continues to deny Mr. Yeh with telecommunication access by refusing to provide a videophone.
2. Prior to filing the present action, Mr. Yeh exhausted the appropriate administrative proceedings. On September 24, 2015, Mr. Yeh filed a complaint with the Equal Employment Opportunity (“EEO”) to the Department of Justice Civil Rights Division alleging that FCI Schuylkill violated Section 504 and its attendant regulations when it failed to honor his request for, inter alia, an effective telecommunications device due to his deafness. On March 24, 2016, Mr. Yeh received a letter of findings from EEO Officer Mina Raskin (“Letter of Findings”). The EEO Officer determined that the text-telephone services (“TTY”) provided to Mr. Yeh were appropriate. On April 14, 2016, Mr. Yeh appealed the EEO Officer’s findings pursuant to 28 C.F.R. § 170(i) and requested a hearing on the matter. Administrative hearings were held before an Administrative Law Judge (“ALJ”) from January 24, 2017 - January 27, 2017 and February 28, 2017. On April 10, 2017, the ALJ issued his recommended decision sustaining the EEO Officer’s finding that the TTY services provided to Mr. Yeh were appropriate. On April 24, 2017, Mr. Yeh sent a Letter of Exceptions to the Complaint Adjudication Officer (“CAO”) pursuant to 28 C.F.R. § 170(k)(7). On February 5, 2018, the CAO issued his decision finding that Mr. Yeh’s current access to TTY does not provide him with equal participation opportunities at Schuylkill and that the BOP failed to provide evidence that videophones cause any undue administrative or financial hardships. The CAO, however, gave the BOP an indefinite period of time to install a videophone.
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3. Mr. Yeh brings this lawsuit to compel Defendants to immediately cease unlawful discriminatory practices and implement policies and procedures that will ensure effective communication, equal access, and an equal opportunity to participate in and benefit from Defendants’ institution. Further, Mr. Yeh seeks attorneys’ fees and costs.
JURISDICTION AND VENUE 4. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331. 5. Venue is proper in this jurisdiction pursuant to 28 U.S.C. § 1391 because Plaintiff and some or all of the Defendants reside in this district, and a substantial part of the events and omissions giving rise to Plaintiff’s claims occurred in this district.
THE PARTIES A. Plaintiff
6. Plaintiff, John TC Yeh, (Federal Register No. 50807-037) is profoundly deaf and a qualified individual with a disability within the meaning of Section 504 of the Rehabilitation Act.
7. Mr. Yeh cannot discriminate sounds to understand speech and cannot use a standard telephone.
8. Mr. Yeh’s primary language is American Sign Language (“ASL”). 9. Mr. Yeh is a federal inmate currently in Defendants’ custody at FCI Schuylkill Satellite Camp. B. Defendants 10. The BOP is the federal executive agency responsible for the supervision and custody of over 200,000 inmates and detainees, including Mr. Yeh. 11. The BOP is headquartered in Washington, D.C.
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12. FCI Schuylkill is a correctional complex in Minersville, Pennsylvania, controlled and operated by the BOP.
13. Mark S. Inch (“Mr. Inch”) is the Director of the BOP. He is responsible for the oversight and management of the BOP's 115 institutions and for the safety and security of the more than 200,000 inmates under the agency's jurisdiction. Specifically, he is also responsible for the BOP's policies and practices regarding the treatment of and services provided to inmates with disabilities. He is aware or should be aware of the BOP's and FCI Schuylkill's policies and practices regarding inmates with disabilities, and more specifically, Defendants' constant failure to provide the required auxiliary aid to Mr. Yeh at FCI Schuylkill to allow Mr. Yeh telecommunication access to his counsel, friends, and loved ones. He is sued in his official capacity.
14. Michael Carvajal (“Mr. Carvajal”) is the Regional Director of the BOP's Northeast Region, which provides oversight, technical assistance and other types of operational support to 18 federal institutions and their complexes in the Northeast Region, including FCI Schuylkill. He is aware or should be aware of the BOP's and FCI Schuylkill's policies and practices regarding inmates with disabilities, and more specifically, Defendants' constant failure to provide the required auxiliary aid to Mr. Yeh at FCI Schuylkill to allow Mr. Yeh telecommunication access to his counsel, friends, and loved ones. He is sued in his official capacity.
15. J.E. Krueger (“Warden Krueger”) is the warden of FCI Schuylkill and is responsible for the day-to-day operations of the prison. He is aware or should be aware of the BOP's and FCI Schuylkill's policies and practices regarding inmates with disabilities, and more specifically, Defendants' constant failure to provide the required auxiliary aid to Mr. Yeh at FCI
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Schuylkill to allow Mr. Yeh telecommunication access to his counsel, friends, and loved ones. He is sued in his official capacity.
16. At all times relevant to this action, Mr. Inch, Mr. Carvajal, and Warden Krueger were acting pursuant to their authority as an official, agent, contractor, or employee of the United States.
FACTUAL ALLEGATIONS 17. Mr. Yeh began serving his prison sentence on January 30, 2012 at FCI Schuylkill where he has remained continuously. His current projected release date is October 14, 2019. 18. Mr. Yeh’s primary language is American Sign Language (“ASL”). ASL is a complex language that employs signs made with the hands, facial expressions and body language. Nonverbal cues, such as facial expressions, speed of signing and size of signing space convey important information such as emotion and implications – just like speed and inflection in speech convey such important information. ASL is distinct from English – it is not English via hand signs. In fact, ASL has its own vocabulary and its own rules for grammar and syntax. 19. As a deaf person who primarily communicates using ASL, Mr. Yeh cannot use the telephone in the same way as a hearing person.
a. Telecommunications at FCI Schuylkill 20. Telecommunications is one of the services offered by FCI Schuylkill to its inmates. BOP Program Statement 5264.08 “Inmate Telephone Regulations”. 21. BOP provides that “[a]ll inmates will be afforded the opportunity to maintain family and community contact via the telephone consistent with institution and community safety.” Paragraph 3, BOP Program Statement 5264.08 “Inmate Telephone Regulations”.
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22. Absent limited exceptions due to security and discipline, each inmate is granted 300 minutes of telephone use per calendar month. Paragraph 8(f), BOP Program Statement 5264.08 “Inmate Telephone Regulations”. They are allowed 5 completed calls per day if they have sufficient minutes remaining. Paragraph 11, FCI Institution Supplement SCH 52604.08G “Telephone Regulations for Inmates”.
23. Inmates who do not have restricted or revoked telephone privileges are allowed to access the telephone nearly all of their waking hours, aside from working hours if any, subject to time limits and number of calls per particular time period. Telephones are generally available for hearing inmates from 6:00am to 11:30pm every day. Paragraph 5, FCI Institution Supplement SCH 52604.08G “Telephone Regulations for Inmates”. No advance preparation is required for such inmates to place calls – they can walk up to an available telephone and call anyone on their approved list.
24. FCI Schuylkill offers telephones for its inmates all over the complex, including in both housing units, each Camp Dormitory and the Camp Administration Building. Paragraph 5, FCI Institution Supplement SCH 52604.08G “Telephone Regulations for Inmates”.
25. Hearing family members and friends of inmates in FCI Schuylkill, in general, can receive telephone calls from hearing inmates not subject to restrictions, within a wide scope of time per week. They are able to communicate directly with the inmate in their primary language, without being required to purchase a specific telephone to do so.
b. Telecommunication Auxiliary Aid for the Deaf 26. The “TDD” or “TTY”1 is a 60-year-old technology known formally as a “teletypewriter” that makes and receives text-based telecommunication calls over telephone
1 TDD is also known as teletypewriter (“TTY”) and as text telephone (“TT”). For purpose of this matter, these acronyms may at times be used interchangeably.
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lines. The TTY is a telephone device equipped with a keyboard and a display screen. For two parties to have a direct TTY conversation, each party must have a TTY machine.
27. TTYs may be used by individuals who are deaf or hard of hearing to make and receive text-based telecommunication calls over telephone lines as well as others who wish to communicate with such individuals.
28. A TTY conversation takes significantly longer than a traditional voice telephone call because it takes much longer to type out and read the messages rather than speak and listen.
29. Written or typed English does not include important linguistic information such as emotion, tone, or inflection – each of these affects the speaker’s intended meaning and message significantly.
30. In the last 15 years, videophones and free or low-cost internet-based video links (collectively, “videophones”) have replaced TTYs as the mode of telecommunication among deaf and hard of hearing people. Videophones allow deaf individuals to communicate with one another directly in their primary language, ASL. When using a videophone, callers can see each other, usually over an internet connection. Conversing directly in ASL allows deaf people to share important linguistic information such as emotion, tone, or inflection and to convey the intended meaning and message. Additionally, a videophone conversation is faster and more efficient than a TTY conversation. Not only does it take longer to type out the message and wait for the scrolling text but also, due to the outmoded nature of the TTY technology, messages that are typed on a TTY may often come out garbled and indecipherable further disrupting and delaying the call. Moreover, unlike a videophone user, a TTY requires one-way communication and turn-taking, so that a TTY user cannot interrupt the other party’s typing as parties usually do in a free-flowing conversation because that may cause garbled text. By contrast, the videophone
