Case 4:09-cv-00786 Document 9 Filed in TXSD on 06/03/09 Page 1 of 7

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

JEREMY JOSEPH DURRENBERGER, §

§

Plaintiff

§

v.

§

§

§

TEXAS DEPARTMENT OF

§

CRIMINAL JUSTICE,

§

§

Defendant

§

CIVIL ACTION NO. 4:09-CV-00786

FIRST AMENDED COMPLAINT Plaintiff Jeremy Durrenberger respectfully files this amended complaint and would show:
STATEMENT OF CLAIM 1. Jeremy Durrenberger, a person with a physical disability that causes a hearing impairment, brings this action through counsel for declaratory and injunctive relief, attorneys’ fees, costs, and litigation expenses against Defendant Texas Department of Criminal Justice (TDCJ) for violations of Title II of the Americans with Disabilities Act, 42 U.S.C. §12181 ("ADA"), Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504”), and Chapter 121 of the Texas Human Resources Code, Tex. Hum. Res. Code Ann. §121.001, et seq. (“Chapter 121"). 2. Defendant has denied Plaintiff a reasonable accommodation to properly communicate while visiting his friend, an inmate at Defendant’s Alfred Hughes facility.
JURISDICTION AND VENUE 3. This action is brought pursuant to the ADA and Section 504. Jurisdiction is based on 28 U.S.C. §§ 1331, 1343(a)(3)(4), and 2201 and the foregoing federal statutory and constitutional provisions.

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4. Plaintiff invokes supplemental jurisdiction to hear his state law claims pursuant to 28 U.S.C. § 1367(a).
5. Venue is proper in this court under 28 U.S.C. § 1391(b)(1) as Defendant resides in this district.
PARTIES 6. Jeremy Durrenberger resides in Montgomery County, Texas and is an individual with a physical disability that substantially impairs his ability to hear. He is a “qualified individual with a disability” within the meaning of ADA Title II and Chapter 121. 7. TDCJ is an agency of the State of Texas. It can be served with process by serving Brad Livingston, Executive Director for TDCJ, at 861 B IH 45 North, Huntsville, Texas 77320.
FACTUAL ALLEGATIONS 8. Because of Mr. Durrenberger’s disability, certain accommodations are necessary to allow him access to facilities, services, and programs at TDCJ. Mr. Durrenberger has a forty percent hearing loss. He has difficulty hearing when a speaker is not face to face with him at close proximity, when speech is spoken at a soft level, and when there is background noise present or there is more than one person speaking at the same time. 9. On February 22, 2009, Mr. Durrenberger went to TDCJ’s Alfred Hughes Unit in order to visit with his friend, who is an inmate at the facility. 10. Upon his arrival to the visitation area, Mr. Durrenberger requested an accommodation for his hearing disability from the correctional officer on duty. Mr. Durrenberger was told that no such accommodation was available, and was then told to speak with the lieutenant in the Unit’s front office.
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11. When Mr. Durrenberger approached the front office, he spoke with three correctional officers and informed them that he was requesting an accommodation because his hearing impairment made it impossible for him to hear his friend in the visitation room.
12. One of the officers informed Mr. Durrenberger that the Unit was accessible to people with disabilities because the facility had wheelchair ramps, and hearing loss was “not a disability.” Another officer, who Mr. Durrenberger was told was a captain, told him that there was no requirement that the Unit accommodate people with hearing impairments. Mr. Durrenberger was told to contact the senior warden’s office the next business day.
13. After the officers refused to accommodate his disability, Mr. Durrenberger visited his friend, but he could not hear his friend during the visit. TDCJ required Mr. Durrenberger to speak with his friend through a plexiglass partition over a telephone. There was substantial background noise in the visitation room as many other families were visiting prisoners, and the telephone handset’s volume could not be adjusted to allow Mr. Durrenberger to hear what his friend was saying.
14. On February 23, 2009, Mr. Durrenberger called the unit and spoke with the warden’s administrative assistant. Mr. Durrenberger requested an accommodation for his disability, specifically an amplifying device for the telephone receiver or that he be allowed to visit his friend in an attorney booth or have a “contact” visit where he would not be required to speak with his friend over the telephone. Mr. Durrenberger was told by the assistant that she did not know of any requirement that the unit had to accommodate people with hearing impairments.
15. After speaking with the assistant, Mr. Durrenberger contacted TDCJ’s headquarters in Huntsville, Texas and spoke with four employees, none of whom claimed to know about any obligation to accommodate people with hearing impairments.
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16. TDCJ and its employees intentionally discriminated against Mr. Durrenberger by refusing to accommodate his disability. Defendants knew about Mr. Durrenberger’s disability but intentionally refused to provide him an accommodation, going so far as to tell him he wasn’t “really disabled” because he did not use a wheelchair.
17. On March 29, 2009, Mr. Durrenberger again went to TDCJ’s Alfred Hughes Unit in order to visit with his friend. Mr. Durrenberger again requested an accommodation for his hearing disability, and was told by the warden that the only thing he could do was to put Mr. Durrenberger and his friend at the end of the visitation room, which did not eliminate the background noise. Mr. Durrenberger was still unable to hear his friend during that visit.
18. Mr. Durrenberger intends to continue to make weekly visits to TDCJ facilities for the duration of his friend’s incarceration.
19. Prior to his friend’s criminal conviction, Mr. Durrenberger visited him in the Harris County Jail. During these visits, the jail placed Mr. Durrenberger and his friend in an attorney visit booth, a reasonable accommodation which enabled Mr. Durrenberger to hear his friend.
CAUSES OF ACTION Title II of the ADA and Section 504 of the Rehabilitation Act 20. Section 504 requires recipients of federal funds to reasonably accommodate persons with disabilities in their facilities, program activities, and services. It further requires such recipients to modify such facilities, services, and programs as necessary to accomplish this purpose. TDCJ has been, and is, a recipient of federal funds, and is subject to the mandate of Section 504. 21. Further, Title II of the ADA applies to TDCJ. Title II has the same mandate as Section 504.
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22. The ADA and Section 504 define discrimination as the failure to take necessary steps to ensure no individual with a disability is excluded, denied services, segregated, or otherwise treated differently than other individuals because of the absence of services for the disabled. Such services include provisions necessary to achieve effective communication.
23. The Alfred Hughes Unit of TDCJ is a facility, and its operation comprises a program and service, for Section 504 and ADA purposes.
24. For purposes of the ADA and Section 504, Mr. Durrenberger is a qualified individual with a physical impairment that substantially limits one or more major life activities.
25. TDCJ failed and refused to reasonably accommodate Mr. Durrenberger’s hearing disability, in violation of the ADA and Section 504, when he visited his friend at the Alfred Hughes Unit.
Violations of Chapter 121 26. Chapter 121 specifically addresses the ability of people with disabilities to integrate fully into society. Chapter 121 states the policy of Texas “is to encourage and enable persons with disabilities to participate in the social and economic life of the state, to achieve maximum personal independence, to become gainfully employed, and to otherwise fully enjoy all public facilities within the state.” Tex. Hum. Res. Code Ann. 121.001 (Vernon 2004). 27. TDCJ’s barriers have denied Mr. Durrenberger the opportunity to participate in or benefit from a good, service, or accommodation that is equal to that afforded other individuals because of his disability, in violation of Tex. Hum. Res. Code Ann. § 121.001, et seq.
INJUNCTIVE RELIEF 28. Mr. Durrenberger will continue to experience unlawful discrimination as a result of Defendant’s failure to comply with the ADA, Section 504 and Chapter 121. Injunctive relief is necessary so all individuals with hearing disabilities can access TDCJ’s services, as required
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by law, and to require Defendant to modify the visitation program to ensure it is accessible to persons with disabilities, including Mr. Durrenberger.
DECLARATORY RELIEF 29. Plaintiff is entitled to declaratory judgment concerning Defendant's violations of the ADA, Rehabilitation Act, and the Texas Declaratory Judgment Act, specifying the rights of individuals with disabilities to access the facilities, services, and programs at TDCJ.
DAMAGES 30. Plaintiff is entitled to damages in the amount of at least $100 per violation of Chapter 121 by Defendant, pursuant to Tex. Hum. Res. Code Ann. § 121.004(b). 31. Plaintiff is entitled to damages under the ADA, and Section 504.
ATTORNEYS’ FEES AND COSTS 32. Plaintiff is entitled to reasonable attorneys’ fees and court costs, pursuant to the ADA, Rehabilitation Act and the Texas Declaratory Judgment Act.
PRAYER FOR RELIEF Therefore, Plaintiff respectfully requests this Court to award the following relief: A. A permanent injunction, requiring Defendant, its agents, servants, and employees, and
all persons acting in concert with Defendant, to eliminate all barriers described herein that prevent Plaintiff from having access to the services, facilities, programs and accommodations at TDCJ facilities; and enjoining Defendant from violating the ADA, Rehabilitation Act and Chapter 121 and from discriminating against Plaintiff in violation of the law; B. A declaratory judgment that Defendant's barriers have prevented, and continue to prevent, Plaintiff from fully communicating in visitation, in violation of the ADA, Rehabilitation Act and Chapter 121; C. Damages in the amount of at least $100 per violation of Chapter 121 by Defendant, pursuant to Tex. Hum. Res. Code Ann. § 121.004(b); D. Find that Plaintiff is the prevailing party in this action, and order Defendant liable for Plaintiff’s attorneys' fees, costs, and litigation expenses: and; E. Grant such other and additional relief to which Plaintiff may be entitled.
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Dated: June 3, 2009.

Respectfully submitted,
___________________________________ Peter (Jody) Barton State Bar No. 24036196 Lauren Izzo Application for Admission pending State Bar No. 24065482 Scott Medlock State Bar No. 24044783 Wayne Krause State Bar No. 24032644 James C. Harrington State Bar No. 09048500
TEXAS CIVIL RIGHTS PROJECT 1405 Montopolis Drive Austin, Texas 78741-3438 (512) 474-5073 [phone] (512) 474-0726 [fax]
ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE
I certify that on May 14, 2009, a true copy of this document was sent to counsel for Defendants, Susan Werner, P.O. Box 12548, Austin, TX 78711-2548, (512) 495-9139 through the Court’s electronic filing system.
/s/ Lauren Izzo Lauren Izzo

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 Case 4:09-cv-00786 Document 40 Filed in TXSD on 09/24/10 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

JEREMY JOSEPH DURRENBERGER, Plaintiff,
v.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
Defendant.

§ § § § CIVIL ACTION NO. 4:09-CV-00786 § § § §

DEFENDANT, THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE’S, MOTION FOR SUMMARY JUDGMENT

GREG ABBOTT Attorney General of Texas
DANIEL T. HODGE First Assistant Attorney General
BILL COBB Deputy Attorney General for Litigation
RUTH R. HUGHS Director of Defense Litigation

DAVID A. TALBOT, JR., Assistant Attorney General Chief, Law Enforcement Defense Division
SUSAN E. WERNER Assistant Attorney General
P.O. Box 12548, Capitol Station Austin, Texas 78711
Phone No. (512) 463-2080 Fax No. (512) 495-9139

ATTORNEYS FOR DEFENDANT

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TABLE OF CONTENTS TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii INDEX OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii, iv STATUES, RULES AND CODES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv NATURE AND STAGE OF PROCEEDINGS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STANDARD OF REVIEW AND STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . 3
ISSUE: Whether TDCJ is entitled to Eleventh Amendment immunity to Durrenberger’s ADAAA and RA claims.. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ISSUE: Whether Durrenberger is a qualified individual with a disability and whether TDCJ reasonably accommodated his disability.. . . . . . . . . . . . . . . . . . . . . . 3
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 ARGUMENT AND AUTHORITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
I. Eleventh Amendment immunity precludes Durrenberger’s ADAAA and RA claims against TDCJ.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
II. Durrenberger is not a qualified individual with a disability under the ADAAA or RA and reasonable accommodation is available for Durrenberger’s disability... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 NOTICE OF ELECTRONIC FILING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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INDEX OF AUTHORITIES

CASES

PAGE

Albertson’s Inc. v. Kirkingburg, 119 S. Ct. 2162, 2169(1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2510 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Board of Trustees of the University of Alabama v. Garrett, 121 S.Ct. 955 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2552 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Chase v. Baskerville, 508 F.Supp.2d 492 (E.D. Va. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

City of Boerne v. P. F. Flores, 117 S.Ct. 2157, (1997).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

City of Cleburne, Texas v. Cleburne Living Center, 105 S.Ct. 3249, 3257-3258 (1985).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Kemp v. Holder, 610 F.3d 231, 234 (5th Cir. 2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Kimel v. Florida Board of Regents, 120 S.Ct. 631, 640 & 644 (2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Matsushita Electric Industrial Co., v. Zenith Radio Corp., 106 S.Ct. 1348, 1356 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Overton v. Bazzetta, 123 S.Ct. 2162, 2167, 2169 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Pace v. Bogalusa City School Board, 403 F.3d 272, 278, 281 (5th Cir. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Perez v. Region 20 Education Services Center, 307 F.3d 318, 332 (5th Cir. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Reeves v. Sanderson Plumbing Prods., 120 S.Ct. 2097, 2110 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

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Seminole Tribe of Fla. v. Florida, 116 S.Ct. 1114, 1125 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Tennessee v. Lane, 124 S.Ct. 1978, 1993-1994 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 7
United States v. Georgia, 126 S.Ct. 877, 882 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
U. S. Airways, Inc. v. Barnett, 122 S.Ct. 1516, 1522-1523 (2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Walker v. Texas, Office of the Attorney General, 217 F.Supp. 2d 776 (E.D. Tex. 779-780). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

STATUES, RULES AND CODES

PAGE

Title 29 U.S.C. §504. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Title 42 U.S.C. § 12102 (2) (A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Title 42 U.S.C. § 12131-12133. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Title 42 U.S.C. § 12131 (2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Title 42 U.S.C. § 12132. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Title 42 U.S.C. § 12202. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

JEREMY JOSEPH DURRENBERGER, Plaintiff,
v.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
Defendant.

§ § § § CIVIL ACTION NO. 4:09-CV-00786 § § § §

DEFENDANT, THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE’S, MOTION FOR SUMMARY JUDGMENT

TO THE UNITED STATES DISTRICT JUDGE SIM LAKE:

Pursuant to Rule 56 of the FEDERAL RULES OF CIVIL PROCEDURE, the Defendant, The Texas

Department of Criminal Justice (TDCJ), by and through counsel, the Texas Attorney General submits

this, its Motion for Summary Judgment:

NATURE AND STAGE OF PROCEEDINGS

Plaintiff, Durrenberger, has filed a discrimination suit against the Texas Department of

Criminal Justice (TDCJ). Durrenberger was a visitor at the Hughes Unit of TDCJ. He sues pursuant

to the ADA Amendments Act of 2008, Title II, the Rehabilitation Act of 1973 and Texas state statutes

alleging a hearing disability and claiming TDCJ did not make accommodations during his visits with

an inmate. Plaintiff has amended his original complaint once. Title 42 U.S.C. § 12131-12133; Title

29 U.S.C. §504. Defendants have answered asserting their Eleventh Amendment and sovereign

immunity. Initial disclosures have been traded. Discovery is complete. Trial (jury) is scheduled in

January 2011.

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STATEMENT OF FACTS In the Spring of 2009, Inmate Bryson began serving a sentence at TDCJ for an aggravated assault on the Plaintiff in this case, Jeremy Durrenberger. (Appendix pg. 2 ¶ #4) While Inmate Bryson was serving his time at the Hughes prison unit, he and Durrenberger visited several times. (Appendix pg. 22) Durrenberger has a hearing impairment and claims the visits, which occurred in a partitioned glass booth with phones for the visitor and for the inmate were difficult because it was noisy. (Appendix pg. 2 ¶ #3 & ¶ #4 & pg. 5) Durrenberger asked that he be accommodated with a contact visit. (Appendix pg. 2 ¶ #4) His request was denied because by policy contact visits are limited to family members. (Appendix pgs. 1-2 ¶ #3) In the contact visits which occur in the same room as the phone booth visits, the inmates sit at tables across from their visitors. (Appendix pgs. 6, 7) Contact visits are limited because they present an increased risk of assault or passing of contraband. (Appendix pgs. 1-2 ¶ #3-4) This is of particular concern where there is already a history of violence as with Inmate Bryson and Durrenberger. (Appendix pg. 2 ¶ #4 & pg. 5) These two individuals are not related. All the visits, both contact and phone booth occur in the same large concrete room which holds about a 100 people. (Appendix pgs. 1-2 ¶ #3 & pg. 7) The correctional officers try to keep the noise level down by walking the room and by cautioning the crowd and sometimes individuals to keep the noise level low. (Appendix pg. 2 ¶ #3 & pg. 7) Durrenberger was given a couple of contact visits though it was against policy. (Appendix pg. 2 ¶ #4 & pg. 5 & pg. 22) He was also allowed to use the end phone booth which was thought to be less noisy. (Appendix pg. 2 ¶#4 & pg. 6) He was not given the end booth on each demand because the booths are assigned randomly to prevent contraband drops. (Appendix pg. 2 ¶#3) Durrenberger did not bring any hearing prosthetic devices with him and has not used any in the past. (Appendix pg. 2 ¶#4 & pg. 21) He did not
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request that Inmate be given pen and paper to use in the phone booth though these are available. (Appendix pg. 2 ¶#4 & pg. 6) Beyond the weekly visitation, Inmate Bryson and Durrenberger can communicate by letter and by use of the day room phone, where the inmate can place a call to freeworld individuals. (Appendix pg. 2 ¶#4)

STANDARD OF REVIEW AND STATEMENT OF THE ISSUES

Rule 56 of the FEDERAL RULES OF CIVIL PROCEDURE provides summary judgment shall be

granted if there is no genuine issue of material fact and the movant is entitled to judgment as a matter

of law. Neither party may rest on pleadings or conclusions to demonstrate the absence or existence

of a genuine issue of material fact. Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2552 (1986). A fact is

material if the resolution of the fact would affect the outcome of the case under governing law.

Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2510 (1986). A material fact is genuine if a

reasonable fact finder could return a verdict for the non-moving party. Anderson v. Liberty Lobby,

Inc., 106 S.Ct. 2505, 2510 (1986). The Court reviews the record taken as a whole and draws all

reasonable inferences in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods., 120

S.Ct. 2097, 2110 (2000); Matsushita Electric Industrial Co., v. Zenith Radio Corp., 106 S.Ct. 1348,

1356 (1986).

ISSUE:

Whether TDCJ is entitled to Eleventh Amendment immunity to Durrenberger’s ADAAA and RA claims.

ISSUE:

Whether Durrenberger is a qualified individual with a disability and whether TDCJ reasonably accommodated his disability.

