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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

C'" ! 1 r'~ 1'"', .. J _.,_ ~:_ :_,-"
, "

GARY MINNIS, LARRY MORE, DAVID RICHARDSON, RONALD ROMAN, DELONTE TINSLEY, and WOLFJUNGE WOLFSBURGER, on behalf ofthemsclves and all others similarly situated,
Plaintiffs,
v.

Case No. : I OCVCj lD
(-T::S'2:. \ \\-'>....3')
CLASS ACTION COMPLAINT

GENE JOHNSON, Director, VDOC, FRED SCHILLING, Director Health Services, VDOC ROBIN HULBERT, Director of Mental, VDOC, G.K. WASHINGTON, Regional Director, VDOC, LOIS FEGAN, Agency Management Lead Analyst, VDOC, DONALD GUILLORY, Director, VC Enterprises, WALTER A. MCFARLANE, Supcrintendent, VC Education, SHARON TRIMMER, Director of Special Education and Gifted Education, VC Education, SHELDON RETCHIN, CEO, VCUHS, JOHN DUVAL, CEO, MCV, DEBORAH DAVIS, COO, MCV, AMANDA DODD, Manager of Patient Relations, MCV, EDDIE L. PEARSON, Warden, Powhatan Correctional Center, P.e. IIUNNEL, Assistant Warden, Powhatan Correctional Center, SANDRA PARKER, Principal, Powhatan Education, RONALD W. TONEY, Medical Director, Powhatan, K. WArSON, Nurse, Powhatan, B. MORRIS, Chaplain, Powhatan, VIRGINIA DEPARTMENT OF CORRECTIONS, VIRGINIA CORRECTIONAL ENTERPRISES, the VIRGINIA DEPARTMENT OF CORRECTIONAL EDUCATION, the VIRGINIA COMMONWEALTH UNIVERSITY HEALTH SYSTEM, the MEDICAL COLLEGE OF VIRGINIA, AND THE POWHATAN CORRECTIONAL CENTER,

Defendants.

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CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES

I.

PRELIMINARY STATEMENT

I. This is a class action based on the willful and deliberate refusal of the defendants.

all of whom are Virginia state agencies, departments, or employees, to comply with state and

federal laws protecting the rights of the plaintiffs, who are deaf individuals in the custody of the

Virginia Department of Corrections ("VDOC").

2. The state agencies and departments named as defendants in this case are VDOC,

the Virginia Correctional Enterprises ("VC Enterprises"), the Virginia Department of

Correctional Education eVC Education"), the Virginia Commonwealth University Health

System ("VCUHS"), the Medical College of Virginia ("MCV"), and the Powhatan Correctional

Center ("Powhatan") (collectively, "State Agency Defendants"). The individual named

defendants, who are State Agency Defendant employees sued in their official and individual

capacities ("Defendants"), I have failed to comply with state and federal laws, including the

Americans with Disabilities Act, 42 U.S.c. § 12131 et seq., the Rehabilitation Act, 29 U.S.c. §

794 et seq., the Virginians with Disabilities Act, Code of Virginia § 51.5-40, and the Code of

Virginia § 2.2-3401, the Religious Land Use and Institutionalized Persons Act of 2000, 42

U.S.c. § 2000cc et seq. and the Constitutions of Virginia and the United States.

3. Through their policies and practices, the Defendants discriminate against deaf

individuals in VDOC's custody. They have done this by failing to provide adequate access to

qualified sign language interpreters ("interpreters") in a variety of settings including medical

appointments, educational and mental health programs, and religious services. VDOC refuses to

provide deaf individuals in its custody with adequate notification of daily events and safety

noted.

For purposes of this Complaint, "Defendants" docs not include State Agency Defendants unless otherwise -1-

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announcements, and denies deaf individuals in its custody adequate means to communicate with

individuals outside of prison.

4. As a result of the Defendants' discriminatory policies and practices, deaf

individuals in VDOC's custody:

• have been unable to effectively communicate with their health care providers at VDOC and MCV regarding serious medical conditions;

• have been excluded from participation in VDOC, VC Enterprises and VC Education programs and classes;
• have been unable to attend worship services and practice their rcligion;

• have been subject to disciplinary action - including disciplinary segregation - due to misunderstandings with prison staff;

• have missed prison-wide fire alarms; and, • have been prevented from contacting family and friends outside of prison. 5. VDOC compounds its discriminatory practices by concentrating the deaf men in

its custody at the aging medium-security Powhatan facility - even in cases where, under VDOC

guidelines, similarly-situated hearing individuals are assigned to lower-security facilities where

they enjoy greater freedom and more opportunities for work and rehabilitation.