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allows for two-way communications, which ensures a call that is more functionally equivalent to a traditional telephone call. As a result, many deaf households in the past ten or fifteen years, including most of Mr. Yeh’s deaf family members and loved ones, no longer own a TTY and rely exclusively on videophones for telecommunication.
31. Deaf individuals using videophones can also connect to a Video Relay Service (“VRS”) to place calls to hearing people. The deaf caller is routed to an interpreter who receives the phone number of the party they are trying to reach. The interpreter then relays the conversation from spoken English to sign language, and vice versa.
c. TTY at FCI Schuylkill 32. FCI Schuylkill has only one TTY device, stored in the camp administration office, which is locked when not in use. FCI Schuylkill does not have any videophones. 33. The TTY at FCI Schuylkill is incompatible with the inmate telephones. TTY users at FCI Schuylkill are limited to the availability of select non-inmate telephones not located in the housing units or dormitory. It is not possible for inmates to make outgoing calls using those non-inmate telephones. Accordingly, Mr. Yeh is unable to make outgoing calls. 34. In light of these paralyzing limitations, FCI Schuylkill staff constructed a cumbersome process for placing TTY calls. First, Mr. Yeh must make prior arrangements with the intended outside party and with staff members to schedule a TTY call. Because the TTY cannot be used with any of the inmate telephones, Mr. Yeh is at the mercy of staff members’ availabilities to make time to arrange for him to use the TTY. Second, on the scheduled date and time, Mr. Yeh and a guard are placed in a room with a non-inmate telephone to wait for the incoming TTY call. Third, the outside party must call in to the prison’s main number and ask the officer to transfer their call. The officer answering the call would then transfer the call to the
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appropriate phone where Mr. Yeh is waiting. Next, the guard accompanying Mr. Yeh would answer the phone, speak with the outside party, and then place the telephone on the TTY machine. The outside party would then place their telephone on their TTY machine.
35. To communicate with the officer at the main prison line and with the guard accompanying Mr. Yeh, one must be able to hear and speak. Because there is no way to call Mr. Yeh without the ability to hear and speak, Mr. Yeh’s deaf family members and loved ones are unable to contact Mr. Yeh via this convoluted process.
36. Mr. Yeh has a deaf wife, a deaf sibling, and two of his three children are deaf. He has been unable to communicate with them via telephonic means during his incarceration because they do not own TTYs and instead use videophones.
37. Because Mr. Yeh does not have access to a videophone, he is unable to stay in communication with his deaf loved ones outside the institution and the deaf community in general, including his deaf attorneys.
38. Regular access to a videophone and Video Relay Services would ensure a comparable and functionally equivalent telephonic access to that of other inmates and allow Mr. Yeh to remain in contact with his family, friends, and attorneys outside of FCI Schuylkill.
CLAIM FOR RELIEF COUNT I: DISCRIMINATION ON THE BASIS OF A DISABILITY IN VIOLATION OF THE REHABILITATION ACT AGAINST DEFENDANT
(29 U.S.C. § 794) 39. Mr. Yeh repeats and re-alleges each and every allegation above as if fully set forth herein. 40. Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 794 et seq. (hereinafter “Rehabilitation Act”), provides that “[n]o otherwise qualified individual with a
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disability in the United States . . . 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 . . . conducted by any Executive agency . . . .” 29 U.S.C. § 794(a).
41. Mr. Yeh is deaf and, as such, is a qualified individual with a disability within the meaning of the Rehabilitation Act, 29 U.S.C. § 705(20).
42. Mr. Yeh is otherwise qualified and eligible to participate in a commensurate way in all programs and activities provided to all inmates at FCI Schuylkill.
43. The BOP is an executive agency within the meaning of 29 U.S.C. § 794(a). 44. The operations of the BOP, including the departments, agencies, programs and instrumentalities at FCI Schuylkill such as inmate telephone services, are “program[s] or activit[ies] conducted by an Executive Agency” within the meaning of 29 U.S.C. § 794(a). 45. At all times relevant to this action, the Rehabilitation Act was in full force and effect in the United States, and Mr. Yeh had and has a right to not be subjected to discrimination on the basis of his disability by Defendants. 29 U.S.C. § 794(a). 46. The Department of Justice’s (“DOJ”) regulations implementing Section 504 of the Rehabilitation Act prohibit Defendants from providing a qualified deaf person “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. § 39.130(b)(1)(iii). 47. The DOJ’s regulations mandate that the BOP “shall furnish appropriate auxiliary aids where necessary to afford a handicapped person an equal opportunity to participate in, and enjoy the benefits of, a program or activity conducted by the agency.” 28 C.F.R. § 39.160(a)(1).
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48. The DOJ’s regulations additionally mandate that “[i]n determining what type of auxiliary aid is necessary, the agency shall give primary consideration to the requests of the handicapped person.” 28 C.F.R. § 39.160(a)(1)(i).
49. Auxiliary aids include, but are not limited to, telecommunication devices for deaf and hard of hearing individuals. 28 C.F.R. § 39.103.
50. Defendants’ failure to provide Mr. Yeh the appropriate auxiliary aid to ensure effective telecommunication access has denied and continues to deny Mr. Yeh, on the basis of his deafness, the same access to Defendants’ programs and activities as afforded to hearing individuals.
51. Defendants have continually failed to provide Mr. Yeh with telecommunication access to connect with his family members and loved ones by refusing to make a videophone available at FCI Schuylkill.
52. The failure to provide the appropriate auxiliary aid and the failure to provide comparable access to the programs and activities are policies, regular practices, and/or customs of Defendants. These failures are ongoing and continue to this date.
53. As a proximate result of Defendants’ violations of the Rehabilitation Act, Mr. Yeh has suffered, and continues to suffer, discrimination, unequal treatment, exclusion (including exclusion from Defendants’ services, benefits, activities, programs and privileges), financial loss, loss of dignity, frustration, humiliation, emotional pain and suffering, anxiety, trauma, embarrassment, unnecessary loss of rights and privileges, including unnecessary disciplinary measures, and serious injury to his health and mental health, including the injuries specified herein.
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54. Defendants’ failure to comply with the Rehabilitation Act has resulted in harm to Mr. Yeh, and Defendants are liable to Mr. Yeh for harms suffered. Defendants’ failure to comply with the Rehabilitation Act will continue to result in harm to Mr. Yeh as Mr. Yeh will be in the custody or supervision of the BOP at FCI Schuylkill and will continue to seek to use the services, benefits, activities, programs and privileges provided by Defendants and to which he is entitled. This harm will continue unless and until Defendants are ordered by this Court to modify their policies, practices and procedures as demanded by the Rehabilitation Act.
RELIEF WHEREFORE, Mr. Yeh respectfully requests that this Court provide the following relief:
a. Issue a declaratory judgment that Defendants’ policies, procedures, and practices have violated and continue to violate Section 504 of the Rehabilitation Act of 1973;
b. Enjoin Defendants from any policy, procedure, or practice that will deny Mr. Yeh equal access to and an equal opportunity to participate in and benefit from Defendants’ services and programs or that denies Mr. Yeh effective telecommunication;
c. Order Defendants to promulgate and comply with policies and procedures to ensure that Defendants does not discriminate in the future against Mr. Yeh and other individuals who are deaf and hard of hearing;
d. Order Defendants to train all its employees about Mr. Yeh’s rights and the rights of individuals who are deaf or hard of hearing and about Defendants’ policy and procedures for providing auxiliary aids and services, particularly for providing videophones;
e. Enter such injunctive and/or declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202, and rules 57 and 65 of the Federal Rules of Civil Procedure against Defendants and in favor of Mr. Yeh as it deems appropriate to remedy past violations of the laws of the United
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States and to prevent future violations of the same, including by ordering Defendants to provide full and equal access to appropriate and effective telecommunication devices for the deaf, such as full and equal access to a videophone.
f. This Court retain jurisdiction of the matter until Defendants demonstrate that they have fully complied with the orders of this Court, and that there is a reasonable assurance that Defendants will continue to comply in the future absent continuing jurisdiction;
g. Judgement against Defendants in favor of Mr. Yeh for the costs of litigation, including reasonable attorneys’ fees and costs; and
h. Award Mr. Yeh any and all other relief that may be necessary and appropriate.