SUMMARY OF THE ARGUMENT TDCJ asserts it is entitle to Eleventh Amendment immunity to Durrenberger’s ADAAA and RA claims because the accommodations imposed by the ADAAA are incongruent with any wrong

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committed and particularly in proportion to the security concerns of a prison setting. In relation to the RA, TDCJ asserts Durrenberger has not established TDCJ’s receipt of federal funds is related to Hughes Unit visitation facilities. TDCJ further asserts it is entitled to sovereign immunity to Durrenberger’s claims against it under state statutes. Lastly, TDCJ asserts Durrenberger is not a qualified individual with a disability and that it provided reasonable accommodation.
ARGUMENT AND AUTHORITY I. Eleventh Amendment immunity precludes Durrenberger’s ADAAA and RA
claims against TDCJ. The Eleventh Amendment of the United States Constitution bars damage suits in federal court against a state unless 1) the state, itself, waives its immunity or 2) the United States Congress by valid unequivocal legislation overrides the states’ Eleventh Amendment. Kimel v. Florida Board of Regents, 120 S.Ct. 631, 640 & 644 (2000). In the ADA, § 12202 Congress expressed an unequivocal desire to abrogate the states’ sovereign immunity. Title 42 U.S.C. § 12202. Congressional desire however, cannot be substantiated unless joined with the valid authority provided in §5 of the Fourteenth Amendment. Seminole Tribe of Fla. v. Florida,, 116 S.Ct. 1114, 1125 (1996). For example, despite the unequivocal desire of Congress to waive immunity in the ADA, Title I of the ADA, has been determined to not abrogate the states’ immunity. Board of Trustees of the University of Alabama v. Garrett, 121 S.Ct. 955 (2001). Further, the Congressional attempt to override the Eleventh Amendment in Title II of the ADA has been limited to the application of fundamental rights, such as, failure to accommodate the disabled in access to the courts or conduct that actually violates the Fourteenth Amendment. Tennessee v. Lane, 124 S.Ct. 1978, 1993-1994 (2004); United States v. Georgia, 126 S.Ct. 877, 882 (2006). To determine if legislation against a state is within the parameters of the §5 enforcement powers of the Fourteenth Amendment courts weigh the legislated
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remedy with the misconduct.1 City of Boerne v. P. F. Flores, , 117 S.Ct. 2157, (1997). Because this case is in a prison setting, the traditional deference provided state administration of prisons should be factored into the City of Boerne congruence and proportionality paradigm. Overton v. Bazzetta, 123 S.Ct. 2162, 2167, 2169 (2003)(Freedom of association protected in the First Amendment is among the rights least compatible with incarceration.) See also: Chase v. Baskerville, 508 F.Supp.2d 492 (E.D. Va. 2007)
Eleventh Amendment also precludes federal jurisdiction against the states under state statutes. Perez v. Region 20 Education Services Center, 307 F. 3d 318, 332 (5th Cir. 2002; Walker v. Texas, Office of the Attorney General, 217 F.Supp. 2d 776 (E.D. Tex. 779-780).
Durrenberger seeks to alter prison visitation procedures imposing the reasonable accommodation standard of the ADA and thereby requiring auxiliary listening devices or contact visits for himself as a hearing impaired individual. TDCJ asserts the ADA standard is not consistent with the state’s interest in providing a secure facility while at the same time maximizing visitation privileges. TDCJ asserts imposition of ADA accommodations without deference to prison security is beyond §5 enforcement powers afforded Congress under the Fourteenth Amendment.
In this case, Durrenberger seeks to accommodate his hearing impairment with a contact visit or an auxiliary hearing device. TDCJ allows for contact visits only with family. (Appendix pg. 1 ¶#3) Durrenberger is not related to the individual he was visiting. Contact visits are restricted to family because such visits necessitate increased vigilance for contraband and personal safety requiring more security personnel. (Appendix pg. 1 ¶#3) Durrenberger sought a contact visit with an inmate
1 Arguably a more restrictive liability standard would be implicated since the disabled are not a suspect class under the Equal Protection Clause, however, defendant does not address this test since plaintiff fails the less restrictive congruency and proportionality test. Tennessee v. Lane, , 124 S.Ct. 1978, 1994 ( 2004) citing City of Cleburne, Texas v. Cleburne Living Center, 105 S.Ct. 3249, 3257-3258 (1985).
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Case 4:09-cv-00786 Document 40 Filed in TXSD on 09/24/10 Page 10 of 14
who is serving time for a violent assault on Durrenberger. (Appendix pg. 2 ¶#4 & pg. 5) The fact that Durrenberger was not family and the inmate had previously assaulted Durrenberger increases the possibility of another attack dictating denial of a contact visit. (Appendix pg. 2 ¶#4) Prison officials are charged not just with the safety of the inmates but with the safety of staff and other visiting public. (Appendix pg. 1 ¶#2 & ¶#3) TDCJ therefore asserts a contact visit accommodation is inconsistent with its primary duty of security. TDCJ provides for visitation through a glass panel with a phone extension. (Appendix pg. 1-2 ¶#3-4) The phone booth serves as an accommodation because it isolates the conversation between the inmate and visitor. (Appendix pg. 2 ¶#3) And, on occasion, security officials permitted Durrenberger to visit in a quieter booth near the end though they did not guarantee this accommodation. (Appendix pg. 2 ¶#4 & pg. 6 & pg. 22) The end booth was not promised for each visit because choosing booths other than randomly imposes more monitoring on security personnel. (Appendix pgs. 1- 2 ¶#3) For instance, use of the same booth by the same individual for each visit could aid in a contraband drop. (Appendix pg. 2 ¶#3) Also, beyond visits, TDCJ provides for communication outside of the prison by letter and on occasion by phone calls by the inmate from the dayroom. (Appendix pg. 2 ¶#4) Lastly, were TDCJ to provide an auxiliary device, beyond the monetary expense of the device it would need to be at each unit where Durrenberger visited along with record of the necessary exception requiring a further diversion of resources. Durrenberger did not bring an auxiliary device with him. (Appendix pg. 15) Individuals who have hearing aids are allowed to use the aids at visitation. (Appendix pg. 2 ¶#4)
In summary, the paradox in this case, is the broad statutorily imposed ADA obligation of accommodation to all disabled individuals and the limited constitutional obligations imposed on state prison operations. TDCJ asserts it is entitled to Eleventh immunity because the accommodations Durrenberger seeks to impose by the ADA are incongruent with legitimate penological interests of prison visitation restrictions.
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Case 4:09-cv-00786 Document 40 Filed in TXSD on 09/24/10 Page 11 of 14
II. Durrenberger is not a qualified individual with a disability under the ADAAA or RA and reasonable accommodation is available for Durrenberger’s disability.
Title II of the ADA and the RA 2provide that no qualified individual with a disability shall by reason of such disability be excluded from participation in or denied the benefits of the services, programs, or activities of a public entity. Title 42 U.S.C. § 12132. The term disability is defined as a physical impairment that substantially limits one or more of the major life activities of the individual. Title 42 U.S.C. §12102 (2) (A). Existence of an impairment does not equal a disability absent a substantial limit on a major life activity. The determination is made on a case by case basis. Albertson’s Inc. v. Kirkingburg, 119 S. Ct. 2162, 2169(1999) An individual qualifies as an individual with a disability, if with or without reasonable accommodation such individual meets the essential eligibility requirements for receipt of services or participation in programs or activities provided by a public entity. Title 42 U.S.C. § 12131 (2). The sufficiency of an accommodation does not demand action beyond the realm of reason. U. S. Airways, Inc. v. Barnett, 122 S.Ct. 1516, 1522-1523 (2002); Tennessee v. Lane, 124 S.Ct. 1978, 1993 (2004)(Title II does not require States to employ any and all means to make services accessible to the disabled, it does not require States to compromise essential eligibility criteria)
In this case, Durrenberger claims a hearing impairment during visitation and wants to be accommodated by a contact visit. Visitation is inherently noisy as friends and family meet with inmates for a limited time once a week. (Appendix pg. 2 ¶#2 & pg. 6) TDCJ asserts that the average person also experiences hearing difficulties during visits, thus, Durrenberger has not demonstrated he is disabled. Further, Durrenberger is not a qualified individual for a contact visit
2
The RA and the ADA are judged under the same legal standards. Kemp v. Holder,, 610 F.3d 231, 234 (5th Cir. 2010). Though TDCJ is in receipt of federal funds which may serve as a consent to waive Eleventh Amendment immunity under the RA, federal funds are not expended in the Hughes Unit visitation program. (Appendix pgs 2-3 #5) TDCJ asserts in the issue before this court, Hughes Unit visitation, it maintains its immunity to both statutes. Pace v. Bogalusa City School Board, 403 F.3d 272, 278, 281 (5th Cir. 2005).
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Case 4:09-cv-00786 Document 40 Filed in TXSD on 09/24/10 Page 12 of 14
accommodation because he is not related to the individual inmate he is visiting and because he presents a unique threat to security because of the inmate’s past assault on Durrenberger. (Appendix pg. 1-2 ¶#3-4 & pg. 5) Nor is he qualified to have a specific end booth assigned again because of the increased security threat of the booth being utilized as a contraband drop. (Appendix pg. 1-2 ¶#3-4 & pg. 6) Durrenberger also wants an accommodation by the installation of an auxiliary listening device. Notably Durrenberger admits he does not use an auxiliary listening device such as he is requesting TDCJ provide for him. (Appendix pg. 21) While 2008 amendments to the ADA prohibit consideration of corrective devices in determining if his impairment is a disability, it can be considered to evidence the reasonableness of TDCJ’s accommodation. TDCJ should not be required to accommodate with a device Durrenberger himself has not seen to use in his daily life activities. Lastly, within the confines of prison security, TDCJ has accommodated Durrenberger with: 1) use of the direct phone connection through the glass, 2) with pen and paper if he so requested, and 3) by letters or calls from the inmate during dayroom hours. (Appendix pg. 1-2 ¶#3-4) TDCJ asserts Durrenberger is not a qualified disabled individual and that it has reasonably accommodated his impairment.
CONCLUSION TDCJ moves the Court dismiss, Durrenbergers claims and enter judgment in their behalf based on their Eleventh Amendment and sovereign immunity and because Durrenberger has not demonstrated he is within the protection of the ADAAA or RA.
Respectfully submitted, GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General
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Case 4:09-cv-00786 Document 40 Filed in TXSD on 09/24/10 Page 13 of 14
BILL COBB Deputy Attorney General for Civil Litigation RUTH R. HUGHS Director of Defense Litigation DAVID A. TALBOT, JR. Assistant Attorney General Chief, Law Enforcement Defense Division /s/ Susan E. Werner SUSAN E. WERNER Assistant Attorney General Attorney-in-Charge State Bar No. 21190350 Southern District Fed. I.D. No. 9852 P. O. Box 12548, Capitol Station Austin, Texas 78711 512-463-2080 / 512-495-9139 (fax) ATTORNEYS FOR DEFENDANTS
NOTICE OF ELECTRONIC FILING I, SUSAN E. WERNER, Assistant Attorney General of Texas, do hereby certify that I have electronically submitted for filing, a true and correct copy of the above an foregoing Defendant, the Texas Department of Criminal Justice’s, Motion for Summary Judgment in accordance with the Electronic Case Files system of the Southern District of Texas, on this the 24th day of September 2010.
/s/ Susan E. Werner SUSAN E. WERNER Assistant Attorney General
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Case 4:09-cv-00786 Document 40 Filed in TXSD on 09/24/10 Page 14 of 14

CERTIFICATE OF SERVICE

I, SUSAN E. WERNER, Assistant Attorney General of Texas, does certify that a true and

correct copy of Defendant, the Texas Department of Criminal Justice’s, Motion for Summary

Judgment has been served by placing same in the United States Postal Service, postage prepaid, certified return receipt requested, on this 24th day of September 2010, addressed to:

Lauren Izzo TEXAS CIVIL RIGHTS PROJECT 1405 Montopolis Drive Austin, Texas 78741-3438 Counsel for Plaintiff

Via CM/RRR 7010 1060 0000 3698 5253 and Electronic Mail

/s/ Susan E. Werner SUSAN E. WERNER Assistant Attorney General

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 Case 4:09-cv-00786 Document 41 Filed in TXSD on 09/24/10 Page 1 of 19

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

JEREMY JOSEPH DURRENBERGER, §

§

Plaintiff

§

v.

§

§

§

TEXAS DEPARTMENT OF

§

CRIMINAL JUSTICE,

§

§

Defendant

§

CIVIL ACTION NO. 4:09-CV-00786

PLAINTIFF JEREMY DURRENBERGER’S MOTION FOR SUMMARY JUDGMENT AGAINST TDCJ

Case 4:09-cv-00786 Document 41 Filed in TXSD on 09/24/10 Page 2 of 19
TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii
STATEMENT OF CASE: TDCJ’S FACILITY DOES NOT PROVIDE ACCOMMODATIONS FOR PEOPLE WITH HEARING DISABILITIES ............................ 1 SUMMARY OF ARGUMENT: TDCJ’S FAILURE TO ACCOMMODATE MR. DURRENBERGER VIOLATES FEDERAL AND STATE DISABILITY LAWS .................. 1 STATEMENT OF UNDISPUTED FACTS ............................................................................... 3 ARGUMENT & AUTHORITIES .............................................................................................. 6
A. Mr. Durrenberger has a “Disability” Under the ADA and Rehabilitation Act............. 7 B. TDCJ’s Visitation Program is a Service that Cannot be Denied to Mr. Durrenberger
by Reason of Disability ................................................................................................ 8 C. TDCJ Intentionally Discriminated Against Mr. Durrenberger by Reason of Disability
and is Liable for Damages ............................................................................................ 9 D. Mr. Durrenberger Faces a Real Threat that TDCJ Will Continue to Refuse Him
Accommodations and is Entitled to Injunctive Relief................................................ 12 E. TDCJ is in Violation of Chapter 121 of the Texas Human Resources Code ............. 13 ATTORNEYS' FEES................................................................................................................ 14 CONCLUSION......................................................................................................................... 14 CERTIFICATE OF SERVICE ..................................................................................................... 16
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TABLE OF AUTHORITIES
Cases Aikins v. St. Helena Hosp., 843 F. Supp. 1329 (N.D. Cal. 1994) ............................................... 8, 9 Badgley v. Law Sch. Admission Council, Inc., No. CIV.A. 4:99CV-0103-M, 2000 WL 33225418
(N.D. Tex. 2000) ....................................................................................................................... 14 Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-507 (1959).............................................. 12 Benavides v. Laredo Med. Ctr., No. L-08-105, 2009 WL 1755004 (S.D. Tex. June 18, 2009)... 12 Bennett-Nelson v. Louisiana Board of Regents, 431 F.3d 448, 455 (5th Cir. 2005) ...................... 7 Calmes v. U.S., 926 F.Supp. 582, 591 (N.D. Tex. 1996).............................................................. 12 City of L.A. v. Lyons, 461 U.S. 95, 111, 103 S.Ct. 1660 (1983) ................................................... 12 Condrey v. SunTrust Bank of Ga., 429 F.3d 556, 562 (5th Cir. 2005) ........................................... 6 Delano-Pyle v. Victoria County, Tex., 302 F.3d 567 (5th Cir. 2002) .................................. 8, 10, 11 Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000)............................................ 6 Lara v. Cinemark USA, Inc., No. EP-97-CA-502-H, 1999 WL 305108 (W.D. Tex. 1999)......... 13 Lightbourn v. County of El Paso, Tex., 118 F.3d 421, 428 (5th Cir. 1997).................................... 6 Niece v. Fitzner, 922 F. Supp. 1208 (E.D. Mich. 1996) ............................................................. 8, 9 Rothschild v. Grottenthaler, 907 F.2d 286 (2d Cir. 1990).............................................................. 8 Salinas v. City of New Braunfels, 557 F. Supp. 2d 777 (W.D. Tex. 2008)............................... 8, 10 Sossamon v. Lone Star State of Texas, 560 F.3d 316, 336 (5th Cir. 2009)..................................... 6 Standard Oil Co. v. Lopeno Gas Co., 240 F.2d 504, 509-510 (5th Cir. 1957)............................. 12
Statutes 28 C.F.R. § 35.104 .......................................................................................................................... 2 28 C.F.R. § 35.160 .......................................................................................................................... 2 29 U.S.C. § 705(20) .................................................................................................................... 1, 7 29 U.S.C. § 794 (2004) ............................................................................................................... 1, 2 29 U.S.C. § 794(a) (2004)......................................................................................................... 9, 14 29 U.S.C. § 794(a) (2006)............................................................................................................... 7 42 U.S.C. § 12102....................................................................................................................... 1, 7 42 U.S.C. § 12131........................................................................................................................... 1 42 U.S.C. § 12133........................................................................................................................... 7 42 U.S.C. §12132............................................................................................................................ 9 Tex. Hum. Res. Code Ann. 121.001 (Vernon 2004) ............................................................ 1, 3, 13 Tex. Hum. Res. Code Ann. § 121.004(b) ............................................................................... 12, 14
Rules Fed. R. Civ. P. 56(c) ....................................................................................................................... 6
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PLAINTIFF JEREMY DURRENBERGER’S MOTION FOR SUMMARY JUDGMENT AGAINST TDCJ
Plaintiff Jeremy Durrenberger asks the Court to render summary judgment against Defendant Texas Department of Criminal Justice (TDCJ) pursuant to Federal Rule of Civil Procedure 56, and conduct a hearing on appropriate relief. STATEMENT OF CASE: TDCJ’S FACILITY DOES NOT PROVIDE ACCOMMODATIONS
FOR PEOPLE WITH HEARING DISABILITIES Mr. Durrenberger sued TDCJ for its failure to accommodate him, an individual with a hearing disability, so that he may participate in the inmate visitation program at TDCJ’s Alfred Hughes Unit facility in Gatesville, Texas. Mr. Durrenberger asserts TDCJ is in violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (2004), Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131, and Chapter 121 of the Texas Human Resources Code, Tex. Hum. Res. Code Ann. 121.001 (Vernon 2004). TDCJ has limited Mr. Durrenberger’s ability to equally use its facilities, in violation of the law. Mr. Durrenberger therefore seeks declaratory and injunctive relief, damages, attorneys’ fees, and costs. SUMMARY OF ARGUMENT: TDCJ’S FAILURE TO ACCOMMODATE MR. DURRENBERGER VIOLATES FEDERAL AND STATE DISABILITY LAWS Mr. Durrenberger is a person with a hearing impairment and qualifies as a person with a disability under 42 U.S.C. § 12102 and 29 U.S.C. § 705(20). TDCJ’s facility does not provide accommodations for him, and other persons with hearing disabilities. The lack of accommodations denies Mr. Durrenberger the ability to participate in TDCJ’s inmate visitation program. TDCJ’s failure to provide accommodations is a violation of Section 504 of the
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Case 4:09-cv-00786 Document 41 Filed in TXSD on 09/24/10 Page 5 of 19
Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act, and Chapter 121 of the Texas Human Resources Code.
Mr. Durrenberger shows, given the lack of access to the programs of TDCJ’s facility, TDCJ has failed to comply with the requirements of the Rehabilitation Act. See 29 U.S.C. § 794(a) (2004) ("No otherwise qualified individual with a disability...shall...be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by an Executive agency...").
TDCJ must provide Mr. Durrenberger with auxiliary aids and services pursuant to federal regulations implementing the Rehabilitation Act and ADA. “A public entity shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity. In determining what type of auxiliary aid and service is necessary, a public entity shall give primary consideration to the requests of the individual with disabilities.” 28 C.F.R. § 35.160. “Auxiliary aids and services include[] [t]elephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids…or other effective methods of making aurally delivered materials available to individuals with hearing impairments.” 28 C.F.R. § 35.104.
TDCJ must furnish Mr. Durrenberger with auxiliary aids and services so that he has an equal opportunity to participate in TDCJ’s inmate visitation program. Pursuant to the implementing regulations, TDCJ must give primary consideration to Mr. Durrenberger’s requests, and provide him with a hearing amplification device for the telephone or some other effective method to accommodate his hearing impairment.
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TDCJ’s failure to provide hearing accommodations so that Mr. Durrenberger may participate in the inmate visitation program is also in violation of Chapter 121 of the Texas Human Resources Code. See Tex. Hum. Res. Code Ann. 121.001 (Vernon 2004) (“The policy of the state is to encourage and enable persons with disabilities to participate fully in the social and economic life of the state, to achieve maximum personal independence, … and to otherwise fully enjoy and use all public facilities available within the state”).
This case has larger dimensions than relief for a single plaintiff because, once TDCJ implements the accommodations and makes its facilities accessible, all persons with hearing disabilities will benefit from TDCJ’s compliance with state and federal law.
STATEMENT OF UNDISPUTED FACTS Plaintiff Jeremy Durrenberger has significant hearing loss and has difficulty hearing when a speaker is not in close proximity to him or when there is background noise present.1 Mr. Durrenberger’s hearing disability makes certain accommodations necessary to allow him access to certain facilities, services, and programs of Defendant TDCJ, such as visiting his friend, a prisoner at TDCJ’s facility.2 Mr. Durrenberger has received accommodations elsewhere in the past, including when he visited his friend in the Harris County Jail.3 The jail placed Mr. Durrenberger and his friend in an attorney visit booth, a reasonable accommodation that enabled Mr. Durrenberger to hear his friend.4 TDCJ has denied Mr. Durrenberger even this basic accommodation to allow him to properly communicate while visiting with his friend.5

1

Exhibit B, Declaration of Durrenberger, para.3 ; Exhibit C, Letter from Audiologist Dr. Brandy Jacobson.

2

Exhibit B, Declaration of Durrenberger, para. 7,8.

3

Id., para. 6.

4

Id., para. 6.