6. PlaintilTs seek declaratory and injunctive relief and damages on their own behalf

and on behalf of the class of all deaf and hard of hearing individuals in VDOC's custody for the

harms they suffer and continue to suffer as a result of the Defendants' discrimination.

II.

JURISDICTION

7. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.

§ 1331 because this action arises under the Constitution and laws of the United States, and

pursuant to 28 U.S.c. § 1343(a)(3) because this action seeks to redress the deprivation, under

color of state law, of PlaintilTs' civil rights.

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8. This Court has jurisdiction to grant declaratory relief pursuant to 28 U.S.c. §§ 2201 and 2202, and Rule 57 of the Federal Rules of Civil Procedure.
9. This Court has jurisdiction to grant injunctive relief pursuant to Rule 65 of the Federal Rules of Civil Procedure. III. VENtiE
10. Venue is proper in this judicial district pursuant to 28 U.S.c. § 1391(b) because some Defendants reside in this district and because a substantial part of the events and omissions giving rise to PlaintifTs' claims occurred in this district. IV. PARTIES
A. Plaintiffs II. Named Plaintiffs Minnis, More, Richardson, Roman. Tinsley. and Wolfsburger, (collectively, "Plaintiffs") are men with a hearing disability currently incarcerated at Powhatan under VDOC's custody and control. 12. Mr. Gary Minnis has been deaf since early childhood. I Ie relies on ASL to communicate and requires a sign language interpreter to allow him to communicate effectively with persons who do not know ASL. 13. Mr. Larry More has been deaf since early childhood. He relies on ASL to communicate and requires a sign language interpreter to allow him to communicate with persons who do not know ASL. 14. Mr. David Richardson is deaf. He lost his hearing in prison. Since he lost his hearing as an adult, he can speak English but must read lips or rely on written English or ASL to understand others.
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15. Mr. Ronald Roman has been deaf since early childhood. He relies on ASL to communicate and requires a sign language interpreter to allow him to communicate effectively with persons who do not know ASL.
16. Mr. Delonte Tinsley has been deaf since early childhood. He relies on AS], to communicate and requires a sign language interpreter to allow him to communicate effectively with persons who do not know ASL.
17. Mr. Wolfjunge Wolfsburger, formerly known as Tony Branch, has been deaf since early childhood. He relies on American Sign Language CASL") to communicate effectively and requires a sign language interpreter to allow him to communicate with persons who do not know ASL. Mr. Wolfsburgcr was incarcerated at Powhatan under the name Tony Branch.
B. Defendants and State Agency Defendants i. State Agency Defendants
18. VDOC is the Virginia state agency responsible for the supervision and custody of over 30,000 inmates and nearly 60,000 offenders under court-ordered supervision2
19. Virginia Correctional Enterprises eVC Enterprises") is the Virginia state work program that employs individuals under VDOC custody. including individuals at Powhatan.
20. Virginia Department of Correctional Education eVC Education") is the Virginia state agency responsible for providing educational programs to individuals under VDOC custody.
21. Virginia Commonwealth University Health System ("VCUHS") IS the health system run by Virginia Commonwealth University, a state university3
Virginia Department of Corrections. Strategic Planning Report, 20 10-12, http://www. vaperforms. v irg inia. gOY!agency leve IIstratpian/spReport.cfm?!\ gencyCode=799.
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22. Medical College of Virginia ("MCV") is a medical school and hospital facility within the VCUHS system. Jd.
23. Powhatan Correctional Center ("Powhatan") IS a medium-security VDOC correctional facility in State Farm, VA.
ll. Defendants Sued in Their Individual and Official Capacities 24. Mr. Gene Johnson is the Director of VDOC and is responsible for the day-to-day operations of VDOC. On information and belief, he is aware of VDOC's policies and practices regarding deaf individuals. 25. Mr. Fred Schilling is the Director of Health Services at VDOC and oversees and directs medical, nursing, dental, and mental health services, among other VDOC services. He is additionally responsible for developing and ensuring compliance with policies and procedures related to health services throughout the Virginia correctional system. On information and belief, he is aware of VDOC's policies and practices regarding deaf individuals. 26. Dr. Robin Hulbert is the Director of Mental Health Services at VDOC and is responsible for mental health services for all individuals in VDOC's custody. Dr. Hulbert also advises on the training and development of prison oflicers on mental health issues. On infonnation and belief, she is aware of VDOC's policies and practices regarding deaf individuals. 27. Mr. G.K. Washington is the Regional Director of VDOC for the Central Region. He is responsible for overseeing prisons and correctional units in the Central Region, including Powhatan. He is also responsible for responding to appeals of complaints and grievances brought by individuals in VDOC custody. He is aware of VDOC's policies and practices