Date: May 3, 2018

Respectfully submitted,
/s/ Mary Vargas Mary Vargas Stein & Vargas, LLP 840 First Street NE, Third Floor Washington, DC 20002 Phone: (202) 248-5092 Fax: (888) 778-4620 mary.vargas@steinvargas.com
Anna Bitencourt* National Association of the Deaf Law and Advocacy Center 8630 Fenton Street, Suite 820 Silver Spring, MD 20910 Phone: (301) 587-1788 Fax: (301) 587-1791 anna.bitencourt@nad.org
Attorneys for Plaintiff
*pro hac vice motion to be filed promptly

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHN TC YEH, Plaintiff
v. UNITED STATES BUREAU OF PRISONS, et al.,
Defendants

: Civil No. 3:18-cv-943 : : (Judge Munley) : : (Magistrate Judge Carlson) : : : : :

REPORT AND RECOMMENDATION

I. Factual Background This case, which brings claims under the Rehabilitation Act, 29 U.S.C. § 794,
on behalf of a deaf federal inmate, comes before the court for resolution of a pending motion for preliminary injunction filed by the plaintiff, John TC Yeh. (Doc. 2.) By way of background, Yeh is a federal prisoner who is currently housed at the Federal Correctional Institution (FCI) Schuylkill, where he is serving a 108-month sentence following his conviction on federal fraud offenses. Yeh’s current projected release date from federal custody is in October of 2019.
Yeh has been profoundly deaf from birth, and his primary language is American Sign Language (ASL). He cannot discriminate sounds to understand
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speech and therefore cannot use a standard telephone in the same way as a hearing person. Given this physical impairment, in order to communicate with his attorneys, family, and friends outside of FCI Schuylkill, Yeh requested a videophone, a form of technology which enables persons whose primary language is ASL to efficiently communicate with others. That request was initially denied by prison officials because the prison had an alternate technology, text-telephone services (TTY), available to Yeh at FCI Schuylkill.
The denial of this request, in turn, led to prolonged administrative hearings and proceedings, proceedings which ultimately concluded with a decision by the Department of Justice that Yeh was entitled to access to videophone technology. These proceedings commenced on September 24, 2015, when Yeh filed a complaint with the Equal Employment Opportunity (“EEO”) to the Department of Justice Civil Rights Division alleging that FCI Schuylkill violated Section 504 of the Rehabilitation Act and its attendant regulations when it failed to honor his request for videophone technology to accommodate his telephone needs as a deaf person.
Initially Yeh’s efforts to secure this relief were unavailing. Thus, on March 24, 2016, Yeh received a letter of findings from EEO which determined that the texttelephone services (TTY) provided to him were sufficient and appropriate. On April 14, 2016, Yeh appealed these EEO findings pursuant to 28 C.F.R. § 170(i) and
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requested a hearing on the matter. Following administrative hearings, on April 10,
2017, the Administrative Law Judge (ALJ) issued a recommended decision
sustaining the EEO’s finding that the TTY services provided to Yeh were
appropriate.
On April 24, 2017, Yeh lodged a Letter of Exceptions to this ALJ decision
with the Department of Justice Complaint Adjudication Officer (“CAO”). On
February 5, 2018, the CAO then issued his decision finding that Yeh’s “current
access to TTY does not provide him with equal participation opportunities in
[Schuylkill]” and that the BOP failed to provide evidence that videophones cause
any undue administrative or financial hardships. As the CAO found:
On the issue of videophone use, this decision finds that complainant's current access to TTY' does not provide him with equal participation opportunities in TCP. Complainant has requested videophone access and has provided sufficient evidence to establish that videophones will provide him with significantly greater participation opportunities in TCP. This decision further concludes that BOP has not provided evidence that videophone usage will significantly alter TCP or undermine the BOP mission by generating undue administrative or financial hardships. That said, BOP does have legitimate security concerns which, while not meeting the regulatory standard of establishing "fundamental alteration or undue burden," must be taken into account in installing videophone access. If complainant or BOP can identify another device that permits complainant to communicate with a hearing impaired individual using ASL but also provides more of the security safeguards that BOP insists upon, the parties are strongly encouraged to explore the implementation of such a device.
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If videophone is the only solution, complainant is cautioned that the actual implementation of videophone use will likely require significant patience and adjustment. BOP has significant responsibilities for assessing the available budget in the present and coming fiscal year, for determining the feasibility of installing dedicated lines at FCI Schuylkill or at another institution, and for coordinating a waiver from authorities at the Department of Justice. These and other attendant matters may take some time.
(Doc.3, Ex. A, p.21.)
Following this decision by the CAO, and his admonition to Yeh that “the
actual implementation of videophone use will likely require significant patience”
since these “matters may take some time”, three months passed before Yeh filed his
complaint in federal court on May 3, 2018, alleging that the continuing failure to
install videophone technology at FCI Schuylkill violated Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794. (Doc. 1.) Along with this complaint,
Yeh filed a motion for preliminary injunction which sought a specific form of relief,
an order directing that the defendants “must immediately install a videophone at FCI
Schuylkill.” (Doc. 2, p. 16.)
This case was then referred to the undersigned. Recognizing the gravity of
this matter for all concerned, we entered a series of orders aimed at permitting an
expedited development of the factual record as it related to Yeh’s request for a
preliminary injunction, (Docs. 15, 20), and conducted a hearing on this motion for
preliminary injunction on August 10, 2018. (Docs. 28, 29.) 4