5

Exhibit D, Deposition of Fred Tadlock, p. 20:24-25; 21:1-14.

3

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On February 22, 2009, during visitation hours at TDCJ’s Hughes unit facility, Mr. Durrenberger requested an accommodation for his hearing disability in order to communicate properly with his friend.6 Four TDCJ officers at the facility denied him such accommodations.7 They went so far as to tell him that he was not physically disabled, and the prison did not have to accommodate him.8 One TDCJ officer commented the unit had wheelchair ramps and was therefore accessible to the physically disabled, and that a hearing impairment was not a physical disability.9 Although the visit did take place, TDCJ’s employees only allowed Mr. Durrenberger to speak with his friend through a plexiglass partition over a telephone receiver.10 Mr. Durrenberger could not hear his friend through the telephone receiver, unlike the other visitors who did not have hearing disabilities.11
On February 23, 2009, Mr. Durrenberger contacted the warden’s administrative assistant, and four other employees at TDCJ’s headquarters in Huntsville, Texas.12 Each TDCJ employee told him they were unaware of any requirements to accommodate people with hearing disabilities.13
On April 4, 2009, Mr. Durrenberger went again to the Hughes unit to visit his friend and requested an accommodation.14 Mr. Durrenberger asked for a contact visit and also asked for a volume control device on for the telephone receiver.15 Major Tadlock told him the only thing he

6

Exhibit B, Declaration of Durrenberger, para. 8

7

Id. para. 8

8

Id. para. 8

9

Id. para. 8

10

Exhibit B, Declaration of Durrenberger, para. 9

11

Id. para. 9. If a volume control device was used on the telephone receiver, that would have been another

way to accommodate Mr. Durrenberger. See Exhibit E, Expert Report of Ron McAndrew, p. 4.

12

Exhibit B, Declaration of Durrenberger, para. 10, 11.

13

Id. para. 11.

14

Id. para. 14.

15

Exhibit D, Deposition of Fred Tadlock, p.10:13-25; 11:1-5.

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could do was to put Mr. Durrenberger at the end of the visitation booths.16 Mr. Durrenberger was once again unable to hear his friend, since this purported “accommodation” did nothing to eliminate the background noise in the visitation room17 Id. The visitation room is large and loud, with concrete walls and floors, and can have up to 100 people talking inside.18
On at least two occasions when Mr. Durrenberger visited the Hughes Unit, TDCJ officers have allowed him to have “contact” visits with his friend.19 During a “contact” visit, the visitor and prisoner are seated together in the visitation room, and are not placed in a visitation booth. These visits took place without any incident. Mr. Durrenberger was later told allowing him to have “contact” visits was an “accident.”20 Nonetheless, because Mr. Durrenberger could easily communicate with his friend during these visits, this is a reasonable accommodation for his disability.
Mr. Durrenberger intended to make weekly visits to TDCJ’s facilities for the duration of his friend’s incarceration, but has stopped visiting his friend because TDCJ refused to allow them to actually communicate during their visits.21
TDCJ and its employees continue to intentionally discriminate against Mr. Durrenberger.22 TDCJ refuses to accommodate his hearing disability.23 TDCJ has no policies regarding accommodating visitors with hearing disabilities in visitation.24 TDCJ’s “Offender

16

Exhibit D, Deposition of Fred Tadlock, p. 11:13-22; 12:24-25; 13:1-5.

17

Exhibit B, Declaration of Durrenberger, para. 14.

18

Exhibit D, Deposition of Fred Tadlock, p.13:12-25, 14:1-2, 15:23-25, 16:1-4

19

Exhibit B, Declaration of Durrenberger, paras. 13-15.

20

See id.

21

Exhibit B, Declaration of Durrenberger, para. 20.

22

Exhibit B, Declaration of Durrenberger, para. 19, 20.

23

Id. para. 19, 20.

24

Exhibit E, Defendant TDCJ’s Response to Plaintiff Jeremy Durrenberger’s Interrogatory No. 3.

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Visitation Plan” is completely silent on accommodations for people with disabilities.25 As a result, Mr. Durrenberger is denied participation in TDCJ’s inmate visitation program.
TDCJ accepts federal financial assistance, requiring it to comply with the Rehabilitation Act. 26
ARGUMENT & AUTHORITIES There are no disputed material fact issues in this case. The undisputed facts show a clear violation of Mr. Durrenberger's rights under the Rehabilitation Act, the Americans with Disabilities Act, and the Texas Human Resources Code. “Summary judgment should be granted when the pleadings and the evidence demonstrate that no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law.” Sossamon v. Lone Star State of Texas, 560 F.3d 316, 336 (5th Cir. 2009), (citing Fed. R. Civ. P. 56(c); Condrey v. SunTrust Bank of Ga., 429 F.3d 556, 562 (5th Cir. 2005)). “A fact is ‘material’ if its resolution in favor of one party might affect the outcome of the lawsuit under governing law.” Id. (citing Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000)). As there is no material dispute about the facts of this case, Mr. Durrenberger is entitled to summary judgment. To establish discrimination under the ADA, a plaintiff must demonstrate: (1) that he is a qualified individual within the meaning of the ADA; (2) that he is being excluded from participation in, or being denied benefits of, services, programs, or activities for which the public entity is responsible, or is otherwise being discriminated against by the public entity; and (3) that such exclusion, denial of benefits, or discrimination is by reason of his disability. Lightbourn v. County of El Paso, Tex., 118 F.3d 421, 428 (5th Cir. 1997). The Rehabilitation Act follows the

25

Exhibit G, Offender Visitation Plan

26

Exhibit A, Defendant TDCJ’s Response to Plaintiff Jeremy Durrenberger’s Request for Admission No. 6.

See 29 U.S.C. § 794(a) (2006).

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same standard, adding only the requirement that the entity also receive federal funding, as TDCJ does. See 42 U.S.C. § 12133 (“The remedies, procedures, and rights set forth in section 505 of the Rehabilitation Act of 1973 shall be the remedies, procedures and rights this title provides to any person alleging discrimination on the basis of disability in violation of [Title II of the ADA]”); 29 U.S.C. § 794(a) (2006). Courts interpret the ADA and Rehabilitation Act under the same body of law. See, e.g., Bennett-Nelson v. Louisiana Board of Regents, 431 F.3d 448, 455 (5th Cir. 2005).
TDCJ’s intentional discrimination by reason of Mr. Durrenberger’s disability is a violation of these statutes as a matter of law, entitling him to summary judgment. A. Mr. Durrenberger has a “Disability” Under the ADA and Rehabilitation Act
Mr. Durrenberger is a qualified individual with a disability under the ADA and Rehabilitation Act. “The term ‘disability’ means, with respect to an individual--- a physical or mental impairment that substantially limits one or more major life activities of such individual … Major life activities include, but are not limited to…hearing…[and] communicating.” 42 U.S.C. § 12102. The Rehabilitation Act defines a person with a disability in the same way. “[T]he term individual with a disability means…any person who has a disability as defined in [the ADA] Section 12102 of Title 42.” 29 U.S.C. § 705(20).
Mr. Durrenberger has significant hearing loss.27 He has difficulty hearing when he is not face to face with someone or if there is background noise present.28 This impairment substantially limits his ability to hear and communicate.29 Multiple courts have treated hearing disabled people as qualified individuals within the meaning of the ADA and Rehabilitation Act.

27

Exhibit B, Declaration of Durrenberger, para. 3.

28

Id. para. 3.

29

Id. para. 3, 4.

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See, e.g., Delano-Pyle v. Victoria County, Tex., 302 F.3d 567 (5th Cir. 2002); Salinas v. City of New Braunfels, 557 F. Supp. 2d 777 (W.D. Tex. 2008); Rothschild v. Grottenthaler, 907 F.2d 286 (2d Cir. 1990); and Aikins v. St. Helena Hosp., 843 F. Supp. 1329 (N.D. Cal. 1994). B. TDCJ’s Visitation Program is a Service that Cannot be Denied to Mr. Durrenberger by Reason of Disability
TDCJ’s inmate visitation program qualifies as a service for purposes of the ADA and Rehabilitation Act. One court has considered the same circumstances of Mr. Durrenberger’s case. The court held that a prison’s provision of telephone access in visitation to prisoners was a “service” that was provided to persons who are not inmates and it could not be denied by reason of disability under the ADA. Niece v. Fitzner, 922 F. Supp. 1208 (E.D. Mich. 1996).
In Niece, a prisoner and his deaf fiancé brought suit under the ADA and Rehabilitation Act against the Michigan Department of Corrections and prison officials. Id. The only way Ms. Niece, who was deaf, could communicate with her fiancé the prisoner, was over the telephone through the use of a Telecommunications Device for the Deaf (TDD). Id. at 1212. The prison where her fiancé was incarcerated refused to accommodate them with the device, excluding Niece and her fiancé from participating in telephone communications. Id. After numerous complaints from Niece and her fiancé, the prison obtained the device but severely limited the inmate’s access to it. Id. at 1214.
The court held Niece met the eligibility requirement for services under the prison regulations, as she was one of the inmate’s designated visitors and had been allowed to visit him. Id. at 1217. The court also held that under the ADA, the prison had to make reasonable accommodations to provide for her disability. Id. at 1218.
In making its decision, the court relied on two similar cases. See Rothschild, 907 F.2d at 290 (holding that under the Rehabilitation Act, deaf parents of hearing school children are
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“‘otherwise qualified’ for the parent-oriented activities incident to their children's education”). See also, Aikins, 843 F. Supp. at 1329 (holding that a hospital must provide a sign language interpreter to a deaf woman during her husband’s illness).
In the instant case, TDCJ provides a service through its inmate visitation program. Like the court held in Niece, Mr. Durrenberger qualifies to participate in this program because he is an inmate’s visitor and has been allowed to visit him. Like the deaf plaintiff in Niece, Mr. Durrenberger requires certain accommodations to be able to communicate with his friend during TDCJ’s visitation program.
TDCJ’s refusal to provide hearing accommodations is intentional discrimination by reason of Mr. Durrenberger’s disability. TDCJ is in violation of the ADA and Rehabilitation Act by refusing to provide reasonable accommodations to Mr. Durrenberger, like a hearing amplification device or contact visit, so that he may properly participate in visitation. C. TDCJ Intentionally Discriminated Against Mr. Durrenberger by Reason of Disability and is Liable for Damages
TDCJ is in violation of law by intentionally discriminating against Mr. Durrenberger by reason of his disability. See 42 U.S.C. §12132 (“Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity”). See also, 29 U.S.C. § 794(a) (2004) (“No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency…”).
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The Fifth Circuit has considered cases concerning discrimination involving the hearing disabled and has held that the discrimination must be intentional in order for a plaintiff to recover damages. To prevail on a claim for damages under Section 504 or the ADA, a plaintiff must prove that the discrimination was intentional; proof of deliberate indifference is not required. Salinas, 557 F. Supp. 2d at 781-82 (denying City’s motion for summary judgment on the issue of whether the City intentionally discriminated against a deaf woman by failing to provide interpreter services while responding to her 911 call).
In Delano-Pyle, the Court held that the county violated the ADA and Rehabilitation Act when it failed to take into account a man’s serious hearing impairment during the process of arresting him for driving while intoxicated. Delano-Pyle, 302 F.3d at 567. Though the arresting officer was aware of the man’s serious hearing impairment, he proceeded to administer three sobriety tests without asking him what form of communication would be effective. Id. at 570. Because the man could not understand the officer, he was unable to follow the instructions for the field sobriety test and he was arrested. Id. at 570-71. The Court held that the county intentionally discriminated against the man because the officer knew of his hearing problem but refused to accommodate him with means of effective communication. Id. at 575-76.
The facts present in Mr. Durrenberger’s case exceed the factual scenario in Delano-Pyle, establishing TDCJ’s intentional discrimination. Mr. Durrenberger has a serious hearing impairment and requires accommodations to be able to effectively communicate with his friend during TDCJ’s visitation program.30 Mr. Durrenberger made his impairment known to TDCJ’s employees at the Hughes unit.31 TDCJ was fully aware of his hearing disability and inability to

30

Exhibit B, Declaration of Durrenberger, para.3, 8.

31

Exhibit D, Deposition of Fred Tadlock, p..9:7-25; 10:1-25; 21:15-25; 22:1-24; Exhibit H, Deposition of

Dawn Grounds, p. 8-12.

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communicate with his friend.32 Not only did TDCJ’s employees refuse to accommodate him, they told him outright that he was not disabled and that they did not have to accommodate him.33 TDCJ intentionally discriminated against Mr. Durrenberger by reason of his disability because it was aware of his impairment and refused him accommodations. In Delano-Pyle, the defendant only refused the plaintiff accommodations on one occasion. In Mr. Durrenberger’s case, TDCJ’s employees refused him accommodations on several occasions and presently continue to refuse him the accommodations he is entitled to by law. By being aware of his hearing disability and continuing to deny Mr. Durrenberger reasonable accommodations, TDCJ intentionally discriminates against him and is liable for damages.
Mr. Durrenberger requests compensatory damages for reasonable travel expenses from his residence in New Caney, TX to the Hughes unit in Gatesville, TX including gas, mileage, and wear and tear on his vehicle, food, and lodging, for each of his visits to the Hughes Unit where he was not accommodated. Gatesville is 199 miles from New Caney, so Mr. Durrenberger travels 398 miles every time he visits his friend at the Hughes unit. At a reasonable reimbursement rate of 55 cents per mile for gas, mileage, and wear and tear on his vehicle, a reasonable allotment of $30 for food and $70 for lodging, Mr. Durrenberger requests compensatory damages of $318.90 for each visit. Although he does not know exactly how many times he visited his friend at the Hughes unit, Mr. Durrenberger knows that it was at least seven times, but less than twenty times.34 Therefore, damages should be between $1532.30 (for seven visits) and $6378.00 (for twenty visits). Mr. Durrenberger requests a hearing on the exact amount of damages.

32

Exhibit D, Deposition of Fred Tadlock, p. 9:7-25; 10:1-25; 21:15-25; 22:1-24; Exhibit H, Deposition of

Dawn Grounds, p. 8-12.

33

Exhibit B, Declaration of Durrenberger, para. 8.

34

Exhibit B, Declaration of Durrenberger, para. 19.

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Mr. Durrenberger also requests damages in the amount of at least $100 per violation of Chapter 121 by Defendant, pursuant to Tex. Hum. Res. Code Ann. § 121.004(b). D. Mr. Durrenberger Faces a Real Threat that TDCJ Will Continue to Refuse Him Accommodations and is Entitled to Injunctive Relief
Due to TDCJ’s past and continuing violations of the ADA and Rehabilitation Act, Mr. Durrenberger seeks an injunction permanently enjoining future violations. Typically a permanent injunction will be granted only after a trial. However, if there are no issues of material fact and all issues of law are correctly resolved, a permanent injunction is proper without a trial. Standard Oil Co. v. Lopeno Gas Co., 240 F.2d 504, 509-510 (5th Cir. 1957).
The standard for a permanent injunction requires “the plaintiff must show the existence of a substantial threat of irreparable harm, that outweighs any harm the relief would accord to the defendants, that there is no adequate remedy at law, and that granting the injunction will not disserve the public interest.” Calmes v. U.S., 926 F.Supp. 582, 591 (N.D. Tex. 1996) (citing Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-507 (1959)).
In the Fifth Circuit, the Lyons standard is applied to claims for injunctive relief under the ADA. Benavides v. Laredo Med. Ctr., No. L-08-105, 2009 WL 1755004 (S.D. Tex. June 18, 2009). A plaintiff seeking injunctive relief based on an alleged past wrong must show that there is a real or immediate threat that he will be wronged again. City of L.A. v. Lyons, 461 U.S. 95, 111, 103 S.Ct. 1660 (1983).
Mr. Durrenberger has suffered and continues to suffer irreparable injury from TDCJ’s refusal to accommodate him, for which he has no adequate remedy at law. Not only has Mr. Durrenberger been denied reasonable accommodations for his hearing disability in the past, he is currently being denied such accommodations. TDCJ has never provided accommodations for Mr. Durrenberger and has made no indication that it will provide for him in the future. Mr.
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Durrenberger intends to continue visiting his friend at TDCJ’s facility. Mr. Durrenberger faces a

real threat that TDCJ will continue to deny him the accommodations to do so. Therefore, he is

entitled to injunctive relief.

The continuing threat of harm to Mr. Durrenberger is greater than any harm injunctive

relief would cause TDCJ. While Mr. Durrenberger and other hearing disabled visitors risk

continued violations of their rights, any expense to TDCJ will be de minimis. The purchase of an

inexpensive amplification device for the two-way telephone in the non-contact visitation area would not interfere with the operation of the institution in any way or manner.35 No-cost

remedies exist as well, such as providing Mr. Durrenberger an attorney visit booth to speak with

his friend, or allowing them to have a “contact” visit.

An issuance of a permanent injunction would not adversely affect the public interest and

public policy. Once TDCJ implements the accommodations and makes its facilities accessible,

all persons with hearing disabilities will benefit from TDCJ’s compliance with state and federal

law. Accordingly, the public interest would be protected, rather than adversely affected, by

granting injunctive relief.

E. TDCJ is in Violation of Chapter 121 of the Texas Human Resources Code

TDCJ must provide Mr. Durrenberger with accommodations so that he may participate in

state activities and fully use and enjoy its facilities. Tex. Hum. Res. Code Ann. 121.001 (Vernon

2004).

Texas courts have similarly held a public entity’s failure to provide reasonable

accommodations for people with disabilities is a violation of Chapter 121. See Lara v. Cinemark

USA, Inc., No. EP-97-CA-502-H, 1999 WL 305108 (W.D. Tex. 1999) (holding that a theater’s

failure to provide disabled patrons with equal access to movie viewing so that their experience

35

Exhibit E, Expert Report of Ron McAndrew, p. 4.

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equates that of the general public is a violation of Chapter 121) and Badgley v. Law Sch. Admission Council, Inc., No. CIV.A. 4:99CV-0103-M, 2000 WL 33225418 (N.D. Tex. 2000) (holding that LSAC’s failure to provide a reasonable testing accommodation to a visually impaired test-taker was a violation of Chapter 121).
TDCJ refuses to accommodate Mr. Durrenberger’s hearing impairment so that he may fully enjoy and use its facility at the Hughes unit. By refusing Mr. Durrenberger accommodations, TDCJ is refusing equal access to its facility. Therefore, TDCJ is in violation of Chapter 121 of the Texas Human Resources Code and is liable for damages. Mr. Durrenberger is entitled to damages in the amount of at least $100 per violation of Chapter 121 by Defendant, pursuant to Tex. Hum. Res. Code Ann. § 121.004(b). Mr. Durrenberger requests a hearing on the exact amount of this statutory penalty.
ATTORNEYS' FEES To enforce his rights under the Rehabilitation Act, the Americans with Disabilities Act, and the Texas Human Resources Code, Mr. Durrenberger had to retain counsel and thus, is entitled to recover his attorneys’ fees, costs, and expenses. Section 505(b) in the Rehabilitation Act provides that in an action or proceeding to enforce or charge a violation of a provision of this title, the prevailing party is allowed a reasonable attorneys’ fee as part of the costs. 29 U.S.C. § 794(a) (2004). Mr. Durrenberger requests a hearing on the amount of an attorney’s fees award.
CONCLUSION Mr. Durrenberger can prove his case as a matter of law, as there are no facts in issue in this case. Mr. Durrenberger is a qualified person with a disability under the ADA and Rehabilitation Act. TDCJ has intentionally discriminated against Mr. Durrenberger by reason of his disability by refusing him accommodations to participate in its inmate visitation program.
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TDCJ continues to discriminate against Mr. Durrenberger and makes no indication that it will provide him with accommodations in the future. Therefore, Mr. Durrenberger respectfully request this Court grant Summary Judgment against TDCJ on liability, and permanently enjoin TDCJ from preventing Mr. Durrenberger from having access to the services, facilities, programs and accommodations at TDCJ facilities. Mr. Durrenberger further requests the Court enter a declaratory judgment that TDCJ violated his rights under the ADA, Rehabilitation Act and Chapter 121.