VCU Health System Organizational Structure, http://www. vcuhealth.org/upload/docs/vcuhs%20org%20structure%209%2009 .pdf (last visited Jan. 27, 2010).
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regarding deaf individuals and he is aware of specific written complaints by deaf individuals at Powhatan regarding the violation of their rights.
28. Ms. Lois Fegan is the Agency Managcment Lead Analyst, VDOC Division of Operations, and is responsible for ensuring that individuals in VDOC's custody have interpreters for off-site medical appointments. She is aware of VDOC's policies and practices regarding deaf individuals and she is aware of specific written complaints by deaf individuals at Powhatan regarding the violation of their rights.
29. Mr. Donald Guillory is the Director of VC Enterprises and is responsible for the policies and procedures of the work programs provided in the Virginia correctional system. On information and belief~ he is aware of VDOC and VC Enterprises' policies and practices regarding deaf individuals.
30. Mr. Walter A. McFarlane is the Superintendent of VC Education and is responsible for VDOC educational programs. On information and belief, he is aware of VDOC and VC Education's policies and practices regarding deaf individuals.
31. Ms. Sharon Trimmer is the Director of Special Education and Gifted Education at VC Education, and is responsible for providing special education to the individuals in VDOC custody. She is aware of VDOCs and VC Education's policies and practices regarding deaf individuals.
32. Dr. Sheldon Retchin is the Vice President of Health Services and Chief Executive Officer of the VCUHS, which includes MCV. Individuals in the custody of VDOC at Powhatan are routinely sent to MCV for offsite medical care. Dr. Retchin is responsible for medical services providcd to individuals in VDOC's custody taken to hospitals in VCUIIS. On information and belief, he is awarc of VCUHS' policies and practices regarding deaf individuals.
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33. Mr. John Duval is the Chief Executive Officer of MCV and is responsible for medical services provided to individuals in VDOC's custody taken to hospitals under his supervision. On information and belief, he is aware of MCV's policies and practices regarding deaf individuals.
34. Ms. Deborah Davis is the Chief Operating Officer of MCV Hospitals and is responsible for the day-to-day hospital operations and compliance with hospital policies. On information and belief, she is aware of MCV's policies and practices regarding deaf individuals.
35. Ms. Amanda Dodd is the Manager of Patient Relations at MCV. She is responsible for ensuring that MCV patients have access to adequate services. On information and belief, she is aware of MCV's policies and practices regarding deaf individuals. On information and belief, she is aware of specific written complaints addressed to Paticnt Relations by dcaf individuals at Powhatan regarding the violation of their rights.
36. Mr. Eddie L. Pearson is the Warden of Powhatan. As Warden, Mr. Pearson is the legal custodian of all individuals incarcerated at Powhatan, and is responsible for their safe, secure, and humane treatment. On information and belief, he is aware of VDOC's policies and practices regarding deaf individuals and he is aware of specific written complaints by deaf individuals at Powhatan regarding the violation of their rights.
37. Mr. P.e. Hunnel is Assistant Warden of Powhatan. He is aware of VDOC's policies and practices regarding deaf individuals and he is aware of specific written complaints by deaf individuals at Powhatan regarding the violation of their rights.
38. Ms. Sandra Parker is the Principal of Powhatan education programs run by VC Education and is responsible for all education services provided to the individuals incarcerated at Powhatan. She is aware of VDOC's and VC Education's policies and practices regarding deaf
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individuals and she is aware of specific written complaints by deaf individuals at Powhatan

regarding the violation of their rights by VC Education.