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That hearing confirmed that, as the CAO had observed, these “matters may take some time.” Specifically, the hearing disclosed that there were at least six steps which needed to be accomplished in order to complete installation of videophone technology at FCI Schuylkill. These steps included: (1) completion of infrastructure work on-site at the prison; (2) arranging internet access through an internet service provider; (3) scheduling the equipment installation and training contemplated under the BOP’s contract with yet another private contractor; (4) clarifying whether implementation of this technology also requires the services of another VRS system provider, and scheduling that component of this work, if needed; (5) ensuring that security protocols were in place to allow this system to go on-line; and (6) confirming that the system has the peer-to-peer capabilities sought and described by the plaintiff. Moreover, many aspects of this installation process were dependent upon third-party contractors, Internet service providers and VRS system providers, none of whom were parties to this litigation. Recognizing that the essential involvement of non-party contractors in this process would make issuance of a preliminary injunction problematic, we held this motion under advisement but instituted a rigorous program of reporting and case management, designed to ensure that the preliminary injunctive relief sought by Yeh, installation of a videophone,
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would be accomplished in a timely fashion. (Docs. 32, 34, 36-8, 40-4, 45-54.)1 As a
result of these efforts, by December 4, 2018, it was reported that:
On November 28, 2018, Plaintiff John TC Yeh made a phone call using a Videophone by the Video Relay Service installed at the Federal Correctional Institution in Minersville, Pennsylvania (FCI Schuylkill). During the first call, there was an internet connection issue, where the call “froze” for several seconds, but this problem has not recurred since that first phone call. Mr. Yeh asked that numerous phone numbers be installed into the VRS system for him to call, and the staff at FCI Schuylkill complied with that request. Since November 28, 2018, Mr. Yeh has made a total of 44 calls, totaling 182 minutes of time.
(Doc. 54.)
It is against this factual backdrop that we now further consider Yeh’s motion
for preliminary injunction which sought a specific form of relief, an order directing
that the defendants “must immediately install a videophone at FCI Schuylkill.” (Doc.
2, p. 16.) For the reasons set forth below, we recommend that this motion be denied,
1 We have also attempted to take steps to address merits litigation beyond this preliminary injunction, by soliciting from counsel a status report on what further steps are necessary in this case given the installation of the videophone technology at FCU Schuylkill. (Doc. 53.) The parties’ response to this instruction reveals that they have vastly different views regarding how any remaining merits issues should be addressed. (Doc. 55.) Accordingly, we have set a case-management schedule and are scheduling a case-management conference in this matter, to complete merits litigation in this case. Thus, it should be emphasized that this Report and Recommendation deals only with the narrow issue of Yeh’s current entitlement to a preliminary injunction directing the installation of a videophone at FCI Schuylkill. It is not intended and should not be construed as addressing any other merits issues in this litigation.
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at this time, without prejudice to renewal if the specific relief sought, videophone access at FCI Schuylkill, was terminated or unreasonably curtailed.
II. Discussion A. Preliminary Injunction Rule 65B The Legal Standard.
The issuance of preliminary injunctions is governed by Rule 65 of the Federal Rules of Civil Procedure, which sets exacting legal standards for such relief. As the United States Court of Appeals for the Third Circuit has explained: AFour factors govern a district court=s decision whether to issue a preliminary injunction: (1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will be irreparably injured by denial of the relief, (3) whether granting preliminary relief will result in even greater harm to the nonmoving party; and (4) whether granting the preliminary relief will be in the public interest.@ Gerardi v. Pelullo, 16 F.3d 1363, 1373 (3d Cir. 1994) (quoting SI Handling Systems, Inc. v. Heisley, 753 F.2d 1244, 1254 (3d Cir. 1985)). See also Highmark, Inc. v. UPMC Health Plan, Inc., 276 F.3d 160, 170-71 (3d Cir. 2001); Emile v. SCI-Pittsburgh, No. 04-974, 2006 WL 2773261, *6 (W.D.Pa. Sept. 24, 2006)(denying inmate preliminary injunction).
Thus, a preliminary injunction is not granted as a matter of right. Kerschner v. Mazurkewicz, 670 F.2d 440, 443 (3d Cir. 1982) (affirming denial of prisoner motion
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for preliminary injunction seeking greater access to legal materials). It is an extraordinary remedy. Given the extraordinary nature of this form of relief, a motion for preliminary injunction places precise burdens on the moving party.
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Accordingly, for an inmate to sustain his burden of proof that he is entitled to a preliminary injunction under Fed.R.Civ.P. 65, he must demonstrate both a reasonable likelihood of success on the merits, and that he will be irreparably harmed if the requested relief is not granted. Abu-Jamal v. Price, 154 F.3d 128, 133 (3d Cir. 1998); Kershner, 670 F.2d at 443. If the movant fails to carry this burden on either of these elements, the motion should be denied since a party seeking such relief must "demonstrate both a likelihood of success on the merits and the probability of irreparable harm if relief is not granted." Hohe v. Casey, 868 F.2d 69, 72 (3d Cir. 1989)(emphasis in original), (quoting Morton v. Beyer, 822 F.2d 364 (3d Cir. 1987)).
Furthermore, several other basic legal tenets guide our discretion in this particular case, where an inmate seeks to enjoin a wide array of non-parties. An injunction against non-parties, like the preliminary injunction sought here which would have mandated particular action by non-party private contractors, requires a specific legal showing. To the extent that Yeh sought to enjoin non-parties in this litigation to immediately provide various technical services it is clear that: A[a] nonparty cannot be bound by the terms of an injunction unless the non-party is found to be acting >in active concert or participation= with the party against whom injunctive relief is sought. Fed.R.Civ.P. 65(d).@ Elliott v. Kiesewetter, 98 F.3d 47, 56 (3d Cir. 1996). Further, where the requested preliminary injunction Ais directed not merely at

Case 3:18-cv-00943-JMM-MCC Document 57 Filed 12/12/18 Page 10 of 15
preserving the status quo but...at providing mandatory relief, the burden on the moving party is particularly heavy.@ Punnett v. Carter, 621 F.2d 578, 582 (3d Cir. 1980).
A necessary corollary flows from these exacting legal standards for a preliminary injunction. If intervening events have taken place which have addressed the immediate presenting concern which caused an inmate to seek a preliminary injunction, then courts are often justified in disposing of the motion as moot. See e.g., Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003); Abdul-Akbar v. Watson, 4 F.3d 195, 206 (3d Cir.1993)(inmate transfer renders injunction moot). For example, “this court has held on numerous occasions that when the event sought to be enjoined in a preliminary injunction has occurred, an appeal from the order denying the preliminary injunction is moot. See, e.g., In re Cantwell, 639 F.2d 1050, 1054 (3d Cir.1981).” Scattergood v. Perelman, 945 F.2d 618, 621 (3d Cir. 1991).
Guided by these principles, we recommend that this motion for preliminary injunction be denied at this time, without prejudice, as the parties complete their merits litigation.
B. This Motion for Preliminary Injunction Should Be Denied Without Prejudice as the Parties Complete Their Merits Litigation
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Case 3:18-cv-00943-JMM-MCC Document 57 Filed 12/12/18 Page 11 of 15
In considering the instant motion for preliminary injunction, it is important at the outset to focus on the particular preliminary injunctive relief sought by the motion. That motion demanded a specific form of relief which went beyond simply maintaining the status quo. Instead, it requested an order directing that the defendants “must immediately install a videophone at FCI Schuylkill.” (Doc. 2, p. 16.) Since the preliminary injunction sought here was intended to provide some additional “mandatory relief, the burden on the moving party is particularly heavy.@ Punnett v. Carter, 621 F.2d 578, 582 (3d Cir. 1980). Moreover, the relief sought here, immediate installation of a videophone at FCI Schuylkill, went beyond the relief granted by the Department of Justice CAO at the time of the CAO’s favorable resolution of Yeh’s administrative appeal in February of 2018. That February 2018 CAO decision called for installation of videophone technology at FCI Schuylkill, but specifically warned that:
If videophone is the only solution, complainant is cautioned that the actual implementation of videophone use will likely require significant patience and adjustment. BOP has significant responsibilities for assessing the available budget in the present and coming fiscal year, for determining the feasibility of installing dedicated lines at FCI Schuylkill or at another institution, and for coordinating a waiver from authorities at the Department of Justice. These and other attendant matters may take some time. (Doc.3, Ex. A, p.21.)
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Thus, the agency decision which Yeh sought to enforce in this lawsuit did not call for the relief requested in this motion, the immediate installation of a videophone. Rather, that decision recognized that implementing this technology in a correctional setting “may take some time.”
Furthermore, the evidence adduced at the preliminary injunction hearing conducted by this court revealed that installation of this technology was a multi-step process which entailed not only actions by the Bureau of Prisons, a party to this lawsuit, but also cooperation and completion of essential tasks by non-party private contractors. The fact that successful videophone installation was entirely dependent action by non-parties made the issuance of a preliminary injunction compelling immediate completion of this task particularly problematic as to those persons who were not parties before the court. See Elliott v. Kiesewetter, 98 F.3d 47, 56 (3d Cir. 1996).
In any event, by adopting the course which we followed and instituting a rigorous program of reporting and case management designed to ensure that the preliminary injunctive relief sought by Yeh, installation of a videophone, would be accomplished in a timely fashion, (Docs. 32, 34, 36-8, 40-4, 45-54) we have achieved that result: A videophone is now installed at FCI Schuylkill and it is reported that Yeh has extensive access to that communication facility. Therefore,
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since the videophone is installed, the relief sought in this motion, “install[ation of] a videophone at FCI Schuylkill,” (Doc. 2, p. 16), has been attained. Simply put, no further action is needed at this time to achieve the preliminary relief sought by Yeh.
In short, Yeh’s motion sought a particularly compelling form of preliminary injunction, some new form of additional mandatory relief where “the burden on the moving party is particularly heavy.@ Punnett v. Carter, 621 F.2d 578, 582 (3d Cir. 1980). Further, granting Yeh the specific relief he sought, immediate installation of videophone technology at FCI Schuylkill, would have been particularly problematic since we would have had to, in effect, enjoin affirmative actions by private persons who were not parties to this litigation. Notwithstanding these legal impediments, we have achieved the goal sought by the plaintiff in this motion: a videophone is now installed at FCI Schuylkill and available for use by Yeh. Accordingly, upon consideration of these factors, all of which caution against the necessity of further preliminary injunctive relief at this time, it is now recommended that this court deny the motion for preliminary injunction without prejudice to renewal if the specific relief sought, videophone access at FCI Schuylkill, is improperly terminated or unreasonably curtailed.
III. Recommendation 13