Dated: September 24, 2010

Respectfully submitted,

/s/ Lauren Izzo Lauren Izzo State Bar No. 24065482 Scott Medlock State Bar No. 24044783 Wayne Krause State Bar No. 24032644 James C. Harrington State Bar No. 09048500
TEXAS CIVIL RIGHTS PROJECT 1405 Montopolis Drive Austin, Texas 78741-3438 (512) 474-5073 [phone] (512) 474-0726 [fax]
ATTORNEYS FOR PLAINTIFF

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Case 4:09-cv-00786 Document 41 Filed in TXSD on 09/24/10 Page 19 of 19 CERTIFICATE OF SERVICE
A true copy this document was sent to Susan Werner, P.O. Box 1258, Austin, TX 787112548, (512) 495-9139, attorney for Defendant, via the Court’s electronic filing system, on September 24, 2010.
/s/ Lauren Izzo Lauren Izzo
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 Case 4:09-cv-00786 Document 45 Filed in TXSD on 12/02/10 Page 1 of 35

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

JEREMY JOSEPH DURRENBERGER,

§

§

Plaintiff,

§

§

v.

§

§

TEXAS DEPARTMENT OF CRIMINAL §

JUSTICE,

§

§

Defendant.

§

CIVIL ACTION NO. H-09-0786

MEMORANDUM OPINION AND ORDER

Plaintiff, Jeremy Joseph Durrenberger, brings this action against defendant, Texas Department of Criminal Justice (TDCJ), under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12181, and the Rehabilitation Act of 1973 (RA), 29 U.S.C. § 794, for damages, declaratory and injunctive relief, attorney’s fees, and costs of suit.1 Pending before the court are Defendant, The Texas Department of Criminal Justice’s Motion for Summary Judgment (Docket Entry No. 40), and Plaintiff Jeremy Durrenberger’s Motion for Summary Judgment Against TDCJ (Docket Entry No. 41). For the reasons explained below, TDCJ’s motion will be denied, and Durrenberger’s motion will be granted in part and denied in part.

1Durrenberger’s First Amended Complaint (Docket Entry No. 9) also asserts claims for damages under Chapter 21 of the Texas Human Resources Code; but in Plaintiff Jeremy Durrenberger’s Response to Defendant’s Motion for Summary Judgment (Durrenberger’s Response, Docket Entry No. 42, p. 1 n.1), “Durrenberger concedes this court lacks jurisdiction to hear his state law claims due to sovereign immunity principles, and agrees his state law claims should be dismissed.”

Case 4:09-cv-00786 Document 45 Filed in TXSD on 12/02/10 Page 2 of 35
I. Standard of Review Summary judgment is authorized if the movant establishes that there is no genuine dispute about any material fact and the law entitles it to judgment. Fed. R. Civ. P. 56(c). Disputes about material facts are “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2511 (1986). The Supreme Court has interpreted the plain language of Rule 56(c) to mandate the entry of summary judgment “after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2552 (1986). A party moving for summary judgment “must ‘demonstrate the absence of a genuine issue of material fact,’ but need not negate the elements of the nonmovant’s case.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (quoting Celotex, 106 S.Ct. at 2553-2554). If the moving party meets this burden, Rule 56(c) requires the nonmovant to go beyond the pleadings and show by affidavits, depositions, answers to interrogatories, admissions on file, or other admissible evidence that specific facts exist over which there is a genuine issue for trial. Id. (citing Celotex, 106 S.Ct. at 2553-2554). In reviewing the evidence “the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility
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determinations or weigh the evidence.” Reeves v. Sanderson
Plumbing Products, Inc., 120 S.Ct. 2097, 2110 (2000). Factual
controversies are to be resolved in favor of the nonmovant, “but
only when . . . both parties have submitted evidence of
contradictory facts.” Little, 37 F.3d at 1075.
II. Undisputed Facts
Jeremy Bryson is serving a sentence at TDCJ for an aggravated assault on plaintiff, Jeremy Durrenberger.2 Durrenberger and Bryson are not related but are friends.3 Since February of 2009
Durrenberger has visited Bryson at TDCJ’s Hughes Unit more than seven times but less than twenty times.4 Inmates are allowed to
have contact visits with family members and individuals with whom
they have a special relationship, but are not allowed to have contact visits with others.5 Contact and non-contact visits with
2Affidavit of Major Fred Tadlock included in Appendix attached to Defendant, The Texas Department of Criminal Justice’s Motion for Summary Judgment (TDCJ’s Motion for Summary Judgment), Docket Entry No. 40, ¶ 4.
3Id. See also Declaration of Jeremy Durrenberger, Exhibit B attached to Plaintiff Jeremy Durrenberger’s Motion for Summary Judgment Against TDCJ (Durrenberger’s Motion for Summary Judgment), Docket Entry No. 41, ¶ 5.
4Plaintiff’s Responses and Objections to Defendant’s First Set of Interrogatories to Plaintiff, included in Appendix attached to TDCJ’s Motion for Summary Judgment, Docket Entry No. 40, (Interrogatory # 4). See also Declaration of Jeremy Durrenberger, Exhibit B attached to Durrenberger’s Motion for Summary Judgment, Docket Entry No. 41, ¶ 19.
5Affidavit of Major Fred Tadlock included in Appendix attached to TDCJ’s Motion for Summary Judgment, Docket Entry No. 40, ¶ 3.
(continued...) -3-

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inmates all occur in a large, open, concrete room that holds about 100 people.6 During contact visits, inmates sit at tables across
from visitors. During non-contact visits inmates and their visitors sit in partitioned glass booths equipped with telephones.7
The large, concrete room where visits occur is noisy since visits with inmates only occur for a limited time once a week.8
Durrenberger is hearing impaired. Durrenberger’s hearing
impairment makes it difficult for him to hear when a speaker is not
in close proximity to him, when there is more than one person
speaking, and/or when background noise is present. In 2004
Durrenberger asked his employer to install a new handset equipped with an amplifying volume control on his office telephone.9
On February 22, 2009, Durrenberger went to visit Bryson at the
Hughes Unit. Upon arrival at the visitation room Durrenberger told
5(...continued) See also Deposition of Warden Dawn Grounds included in Appendix attached to TDCJ’s Motion for Summary Judgment, Docket Entry No. 40, p. 12.
6Deposition of Fred Tadlock included in Appendix attached to TDCJ’s Motion for Summary Judgment, Docket Entry No. 40, pp. 13-16.
7Affidavit of Major Fred Tadlock included in Appendix attached to TDCJ’s Motion for Summary Judgment, Docket Entry No. 40, ¶ 3.
8Id. See also Deposition of Fred Tadlock included in Appendix attached to TDCJ’s Motion for Summary Judgment, Docket Entry No. 40, p. 16; Deposition of Warden Dawn Grounds included in Appendix attached to TDCJ’s Motion for Summary Judgment, Docket Entry No. 40, p. 16.
9Declaration of Jeremy Durrenberger, Exhibit B attached to Durrenberger’s Motion for Summary Judgment, Docket Entry No. 41, ¶¶ 3-4.
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the commanding officer that he has a hearing impairment and asked to be placed in a handicapped booth. The commanding officer told Durrenberger that the Hughes Unit was not equipped with handicapped booths. Durrenberger was placed in a standard visitation booth and was not able to hear Bryson over the telephone.10
On February 23, 2009, Durrenberger contacted the warden’s office and TDCJ’s main office to request an accommodation for his hearing impairment. On February 27, 2009, Warden Dawn Grounds called Durrenberger but was not able to offer him an accommodation.11
On March 8, 2009, Durrenberger went to the Hughes Unit to visit Bryson and was allowed a contact visit.12
On April 4, 2009, Durrenberger again went to the Hughes Unit to visit Bryson. Upon arrival Durrenberger spoke with Major Fred Tadlock who refused his request for a contact visit because TDCJ policy does not allow contact visits for non-family members. Instead, Tadlock placed Durrenberger in an end booth (Booth #1)
10Id. ¶ 8. See also Deposition of Fred Tadlock included in Appendix attached to TDCJ’s Motion for Summary Judgment, Docket Entry No. 40, p. 17 (confirming that the telephone receivers at the Hughes Unit are not equipped with volume control devices); Deposition of Warden Dawn Grounds included in Appendix to TDCJ’s Motion for Summary Judgment, Docket Entry No. 40, pp. 10, 21-22 (TDCJ does not have volume controlled telephones.).
11Declaration of Jeremy Durrenberger, Exhibit B attached to Durrenberger’s Motion for Summary Judgment, Docket Entry No. 41, ¶¶ 11-12.
12Id. ¶ 13. -5-

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because it was located as far away from other visitors as possible. Even though he was placed in Booth #1, Durrenberger still could not hear Bryson over the telephone.13
On April 12, 2009, Durrenberger was again allowed a contact visit with Bryson.14
On April 19, 2009, and on June 21, 2009, Durrenberger was placed in Booth #1 because it was farthest away from other visitors, but he still could not hear Bryson over the telephone.15
On June 7, 2009, Durrenberger asked to be seated in Booth #1 but was, instead, seated in Booth #5, which was only about four feet away from a family with children. The background noise prevented Durrenberger from hearing Bryson over the telephone.16
Durrenberger has not always been allowed to visit with Bryson in Booth #1 because the booths are assigned randomly to prevent contraband drops.17 Durrenberger states that he told Tadlock that at least two alternative accommodations would be reasonable: (1) use of an attorney/client booth and (2) use of an amplifying
13Id. ¶ 14. See also Affidavit of Major Fred Tadlock included in Appendix attached to TDCJ’s Motion for Summary Judgment, Docket Entry No. 40, ¶ 4.
14Declaration of Jeremy Durrenberger, Exhibit B attached to Durrenberger’s Motion for Summary Judgment, Docket Entry No. 41, ¶ 15.
15Id. ¶¶ 16 and 18. 16Id. ¶ 17. 17Deposition of Fred Tadlock included in Appendix attached to TDCJ’s Motion for Summary Judgment, Docket Entry No. 40, p. 6.
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device to increase the volume of the telephone receiver.18 Tadlock acknowledges that Durrenberger spoke to him about the possibility of obtaining an amplifying device for the telephone receiver,19 but does not recall that Durrenberger ever asked him about using an attorney/client booth.20 Durrenberger states that he had planned to visit Bryson weekly for the duration of his incarceration, but has stopped visiting him because he is unable to communicate with Bryson over the telephones in the visitation booths.21
III. Analysis Durrenberger has sued TDCJ for compensatory damages, declaratory and injunctive relief, and attorney’s fees pursuant to the ADA and the RA for failure to provide reasonable accommodation for his hearing disability so that he is able to participate in the inmate visitation program at TDCJ’s Alfred Hughes Unit in Gatesville, Texas.22 TDCJ contends that it is entitled to summary judgment because the immunity provided by the Eleventh Amendment
18Declaration of Jeremy Durrenberger, Exhibit B attached to Durrenberger’s Motion for Summary Judgment, Docket Entry No. 41, ¶ 14.
19Deposition of Fred Tadlock included in Appendix attached to TDCJ’s Motion for Summary Judgment, Docket Entry No. 40, p. 11.
20Id. at 20-21. 21Declaration of Jeremy Durrenberger, Exhibit B attached to Durrenberger’s Motion for Summary Judgment, Docket Entry No. 41, ¶ 20. 22Durrenberger’s Motion for Summary Judgment, Docket Entry No. 41, p. 1.
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precludes Durrenberger’s claims, and because there is no evidence that Durrenberger is a qualified individual with a disability or that TDCJ has not provided a reasonable accommodation for his disability. Durrenberger has filed a cross-motion for summary judgment.
A. Eleventh Amendment Immunity TDCJ contends that it is entitled to summary judgment on
Durrenberger’s RA claim because Durrenberger has failed to present any evidence that TDCJ has waived its sovereign immunity and consented to suit under the RA by accepting federal financial assistance. TDCJ contends that it is entitled to summary judgment on Durrenberger’s ADA claim because Congress has not properly and validly abrogated its Eleventh Amendment immunity for such claims. Durrenberger responds that TDCJ is not entitled to sovereign immunity from his RA claim because TDCJ receives federal financial assistance, and that TDCJ is not entitled to sovereign immunity from his ADA claim because Title II of the ADA abrogated Eleventh Amendment immunity for such claims. Alternatively, Durrenberger argues that TDCJ’s immunity under the ADA is irrelevant because the rights and remedies under the ADA and the RA are the same.23
1. Applicable Law
23Plaintiff Jeremy Durrenberger’s Reply to Defendant’s Response to Plaintiff’s Motion for Summary Judgment (Durrenberger’s Reply), Docket Entry No. 44, p. 1.
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The Eleventh Amendment provides that “[t]he judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign state.” United States Constitution, amend. XI. Although by its express terms, the Eleventh Amendment bars only federal jurisdiction over suits brought against one state by citizens of another state or a foreign state, the Supreme Court has long held that the Eleventh Amendment also bars jurisdiction where, as here, a citizen brings suit against his own state in federal court. See Idaho v. Coeur d’Alene Tribe of Idaho, 117 S.Ct. 2028, 2033 (1997) (citing Hans v. Louisiana, 10 S.Ct. 504 (1890)). The Eleventh Amendment renders the states immune from any suit in law or equity brought by a state’s own citizen unless one of two exceptions applies: (1) the state has consented to suit, or (2) Congress has clearly and validly abrogated the state’s immunity pursuant to the enforcement power conferred by § 5 of the Fourteenth Amendment. Bennett-Nelson v. Louisiana Board of Regents, 431 F.3d 448, 451 (5th Cir. 2005), cert. denied, 126 S.Ct. 1888 (2006) (citing College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 119 S.Ct. 2219, 2223 (1999)). See also Tennessee v. Lane, 124 S.Ct. 1978, 1985 (2004). Moreover, the state’s Eleventh Amendment immunity extends to any state agency or entity deemed an “alter ego” or “arm” of the state. See Perez v. Region 20 Education Service Center, 307 F.3d 318, 326
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(5th Cir. 2002). The parties do not dispute the fact that TDCJ is an “arm” of the State of Texas. See Harris v. Angelina County, Texas, 31 F.3d 331, 338 n.7 (5th Cir. 1994) (“Under the current state of the law, the TDCJ is deemed an instrumentality of the state operating as its alter ego in carrying out a public function of the state, and is immune from suit under the Eleventh Amendment.”).
2. TDCJ Has Waived Immunity from the RA Claim Durrenberger contends that TDCJ has waived its Eleventh Amendment immunity from suit under § 504 of the RA by accepting federal financial assistance. Section 504 provides that: No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . 29 U.S.C. § 794(a). Public entities that accept federal financial assistance expressly waive their Eleventh Amendment immunity from claims brought under § 504 of the RA. See 42 U.S.C. § 2000d7(a)(1) (“A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973 [29 U.S.C. § 794], . . . or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.”). In Pace v. Bogalusa City School Board,
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403 F.3d 272, 282 (5th Cir.) (en banc), cert. denied, 126 S.Ct. 416 (2005), the Fifth Circuit observed that § 2000d-7 “clearly, unambiguously, and unequivocally conditions receipt of federal funds . . . on the State’s waiver of Eleventh Amendment immunity” for suits brought under the RA, and held that the waiver condition set forth in § 2000d-7 is a constitutionally permissible exercise of Congress’s spending power. Id. at 285. See also BennettNelson, 431 F.3d at 453 (citing Pace, 403 F.3d at 280-87).
TDCJ admits that it accepts federal financial assistance and that the Hughes Unit where TDCJ houses inmate Bryson is a publicly funded state prison.24 TDCJ acknowledges that it “may not be entitled to immunity under the [RA] because of its tacit waiver of immunity by receipt of federal funds,”25 but nevertheless contends that it is entitled to sovereign immunity from Durrenberger’s RA claims because “Durrenberger has not established [that] TDCJ’s receipt of federal funds is related to Hughes Unit visitation facilities.”26 TDCJ has not cited any authority supporting its contention that a state entity that accepts federal funds does not
24Defendant Texas Department of Criminal Justice’s Responses and Objections to Plaintiff’s First Set of Request for Admissions, Exhibit A attached to Durrenberger’s Motion for Summary Judgment, Docket Entry No. 41, Requests for Admissions Nos. 6 and 7.
25Defendant, The Texas Department of Criminal Justice’s Response to Plaintiff’s Motion for Summary Judgment (TDCJ’s Response), Docket Entry No. 43, p. 4.
26TDCJ’s Motion for Summary Judgment, Docket Entry No. 40, p. 4.
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waive its Eleventh Amendment immunity unless its receipt of federal funds is related to the particular program at issue.
“For purposes of [§ 504 of the RA], the term ‘program or activity’ means all of the operations of—. . . a department, agency, . . . or other instrumentality of a State . . . any part of which is extended Federal financial assistance.” 29 U.S.C. § 794(b)(1)(A). In Miller v. Texas Tech University Health Sciences Center, 421 F.3d 342 (5th Cir. 2005) (en banc), cert. denied, 126 S.Ct. 1332 (2006), the Fifth Circuit explained that “[i]f the involved state agency or department accepts federal financial assistance, it waives its Eleventh Amendment immunity even though the federal funds are not earmarked for programs that further the anti-discrimination and rehabilitation goals of § 504.” Id. at 349 (citing Koslow v. Commonwealth of Pennsylvania, 302 F.3d 161 (3d Cir. 2002), cert. denied, 123 S.Ct. 1353 (2003)). Because TDCJ admits that it receives federal financial assistance, because TDCJ does not dispute that it is an agency of the State of Texas, and because 42 U.S.C. § 2000d-7 unequivocally conditions receipt of federal financial assistance by state agencies on consent to suit in federal court for alleged violations of § 504 of the RA, the court concludes that TDCJ is not entitled to Eleventh Amendment immunity on Durrenberger’s RA claims. See Miller, 421 F.3d at 349 (recognizing that receipt of federal funding by a state agency operated as a waiver of that agency’s Eleventh Amendment immunity
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to RA claims even though the funds are not earmarked for RA purposes).

3. TDCJ’s Claim to Immunity from ADA Claim Is Moot

Having determined that Eleventh Amendment immunity does not

bar Durrenberger’s RA claim, the court need not decide whether TDCJ

is entitled to Eleventh Amendment immunity from Durrenberger’s ADA

claim because that claim duplicates his RA claim.

In

Bennett-Nelson, 431 F.3d at 455, the Fifth Circuit addressed a case

where, as here, several plaintiffs brought claims under both the RA

and ADA, alleging that the defendant, a state university, failed to

provide them “reasonable accommodations” as required by both Acts.

Id. After determining that the university had waived its immunity

from suit under § 504 of the RA by accepting federal funding, the

Fifth Circuit addressed the issue of whether Congress had validly

abrogated the university’s immunity under the ADA. Id. at 454-55.

Observing that “[t]he only material difference between the two

provisions lies in their respective causation requirements,” id. at

454, the Fifth Circuit described the difference as “immaterial”

because where — as here — “a defendant fails to meet this

affirmative obligation, the cause of that failure is irrelevant.”