39. Dr. Ronald W. Toney, M.D. is medical director at Powhatan. He is aware of

VDOC's policies and practices regarding deaf individuals and he is aware of specific written

complaints by deaf individuals at Powhatan regarding the violation of their rights.

40. Ms. K. Watson, RN, is a mcmber of the medical unit at Powhatan. She is aware

of VDOC's policies and practices regarding deaf individuals and she is aware of specific written

complaints by deaf individuals at Powhatan regarding the violation of their rights.

41. Mr. B. Morris is the chaplain at Powhatan. He is aware ofVDOC's policies and

practices regarding deaf individuals and he is aware of specific written complaints by deaf

individuals at Powhatan regarding the violation of their rights.

42. All individual named defendants are sued In their official and individual

capacities. At all relevant times, all Defendants were acting under color of state law, pursuant to

their authority as o11icials, agents, contractors or cmployees of the Commonwealth of Virginia;

within the scope of their employment as representatives of public entities, as dclined in 42

U.S.c. § 12131 (1); as representatives of a "department, agency, special purpose district, or other

instrumentality of a State" under 29 U.S.c. § 794; and as representatives of "state agencies"

under Code of Va. § 51.5-40 and Code of Va. § 2.2-3401.

V.

STATEMENT OF FACTS

43. VDOC has twice been sued by deaf men incarcerated at Powhatan over lack of

access to prison programs and services at Powhatan.4 In 2002, Otis Hill sued due to the lack of

any sign language interpreter services for VDOC's mandatory pre-release life skills course, and

The state agency actions, policies, practices, and customs described in this Complaint were in fact carried out by the state agencies' officers, agents, or employees acting in either in their individual or official capacities.
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in 2004, Wesley Chase sued VDOC over lack of access to educational programs. To this day, however, VDOC still refuses to provide sign language interpreters for educational and mental health programs at Powhatan, including mandatory pre-release courses. VDOC was also sued by a hard of hearing woman held at Fluvanna Correctional Center after she was repeatedly disciplined for missing announcements that she could not hear. To this day, however, VDOC has not implemented visual alerts to accommodate deaf and hard of hearing individuals throughout its facilities.
44. Hill v. Virginia Dep/. of Corrections, Chaneerv No. HS-948-4 (Va. Cir. Ct. (Richmond) 2002): Otis Hill, a deaf man incarcerated at Powhatan, sued VDOC under the Virginians with Disabilities Act, Code of Va. § 8.01-216. Hill, who was incarcerated in 1997, repeatedly "attempted to enroll in programs given at or by [VjDOC facilities, including anger management, substance abuse, and job training programs," throughout his nearly five years in prison. Hill's requests for sign language interpreters to enable him to participate in these classes and his resulting grievances were denied. In 2002, Hill was informed that he would be required to take a mandatory life skills course prior to his release. Hill once again requested a sign language interpreter. VDOC employees told Ilill that "we may not be ready for you" and instead informed him that they would "waivel!" the requirement that he participate in the pre-release life skills course. Hill, who continued to attend classes even without an interpreter, eventually reached a settlement with VDOC. Under the terms of the settlement, VDOC agreed to provide two course instructors and a "qualified, certified sign language interpreter" to meet with Hill, who by this time had been released from prison, and to provide him with all 54 hours of the life skills course instruction.
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45. Chase v. Baskerville, 508 F. Supp. 2d 492 m.D. Va. 2007), afi'd 305 Fed Appx. 135 (4th Cir. 2008): In 2004, just two years afier VDOC settled with Hill, Wesley Chase filed a pro se lawsuit against various Powhatan and VDOC employees for their failure to provide him with a sign language interpreter for the functional literacy class in which he was enrolled at Powhatan5 Some of the defendants sued by Chase, including Sandra Parker, Principal of VC Education programs at Powhatan, and Sharon Trimmer, Director of Special Education and Gifted Education at VC Education, are still responsible for overseeing educational programs at Powhatan. Warden Alton Baskerville was transferred from Powhatan to another institution in the VDOC system. Chase is still incarcerated at Powhatan and now, nearly five years after he filed his lawsuit and nearly seven years after he first sought to take classes at Powhatan, VDOC still has not provided him with a sign language interpreter for educational programs.
46. Sorrells v. Wheeler, No. 3:08-cv-00039 (W.O. Va. 2009): Jannett Sorrells, a hard of hearing woman incarcerated at Fluvanna Correctional Center, was repeatedly disciplined for missing morning count. She took to wearing her prison daytime clothes to bed so that when she was awakened late by others who lived in her cellblock, she would not also be disciplined for wearing her night clothes during count. Although at different times over a three year period VDOC personnel promised in writing to provide basic accommodations to Ms. Sorrell. such as awakening her five minutes before count, they failed to follow through on these promises and even went so far as to subject Ms. Sorrell to disciplinary hearings after the fact. Ms. Sorrells' suit was settled in March 2009.
47. VDOC is aware of its obligations under state and Federal laws. Nevertheless. VDOC and the other State Agency Defendants have not remedied their past pattern and practice
Chase's complaint survived a motion to dismiss and an appeal to the Fourth Circuit on sovereign immunity grounds. On remand Chase. who was apparently not represented by counsel at the time, failed to file an opposition to the state's motion for summary judgment. Summary judgment was eventually entered against him.
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of discrimination and continue to discriminate against deaf individuals, resulting in disabilitybased discrimination in at least four different areas: (i) inadequate access to sign language interpreters; (ii) inadequate access to prison alerts; (iii) inadequate access to communication devices; and (iv) improper assignment of deaf men under VDOC's custody to Powhatan, regardless of the nature of their conviction or their prior behavior.
A. Inadequate access to sign language interpreters 48. Individuals in the custody of VDOC are wholly dependent on VDOC for medical, dental, educational, mental health, and religious services, among other services. Individuals in the custody of VDOC are also dependent on VDOC and prison staff for all of their basic daily needs, including food, exercise, and safety. 49. For deaf or hard of hearing individuals who rely on ASL as their primary form of communication, use of a qualified American Sign Language interpreter is necessary to ensure effective communication between a deaf or hard of hearing individual and an individual who does not use ASL to communicate. 50. A sign language interpreter is necessary because ASL is a complete, complex language that employs signs made with the hands and other movements, including facial expressions and postures of the body. It is a language distinct from English - it is not simply English in hand signals, it has its own vocabulary, and its own rules for grammar and syntax. 5I. Writing usually does not provide effective communication for a deaf individual. English is generally considered a second language for most deaf persons who became deaf before acquiring language - ASL is their native language. Therefore, the English reading and writing skill level of many deaf individuals, including those incarcerated at Powhatan, is generally much lower than that of hearing people.