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Accordingly, IT IS RECOMMENDED that the plaintiff’s motion for
preliminary injunction, (Doc. 2), be DENIED without prejudice to renewal if the
specific relief sought, videophone access at FCI Schuylkill, is improperly terminated
or unreasonably curtailed.
The parties are placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. ' 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 12th day of December, 2018.
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/s/ Martin C. Carlson Martin C. Carlson United States Magistrate Judge
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 Case 3:18-cv-00943-JMM-MCC Document 72 Filed 03/25/19 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHN TC YEH, Plaintiff
v. UNITED STATES BUREAU OF PRISONS, et al.,
Defendants

: Civil No. 3:18-cv-943 : : (Judge Munley) : : (Magistrate Judge Carlson) : : : : :

MEMORANDUM ORDER

I. Factual Background This case, which brings claims under the Rehabilitation Act, 29 U.S.C. § 794,
on behalf of a deaf federal inmate, comes before the court for consideration of a motion to stay discovery filed by the defendant, Bureau of Prisons. (Doc. 60.) By way of background, Yeh is a federal prisoner who is currently housed at the Federal Correctional Institution (FCI) Schuylkill, where he is serving a 108-month sentence following his conviction on federal fraud offenses. Yeh’s current projected release date from federal custody is in October of 2019.