Id. at 454-55. The court explained that

[i]n the instant case, there is no question that the complaint claims the University’s failure to provide the demanded accommodations is the sole cause of the alleged denial of benefits to the plaintiffs. That is to say, the plaintiffs claim that they were excluded from participation in their classes precisely to the extent that they were not accommodated with interpreters or note takers. The question here is not whether or to what extent the plaintiffs suffer a disability under the ADA;

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nor is the question whether the denial of the accommodation to that disability was caused solely or only in part by the animus of the defendants. The question is whether the failure to accommodate the disability violates the ADA; and the existence of a violation depends on whether under both the [RA] and the ADA, the demanded accommodation is in fact reasonable and therefore required. If the accommodation is required the defendants are liable simply by denying it. In short, causation is not the issue in the appeal presented today. Id. at 455. The court concluded that, “having already held that sovereign immunity does not bar the appellants’ claim under § 504, we need not address at this juncture the issue of abrogation under Title II of the ADA, because the rights and remedies under either are the same for purposes of this case.” Id. The conclusion reached by the Fifth Circuit in Bennett-Nelson applies with equal force to this case. As in Bennett-Nelson, Durrenberger is alleging that TDCJ violated the ADA and RA solely by refusing to provide a reasonable accommodation for his disability. Where a claim is based on the failure to provide reasonable accommodations, the ADA and RA are identical in scope. Accordingly, the court concludes that the question of whether Congress has appropriately abrogated TDCJ’s immunity from the claim that Durrenberger has asserted under Title II of the ADA is moot.
B. Durrenberger is Entitled to Summary Judgment on His RA Claim
Durrenberger argues (1) that he is entitled to summary judgment on his RA claim because the undisputed evidence establishes that he is a qualified individual with a disability, and (2) that TDCJ has discriminated against him solely by reason of his disability by failing to provide reasonable accommodations for
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his known disability. TDCJ does not dispute that Durrenburger is qualified to participate in the inmate visitation program. Instead, TDCJ contends that Durrenberger is not disabled, and that TDCJ has provided reasonable accommodations for any disability he may have.
1. Durrenberger is Disabled (a) Applicable Law
For purposes of § 504 of the RA, “the term ‘individual with a disability’ means . . . any person who has a disability as defined in Section 12102 of Title 42 [i.e., the ADA].” 29 U.S.C. § 705(20(B). Section 12102 of Title 42 provides that “[t]he term ‘disability’ means, with respect to an individual—(A) a physical or mental impairment that substantially limits one or more major life activities of such individual.” 42 U.S.C. § 12102(1)(A). “[M]ajor life activities include, but are not limited to . . . hearing . . . [and] communicating.” 42 U.S.C. § 12102(2)(A). The ADA does not define the term “substantially limits,” but regulations promulgated by the Equal Employment Opportunity Commission (EEOC) define that term to mean:
(i) Unable to perform a major life activity that the average person in the general population can perform; or (ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.
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29 C.F.R. § 1630.2(j)(1). In 2008 Congress amended § 12102 to provide the following “rules of construction regarding the definition of disability:”
(A) The definition of disability in this chapter shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter. (B) The term “substantially limits” shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008.
. . . (E)(i) The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as--
(I) . . . prosthetics including . . . hearing aids and cochlear implants or other implantable hearing devices . . . (II) use of assistive technology; (III) reasonable accommodations or auxiliary aids or services . . . 42 U.S.C. § 12102(4). The 2008 amendments did not alter the judicially established requirement that plaintiffs claiming protection under the RA must have more than a diagnosis of an impairment to prove a disability, and must “prove a disability by offering evidence that the extent of the limitation in terms of their own experience . . . is substantial.” Albertson’s, Inc. v. Kirkingburg, 119 S.Ct. 2162, 2169 (1999). (b) Analysis
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As evidence that he is disabled, Durrenberger submits sworn statements that he has a hearing impairment that makes it difficult for him to hear when a speaker is not in close proximity to him or when background noise is present,27 and that his hearing impairment requires him to use volume amplification devices to talk on the telephone.28 As evidence that his impairment substantially limits his ability to hear and communicate, Durrenberger states that he was unable to hear Bryson or to communicate with Bryson during visits conducted in TDCJ’s visitation booths on February 22, 2009,29 April 4, 2009,30 April 19, 2009,31 June 7, 2009,32 and several times after June 21, 2009.33 As additional evidence that his hearing impairment substantially limits his ability to hear and communicate, Durrenberger submits two letters written by Brandy R.
27Declaration of Jeremy Durrenberger, Exhibit B attached to Durrenberger’s Motion for Summary Judgment, Docket Entry No. 41, ¶ 3.
28Second Declaration of Jeremy Durrenberger, Exhibit A attached to Durrenberger’s Response, Docket Entry No. 42, ¶¶ 5-6.
29Declaration of Jeremy Durrenberger, Exhibit B attached to Durrenberger’s Motion for Summary Judgment, Docket Entry No. 41, ¶ 9.
30Id. ¶ 14. 31Id. ¶ 16. 32Id. ¶ 17. 33Id. ¶ 19.
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Jacobson, a clinical audiologist who tested his hearing in February
of 2006. Jacobson writes that Durrenberger’s test results
indicated a mild sloping to moderate mixed hearing loss in the right ear and a moderate low frequency hearing loss rising to within normal limits falling to moderately-severe at 3000 HZ then rising to mild conductive hearing loss in the right ear. . .
Durrenberger might have difficulty communicating when speech is spoken at a soft level or when the speaker is not face to face with him at close proximity. He may experience difficulty hearing and understanding speech when there is background noise present or there are more than one person speaking.34
Asserting that “[v]isitation is inherently noisy as friends
and family meet with inmates for a limited time once a week,”35 TDCJ
argues that Durrenberger is not disabled because “the average
person also experiences hearing difficulties during visits.”36 TDCJ
explains that
Durrenberger describes a hearing loss which makes it difficult for him to hear in a noisy environment. However, having hearing difficulty visiting in a noisy room is not substantially limiting considering others also have difficulty in the noisy environment. Further, Durrenberger’s letter of disability is unauthenticated and four years earlier than his visitation encounter . . . The letter is not proper summary judgment proof. Even were the letter proper summary judgment evidence, a
34Letter of May 16, 2006, included in Exhibit C attached to Durrenberger’s Motion for Summary Judgment, Docket Entry No. 41. See also Letter of October 6, 2008, in Exhibit C attached to Durrenberger’s Motion for Summary Judgment, Docket Entry No. 41.
35TDCJ’s Motion for Summary Judgment, Docket Entry No. 40, p. 7.
36Id.
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diagnosis of a condition is insufficient to prove impairment.37 In support of its argument that Durrenberger is not disabled, TDCJ cites Amyette v. Providence Health System, 2010 WL 2812895 (9th Cir. 2010). In Amyette the Ninth Circuit reaffirmed the principle recognized in Albertson’s, 119 S.Ct. at 2169, that “‘disability’ is a carefully defined term of art, which is measured by reference to limitations on major life activities, not by reference to doctors’ past assessments of the plaintiff’s condition.” 2010 WL 2812895 at *1 (citing Toyota Motor Manufacturing, Kentucky, Inc., v. Williams, 122 S.Ct. 681, 691 (2002), superseded by statute, Americans With Disabilities Amendments Act of 2008, Pub. L. No. 110-325 (2008)). Durrenberger’s sworn statements that he has difficulty hearing when a speaker is not in close proximity to him or when background noise is present,38 that he relies on volume amplification devices to talk on the telephone,39 and that he is unable to hear over the telephones in TDCJ’s visitation booths because they are not equipped with volume control devices are evidence of his own experience from which a reasonable fact-finder could conclude that his hearing impairment substantially limits his ability to hear and communicate when using a telephone. See Albertson’s, 119 S.Ct. at
37TDCJ’s Response, Docket Entry No. 43, p. 5. 38Declaration of Jeremy Durrenberger, Exhibit B attached to Durrenberger’s Motion for Summary Judgment, Docket Entry No. 41, ¶ 3. 39Second Declaration of Jeremy Durrenberger, Exhibit A attached to Durrenberger’s Response, Docket Entry No. 42, ¶¶ 5-6.
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2169. See also Ivy v. Jones, 192 F.3d 514, 516 (5th Cir. 1999) (recognizing the need for particularized examination of how a hearing impairment affects one’s life activities). Jacobson’s diagnosis of Durrenberger’s hearing loss corroborates Durrenberger’s testimony about his own experience. This evidence is sufficient to overcome TDCJ’s motion for summary judgment.
Durrenberger argues that he is entitled to summary judgment because TDCJ has not presented any evidence from which a reasonable fact-finder could conclude that his hearing impairment does not substantially limit his ability to hear and communicate. TDCJ contends that Durrenburger is not disabled because noisy conditions in the visitation room make it difficult even for non-hearing impaired individuals to hear and communicate, but TDCJ has not presented any evidence that non-hearing impaired individuals are unable to hear and/or communicate over the telephones provided in the visitation booths. Moreover, both Major Tadlock and Warden Grounds testified that non-hearing impaired individuals have never complained about the inability to hear and/or communicate over the telephones in the visitation booths.40 In its motion for summary judgment TDCJ also asserts that Durrenberger “admits he does not use an auxiliary listening device such as he is requesting TDCJ
40Deposition of Fred Tadlock included in Appendix attached to TDCJ’s Motion for Summary Judgment, Docket Entry No. 40, p. 16; Deposition of Warden Dawn Grounds included in Appendix attached to TDCJ’s Motion for Summary Judgment, Docket Entry No. 40, p. 21.
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provide for him,”41 but TDCJ has not provided the court any evidence that either supports this assertion42 or contradicts Durrenberger’s declaration that his hearing impairment prevents him from communicating by telephone unless the telephone is equipped with an amplification device.

41TDCJ’s Motion for Summary Judgment, Docket Entry No. 40, p. 8 (citing Appendix p. 21).

42TDCJ cites page 21 of the Appendix attached to its Motion for Summary Judgment (Docket Entry No. 40), but that page does not contain any such admission. Instead, page 21 contains an interrogatory asking Durrenberger to describe any prosthetic devices that he regularly wears or carries to accommodate his hearing disability; an interrogatory to which Durrenberger objected. Moreover, in response to TDCJ’s motion for summary judgment, Durrenberger submitted a second Declaration in which he states:

3. Though I could probably benefit from wearing a hearing aid, I cannot afford to purchase one. I am able to live with my disability, however, through using some low-cost accommodations.

. . .

5. I shopped around until I could find a cell phone

that I could raise the volume enough on so that I

could hear.

I also make do with other

accommodations, such as routing my cell phone

through the stereo system in my car when I am

driving so I can raise the volume even higher.

Though I am currently unemployed, my last employer

had to install a volume amplification device on the

phone I used at work. Basically, I need the volume

on my phone to be much higher. Turning up the

volume on my phones accommodates my disability.

6. Though I do not wear hearing aids or other prosthetic devices, I do need the amplification devices built into my telephones to hear during phone conversations.

Second Declaration of Jeremy Durrenberger, Exhibit A attached to Durrenberger’s Response, Docket Entry No. 42, ¶¶ 3, 5-6.

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Durrenberger’s evidence that he cannot hear over the telephone in general and over the telephones in TDCJ’s visitation booths in particular, and TDCJ’s failure to provide evidence showing that the average person in the general population experiences the same difficulties hearing over the telephone that Durrenberger experiences leads the court to conclude that Durrenberger is entitled to summary judgment that he is disabled because the only evidence before the court establishes that Durrenberger is unable to perform the major life activities of hearing and communicating that the average person in the general population can perform, and that Durrenberger is significantly restricted as to the manner under which he can perform the major life activities of hearing and communicating as compared to the manner under which the average person in the general population can perform those activities. See 29 C.F.R. § 1630.2(j)(1). See also Ivy, 192 F.3d at 516 (district court found as a matter of fact and concluded as a matter of law that plaintiff had an impairment that substantially limited the major life activity of hearing because without the assistance of hearing aids she was unable to hear people talking on a speaker telephone).
2. TDCJ Has Failed to Provide a Reasonable Accommodation for Durrenburger’s Disability
Asserting that his inability to hear and communicate over the telephones provided in TDCJ’s visitation booths prevents him from participating in TDCJ’s inmate visitation program, Durrenberger
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contends that he is entitled to summary judgment that TDCJ has discriminated against him solely on the basis of his disability by failing to provide a reasonable accommodation that would allow him to participate in the program. Asserting that it has provided reasonable accommodations for Durrenberger’s disability, TDCJ contends that it is entitled to summary judgment.
(a) Applicable Law Regulations implementing § 504 of the RA mandate that “each [federally assisted] program or activity” to which the provision applies must be “readily accessible to and useable by handicapped persons.” 28 C.F.R. § 42.521(a). Covered entities may be required to facilitate access via the acquisition or redesign of equipment, reassignment of services to accessible buildings, assignment of aids to beneficiaries, delivery of services at alternate accessible sites, alteration of existing facilities, or any other method that results in making its program or activity accessible to handicapped persons. 28 C.F.R. § 42.521(b). See Bennett-Nelson, 431 F.3d at 455 n.11. When a disabled person shows that he is not able to participate in a public program, courts must consider whether any “reasonable accommodation” by the program provider would enable the disabled person to participate. “Accommodation is not reasonable if it either imposes ‘undue financial and administrative burdens’ on a grantee, . . . or requires ‘a fundamental alteration in the nature of [the] program.’” School Board of Nassau County, Florida v. Arline, 107 S.Ct. 1123, 1131 n.17 (1987) (quoting Southeastern
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Community College v. Davis, 99 S.Ct. 2361, 2370 (1979), and citing 45 C.F.R. § 84.12(c) (listing factors to consider in determining whether accommodation would cause undue hardship)). “Where reasonable accommodation does not overcome the effects of a person’s [disability], or where reasonable accommodation causes undue hardship . . . failure . . . [to accommodate] will not be considered discrimination. Id. Factors that courts consider in determining if an accommodation would impose an undue hardship on the operation of the recipient’s program or activity include:
(1) The overall size of the recipient’s program or activity with respect to number of employees, number and type of facilities, and size of budget; (2) The type of the recipient’s operation, including the composition and structure of the recipient’s workforce; and (3) The nature and cost of the accommodation needed. 45 C.F.R. § 84.12(c)(1)-(3).
(b) Analysis (1) TDCJ’s Asserted Accommodations
TDCJ does not dispute that Durrenberger cannot hear and/or communicate with Bryson over the telephones in the visitation booths. Instead, “TDCJ asserts [that] it reasonably accommodated Durrenberger by providing a booth with phones, sometimes arranging a less noisy end booth, pen and paper and by the guards trying to keep the general noise level down.”43 TDCJ explains that on at
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least two occasions Durrenberger was allowed to use the end booth (Booth #1), which is located as far away from other visitors as possible and, therefore, considered to be less noisy. But TDCJ acknowledges that Booth #1 will not always be available for Durrenberger’s use because booths are randomly assigned to visitors in order to prevent contraband drops.44 Moreover, TDCJ has not presented any evidence disputing Durrenberger’s statement that even in Booth #1 he still could not hear and/or communicate with Bryson over the telephone.45 TDCJ’s assertions that it has accommodated Durrenberger’s disability by making pen and paper available and by having guards try to keep the noise level down are similarly insufficient because TDCJ has not produced any evidence from which a reasonable fact-finder could conclude that these accommodations allow Durrenberger to participate in the inmate visitation program. TDCJ does not counter Durrenberger’s contentions that written communication and telephonic communication from the inmate day room is qualitatively different from in-person visitation and constitute
44TDCJ’s Motion for Summary Judgment, Docket Entry No. 40, p. 2 (“[Durrenberger] was not given the end booth on each demand because the booths are assigned randomly to prevent contraband drops.”), and p. 6 (“The end booth was not promised for each visit because choosing booths other than randomly imposes more monitoring on security personnel.”). See also Affidavit of Major Fred Tadlock included in Appendix attached to TDCJ’s Motion for Summary Judgment, Docket Entry No. 40, ¶ 3; and Deposition of Fred Tadlock included in Appendix attached to TDCJ’s Motion for Summary Judgment, Docket Entry No. 40, p. 6.
45Declaration of Jeremy Durrenberger, Exhibit B attached to Durrenberger’s Motion for Summary Judgment, Docket Entry No. 41, ¶¶ 14 and 18.
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services and/or programs that differ from visitation. See Chisolm v. McManimon, 275 F.3d 315, 328-29 (3d Cir. 2001) (ability to pass notes is not necessarily an adequate accommodation for a hearing disability). Accordingly, the court concludes that TDCJ’s evidence that it provided these accommodations to Durrenberger is insufficient either to establish that it is entitled to summary judgment or even to raise a genuine issue of material fact for trial because TDCJ has not produced any evidence from which a reasonable fact-finder could conclude that the accommodations it has provided allow Durrenberger to participate in the inmate visitation program.
(2) Durrenberger’s Requested Accommodations Durrenberger contends that TDCJ could reasonably accommodate his disability by allowing him to have contact visits with Bryson, by providing a volume amplification device for use with the visitation booth telephones, or by allowing him to conduct visits with Bryson in an attorney/client booth. TDCJ responds that contact visits are not a reasonable accommodation because they present an elevated security risk, but has not responded with any evidence from which a reasonable fact-finder could conclude that providing volume amplification devices for use with the visitation booth telephones or allowing Durrenberger to conduct visits with Bryson in an attorney/client booth would not reasonably accommodate Durrenberger’s disability.
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(i) Contact Visits TDCJ policy allows contact visits with inmates for family members and other individuals with whom an inmate has a special relationship. TDCJ policy restricts contact visits with inmates because contact visits require increased vigilance for contraband and personal safety that requires additional staffing of security personnel. TDCJ argues that Durrenberger’s request for a modification of this policy does not constitute a reasonable accommodation for his disability because Bryson is in prison for having violently assaulted Durrenberger. Because Durrenberger has previously been assaulted by Bryson, TDCJ argues that the possibility of another assault substantiates its denial of Durrenberger’s request for contact visits with Bryson.46 Based on this evidence and the facts of this case, the court concludes that no reasonable fact-finder could conclude that Durrenberger’s request for contact visits with Bryson represents a reasonable accommodation for his disability.
(ii) Telephone Amplification Device Durrenberger cites the report of Prison and Jail Consultant, Ron McAndrew, as evidence that the purchase of an inexpensive amplification device for the two-way telephone in the non-contact visitation area would neither cause an undue hardship on TDCJ nor
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interfere with the operation of TDCJ in any way or manner.47 McAndrew states
accommodation for Mr. Durrenberger could have almost instantly materialized by the purchase of an amplification device for the two-way telephone in the non-contact visiting area. Such devices are commonly available from approximately $15.00 to more sophisticated units for approximately $100.00.48 TDCJ has not submitted any evidence contradicting McAndrew’s opinion. Instead, TDCJ argues that a factual dispute exists over whether Durrenberger asked the visitation officers for an auxiliary device, and, even assuming that Durrenberger did make such a request, TDCJ argues that it was not unreasonable for it to refuse that accommodation since Durrenberger has not had an auxiliary device in the past.49 Neither of TDCJ’s arguments has any merit. TDCJ’s contention that a fact dispute exists over whether Durrenberger ever asked for an amplification device is foreclosed by Major Tadlock’s testimony that Durrenberger spoke to him about the possibility of obtaining an amplifying device for the telephone receiver in the visitation booths.50 TDCJ’s contention that its failure to accommodate Durrenberger’s disability by providing an
47Durrenberger’s Motion for Summary Judgment, Docket Entry No. 41, p. 13.
48Exhibit E attached to Durrenberger’s Motion for Summary Judgment, Docket Entry No. 41, p. 4 ¶ 5.
49TDCJ’s Response, Docket Entry No. 43, p. 6. 50Deposition of Fred Tadlock included in Appendix attached to TDCJ’s Motion for Summary Judgment, Docket Entry No. 40, p. 11.
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amplification device for the visitation booth telephones is reasonable because Durrenberger has not had such a device in the past is similarly foreclosed by Durrenberger’s uncontradicted statements that he has relied on such devices to talk on his office telephone since 2004.51
Finally, TDCJ objects to Durrenberger’s request that amplification devices be provided because “beyond the monetary expense of the device it would need to be at each unit where Durrenberger visited along with record of the necessary exception requiring further diversion of resources.”52 But TDCJ neither argues nor presents any evidence from which a reasonable factfinder could conclude that this “[a]ccommodation is not reasonable [because] . . . it either imposes ‘undue financial and administrative burdens’ on a grantee, . . . or requires ‘a fundamental alteration in the nature of [the] program.’” Arline, 107 S.Ct. at 1131 n.17 (quoting Davis, 99 S.Ct. at 2370, and citing 45 C.F.R. § 84.12(c)). Accordingly, the court concludes that Durrenberger is entitled to summary judgment that providing amplification devices for the visitation room telephones would reasonably accommodate his known disability.
51Declaration of Jeremy Durrenberger, Exhibit B attached to Durrenberger’s Motion for Summary Judgment, Docket Entry No. 41, ¶ 4; Second Declaration of Jeremy Durrenberger, Exhibit A attached to Durrenberger’s Response, Docket Entry No. 42, ¶¶ 3-6.
52TDCJ’s Motion for Summary Judgment, Docket Entry No. 40, p. 6.
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(iii) Attorney Client Booth Durrenberger contends that allowing visitation in the attorney visit booths, would not fundamentally alter TDCJ’s visitation program. If “contraband drops” are a concern (though Mr. Durrenberger has never been accused of such misconduct), the booths could be thoroughly searched before and after the visits. A major at the Hughes Unit testified he would not deny a person with a hearing disability’s request to use an attorney visit booth “right off the bat.”53 TDCJ neither argues nor presents any evidence from which a reasonable fact-finder could conclude that this “[a]ccommodation is not reasonable [because] . . . it either imposes ‘undue financial and administrative burdens’ on a grantee, . . . or requires ‘a fundamental alteration in the nature of [the] program.’” Arline, 107 S.Ct. at 1131 n.17 (quoting Davis, 99 S.Ct. at 2370, and citing 45 C.F.R. § 84.12(c)). Accordingly, the court concludes that Durrenberger is entitled to summary judgment that allowing Durrenberger to conduct visits with Bryson in an attorney/client booth would reasonably accommodate his known disability.
(c) Conclusions The undisputed evidence shows that TDCJ discriminated against Durrenberger based on his disability by failing to provide simple, inexpensive accommodations, such as providing a volume amplification device for use with visitation booth telephones, or
53Durrenberger’s Response, Docket Entry No. 42, p. 11 (citing Deposition of Fred Tadlock included in Appendix attached to TDCJ’s Motion for Summary Judgment, Docket Entry No. 40, pp. 20-21).
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allowing Durrenberger to conduct visits in an attorney/client booth. TDCJ has failed to present any evidence from which a reasonable fact-finder could conclude that the provision of either of these “[a]ccommodation[s] is not reasonable [because] . . . it either imposes ‘undue financial and administrative burdens’ on a grantee, . . . or requires ‘a fundamental alteration in the nature of [the] program.’” Arline, 107 S.Ct. at 1131 n.17 (quoting Davis, 99 S.Ct. at 2370, and citing 45 C.F.R. § 84.12(c)). Accordingly, the court concludes that Durrenberger is entitled to summary judgment that providing a volume amplification device for use with visitation room telephones or allowing Durrenberger to use the attorney/client booth for visits with Bryson would reasonably accommodate his known disability.
C. Compensatory Damages, Injunctive Relief, and Attorney’s Fees 1. Compensatory Damages Asserting that TDCJ intentionally discriminated against him by
reason of disability, Durrenberger seeks compensatory damages under the RA for reasonable travel expenses from his residence in New Caney, Texas, to the Hughes Unit in Gatesville, Texas, including gas, mileage, and wear and tear on his vehicle, food, and lodging, for each of his visits to the Hughes Unit where he was not accommodated.54 Durrenberger seeks compensatory damages of $318.90
54Durrenberger’s Motion for Summary Judgment, Docket Entry No. 41, pp. 9, 11. In Durrenberger’s Reply, Docket Entry No. 44, p. 3, he argues that he has satisfied the RA’s requirement that
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for each visit. Acknowledging that he does not know exactly how

many times he visited Bryson at the Hughes Unit and that he

“requests a hearing on the exact amount of damages. . .,”