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52. Thus, a sign language interpreter is necessary to allow deaf individuals m VDOC's custody to effectively communicate with VDOC and prison officials and employees.
53. VDOC, through its policies and practices, fails to provide adequatc access to sign language interpreters for deaf individuals in its custody and control.
54. On information and belief, VDOC docs not regularly provide interpreters for programs and services in the local and regional jails where individuals are held before being assigncd to long-term corrcctional facilities. For example, Mr. Wolfsburger was held at Riverside Regional Jail trom 2005 to 2007. During the whole course of his time at Riverside Regional Jail, Mr. Wolfsburger did not have regular access to a sign language interpreter to assist him in communicating with VDOC employees or enable him to participate in any elasses or programs. In November 2007, he was transferred to Middle River Regional Jail, where there were several other deaf individuals. Once again, however, VDOC did not provide these individuals with regular access to a sign language interpreter.
55. VDOC has a policy of providing one sign languagc interpreter at Powhatan for six hours on one day a week.
56. On information and belief, although the number of deaf individuals in VDOC custody fluctuates, at any given time there are 15-20 deaf individuals incarcerated at Powhatan. Thus, each of these individuals has, on average, only 25 minutes per week during which he can clearly communicate with and understand Powhatan staff, counselors, and medical personnel. Further, since a sign language interpreter is present only one day per week, deaf individuals arc without access to a sign language interpreter, and thus unable to clearly communicate with and understand staff, counselors, and medical personnel, except for the short time they are scheduled to sec the interpreter.