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Yeh has been profoundly deaf from birth, and his primary language is American Sign Language (ASL). He cannot discriminate sounds to understand speech and therefore cannot use a standard telephone in the same way as a hearing person. Given this physical impairment, in order to communicate with his attorneys, family, and friends outside of FCI Schuylkill, Yeh requested a videophone, a form of technology which enables persons whose primary language is ASL to efficiently communicate with others. That request was initially denied by prison officials because the prison had an alternate technology, text-telephone services (TTY), available to Yeh at FCI Schuylkill.
The denial of this request, in turn, led to prolonged administrative hearings and proceedings, proceedings which ultimately concluded with a decision by the Department of Justice in February of 2018 that Yeh was entitled to access to videophone technology. Specifically, on February 5, 2018, the Department of Justice Complaint Adjudication Officer (“CAO”) issued his decision finding that Yeh’s “current access to TTY does not provide him with equal participation opportunities in [Schuylkill]” and that the BOP failed to provide evidence that videophones cause any undue administrative or financial hardships. As the CAO found:
On the issue of videophone use, this decision finds that complainant's current access to TTY' does not provide him with equal participation opportunities in TCP. Complainant has requested videophone access and has provided sufficient evidence to establish that videophones will
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provide him with significantly greater participation opportunities in TCP. This decision further concludes that BOP has not provided evidence that videophone usage will significantly alter TCP or undermine the BOP mission by generating undue administrative or financial hardships. That said, BOP does have legitimate security concerns which, while not meeting the regulatory standard of establishing "fundamental alteration or undue burden," must be taken into account in installing videophone access. If complainant or BOP can identify another device that permits complainant to communicate with a hearing impaired individual using ASL but also provides more of the security safeguards that BOP insists upon, the parties are strongly encouraged to explore the implementation of such a device.
If videophone is the only solution, complainant is cautioned that the actual implementation of videophone use will likely require significant patience and adjustment. BOP has significant responsibilities for assessing the available budget in the present and coming fiscal year, for determining the feasibility of installing dedicated lines at FCI Schuylkill or at another institution, and for coordinating a waiver from authorities at the Department of Justice. These and other attendant matters may take some time.
(Doc.3, Ex. A, p.21.)
Following this decision by the CAO, and his admonition to Yeh that “the actual
implementation of videophone use will likely require significant patience” since
these “matters may take some time”, three months passed before Yeh filed his
complaint in federal court on May 3, 2018, alleging that the continuing failure to
install videophone technology at FCI Schuylkill violated Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794. (Doc. 1.) Along with this complaint,
Yeh filed a motion for preliminary injunction which sought a specific form of relief,
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an order directing that the defendants “must immediately install a videophone at FCI Schuylkill.” (Doc. 2, p. 16.)
This case was then referred to the undersigned. Recognizing the gravity of this matter for all concerned, we entered a series of orders aimed at permitting an expedited development of the factual record as it related to Yeh’s request for a preliminary injunction, (Docs. 15, 20), and conducted a hearing on this motion for preliminary injunction on August 10, 2018, which disclosed that there were at least six steps which needed to be accomplished in order to complete installation of videophone technology at FCI Schuylkill. These steps included: (1) completion of infrastructure work on-site at the prison; (2) arranging internet access through an internet service provider; (3) scheduling the equipment installation and training contemplated under the BOP’s contract with yet another private contractor; (4) clarifying whether implementation of this technology also requires the services of another VRS system provider, and scheduling that component of this work, if needed; (5) ensuring that security protocols were in place to allow this system to go on-line; and (6) confirming that the system has the peer-to-peer capabilities sought and described by the plaintiff. Moreover, many aspects of this installation process were dependent upon third-party contractors, Internet service providers and VRS system providers, none of whom were parties to this litigation. Recognizing that the essential
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involvement of non-party contractors in this process would make issuance of a preliminary injunction problematic, we held this motion under advisement but instituted a rigorous program of reporting and case management, designed to ensure that the preliminary injunctive relief sought by Yeh, installation of a videophone, would be accomplished in a timely fashion. (Docs. 32, 34, 36-8, 40-4, 45-54.) As a result of these efforts, by December 4, 2018, it was reported that:
On November 28, 2018, Plaintiff John TC Yeh made a phone call using a Videophone by the Video Relay Service installed at the Federal Correctional Institution in Minersville, Pennsylvania (FCI Schuylkill). During the first call, there was an internet connection issue, where the call “froze” for several seconds, but this problem has not recurred since that first phone call. Mr. Yeh asked that numerous phone numbers be installed into the VRS system for him to call, and the staff at FCI Schuylkill complied with that request. Since November 28, 2018, Mr. Yeh has made a total of 44 calls, totaling 182 minutes of time. (Doc. 54.) While these developments addressed Yeh’s immediate need for communications access, the parties have continued their merits litigation. Towards that end the defendant has filed a motion for judgment on the pleadings, (Doc. 59), which is actively opposed by the plaintiff and remains pending before this court. In addition, the defendant filed a motion for protective order, (Doc. 60), which seeks to stay discovery pending resolution of this potentially dispositive motion.
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As to this latter motion, the plaintiff’s response is somewhat nuanced. The
plaintiff does not outright oppose this motion. Instead, according to the plaintiff:
[T]his Court should retain jurisdiction over the case and require Defendants to file status reports to ensure that Mr. Yeh has access to a videophone for the remainder of his time in Defendants’ custody. In the alternative that this Court does not require Defendants to file status reports, Plaintiffs request discovery on why Defendants refuse to promise a videophone for the remainder of Mr. Yeh’s time in federal custody. Staying discovery without status reports would leave Mr. Yeh in the dark without a meaningful opportunity to understand or challenge Defendants’ bases for taking away videophone access. For the foregoing reasons, Mr. Yeh requests that this Court order Defendants to file regular status reports, or in the alternative to allow discovery to proceed without delay.
(Doc. 70, p. 1.)
Given the positions expressed by the parties on this issue, for the reasons set
forth below, it will be ordered as follows: The defendant’s motion for protective order
will be GRANTED in part, and discovery will be stayed pending resolution of the
outstanding motion for judgment on the pleadings. The Court will retain jurisdiction
over this matter, however, and this order is entered without prejudice to the plaintiff
filing a motion for expedited discovery or seeking other relief in the event that the
defendant curtails or eliminates Yeh’s videophone access.
II. Discussion
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Case 3:18-cv-00943-JMM-MCC Document 72 Filed 03/25/19 Page 7 of 10
Several basic guiding principles inform our resolution of the instant discovery
issues. At the outset rulings regarding the proper scope and timing of discovery are
matters consigned to the court’s discretion and judgment. Wisniewski v. Johns-
Manville Corp., 812 F.2d 81, 90 (3d Cir. 1987). Thus, a court’s decisions regarding
the conduct of discovery will be disturbed only upon a showing of an abuse of
discretion. Marroquin-Manriquez v. I.N.S., 699 F.2d 129, 134 (3d Cir. 1983). This
far-reaching discretion extends to rulings by United States Magistrate Judges on
discovery matters. In this regard:
District courts provide magistrate judges with particularly broad discretion in resolving discovery disputes. See Farmers & Merchs. Nat'l Bank v. San Clemente Fin. Group Sec., Inc., 174 F.R.D. 572, 585 (D.N.J.1997). When a magistrate judge's decision involves a discretionary [discovery] matter . . . , “courts in this district have determined that the clearly erroneous standard implicitly becomes an abuse of discretion standard.” Saldi v. Paul Revere Life Ins. Co., 224 F.R.D. 169, 174 (E.D.Pa.2004) (citing Scott Paper Co. v. United States, 943 F.Supp. 501, 502 (E.D.Pa.1996)). Under that standard, a magistrate judge's discovery ruling “is entitled to great deference and is reversible only for abuse of discretion.” Kresefky v. Panasonic Commc'ns and Sys. Co., 169 F.R.D. 54, 64 (D.N.J.1996); see also Hasbrouck v. BankAmerica Hous. Servs., 190 F.R.D. 42, 44-45 (N.D.N.Y.1999) (holding that discovery rulings are reviewed under abuse of discretion standard rather than de novo standard); EEOC v. Mr. Gold, Inc., 223 F.R.D. 100, 102 (E.D.N.Y.2004) (holding that a magistrate judge's resolution of discovery disputes deserves substantial deference and should be reversed only if there is an abuse of discretion).
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Halsey v. Pfeiffer, No. 09-1138, 2010 WL 3735702, *1 (D.N.J. Sept. 17, 2010). We also note that our broad discretion over discovery matters extends to
decisions under Rule 26 relating to the issuance of protective orders limiting and regulating the timing of discovery. Indeed, it is undisputed that: “ ‘[t]he grant and nature of [a protective order] is singularly within the discretion of the district court and may be reversed only on a clear showing of abuse of discretion.’ Galella v. Onassis, 487 F.2d 986, 997 (2d Cir.1973) (citation omitted).” Dove v. Atlantic Capital Corp., 963 F.2d 15, 19 (2d Cir. 1992).
This discretion is guided, however, by certain basic principles. One of these cardinal principles, governing the exercise of discretion in this field, is that the district court may properly defer or delay discovery while it considers a potentially dispositive pretrial motion, provided the district court concludes that the pretrial motion does not, on its face, appear groundless. See, e.g., James v. York County Police Dep’t, 160 F.App’x 126, 136 (3d Cir. 2005); Nolan v. U.S. Dep’t of Justice, 973 F.2d 843,849 (10th Cir. 1992); Johnson v. New York Univ. Sch. of Ed., 205 F.R.D. 433, 434 (S.D.N.Y. 2002). In such instances, it is clearly established that:
“[A] stay of discovery is appropriate pending resolution of a potentially dispositive motion where the motion ‘appear[s] to have substantial grounds' or, stated another way, ‘do[es] not appear to be without foundation in law.’ ” In re Currency Conversion Fee Antitrust Litigation,
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Case 3:18-cv-00943-JMM-MCC Document 72 Filed 03/25/19 Page 9 of 10
2002 WL 88278, at *1 (S.D.N.Y. Jan. 22, 2002) (quoting Chrysler Capital Corp. v. Century Power Corp., 137 F.R.D. 209, 209-10 (S.D.N.Y.1991)) ( citing Flores v. Southern Peru Copper Corp., 203 F.R.D. 92, 2001 WL 396422, at *2 (S.D.N.Y. Apr. 19, 2001); AntiMonopoly, Inc. v. Hasbro, Inc., 1996 WL 101277, at *2 (S.D.N.Y. March 7, 1996)).
Johnson v. New York Univ. School of Educ., 205 F.R.D. 433, 434 (S.D.N.Y. 2002). Guided by these legal tenets we conclude that further discovery should be
briefly stayed at this time until after the court resolves the pending motion for judgment on the pleadings. We reach this conclusion in accordance with settled case law, finding that: “[A] stay of discovery is appropriate pending resolution of a potentially dispositive motion where the motion ‘appear[s] to have substantial grounds' or, stated another way, ‘do[es] not appear to be without foundation in law.’” Johnson v. New York Univ. School of Educ., 205 F.R.D. 433, 434 (S.D.N.Y. 2002).
On this score, we note that the plaintiff does not oppose the request, provided the court retains jurisdiction over this case, and requires periodic status reports from the defendant regarding Yeh’s videophone access. We will retain jurisdiction over this case as we consider the defendant’s motion for judgment on the pleadings. We note that this defense motion argues, in part, that Yeh’s case is moot because the plaintiff now has the videophone access which he long sought. Of course, the swiftest way to undermine this argument would be for the defendant to curtail this access.
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Recognizing this simple truth, while we will not require the Defendant to file periodic status reports, as requested by the plaintiff, we will enter this stay without prejudice to the plaintiff seeking expedited discovery and other relief in the event that his videophone access is curtailed.
An appropriate order follows: III. Order The defendant’s motion for protective order (Doc. 60), is GRANTED in part, and discovery is STAYED pending resolution of the outstanding motion for judgment on the pleadings. The court will retain jurisdiction in this case, however, and this order is entered without prejudice to the plaintiff seeking expedited discovery or other relief in the event that the defendant curtails or eliminates Yeh’s videophone access. Submitted this 25th day of March 2019.
/s/ Martin C. Carlson Martin C. Carlson United States Magistrate Judge
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 Case 3:18-cv-00943-MCC Document 81 Filed 08/06/19 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHN TC YEH,

: No. 3:18cv943

Plaintiff

:

: (Judge Munley)

v.