Durrenberger asserts that “it was at least seven times, but less

than twenty times.”55 Durrenberger asserts that Gatesville is 199

miles from New Caney, meaning that he travels 398 miles every time

he visits Bryson at the Hughes Unit. Durrenberger seeks

reimbursement at the rate of 55 cents per mile for gas, mileage,

and wear and tear on his vehicle, an allotment of $30 for food and

$70 for lodging.

Although TDCJ has not directly responded to Durrenberger’s

Motion for Summary Judgment as to his claim for damages, TDCJ has

argued that allowing Durrenberger “to be seated in the least noisy

of the booths . . . belie discrimination as a motivating factor”

when evaluated in light of the security concerns present in this

case.56

In light of TDCJ’s arguments and Durrenberger’s

acknowledgment that he is not able to quantify the amount of his

damages, the court concludes that summary judgment is not

appropriate on Durrenberger’s compensatory damage claim.

2. Injunctive Relief

54(...continued) TDCJ discriminated against him “solely on the basis of his disability.”
55Id. at 11.
56TDCJ’s Response, Docket Entry No. 43, p. 7.
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Asserting that TDCJ is likely to continue to refuse him accommodations, Durrenberger seeks an injunction permanently enjoining future violations of the RA. Citing City of Los Angeles v. Lyons, 103 S.Ct. 1660 (1983), Durrenberger acknowledges that since he is seeking injunctive relief based on an alleged past wrong, he must show that there is a real or immediate threat that he will be wronged again. In support of his argument that there is a real or immediate threat that he will be wronged again, Durrenberger asserts that he has been denied reasonable accommodations for his disability in the past, that he is currently being denied such accommodations, and that TDCJ has made no indication that it will provide for him in the future. Durrenberger also argues that “[n]o-cost remedies exist as well, such as providing [him] an attorney visit booth to speak with his friend or allowing them to have a ‘contact’ visit.”57 Durrenberger contends that the public interest would be protected rather than adversely affected by granting injunctive relief because once TDCJ implements the accommodations and makes its facilities accessible, all persons with hearing disabilities will benefit.58 The TDCJ has not responded to this argument. The court agrees that a permanent injunction is appropriate, and the court’s Final Judgment will award such relief unless the TDCJ agrees to implement within a

57Id. at 13. 58Id.

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fixed period of time one or both accommodations the court has found to be required.
3. Attorney’s Fees Asserting that § 505(b) of the RA provides that in an action or proceeding to enforce or charge a violation of a provision of this title, the prevailing party is allowed a reasonable attorney’s fee as part of the costs, 29 U.S.C. § 794(a), Durrenberger requests a hearing on the amount of attorney’s fee to which he is entitled.59 Durrenberger will file an affidavit and brief in support of his claim for attorney’s fees by December 22, 2010. If the parties are unable to agree on the amount of attorney’s fees, TDCJ may file a response by January 28, 2011.
IV. Conclusions and Order For the reasons explained above, The Texas Department of Criminal Justice’s Motion for Summary Judgment (Docket Entry No. 40) is DENIED. For the reasons explained above, the court concludes that Durrenberger has failed to present evidence from which a reasonable fact-finder could conclude that his request for contact visits with Bryson represents a reasonable accommodation for his disability, but that Durrenberger is entitled to summary judgment that TDCJ discriminated against him on the basis of his disability by failing to grant his requests for reasonable

59Id. at 14.

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Case 4:09-cv-00786 Document 45 Filed in TXSD on 12/02/10 Page 35 of 35
accommodation by providing a volume amplification device for use with visitation booth telephones and/or by allowing him to conduct his visits with Bryson in an attorney/client booth. Durrenberger is not entitled to summary judgment with respect to his claims for compensatory damages and attorney’s fees. Accordingly, Jeremy Durrenberger’s Motion for Summary Judgment Against TDCJ (Docket Entry No. 41) is GRANTED IN PART AND DENIED IN PART.
The Joint Pretrial Order will be filed by February 4, 2011, instead of January 7, 2011, and will be limited to Durrenberger’s entitlement to compensatory damages under the RA and the amount of such damages and to any unresolved issues with respect to Durrenberger’s request for attorney’s fees. Docket Call will be held on February 11, 2011, at 4:00 p.m., in Court Room 9-B, 9th Floor, United States Courthouse, 515 Rusk Street, Houston, Texas 77002.
SIGNED at Houston, Texas, on this 2nd day of December, 2010.
SIM LAKE UNITED STATES DISTRICT JUDGE
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 Case 4:09-cv-00786 Document 51 Filed in TXSD on 01/04/11 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

JEREMY JOSEPH DURRENBERGER, Plaintiff,
v.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
Defendant.

§ § § § CIVIL ACTION NO. 4:09-CV-00786 § § § §

TDCJ’S MOTION FOR RECONSIDERATION OF THE COURT’S ORDER GRANTING DURRENBERGER’S MOTION FOR SUMMARY JUDGMENT

TO UNITED STATES DISTRICT JUDGE SIM LAKE: Pursuant to Rule 60 of the FEDERAL RULES OF CIVIL PROCEDURE, TDCJ, by counsel, the
Texas Attorney General, submits this Motion requesting the Court reconsider Its Order granting Durrenberger’s Motion for Summary Judgment.
NATURE AND STAGE OF PROCEEDINGS Durrenberger filed suit claiming disability discrimination under the Americans with Disabilities Act and the Rehabilitation Act. Durrenberger complained his hearing loss prevented him from participation in visitation with an inmate. The Court has determined Durrenberger is hearing impaired and that TDCJ discriminated against Durrenberger by failing to accommodate Durrenberger’s disability with an auxiliary hearing device or an attorney-client booth visit. TDCJ seeks reconsideration of the Court’s ruling because: 1) Durrenberger’s admission that he has not used or carried an auxiliary device set against his claim he is entitled to an auxiliary aid at TDCJ presents a factual issue for the jury as to whether he has a disability and whether TDCJ reasonably accommodated any disability and 2) a factual dispute remains regarding the Rehabilitation Act

Case 4:09-cv-00786 Document 51 Filed in TXSD on 01/04/11 Page 2 of 5
causation factor necessary to a determination of intentional discrimination. ARGUMENT AND AUTHORITY
I. Durrenberger’s acknowledgment that he has not used or carried an auxiliary hearing device presents a fact issue as to his disability and the reasonableness of TDCJ’s accommodation to the disability.
TDCJ asserts a factual issue remains as to whether Durrenberger’s hearing disability substantially limits his ability to hear when using a phone and whether TDCJ’s accommodations were reasonable. The court relies on Durrenberger’s statement of his personal experience that he could not hear and finds that a reasonable fact-finder could conclude Durrenberger’s impairment substantially limits his ability to hear when using a phone. However, Durrenberger has also stated in his interrogatory responses that he has not used or carried an auxiliary device. 1 (Exhibit A). TDCJ asserts a reasonable fact-finder could conclude Durrenberger’s failure to carry or use a device in the past as evidence his hearing impairment is not substantially limiting. That is, if Durrenberger in his daily life has not provided himself with an auxiliary device, particularly as he claims such a device is low cost and easily attainable, then a fact issue is presented as to Durrenberger’s disability. The same evidentiary conflict presents a second fact issue in relation to the reasonableness of TDCJ’s proffered accommodations. That is, in light of the fact Durrenberger has not provided himself with an auxiliary device it is a jury issue whether TDCJ’s accommodation in declining to provide an auxiliary device while at the same time providing alternatives in pen and paper, an end booth and use of the day room phones is reasonable. Finally, TDCJ asserts Durrenberger may not on the one hand object to TDCJ’s inquiry about use of auxiliary devices while on the other hand
1
In Its Order, the Court stated Durrenberger objected to the Interrogatory inquiring about his use of auxiliary devices. Durrenberger did object but he also answered, ‘None’. Both the objection and his answer were submitted in TDCJ’s summary judgment evidence attached herein to this Motion as Exhibit A.
2

Case 4:09-cv-00786 Document 51 Filed in TXSD on 01/04/11 Page 3 of 5
submit an affidavit relating to auxiliary devices yet claim an absence of a factual dispute relating to auxiliary devices. This is particularly true when, as here, his Interrogatory response that he has not used an auxiliary device is inconsistent with his affidavit testimony. Cole v. Frank’s Casing Crew & Rental Tools, 2005 WL 2647966 (S.D. Tex. 2005)(unpublished). TDCJ asserts Durrenberger’s failure to use an auxiliary device regardless of the reason, presents a fact issue for a jury as to the existence of his disability and as to the reasonableness of TDCJ’s accommodation.
II. The Rehabilitation Act causation standard is relevant to a determination of discrimination, based on disability.
In Its Order, the Court relied on the case of Bennett-Nelson v. Louisiana Board of Regents, 431 F.3d 448 (5th Cir. 2005) finding the causation standard irrelevant if an accommodation is required and denied. However, the Bennett-Nelson court also noted that the causation standard was not material in that appeal but may later become so and noted the failure to accommodate was the sole cause. Bennett-Nelson at 455. TDCJ asserts the Rehabilitation Act causation requirement is a necessary element in the present case because other factors such as the security concerns motivated the denial of an auxiliary device. TDCJ asserts that because the Rehabilitation Act, like other antidiscrimination statutes, imposes remedies for intentional discrimination, the plaintiff bears the ultimate burden of demonstrating discrimination. Pinkerton v. Spelllings, 529 F.3d 513, 516-517 (5th Cir. 2008)(§ 504 of Rehabilitation Act causation standard of “solely” consistent with Title VI);Alexander v. Sandoval, 121 S.Ct. 1511, 1516 (2001)( Title VI prohibits intentional discrimination). Intentional discrimination is usually examined under the McDonnell-Douglas paradigm which requires a plaintiff ultimately prove discrimination. McDonnell Douglas Corp. v. Green, 93 S.Ct. 1817 (1973); St. Mary’s Honor Ctr. v. Hicks, 113 S.Ct. 2742, 2746 (1993);
3

Case 4:09-cv-00786 Document 51 Filed in TXSD on 01/04/11 Page 4 of 5
Texas Department of Community Affairs v. Burdine, 101 S.Ct. 1089, 1094 (1981). L. Lewis
v. City of Chicago, Illinois, 130 S.Ct. 2191, 2199-2200 (2010). Recently the court has considered
causation as a prima facie element necessary to prove intentional discrimination under the Rehabilitation Act. Stewart v. City of Houston Police Dept., 372 Fed Appx 475, 477 (5th Cir. 2010).
TDCJ asserts, unlike the Bennett-Nelson case where the accommodation was the only issue,
causation is relevant to the present case. Also, at the time of Bennett-Nelson case, Eleventh
Amendment immunity under the ADA had not been established in the Fifth Circuit.
CONCLUSION
WHEREFORE, PREMISES CONSIDERED, TDCJ prays the Court will reconsider Its Order
Granting Durrenberger’s Summary Judgment Motion and permit a trial on the merits.
Respectfully submitted,
GREG ABBOTT Attorney General of Texas
DANIEL T. HODGE First Assistant Attorney General
BILL COBB Deputy Attorney General for Civil Litigation
DAVID C. MATTAX Director of Defense Litigation
DAVID A. TALBOT, JR. Assistant Attorney General Chief, Law Enforcement Defense Division
/s/ Susan E. Werner SUSAN E. WERNER Assistant Attorney General Attorney-in-Charge State Bar No. 21190350 Southern District Fed. I.D. No. 9852
4

Case 4:09-cv-00786 Document 51 Filed in TXSD on 01/04/11 Page 5 of 5

P. O. Box 12548, Capitol Station Austin, Texas 78711 512-463-2080 / 512-495-9139 (fax)
ATTORNEYS FOR DEFENDANTS

NOTICE OF ELECTRONIC FILING

I, SUSAN E. WERNER, Assistant Attorney General of Texas, certify that I have

electronically submitted for filing, a copy of the above and foregoing TDCJ’s Motion for

Reconsideration of the Court’s Order Granting Durrenberger’s Motion for Summary

Judgment in accordance with the Electronic Case Files system of the Southern District of Texas, on this the 4th day of January 2011.

/s/ Susan E. Werner SUSAN E. WERNER Assistant Attorney General

CERTIFICATE OF SERVICE

I, SUSAN E. WERNER, Assistant Attorney General of Texas, certify that a copy of TDCJ’s

Motion for Reconsideration of the Court’s Order Granting Durrenberger’s Motion for

Summary Judgment has been served by placing same in the United States Postal Service, postage prepaid, certified return receipt requested, on this 4th day of January 2011 addressed to:

Scott Medlock

Via CM/RRR# 7004 2510 0004 1673 1148

James Harrington

TEXAS CIVIL RIGHTS PROJECT

1405 Montopolis Drive

Austin, Texas 78741-3438

Counsel for Plaintiff

/s/ Susan E. Werner SUSAN E. WERNER Assistant Attorney General

5

 
 Case 4:09-cv-00786 Document 54 Filed in TXSD on 01/24/11 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

JEREMY JOSEPH DURRENBERGER,

§

§

Plaintiff,

§

§

v.

§

§

TEXAS DEPARTMENT OF CRIMINAL §

JUSTICE,

§

§

Defendant.

§

CIVIL ACTION NO. H-09-0786

MEMORANDUM OPINION AND ORDER

Plaintiff, Jeremy Joseph Durrenberger, brought this action

against defendant, Texas Department of Criminal Justice (“TDCJ”),

under Title II of the Americans with Disabilities Act (“ADA”), 42

U.S.C. § 12181, and the Rehabilitation Act of 1973 (“RA”), 29

U.S.C. § 794. Durrenberger alleges that he has a hearing impair-

ment that prevents him from participating in TDCJ’s inmate

visitation program, and that TDCJ has discriminated against him in

violation of the ADA and the RA by failing to provide a reasonable

accommodation. On December 2, 2010, the court issued a Memorandum

Opinion and Order denying TDCJ’s motion for summary judgment, and

denying in part and granting in part Durrenberger’s motion for

summary judgment (Docket Entry No. 45). See also Durrenberger v.

Texas Department of Criminal Justice,

F.Supp.2d

, 2010

WL 5014338 (S.D. Tex. December 2, 2010). Pending before the court

is TDCJ’s Motion for Reconsideration of the Court’s Order Granting

Durrenberger’s Motion for Summary Judgment (Docket Entry No. 51).

Case 4:09-cv-00786 Document 54 Filed in TXSD on 01/24/11 Page 2 of 20
Durrenberger urges the court to deny TDCJ’s motion for reconsideration because TDCJ “has not cited a subsection of the rule under which relief is available,”1 and because “the Court interpreted the case law correctly.”2 For the reasons explained below, TDCJ’s motion for reconsideration will be denied.
I. Standard of Review
“[T]he Federal Rules of Civil Procedure do not recognize a general motion for reconsideration.” St. Paul Mercury Insurance Company v. Fair Grounds Corporation, 123 F.3d 336, 339 (5th Cir. 1997). The court’s December 2, 2010, Memorandum Opinion and Order was interlocutory, not final. See Moody v. Seaside Lanes, 825 F.2d 81, 85 & n.3 (5th Cir. 1987) (only resolution of an entire proceeding is “final”). Courts reconsider interlocutory orders under Rule 54(b), which provides that “any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties . . . may be revised at any time before the entry of [a final judgment].”
The standard of review for interlocutory decisions differs from the standards applied to final judgments under Federal Rules of Civil Procedure 59(e) and 60(b) . . . [R]econsideration of an interlocutory decision is available under the standard “as justice requires.” . . . [t]he “as justice requires” standard amounts to determining “whether reconsideration is necessary under the relevant circumstances.” . . . Nonetheless, the court’s discretion under 54(b) is . . . “subject to the caveat that, where litigants have once battled for the
1Plaintiff’s Response to Defendant’s Motion for Reconsideration, Docket Entry No. 52, p. 2.
2Id. at 4. -2-

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court’s decision, they should neither be required, nor without good reason permitted, to battle for it again.” Judicial Watch v. Department of the Army, 466 F.Supp.2d 112, 123 (D.D.C. 2006) (citations omitted). “[W]hether to grant such a motion rests within the discretion of the court.” Dos Santos v. Bell Helicopter Textron, Inc. District, 651 F.Supp.2d 550, 553 (N.D. Tex. 2009).
II. Analysis TDCJ urges the court to reconsider its partial grant of Durrenberger’s motion for summary judgment and to find, instead, that the summary judgment evidence raises two genuine issues of material fact for trial. First, TDCJ argues that “Durrenberger’s admission that he has not used or carried an auxiliary device set against his claim he is entitled to an auxiliary aid at TDCJ presents a factual issue for the jury as to whether he has a disability and whether TDCJ reasonably accommodated any disability.”3 Second, “TDCJ asserts the Rehabilitation Act causation requirement is a necessary element in the present case because other factors such as the security concerns motivated the denial of an auxiliary device.”4 A. No Fact Issue Exists Regarding Durrenberger’s Disability
3TDCJ’s Motion for Reconsideration of the Court’s Order Granting Durrenberger’s Motion for Summary Judgment (TDCJ’s Motion for Reconsideration), Docket Entry No. 51, p. 1.
4Id. at 3. -3-