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57. VDOC's failure to provide adequate access to sign language interpreters for the deaf individuals in its custody affects nearly every aspect of their lives.
Ill. Medical services 58. VDOC is responsible for the medical care of all individuals In its custody, including but not limited to individuals incarcerated at Powhatan. 59. Deaf individuals require sign language interpreters to communicate effectively with medical staff. 60. Alier receiving numerous written requests, VDOC is aware that deaf individuals need sign language interpreters for their medical appointments. Nevertheless, VDOC staff often sehedulcs onsite medical care for deaf individuals incarcerated at Powhatan on days when there is no sign language interpreter available. 61. When this occurs, deaf individuals cannot effectively cxplain their condition to medical personnel. They have the unacceptable choice of either foregoing much-needed medical trcatment or subjecting themselves to medical procedures that they do not understand, conducted by medical staff that is unable to adequately communicate with them or understand their symptoms. 62. Mr. Richardson has had problcms with his teeth. When he finally had a dental appointment last year, there was no interpreter, so he had the choice of undergoing medical trcatment without being able to understand his dentist, or foregoing needed treatment. Richardson needs to have an interpreter at his dental appointments so that his dentist can communicate with him effectively, and so that Mr. Richardson can understand why his tceth hurt.

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63. On July 7, 2009, Mr. Wolfsburger had an eye appointment with a specialist at MCV. Since an interpreter was not provided, Mr. Wolfsburger was unable to communicate with the medical staff and understand the medications that were being put in his eyes and could not effectively exercise his right to participate in medical decisions concerning him. Mr. Wolfsburger's vision has deteriorated since that visit. He needs an interpreter present at his future visits so that he can understand why his vision is getting worse and understand what medications were being prescribed and put into his eyes.
64. Occasionally, Powhatan medical staff will attempt to communicate with deaf individuals by writing notes to them in English, using complicated medical terminology.
65. As noted above, written communication is ollen not sufficient to provide effective communication for a deaf individual because English is not a deaf person's first language. Moreover, written communication is slow and cumbersome in a healthcare setting, and information that would otherwise be spoken, or interpreted, may not be written down because it takes too much time.
66. For example, Mr. Minnis blacked out while playing basketball in summer 2008. There was no interpreter at Powhatan at the time, and VDOC had no policy in place that would allow it to use one of the many video interpreting-on-demand services designed for emergencies such as this. Instead, Mr. Minnis had to write notes in the middle of the medical emergency in order to describe his condition to the nurse. This process took longer and was less clear than if an interpreter had been present, resulting in a lower standard of care than a hearing individual would have received.
67. When individuals incarcerated at Powhatan cannot be cared for by medical staff onsite, they are referred to MCV for ofTsite care. MCV and VDOC each have independent duties

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under state and federal law to make sure that an interpreter is available for deaf individuals in VDOC's custody when they are taken offfsite for medical care.
68. When deaf individuals in VDOC's custody are referred to MCV for offsite medical care, VDOC policies require that they be awakened early, placed on a van with other individuals in VDOC's custody, and put in a holding cell at MCV until their appointment. VDOC has a policy that while at MCV, thc individuals awaiting medical care are shackled.
69. VDOC and MCV are aware that the hand shackles used to restrain individuals while they are being trcatcd at MCV prevent deaf individuals from communicating elTectively with medical staff through a sign language interpreter.
70. In mid-2009, Powhatan health care personnel referred Mr. Wolfsburger to specialists at MCV because of his deteriorating vision and other health problems. 1\ sign language interpreter was present for Mr. Wolfsburger's July 22, 2009 appointment at MCV. However, Mr. Wolfsburger was prevented from communicating with the interpreter and the health care providers because a VDOC Correctional Officer ("CO") refused to remove the metal handcuffs binding Mr. Wolfsburgcr's hands. The metal handcuffs used by VDOC made it painful and nearly impossible for Mr. Wolfsburger to communicate using sign language.
71. The sign language interpreter prescnt on July 22, 2009 requested that the VDOC Correctional Officer ("CO") accompanying Mr. Wolfsburger remove the handcuffs so that Mr. Wolfsburger could communicate. The CO refused to do so.
72. Despite this incident and Mr. Wolfsburger's complaint, VDOC continues to use metal shackles on all deaf individuals during outside medical appointments, even though the shackles prevent the deaf individuals Irom communicating effectively.