:

: (Magistrate Judge Carlson)

UNITED STATES BUREAU OF

:

PRISONS; HUGH J. HURWITZ,

:

Director of the BOP; J. RAY

:

ORMOND, Regional Director of the :

BOP, Northeast Region; SCOTT

:

FINLEY, Warden of FCI Schuylkill, :

Defendants

:

::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

MEMORANDUM

Before the court for disposition is Magistrate Judge Carlson’s report and

recommendation (hereinafter “R&R”) which proposes denying the defendant’s

motion for judgment on the pleadings in regard to the assertion that the court

lacks jurisdiction to entertain this case under the Rehabilitation Act of 1973

(hereinafter “RA”) and deferring the motion in regard to the argument that the

case is moot. (Doc. 78). Plaintiff’s action is brought under § 504 of the RA, 29

U.S.C. § 794. The matter is fully briefed and ripe for disposition.

Background John TC Yeh, the plaintiff in the instant action, is a deaf man whose
primary language is American Sign Language (hereinafter “ASL”). (Doc. 1,

Case 3:18-cv-00943-MCC Document 81 Filed 08/06/19 Page 2 of 13
Complaint, ¶¶6, 8). He began serving a prison sentence on January 30, 2012 at Federal Correctional Institution Schuylkill Satellite Camp (hereinafter “FCI Schuylkill”). (Id. ¶17). FCI Schuylkill is controlled and operated by the Bureau of Prisons (hereinafter “BOP”), and the BOP Inmate Telephone Regulations allow all inmates the opportunity to contact their family and community by granting the inmates 300 minutes of telephone use per month. (Id. ¶¶12, 21–22). FCI Schuylkill’s supplemental Telephone Regulations for Inmates further specifies that inmates are allowed up to five calls per day with the telephones typically being available from 6:00 a.m. to 11:30 p.m. every day. (Id. ¶¶22–23).
Because the plaintiff is deaf, however, he could not use the telephones the same way as a hearing person. (Id. ¶19). As a result, FCI Schuylkill provided the plaintiff with text-telephone services (hereinafter “TTY”), a telephone device equipped with a keyboard and a display screen. (Id. ¶¶ 26, 34). In order for the plaintiff to use the TTY, he was required to make prior arrangements with the outside party and a member of the staff. Due to the logistics of transferring the calls, outside parties who lacked the ability to hear or speak, including several of the plaintiff’s family members, could not call the plaintiff. (Id. ¶¶ 34–35).
As a result, the plaintiff filed a complaint with the Equal Employment Opportunity Commission (hereinafter “EEO”) to the Department of Justice Civil Rights Division claiming that FCI Schuylkill violated Section 504 of the RA when
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it failed to provide him with an effective telecommunications device. (Id. ¶2). Section 504 of the RA is a federal law which prohibits discrimination against people with disability in programs that receive federal financial assistance. 29 U.S.C. § 701 et seq.
The EEO Officer determined that the TTY FCI Schuylkill provided to the plaintiff was appropriate to accommodate his disability. (Id.) Afterwards, the plaintiff appealed the decision to an Administrative Law Judge (hereinafter “ALJ”) who sustained the EEO Officer’s finding. (Id.) Next, the plaintiff sent a Letter of Exceptions to the Complaint Adjudication Officer (hereinafter “CAO”). (Id.) The CAO issued his decision on February 5, 2018, finding in favor of the plaintiff. The CAO concluded that the plaintiff’s access to the TTY did not provide him with equal opportunities and that the BOP failed to show the installation of a videophone would create an undue hardship. (Id.) Thus, the CAO ruled in the plaintiff’s favor and directed the prison to install a videophone. (Id.)
About three months later, on May 3, 2018, the plaintiff filed the instant complaint alleging that the BOP had violated the RA by failing to comply with the CAO’s decision and install a videophone. (Id. ¶ 2–3); (Doc. 1-1, Civil Cover Sheet at 1). On the same day, he moved for a preliminary injunction, asking the court to mandate that the defendants immediately install a videophone at FCI Schuylkill for the plaintiff. (Doc. 2, Plaintiff’s Motion for Preliminary Injunction at
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15). As a result, Magistrate Judge Carlson issued a series of orders and held a hearing on the motion to expedite the collection of information. (Docs. 15, 20, 28, 29). Because of the information that came to light, Magistrate Judge Carlson instituted a reporting and case management system to ensure the plaintiff’s requested relief was not delayed. (Docs. 34, 36, 39, 40, 41, 45, 48, 49, 50, 51).
Then, on November 28, 2018, the plaintiff was able to make his first call using a videophone installed at FCI Schuylkill. (Doc. 54, Status Report Per the Court’s Order of Nov. 27, 2018, ¶1). From November 28, 2018 to December 4, 2018, the plaintiff made forty-four phone calls, using a total of 182 minutes of call time. (Id. ¶4). On April 18, 2019, the plaintiff was placed in a halfway house, later being moved to home detention. (Doc. 77, Plaintiff’s Status Update at 1). The plaintiff’s projected release date is October 14, 2019. (Doc. 55, Joint Status Update, at defendant’s ¶ 2). It appears that the videophone was available for the plaintiff’s use at FCI Schuylkill up until he was placed in the halfway house, but the BOP has not guaranteed a videophone in the plaintiff’s halfway house or any other BOP facility. (Id. at defendant’s ¶¶ 5, 8, 11).
The defendants moved for judgment on the pleadings on February 5, 2019. (Doc. 59, Motion for Judgment of the Pleadings). Both parties briefed their positions, and Magistrate Judge Carlson filed his R&R on May 15, 2019. (Docs. 63, 69, 71, 78).
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Case 3:18-cv-00943-MCC Document 81 Filed 08/06/19 Page 5 of 13
Jurisdiction The plaintiff alleges a violation of the RA, 29 U.S.C. § 794, claiming that the
court has jurisdiction pursuant to 28 U.S.C. § 1331. (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”). The defendant argues that there is no jurisdiction because the RA does not provide a cause of action here. This issue is discussed more fully below. Legal Standard
In disposing of objections to a magistrate judge's report and recommendation, the district court must make a de novo determination of those portions of the report against which objections are made. 28 U.S.C. § 636(b)(1)(c); see also Sullivan v. Cuyler, 723 F.2d 1077, 1085 (3d Cir.1983). The court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir.1987). The district court judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. Id.
Federal Rule of Civil Procedure 12(b)(1) provides that a court may dismiss a complaint for “lack of subject-matter jurisdiction.” FED. R. CIV. P. 12(b)(1). A motion to dismiss under Rule 12(b)(1) therefore challenges the power of a federal court to hear a claim or case. See Petruska v. Gannon Univ., 462 F.3d
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294, 302 (3d Cir.2006). In the face of a 12(b)(1) motion, the plaintiff has the burden to “convince the court it has jurisdiction.” Gould Elecs., Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000); see also Kehr Packages v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991) (“When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff must bear the burden of persuasion.”). Discussion
Magistrate Judge Carlson addresses two main issues in his R&R. First, he finds that the RA does provide the plaintiff with a cause of action against the
BOP, recommending the defendants’ motion be denied on those grounds. (Doc. 78, 17). Second, he addresses the question of mootness, recommending the
defendants’ motion be deferred pending the plaintiff’s completion of his custodial sentence. (Id.) We address both issues in turn.

I.