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Asserting that “[t]he Court has determined Durrenberger is
hearing impaired and that TDCJ discriminated against Durrenberger
by failing to accommodate Durrenberger’s disability with an
auxiliary hearing device or an attorney-client booth visit,”5 “TDCJ
asserts a factual issue remains as to whether Durrenberger’s
hearing disability substantially limits his ability to hear when
using a phone and whether TDCJ’s accommodations were reasonable.”6
TDCJ explains that
[t]he court relies on Durrenberger’s statement of his personal experience that he could not hear and finds that a reasonable fact-finder could conclude Durrenberger’s impairment substantially limits his ability to hear when using a phone. However, Durrenberger has also stated in his interrogatory responses that he has not used or carried an auxiliary device. (Exhibit A). TDCJ asserts a reasonable fact-finder could conclude Durrenberger’s failure to carry or use a device in the past as evidence his hearing impairment is not substantially limiting. That is, if Durrenberger in his daily life has not provided himself with an auxiliary device, particularly as he claims such a device is low cost and easily attainable, then a fact issue is presented as to Durrenberger’s disability.7
TDCJ explains further that
[t]he same evidentiary conflict presents a second fact issue in relation to the reasonableness of TDCJ’s proffered accommodations. That is, in light of the fact Durrenberger has not provided himself with an auxiliary device it is a jury issue whether TDCJ’s accommodation in declining to provide an auxiliary device while at the
5Id. at 1.
6Id. at 2.
7Id.
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same time providing alternatives in pen and paper, an end booth and use of the day room phones is reasonable.8 In support of its motion for reconsideration, TDCJ relies on Durrenberger’s response to Interrogatory #2, and an alleged conflict between that response and statements made in an affidavit that Durrenberger submitted in support of his motion for summary judgment. Citing Cole v. Frank’s Casing Crew & Rental Tools, 2005 WL 2647966 (S.D. Tex. 2005), TDCJ contends that Durrenberger’s “Interrogatory response that he has not used an auxiliary device is inconsistent with his affidavit testimony.”9 In Cole the defendant moved the court to strike certain portions of the plaintiff’s affidavit because they contradicted the plaintiff’s deposition testimony without explanation. 2005 WL 2647966 at *4. Observing that “[a] court considering a summary judgment motion may disregard a nonmovant’s affidavit that contradicts, without explanation, previous deposition testimony,” id. (citing S.W.S. Erectors, Inc. v. Infac, Inc., 72 F.3d 489, 495 (5th Cir. 1996), the court granted the motion to strike after concluding that the plaintiff’s affidavit contained statements about her job responsibilities that contradicted without explanation the plaintiff’s deposition testimony. Id. at *5. This case is distinguishable from Cole for at least two reasons: (1) TDCJ never moved to strike any of Durrenberger’s affidavit
8Id. 9Id. at 3.
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testimony on grounds that they contradict his response to Interrogatory #2; and (2) TDCJ has failed either to identify the affidavit testimony that it now alleges contradicts Durrenberger’s response to Interrogatory #2, or to explain why that testimony contracts his response to Interrogatory #2.
Moreover, after reviewing Durrenberger’s affidavit testimony, the court is not persuaded that any of it contradicts without explanation his response to Interrogatory #2 because Interrogatory #2 asked about Durrenberger’s use of “prosthetic devices,” not about his use of “auxiliary devices.” And although TDCJ repeatedly asserts that Durrenberger has not provided himself with an auxiliary device, TDCJ has failed to offer any evidence contradicting Durrenberger’s statements that he relies on volume amplification devices to talk on the telephone.
Interrogatory #2 and Durrenberger’s response state: INTERROGATORY #2: Please describe any prosthetic devices which you regularly wear or carry to accommodate your hearing disability. OBJECTIONS: Plaintiff objects to this interrogatory on the grounds that it is not reasonably calculated to lead to any discoverable evidence. Plaintiff also objects as this question was asked in the deposition, and Plaintiff objects to any questions beyond what was asked in the deposition. RESPONSE: None.10
10Exhibit A to TDCJ’s Motion for Reconsideration, Docket Entry No. 51 (emphasis added).
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The summary judgment record contains two declarations from
Durrenberger.11 The Second Declaration submitted in response to
TDCJ’s motion for summary judgment is the only declaration that
contains statements about his use of auxiliary devices. The court
is not persuaded that Durrenberger’s Second Declaration contains
statements that contradict without explanation his response to
Interrogatory #2. In his Second Declaration Durrenberger
acknowledged that he does not wear prosthetic devices such as
hearing aids and explained that, instead, he relies on volume
amplification devices to talk on the telephone:
2. As described in my first declaration, I have a significant hearing disability. When a speaker is not in close proximity to me, when there is more than one person speaking, or when there is background noise present, I am unable to hear what is being said.
3. Though I could probably benefit from wearing a hearing aid, I cannot afford to purchase one. I am able to live with my disability, however, through using some low-cost accommodations.
4. Most of my problems hearing people come when I am speaking on the phone. When I am talking with someone on the phone, it is much harder for me to hear than during an “in person” conversation. While I can usually hear people who I am in close proximity to, I have increased difficulty hearing people over the telephone.
11Declaration of Jeremy Durrenberger, Exhibit B to Plaintiff Jeremy Durrenberger’s Motion for Summary Judgment Against TDCJ (“Plaintiff’s Motion for Summary Judgment”), Docket Entry No. 41; and Second Declaration of Jeremy Durrenberger, Exhibit A to Plaintiff Jeremy Durrenberger’s Response to Defendants’ Motion for Summary Judgment, Docket Entry No. 42.
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Case 4:09-cv-00786 Document 54 Filed in TXSD on 01/24/11 Page 8 of 20

5. I shopped around until I could find a cell phone

that I could raise the volume enough on so that I

could hear.

I also make do with other

accommodations, such as routing my cell phone

through the stereo system in my car when I am

driving so I can raise the volume even higher.

Though I am currently unemployed, my last employer

had to install a volume amplification device on the

phone I used at work. Basically, I need the volume

on my phone to be much higher. Turning up the

volume on my phones accommodates my disability.

6. Though I do not wear hearing aids or other prosthetic devices, I do need the amplification devices built into my telephones to hear during phone conversations.12

TDCJ has neither argued nor made any showing that the term

“prosthetic devices” used in Interrogatory #2 includes the types of

volume amplification devices mentioned in Durrenberger’s Second

Declaration. Nor has TDCJ presented any evidence contradicting

Durrenberger’s declaration that he requires and/or relies on the

volume amplification devices mentioned in his Second Declaration to

talk on the telephone. Because Interrogatory #2 asked Durrenberger

what “prosthetic devices” he used to which Durrenberger responded

“[n]one,” and because Durrenberger’s Second Declaration acknowl-

edged that he did not use any prosthetic devices or hearing aids,

and explained that he accommodated his inability to hear over the

telephone with the use of various inexpensive volume amplification

devices, the court is not persuaded that Durrenberger’s affidavit

statements contradict his response to Interrogatory #2. Because

12Second Declaration of Jeremy Durrenberger, Exhibit A to Plaintiff Jeremy Durrenberger’s Response to Defendants’ Motion for Summary Judgment, Docket Entry No. 42, ¶¶ 2-6.
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Case 4:09-cv-00786 Document 54 Filed in TXSD on 01/24/11 Page 9 of 20

there is no contradiction between Durrenberger’s response to Interrogatory #2 and the statements in his affidavits, the court is not persuaded that there is a genuine issue of material fact for trial as to whether Durrenberger is substantially limited in his ability to hear when using a telephone or whether TDCJ’s proffered accommodations are reasonable.

B. No Fact Issue Exists on Causation

Asserting that “[t]he Rehabilitation Act causation standard is

relevant to a determination of discrimination, based on

disability,” TDCJ faults the court for relying “on the case of

Bennett-Nelson v. Louisiana Board of Regents, 431 F.3d 448 (5th

Cir. 2005), cert. denied, 126 S.Ct. 1888 (2006), finding the

causation standard irrelevant if an accommodation is required and

denied.”13 TDCJ argues that “the Rehabilitation Act causation

requirement is a necessary element in the present case because

other factors such as the security concerns motivated the denial of

an auxiliary device.”14

TDCJ explains that “because the

Rehabilitation Act, like other anti-discrimination statutes,

imposes remedies for intentional discrimination, the plaintiff

bears the ultimate burden of demonstrating discrimination.”15

Citing Stewart v. City of Houston Police Department, 372 Fed.Appx.

13TDCJ’s Motion for Reconsideration, Docket Entry No. 51, p. 3. 14Id. 15Id.
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475, 477 (5th Cir. 2010), for considering “causation as a prima facie element necessary to prove intentional discrimination under the Rehabilitation Act,”16 TDCJ argues that “unlike the BennettNelson case where the accommodation was the only issue, causation is relevant to the present case.”17
Durrenberger responds that [i]n its motion, Defendant argues that the ruling from Bennett-Nelson . . . should be distinguished from the case at hand, and that the Court should have required Plaintiff to make a showing that Defendant denied him an accommodation out of animus. The Defendant contends that barring such a showing, the Court should not have found Defendant liable for its failure to provide Plaintiff with reasonable accommodations. Defendant is incorrect. . . . Discrimination because of disability includes the failure to provide reasonable accommodation, regardless of what motivated that failure.18 In Stewart officers of the Houston Police Department (“HPD”) sued the City of Houston for unlawful discrimination arising from an HPD grooming policy that prevented officers serving in four divisions from having beards. 372 Fed.Appx. at 476. The plaintiffs were African-American males who suffer from a skin condition that causes infection after shaving. The plaintiffs alleged that HPD’s no-beard policy discriminated against AfricanAmerican males because they are disproportionately affected by the
16Id. at 4. 17Id. 18Plaintiff’s Response to Defendant’s Motion for Reconsideration, Docket Entry No. 52, pp. 4-5.
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condition. Id. at 477. The plaintiffs also alleged that HPD’s nobeard policy violated 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, and the Rehabilitation Act of 1973. Id. HPD presented evidence that its reason for the no-beard policy was that the respirators purchased for response to a possible chemical, biological, radiological, or nuclear attack cannot be worn safely with beards, and that the no-beard policy only applied to officers assigned to the four divisions deemed most likely to serve as first responders to such attacks. Id. at 476-477. The district court granted the defendant’s motion for summary judgment on all of the plaintiffs’ claims and dismissed the case. Id. at 477. The Fifth Circuit affirmed the district court’s dismissal. Id. at 478.
In addressing the plaintiffs’ RA claims, the Fifth Circuit stated the elements required to establish a claim under the RA:
[T]he officers must show that they (1) have a disability, (2) were otherwise qualified for the particular job, (3) worked for a program or activity that receives federal financial assistance, and (4) were discriminated against solely on the basis of the disability. . . An individual has a disability under the Act if he or she (1) has “a physical or mental impairment that substantially limits one or more major life activities;” (2) has a record of such impairment, or (3) is regarded as having such impairment. 42 U.S.C. § 12102(1). Stewart, 372 Fed.Appx. at 477. Observing that the officers alleged that their disability impaired the major life activity of working, the Fifth Circuit held that “[t]he district court properly found no showing of a substantial limitation in working.” Id. Citing Sutton v. United Air Lines, 119 S.Ct. 2139 (1999), superseded by
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statute on other grounds, ADA Amendments Act of 2008, Pub. L. No. 110-325, 172 Stat. 3553 (2008) (“ADAAA”), the Fifth Circuit explained that “[t]he officers have not alleged they are ‘unable to work in a broad class of jobs,’ only that they cannot work in four divisions of the department. . . . If jobs utilizing an individual’s skills . . . are available, one is not precluded from a substantial class of jobs.” Id. Whether the district court had properly applied the RA’s causation standard was not at issue in Stewart. Nevertheless, to the extent that TDCJ cites Stewart in support of its argument that plaintiffs in RA cases must show that they were discriminated against solely on the basis of their disability, TDCJ’s Motion for Reconsideration has no merit because that is the standard that both parties cited in respect to Durrenberger’s motion for summary judgment, and the standard that the court applied in ruling on the motion in the December 2, 2010, Memorandum Opinion and Order.19
Citing Pinkerton v. Spellings, 529 F.3d 513, 515 (5th Cir. 2008), TDCJ argued in response to Durrenberger’s motion for summary judgment that
the purpose of the ADAAA and the Rehabilitation Act is to eliminate intentional discrimination against individuals with disabilities. The ADA causation standard requires
19See Plaintiff’s Motion for Summary Judgment, Docket Entry No. 41, pp. 10-11; Defendant, The Texas Department of Criminal Justice’s Response to Plaintiff’s Motion for Summary Judgment (“Defendant’s Response”), Docket Entry No. 43, p. 7; and Plaintiff Jeremy Durrenberger’s Reply to Defendant’s Response to Plaintiff’s Motion for Summary Judgment, Docket Entry No. 44, pp. 3-4.
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discrimination be a motivating factor in the entit[y’s] conduct, while the Rehabilitation Act imposes a more stringent test, that the entity’s action be solely motivated by discrimination. . . . TDCJ’s arrangement for individuals to use their hearing aids, to be seated in the least noisy of the booths and the use of pen and paper is not indicative of discrimination against the hearing disabled. These actions belie discrimination as a motivating factor. This is particularly true with the always present security concerns and with the specific security concerns in this case. Notably, Durrenberger prison expert (unsworn) fails to address the security concerns unique to this case, that is, the history of violence between these non-familial individuals, as well as the alternative means of communication. . . . TDCJ’s considerations provided to Durrenberger joined with the security parameters of the prison setting dispels discrimination as the sole motivating factor for their conduct. Durrenberger’s claims fail the more stringent causation standard of the Rehabilitation Act.20
The Rehabilitation Act provides that a qualified disabled
person shall not, “solely by reason of her or his disability, be
excluded from the participation in, be denied the benefits of, or
be subjected to discrimination under any program or activity
receiving Federal financial assistance. . .” 29 U.S.C. § 794(a).
One of the intended purposes of the RA is to secure for disabled
individuals “evenhanded treatment” and the equal opportunity to
participate in and benefit from covered programs. Alexander v.
Choate, 105 S.Ct. 712, 721 (1985). The Supreme Court has explained
that it is not always easy to discern when the failure to make an
accommodation for a disabled individual crosses the line from
rightful refusal to illegal conduct. Southeastern Community
College v. Davis, 99 S.Ct. 2361, 2370 (1979). In Davis the Court
20Defendant’s Response, Docket Entry No. 43, p. 7.
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held that fundamental modifications in program requirements and the provision of auxiliary aids and services of a personal nature that will result in undue financial hardship or the lowering of program standards are not required. Id. at 2367-70. In Alexander the Supreme Court explained that
[t]he balance struck in Davis requires that an otherwise qualified handicapped individual must be provided with meaningful access to the benefit that the grantee offers. The benefit itself, of course, cannot be defined in a way that effectively denies otherwise qualified handicapped individuals with meaningful access to which they are entitled; to assure meaningful access, reasonable accommodations in the grantee’s program or benefit may have to be made. 105 S.Ct. at 720. In Bennett-Nelson, 431 F.3d at 454, the Fifth Circuit recognized that the RA “impose[s] upon public entities an affirmative obligation to make reasonable accommodations for disabled individuals. Where a defendant fails to meet this affirmative obligation, the cause of that failure is irrelevant.” Id. at 454-455. Citing Davis, 99 S.Ct. at 2361, the Fifth Circuit explained that “[i]n lieu of such an inquiry, the court must determine whether the requested accommodation was ‘reasonable’—that is, whether it would impose ‘undue financial or administrative burdens’ or would require a ‘fundamental alteration in the nature of the program.’” Id. at 455 n.12. The Fifth Circuit explained that when the plaintiff alleges that the defendant failed to provide a reasonable accommodation for a disability, the question is not
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Case 4:09-cv-00786 Document 54 Filed in TXSD on 01/24/11 Page 15 of 20
whether the denial of the accommodation to that disability was caused solely or only in part by the animus of the defendants. The question is whether the failure to accommodate the disability violates the [RA]; and the existence of a violation depends on whether under . . . the Rehabilitation Act . . . the demanded accommodation is in fact reasonable and therefore required. If the accommodation is required the defendants are liable simply by denying it.
Id. at 455. TDCJ attempts to distinguish Bennett-Nelson by
pointing out that the Bennett-Nelson court noted the causation
standard was not material in that appeal but could become so later,
and by arguing that in this case “other factors such as security concerns motivated the denial of an auxiliary device.”21
In Bennett-Nelson hearing-impaired students at a state
university alleged that the university denied them equal access to
education by failing to provide reasonable accommodations in the
form of educational aids and services such as sign language
interpreters and note takers. Id. at 449. In this case a hearing-
impaired participant in TDCJ’s inmate visitation program alleges
that TDCJ is denying him equal access to the program by failing to
provide reasonable accommodations in the form of contact visits,
volume controlled telephones, or access to an attorney/client
conference booth. For the reasons explained in the December 2,
2010, Memorandum Opinion and Order, the court concluded that
[t]he undisputed evidence shows that TDCJ discriminated against Durrenberger based on his disability by failing to provide simple, inexpensive accommodations, such as providing a volume amplification device for use with visitation booth telephones, or allowing Durrenberger to
21TDCJ’s Motion for Reconsideration, Docket Entry No. 51, p. 3. -15-

Case 4:09-cv-00786 Document 54 Filed in TXSD on 01/24/11 Page 16 of 20

conduct visits in an attorney/client booth. TDCJ has failed to present any evidence from which a reasonable fact-finder could conclude that the provision of either of these “[a]ccommodation[s] is not reasonable [because] . . . it either imposes ‘undue financial and administrative burdens’ on a grantee, . . . or requires ‘a fundamental alteration in the nature of [the] program.’” Arline, 107 S.Ct. at 1131 n.17 (quoting Davis, 99 S.Ct. at 2370, and citing 45 C.F.R. § 84.12(c)). Accordingly, the court concludes that Durrenberger is entitled to summary judgment that providing a volume amplification device for use with visitation room telephones or allowing Durrenberger to use the attorney/client booth for visits with Bryson would reasonably accommodate his known disability.22

Durrenberger,

F.Supp.2d , 2010 WL 5014338 at *11.

TDCJ’s attempt to raise a fact issue based on its assertion

that “other factors such as security concerns motivated the denial

of an auxiliary device,”23 is foreclosed by TDCJ’s failure to

present any evidence in response to Durrenberger’s motion for

summary judgment showing that its denial of Durrenberger’s request

for a telephone amplification device — the only auxiliary device

that Durrenberger requested — was motivated by security concerns.

In response to Durrenberger’s motion for summary judgment TDCJ

argued that a factual dispute exists over whether Durrenberger

asked for an auxiliary device, that its denial of Durrenberger’s

request for an auxiliary device was not unreasonable because

Durrenberger had not used such a device in the past, and that

provision of an auxiliary device would require a diversion of

22Memorandum Opinion and Order, Docket Entry No. 45, pp. 30-31. 23TDCJ’s Motion for Reconsideration, Docket Entry No. 51, p. 3.
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Case 4:09-cv-00786 Document 54 Filed in TXSD on 01/24/11 Page 17 of 20
resources. The court has already rejected each of these arguments for reasons stated in its December 2, 2010, Memorandum Opinion and Order.24 Id. at *10-*11.
TDCJ has failed to distinguish this case from Bennett-Nelson by citing summary judgment evidence showing that accommodation is not the only issue, or that Durrenberger’s alleged exclusion from participation in the inmate visitation program was not caused solely by reason of his disability but, instead, by security concerns. The court is therefore not persuaded that its reliance on Bennett-Nelson was erroneous, or that justice requires the court to reconsider its decision to grant in part Durrenberger’s motion for summary judgment.
TDCJ’s argument that the court erroneously failed to require Durrenberger to prove that it intentionally discriminated against him goes to the issue of compensatory damages. “A plaintiff asserting a private cause of action for violations of the ADA or the RA may only recover compensatory damages upon a showing of intentional discrimination.” Delano-Pyle v. Victoria County, Texas, 302 F.3d 567, 574 (5th Cir. 2002), cert. denied, 124 S.Ct. 47 (2003) (citing Carter v. Orleans Parish Public Schools, 725 F.2d 261, 264 (5th Cir. 1984)). Proof of intentional discrimination is a prerequisite to recovery of compensatory damages because the RA
24Memorandum Opinion and Order, Docket Entry No. 45, pp. 27-29. -17-

Case 4:09-cv-00786 Document 54 Filed in TXSD on 01/24/11 Page 18 of 20
incorporates the remedies of Title VI of the Civil Rights Act of 1964. See 29 U.S.C. § 794a(a)(2) (“The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) . . . shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under section 794 of this title.). See also Barnes v. Gorman, 122 S.Ct. 2097 (2002). In Guardians Association v. Civil Service Commission of City of New York, 103 S.Ct. 3221 (1983), a majority of the Justices held, in an otherwise fractured decision, that proof of discriminatory intent is required before compensatory relief is available in Title VI cases.
The issue is complicated, however, by the fact that “[t]he applicable standard for intentional discrimination necessary for recovery of compensatory damages remains unclear in the Fifth Circuit.” Salinas v. City of New Braunfels, 557 F.Supp.2d 777, 787 (W.D. Tex. 2008). Durrenberger contends that intentional discrimination against the disabled does not require personal animosity or ill-will. Support for this view may be found in Carter, 725 F.2d at 264, where the Fifth Circuit stated that “Guardians Association precludes the recovery of damages for an [act] that violates section 504 [of the RA] unless the [act] was intentional or manifested some discriminatory animus.” At least some authority from other circuits also supports this view. See Bartlett v.
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Case 4:09-cv-00786 Document 54 Filed in TXSD on 01/24/11 Page 19 of 20

New York State Board of Law Examiners, 156 F.3d 321, 331 (2d Cir.