Whether the Rehabilitation Act Provides a Cause of Action

Against the BOP

The RA applies to disability discrimination cases “under any program or

activity receiving Federal financial assistance or under any program or activity

conducted by any Executive agency or by the United States Postal Service.” 29

U.S.C.A. § 794. The defendants argue that the RA does not provide a cause of

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action to the plaintiff because the RA generally applies to disability discrimination in employment situations. (Doc. 79, Defendants Obj. to R&R at 6-7).
The plaintiff, on the other hand, claims that the defendant misinterprets the Third Circuit’s case law because the court intentionally used broad language, such as the phrase “aggrieved party” rather than “employee” in interpreting the RA. (Doc 80, Plaintiff’s Reply to Defendants Obj. to R&R at 6). To support this proposition, the plaintiff discusses how judges in the Third Circuit and the Middle District of Pennsylvania have used this interpretation in cases such as Njos v. Bureau of Prisons, 3:12-cv-1251, 2015 WL 10376135 (M.D. Pa. Sept. 28, 2015) and Howard v. Bureau of Prisons, 3:05-cv-1372, 2008 WL 318387 (M.D. Pa. Feb. 4, 2008). (Id. at 7–8).
We agree with the plaintiff that precedent in the Third Circuit and the Middle District of Pennsylvania suggests that the RA allows a prisoner to bring a claim for injunctive relief against an agency and individuals in their official capacities. At least three cases in the Middle District of Pennsylvania have permitted prisoner plaintiffs to sue under the RA. Njos, 2015 WL 10376135; Collins v. Pigos, 1:12-cv-232, 2013 WL 943119 (M.D. Pa. Mar. 11, 2013)1; Howard, 2008 WL 318387. In fact Howard v. Bureau of Prisons explicitly states that a prisoner
1 While it is true that the court dismissed this case, it did so because the pro se plaintiff failed to adequately plead his case, and it granted the plaintiff leave to amend his complaint brought under the RA. Collins, 2013 WL 943119, at *6.
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may sue a regional director of a prison “in his official capacity for equitable relief” under the RA. Howard, 2008 WL 318387, at *10.
Additionally we agree that Spence v. Straw, 54 F.3d 196 (3d Cir. 1995) uses language that is sufficiently broad enough to encompass a prisoners ability to sue the BOP under the RA. In that case, the court stated that “[f]ederal agencies may, by the terms of the Rehabilitation Act, be sued for violation of either section 501 or 504 of the Act,” emphasizing the language from the RA indicating that this applies “ ‘to any person aggrieved by an act or failure to act by any recipient of Federal assistance.’ ” Spence, 54 F.3d at 199 (quoting 29 U.S.C. § 794a(a)(2)). Additionally, nothing in Spence seems to indicate that the holding was intended to be limited to employment-related matters. Therefore, we hold that the plaintiff can maintain this action under the RA and the portion of the R&R dealing with this issue will be adopted.

II.

Mootness

The defendants assert that the plaintiff’s complaint is moot in that it does

not provide a live case or controversy, and therefore, they are entitled to

judgment on the pleadings. (Doc. 79, at 8). The defendant claims that the

matter was moot from the time that the CAO granted relief to the plaintiff on the

administrative level. (Id.) Moreover, as explained above, plaintiff is no longer

incarcerated at FCI Schuylkill – he has been released to home confinement. As

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a result defendants argue that the case is moot and request this Court to grant
their motion for judgment on the pleadings. (Id. at 10).
Defendants move for judgment on the pleadings pursuant to Federal Rule
of Civil Procedure 12(c), which provides that “[a]fter the pleadings are closed–but
early enough not to delay trial–a party may move for judgment on the pleadings.”
FED. R. CIV. P. 12(c). Under Rule 12(c), judgment should be granted where:
the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law. In considering a motion for judgment on the pleadings, the trial court is required to view the facts presented in the pleadings and the inferences to be drawn therefrom in the light most favorable to the nonmoving party. In this fashion the courts hope to insure that the rights of the nonmoving party are decided as fully and fairly on a rule 12(c) motion, as if there had been a trial.
Inst. for Scientific Info., Inc. v. Gordon & Breach Sci. Publishers, Inc., 931 F.2d 1002, 1004 (3d Cir. 1991) (citing Society Hill Civic Ass'n v. Harris, 632 F.2d 1045, 1054 (3d Cir. 1980); 5C Charles A. Wright & Arthur R. Miller, Fed. Practice and Procedure, § 1367 at 205 (3d ed. 2004)); see also Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 220 (3d Cir. 2005) (finding that under Rule 12(c) “[j]udgment will not be granted unless the movant clearly establishes there are no material issues of fact, and he is entitled to judgment as a matter of law.”).
The plaintiff disagrees with the defendants’ characterization of this suit as
moot. The plaintiff argues that even though he is no longer incarcerated and on
home confinement, the court should maintain jurisdiction over the case until he is
completely released from custody because the defendant cannot guarantee him
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videophone access in the event that he returns to prison. (Doc 80, at 9). Because the defendant cannot guarantee him videophone access and because the defendants would need to approve the plaintiff’s access at any new facility, the plaintiff argues that the suit cannot yet be considered moot. (Id. at 11). The defendants, on the other hand, argue that this Court cannot simply assume that that the plaintiff may return to prison even though he has failed to demonstrate that he is likely to be incarcerated again. (Id. at 9). After a careful review, we agree with the defendants that the case is moot.
Article III of the Constitution provides that the judicial power of the United States shall extend to “cases” and “controversies.” U.S. CONST. art. III § 2. “[F]ederal courts may adjudicate only actual, ongoing cases or controversies.” Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477 (1990). “It is a basic principle of Article III that a justiciable case or controversy must remain ‘extant at all stages of review, not merely at the time the complaint is filed.’ ” United States v. Juvenile Male, 564 U.S. 932, 936 (2011) (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997)). “Federal courts may not ‘decide questions that cannot affect the rights of litigants in the case before them’ or give ‘opinion[s] advising what the law would be upon a hypothetical state of facts.’ ” Chafin v. Chafin, 568 U.S. 165, 172 (quoting Lewis, 494 U.S. at 477). “A case becomes moot, and therefore, no longer a ‘Case’ or ‘Controversy’ for
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purposes of Article III, ‘when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome.’ ” Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982)).
As Magistrate Judge Carlson pointed out in his R&R, an exception arises to this rule when a challenged action is “too short to be fully litigated prior to cessation or expiration,” and “there is a reasonable expectation that the same complaining party will be subject to the same action again.” Rendell v. Rumsfeld, 484 F.3d 236, 241 (3d Cir. 2007) (quoting Spencer v. Kemna, 523 U.S. 1, 17 (1998)). We also agree with the magistrate judge that this exception is “narrow and available ‘only in exceptional situations.’” Id. (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983)).
As Magistrate Judge Carlson discussed in his R&R, this case meets the first element of this test. Because the plaintiff is still within the custody of the BOP, and the BOP has declined to guarantee the plaintiff with comparable access to a videophone if he were to be returned to prison, the injury is capable of repetition. Further, with an expected release date of October 14, 2019, the plaintiff’s remaining time in custody of the BOP would potentially be too short to fully litigate the case. (Doc. 55, Joint Status Update, defendants’ ¶ 2).
We disagree, however, with Magistrate Judge Carlson’s application of the second element of this test. It cannot be said that there is a reasonable
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expectation the plaintiff will be subject to the same action again when he is currently on home detention. Here, the plaintiff’s projected release date of October 14, 2019 is approximately two months from the issuing of this opinion. Nothing indicates that the plaintiff is likely to return to federal prison.
While it is true that the conditions of his confinement are subject to change, no evidence suggests that the plaintiff will be subject to the same harm, or a collateral harm for that matter, again. In fact, at the time the complaint was filed, FCI Schuylkill did not have a videophone, and the complaint sought the installation of, and access to, a videophone. (Doc. 1, Addendum Clause ¶¶ a-e). The parties agree that now, a videophone has been installed. Additionally, there was never any assertion that after its installation the defendants denied videophone access to the plaintiff. Thus, plaintiff seeks something he was never denied, that is, access to the installed video phone. Because he was never denied such access, we cannot hold that he has suffered an injury that is capable of repetition. Indeed, even prior to the installation of the videophone, the plaintiff had access to the TTY system at the prison to make calls. Therefore, we cannot find that this litigation remains a live case or controversy for the purposes of Article III of the constitution, and we must deem it to be moot.
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Conclusion For the foregoing reasons, we find that the RA does provide the plaintiff
with a cause of action against the BOP, but this case is moot. Thus, we will adopt Magistrate Judge Carlson’s R&R in part and deny it in part. An appropriate order follows.

Date: August 6, 2019

BY THE COURT:
s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Judge

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