1998), rev’d on other grounds by 119 S.Ct. 2388 (1999) (“In the

context of the Rehabilitation Act, intentional discrimination

against the disabled does not require personal animosity or ill

will. . . . Rather, intentional discrimination may be inferred when

a ‘policymaker acted with at least deliberate indifference to the

strong likelihood that a violation of federally protected rights

will result from the implementation of the [challenged] policy

. . . [or] custom.’”). Powers v. MJB Acquisition Corp., 184 F.3d

1147, 1152-53 (10th Cir. 1999) (“We . . . hold that entitlement to

compensatory damages under section 504 of the Rehabilitation Act

requires proof the defendant has intentionally discriminated

against the plaintiff. Further, intentional discrimination can be

inferred from a defendant’s deliberate indifference to the strong

likelihood that pursuit of its questioned policies will likely

result in a violation of federally protected rights.”).

Because the court denied Durrenberger’s motion for summary

judgment on his claim for compensatory damages, this issue must be

resolved at trial.25 Durrenberger,

F.Supp.2d

, 2010

WL 5014338 at *12. The applicable standard for intentional

discrimination necessary for recovery of compensatory damages is an

issue that the parties will need to address in either the joint

pretrial order, or in briefing related to the jury instructions.

25Id. at 31-32.

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III. Conclusions and Order For the reasons explained above, the court concludes that justice does not require reconsideration of the court’s decision to grant in part Durrenberger’s motion for summary judgment because TDCJ has failed to show that a contradiction in the summary judgment evidence raises a genuine issue of material fact regarding whether Durrenberger is disabled or that the court erroneously relied on the Fifth Circuit’s decision in Bennett-Nelson, 431 F.3d at 448, because accommodation is not the only issue. TDCJ’s Motion for Reconsideration of the Court’s Order Granting Durrenberger’s Motion for Summary Judgment (Docket Entry No. 51) is DENIED. SIGNED at Houston, Texas, on this 24th day of January, 2011.
SIM LAKE UNITED STATES DISTRICT JUDGE
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 Case: 4:09-cv-00786 As of: 10/08/2011 10:11 AM CDT 1 of 5
U.S. District Court SOUTHERN DISTRICT OF TEXAS (Houston) CIVIL DOCKET FOR CASE #: 4:09−cv−00786

CLOSED

Durrenberger v. Texas Department of Criminal Justice et al Assigned to: Judge Sim Lake Related Case: 4:09−mc−00105 Cause: 42:12188 American Disabilities Act of 1990
Plaintiff

Date Filed: 03/10/2009 Date Terminated: 05/24/2011 Jury Demand: Defendant Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Jeremy Joseph Durrenberger

represented by James C Harrington Texas Civil Rights Project 1405 Montopolis Dr Austin, TX 78741−3438 512−474−5073 Fax: 512−474−0726 Email: jch@mail.utexas.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Joel Barton Texas Civil Rights Project 1405 Montopolis Dr Austin, TX 78741 512−474−5073 Fax: 512−474−0726 Email: jodbarton@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott Charles Medlock Texas Civil Rights Project 1405 Montopolis Drive Austin, TX 78741 512−474−5073 Fax: 512−474−0726 Email: scott@texascivilrightsproject.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wayne Nicholas Krause Texas Civil Rights Project 1405 Montopolis Dr Austin, TX 78741 512−474−5073 Fax: 512−474−0726 Email: waynekrause@texascivilrightsproject.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian Rolland McGiverin Texas Civil Righst Project 1405 Montopolis Dr Autsin, TX 78741−3438 572−474−5073 Email: bmcgiver@gmail.com ATTORNEY TO BE NOTICED

Lauren Izzo Texas City Rights Project

Case: 4:09-cv-00786 As of: 10/08/2011 10:11 AM CDT 2 of 5
1405 Montopolis Dr Austin, TX 78741 512−474−5073 Fax: 512−474−0726 Email: lauren.tcrp@gmail.com TERMINATED: 12/06/2010 ATTORNEY TO BE NOTICED

V. Defendant Texas Department of Criminal Justice
Defendant Brad Livingston in his Official Capacity as Executive Director of the Texas Department of Criminal Justice
Defendant Nathaniel Quarterman in his Official Capacity as Directorof the Correctional Institutionsl Division of the Texas Department of Criminal Justice
Defendant Dawn Grounds in her Official Capacity as senior warden of the Alfred Hughes prison, a facility operated by the Texas Department of Criminal Justice

represented by Susan Elizabeth Werner Office of the Texas Attorney General P O Box 12548 Austin, TX 78711−2548 512−463−2080 Fax: 512−495−9139 Email: susan.werner@oag.state.tx.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Susan Elizabeth Werner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Susan Elizabeth Werner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Susan Elizabeth Werner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/10/2009 03/17/2009
03/17/2009
03/24/2009 03/24/2009 04/02/2009

# Docket Text
1 COMPLAINT against all defendants (IFP granted by Judge K Hoyt) filed by Jeremy Joseph Durrenberger.(mmapps, ) (Entered: 03/17/2009)
Summons Issued as to Texas Department of Criminal Justice, Brad Livingston, Nathaniel Quarterman, Dawn Grounds ( USM Form 285), filed.(mmapps, ) (Entered: 03/17/2009)
2 ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 6/26/2009 at 03:00 PM in Courtroom 9B before Judge Sim Lake.(Signed by Judge Sim Lake) Parties notified.(mmapps, ) (Entered: 03/17/2009)
3 RETURN of Service of SUMMONS Executed as to Brad Livingston served on 3/20/2009, answer due 5/19/2009, filed. (mewilliams, ) (Entered: 03/25/2009)
4 RETURN of Service of SUMMONS Executed as to Nathaniel Quarterman served on 3/20/2009, answer due 4/9/2009, filed.(mmapps, ) (Entered: 03/25/2009)
5 Return of Service Unexecuted as to Jeremy Joseph Durrenberger re: Summons/ Complaint, filed.(aalonzo, ) (Entered: 04/06/2009)

Case: 4:09-cv-00786 As of: 10/08/2011 10:11 AM CDT 3 of 5

04/08/2009 04/13/2009 05/04/2009 06/03/2009 06/03/2009 06/03/2009 06/04/2009 06/12/2009
06/15/2009 06/19/2009 06/24/2009 07/14/2009 07/24/2009
07/24/2009
09/15/2009 12/11/2009 01/21/2010 01/29/2010

6 RETURN of Service of SUMMONS Executed as to Dawn Grounds served on 3/23/2009, answer due 4/13/2009, filed.(pjameson, ) (Entered: 04/09/2009)
7 ANSWER to 1 Complaint with Jury Demand by Texas Department of Criminal Justice, Brad Livingston, Nathaniel Quarterman, Dawn Grounds, filed.(Werner, Susan) (Entered: 04/13/2009)
8 CERTIFICATE OF INTERESTED PARTIES by Texas Department of Criminal Justice, filed.(Werner, Susan) (Entered: 05/04/2009)
9 First AMENDED Complaint against Texas Department of Criminal Justice filed by Jeremy Joseph Durrenberger.(Medlock, Scott) (Entered: 06/03/2009)
10 Unopposed MOTION to Amend 1 Complaint by Jeremy Joseph Durrenberger, filed. Motion Docket Date 6/23/2009. (Attachments: # 1 Proposed Order)(Medlock, Scott) (Entered: 06/03/2009)
11 NOTICE of Appearance by James C. Harrington, Wayne Krause, Scott Medlock, Peter (Jody) Barton, and Lauren Izzo on behalf of Jeremy Joseph Durrenberger, filed. (Medlock, Scott) (Entered: 06/03/2009)
12 ORDER granting 10 Motion to Amend.(Signed by Judge Sim Lake) Parties notified.(hcarr, ) (Entered: 06/04/2009)
13 AMENDE ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 7/24/2009 at 03:00 PM in Courtroom 9B before Judge Sim Lake.(Signed by Judge Sim Lake) Parties notified.(hcarr, ) (Entered: 06/12/2009)
14 ANSWER to 9 Amended Complaint/Counterclaim/Crossclaim etc. with Jury Demand by Texas Department of Criminal Justice, filed.(Werner, Susan) (Entered: 06/15/2009)
15 NOTICE OF VACATION by Jeremy Joseph Durrenberger, filed. (Medlock, Scott) (Entered: 06/19/2009)
16 CERTIFICATE OF INTERESTED PARTIES by Jeremy Joseph Durrenberger, filed.(Medlock, Scott) (Entered: 06/24/2009)
17 JOINT DISCOVERY/CASE MANAGEMENT PLAN by Jeremy Joseph Durrenberger, Texas Department of Criminal Justice, Brad Livingston, Nathaniel Quarterman, Dawn Grounds, filed.(Medlock, Scott) (Entered: 07/14/2009)
18 MINUTE ENTRY ORDER: Scheduling Conference held. Docket Control Order entered. Appearances: Lauren Izzo. Appearances: Susan Elizabeth Werner. Ct Reporter: M. Malone..(Signed by Judge Sim Lake) Parties notified.(hcarr, ) (Entered: 07/25/2009)
19 SCHEDULING ORDER. Amended Pleadings due by 11/20/2009. Joinder of Parties due by 11/20/2009. Pltf Identification of Experts and Expert Report due by 2/5/2010. Deft Identification of Experts and Expert Report due by 3/12/2010. Discovery due by 4/1/2010. Dispositive Motion Filing due by 4/16/2010. Non−Dispositive Motion Filing due by 7/16/2010. Joint Pretrial Order due by 8/6/2010. Docket Call set for 8/13/2010 at 04:00 PM in Courtroom 9B before Judge Sim Lake.(Signed by Judge Sim Lake) Parties notified.(hcarr, ) (Entered: 07/25/2009)
20 NOTICE of Vacation by Jeremy Joseph Durrenberger, filed. (Medlock, Scott) (Entered: 09/15/2009)
21 NOTICE of Filing Initial Disclosure and Discovery Responses by Texas Department of Criminal Justice, filed. (Werner, Susan) (Entered: 12/11/2009)
22 MOTION to Compel Defendant to respond to plaintiff's first set of interrogatories by Jeremy Joseph Durrenberger, filed. Motion Docket Date 2/11/2010. (Izzo, Lauren) (Entered: 01/21/2010)
23 RESPONSE to 22 MOTION to Compel Defendant to respond to plaintiff's first set of interrogatories filed by Texas Department of Criminal Justice. (Attachments: # 1 Proposed Order)(Werner, Susan) (Entered: 01/29/2010)

Case: 4:09-cv-00786 As of: 10/08/2011 10:11 AM CDT 4 of 5

02/01/2010 02/05/2010 02/05/2010 02/08/2010 02/18/2010 02/19/2010 03/09/2010 03/26/2010 03/29/2010 03/30/2010 03/31/2010 04/13/2010 04/14/2010
06/08/2010 06/24/2010 07/26/2010 09/24/2010 09/24/2010 10/14/2010

24 ORDER denying 22 Motion to Compel. Defendant response to Plaintiff's Interrogatories due 2/12/2010.(Signed by Judge Sim Lake) Parties notified.(hcarr, ) (Entered: 02/01/2010)
25 MOTION for Extension of Time Expert Deadline by Jeremy Joseph Durrenberger, filed. Motion Docket Date 2/26/2010. (Izzo, Lauren) (Entered: 02/05/2010)
26 DESIGNATION OF EXPERT WITNESS LIST by Jeremy Joseph Durrenberger, filed.(Izzo, Lauren) (Entered: 02/05/2010)
27 ADVISORY by Jeremy Joseph Durrenberger, filed. (Attachments: # 1 Exhibit)(Izzo, Lauren) (Entered: 02/08/2010)
28 Unopposed MOTION for Extension of Time Deadlines by Jeremy Joseph Durrenberger, filed. Motion Docket Date 3/11/2010. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Izzo, Lauren) (Entered: 02/18/2010)
29 ORDER granting 28 Motion for Extension of Deadlines.(Signed by Judge Sim Lake) Parties notified.(jegonzalez, ) (Entered: 02/19/2010)
30 NOTICE of Vacation by Jeremy Joseph Durrenberger, filed. (Medlock, Scott) (Entered: 03/09/2010)
31 Unopposed MOTION for Extension of Time Summary Judgment Deadline by Texas Department of Criminal Justice, filed. Motion Docket Date 4/16/2010. (Attachments: # 1 Proposed Order)(Werner, Susan) (Entered: 03/26/2010)
32 ORDER granting 31 Motion for Extension of Time Dispositive Motion Filing due by 5/17/2010.(Signed by Judge Sim Lake) Parties notified.(jegonzalez, ) (Entered: 03/29/2010)
33 Unopposed MOTION for Extension of Time Expert Report by Jeremy Joseph Durrenberger, filed. Motion Docket Date 4/20/2010. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Izzo, Lauren) (Entered: 03/30/2010)
34 ORDER granting 33 Motion for Extension of Time.(Signed by Judge Sim Lake) Parties notified.(hcarr, ) (Entered: 03/31/2010)
35 Joint MOTION for Extension of Time Court's Scheduling Order by Texas Department of Criminal Justice, filed. Motion Docket Date 5/4/2010. (Attachments: # 1 Proposed Order)(Werner, Susan) (Entered: 04/13/2010)
36 ORDER granting 35 Joint MOTION for Extension of Time Court's Scheduling Order. Deft Experts due by 7/24/2010, Discovery due by 8/24/2010, Dispositive Motion Filing due by 9/24/2010, Joint Pretrial Order due by 1/7/2011, Pltf Experts due by 6/24/2010, Docket Call set for 1/14/2011 at 04:00 PM in Courtroom 9B before Judge Sim Lake.(Signed by Judge Sim Lake) Parties notified.(hcarr, ) (Entered: 04/14/2010)
37 NOTICE of Vacation by Jeremy Joseph Durrenberger, filed. (Medlock, Scott) (Entered: 06/08/2010)
38 NOTICE of Disclosure of Expert Report by Jeremy Joseph Durrenberger, filed. (Izzo, Lauren) (Entered: 06/24/2010)
39 NOTICE of Vacation by Jeremy Joseph Durrenberger, filed. (Medlock, Scott) (Entered: 07/26/2010)
40 MOTION for Summary Judgment by Texas Department of Criminal Justice, filed. Motion Docket Date 10/15/2010. (Attachments: # 1 Appendix, # 2 Proposed Order)(Werner, Susan) (Entered: 09/24/2010)
41 MOTION for Summary Judgment by Jeremy Joseph Durrenberger, filed. Motion Docket Date 10/15/2010. (Attachments: # 1 Exhibit Exhibits A−F, # 2 Exhibit Exhibits G−H, # 3 Proposed Order)(Izzo, Lauren) (Entered: 09/24/2010)
42 RESPONSE to 40 MOTION for Summary Judgment filed by Jeremy Joseph Durrenberger. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Medlock, Scott) (Entered: 10/14/2010)

Case: 4:09-cv-00786 As of: 10/08/2011 10:11 AM CDT 5 of 5

10/15/2010 10/27/2010 12/02/2010
12/03/2010 12/03/2010
12/06/2010
12/06/2010 12/06/2010 12/22/2010
01/04/2011
01/11/2011 01/13/2011 01/24/2011 01/27/2011 01/28/2011 05/23/2011 05/24/2011

43 RESPONSE to 41 MOTION for Summary Judgment filed by Texas Department of Criminal Justice. (Attachments: # 1 Proposed Order)(Werner, Susan) (Entered: 10/15/2010)
44 REPLY to Response to 41 MOTION for Summary Judgment, filed by Jeremy Joseph Durrenberger. (Medlock, Scott) (Entered: 10/27/2010)
45 MEMORANDUM OPINION AND ORDER Granting in Part and Denying in Part 41 MOTION for Summary Judgment. Denying 40 MOTION for Summary Judgment. Joint Pretrial Order due by 2/4/2011, Docket Call set for 2/11/2011 at 04:00 PM in Courtroom 9B before Judge Sim Lake.(Signed by Judge Sim Lake) Parties notified.(hcarr, ) (Entered: 12/02/2010)
46 MOTION for Brian Rolland McGiverin to Appear Pro Hac Vice by Jeremy Joseph Durrenberger, filed. Motion Docket Date 12/27/2010. (Izzo, Lauren) (Entered: 12/03/2010)
47 MOTION to Substitute Attorney Brian McGiverin in place of Lauren Izzo, MOTION for Lauren Izzo to Withdraw as Attorney( Motion Docket Date 12/27/2010.) by Jeremy Joseph Durrenberger, filed. (Attachments: # 1 Proposed Order)(Izzo, Lauren) (Entered: 12/03/2010)
48 ORDER granting 47 Motion to Substitute Attorney Attorney Lauren Izzo terminated; granting 47 Motion to Withdraw as Attorney. Attorney Lauren Izzo terminated.(Signed by Judge Sim Lake) Parties notified.(hcarr, ) (Entered: 12/06/2010)
Attorney Brian Rolland McGiverin for Jeremy Joseph Durrenberger added.(Signed by Judge Sim Lake) Parties notified.(hcarr, ) (Entered: 12/06/2010)
49 ORDER granting 46 Motion to Appear Pro Hac Vice.(Signed by Judge Sim Lake) Parties notified.(hcarr, ) (Entered: 12/06/2010)
50 MOTION for Attorney Fees by Jeremy Joseph Durrenberger, filed. Motion Docket Date 1/12/2011. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Proposed Order)(Medlock, Scott) (Entered: 12/22/2010)
51 MOTION for Reconsideration of 45 Memorandum and Opinion, by Texas Department of Criminal Justice, filed. Motion Docket Date 1/25/2011. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Werner, Susan) (Entered: 01/04/2011)
52 RESPONSE to 51 MOTION for Reconsideration of 45 Memorandum and Opinion, filed by Jeremy Joseph Durrenberger. (Attachments: # 1 Proposed Order)(Medlock, Scott) (Entered: 01/11/2011)
53 Unopposed SUPPLEMENT to 50 MOTION for Attorney Fees by Jeremy Joseph Durrenberger, filed. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Medlock, Scott) (Entered: 01/13/2011)
54 MEMORANDUM OPINION AND ORDER denying 51 MOTION for Reconsideration of 45 Memorandum and Opinion,.(Signed by Judge Sim Lake) Parties notified.(hcarr, ) (Entered: 01/24/2011)
55 NOTICE of Settlement by Texas Department of Criminal Justice, filed. (Attachments: # 1 Proposed Order)(Werner, Susan) (Entered: 01/27/2011)
56 ORDER granting 55 NOTICE Settlement. 2/11/2011 Docket Call canceled. Settlement documents due within 120 days.(Signed by Judge Sim Lake) Parties notified.(hcarr, ) (Entered: 01/28/2011)
57 NOTICE of Dismissal as to Texas Department of Criminal Justice by Texas Department of Criminal Justice, filed. (Attachments: # 1 Proposed Order)(Werner, Susan) (Entered: 05/23/2011)
58 ORDER OF DISMISSAL 57 Notice of Dismissal. Case terminated on 5/24/2011.(Signed by Judge Sim Lake) Parties notified.(jewilliams, ) (Entered: 05/24/2011)