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73. Compounding the problem, on numerous occasions over the past year, there has been no interpreter present when deaf individuals under VDOC's custody have been taken to MCV for medical appointments.
74. VDOC personnel transported Mr. Wolfsburger to the MCV on eight separate occasions between July 2009 and November 2009 for appointments related to his vision and other health issues. Although both VDOC and MCV repeatedly acknowledged throughout this period that Mr. Wolfsburger required an interpreter for these appointments, they repeatedly failed to provide him with one. Mr. Wolfsburger went to seven separate appointments with no interpreter present and was unable to communicate effectively with his medical provider. As a result, Mr. Wolfsburger has gone without effective medical care for his cyes and his eyesight has continued to deterioratc.
75. VDOC and MCV have also failed to provide interpreters during hearing tests required to obtain a hearing aid. Mr. More had a hearing aid before he entered VDOC custody, but it broke while he was in VDOC custody. He has been sent for two separate offsite hearing tests, and there was no interpreter available either time. Over a year later, he has still not received his hearing aid. Mr. Wolfsburger was also sent offsitc for a hearing test. He, too, had no interpreter.
76. The failure to provide adequate access to sign language interpreters for medical services has resulted in harm to deaf individuals in VDOC's custody. It puts deaf people at risk of future serious harm from lack of adequate medical treatment, and it violates their rights under the Americans with Disabilities Act, the Rehabilitation Act, and the Virginians with Disabilities Act. Further, it is a violation of VDOC and MCV's obligation to provide sign language

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interpreters under the Code of Virginia § 2.2-3401 and a violation of the Constitutions of the United States and Virginia.
iv. Educational and Menial Health Services 77. VDOC provides mental health programs for individuals In VDOC custody, including but not limited to individuals incarcerated at Powhatan. 78. The mental health programs provided by VDOC at Powhatan include Anger Management, Substance Abuse, work programs, the Breaking Barriers program and the Sex Offender program. They also include the mandatory pre-release life skills program designed to prepare individuals for the return to civilian life and integration into the community. 79. VDOC, through VC Education, provides educational classes for individuals in VDOC custody, including but not limited to individuals incarcerated at Powhatan. Codc of Va. § 22.1-340. 80. VC Education courses provided at Powhatan include courses such as the Adult Basic Education Program, computer courses, business courses, and the Dads, Inc. program for incarcerated fathers. VC Education is also required to "develop a functional literacy program for inmates testing below a selected grade level, which shall be at least at the twelfth grade or GED level" and "create a system for identifying prisoners with learning disabilities." Code of Virginia § 22.1-344.1. 81. Deaf individuals require sign language interpreters to effectively participate in these programs. 82. VDOC and VC Education are aware that deaf individuals need sign language interpreters to effectively participate in these programs. 83. VDOC does not provide interpreters for the mandatory life skills program.

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84. On information and belief, VDOC does not provide interpreters for any of the mental health programs it offers at Powhatan.
85. VC Education does not provide interpreters for any of the educational classes it offers at Powhatan. In December 2008, employees from the Virginia Department for the Deaf and Hard of Hearing ("VDDHH") participated in a resource fair at Powhatan. On information and belief, VDDHH employees met with a representative of the VC Education programs at Powhatan, who informed them that VC Education does not provide interpreters for its classes at Powhatan.
86. Deaf individuals under VDOC's custody have requested to participate m educational and mental health programs at Powhatan, but they have been denied access or have been unable to effectively participate because VDOC and VC Education have not provided sign language interpreters.
87. Mr. Wolfsburger needs to participate in the mandatory life skills program. He also wants to participate in a computer class and an art class. In 2008, he requested to participate in a computer class. Instead, he was placed in a GED class - with no interpreter. On information and belief he met with VC Education principal Sandra Parker in summer 2009, and again requested to participate in computer classes. Again, he was not given an interpreter. VDOC also failed to provide him with an interpreter for the mandatory life skills program.
88. Due to a lack of sign language interpreters at the classes offered to individuals incarcerated at Powhatan, Mr. Wolfsburger is unable to attend, understand and participate in the programs for which he is eligible to the same extent as hearing individuals in the custody of VDOC.
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89. Mr. Tinsley has requested to participate in numerous classes offered by VDOC and VC Education, and has expressed particular interest in the computer skills class. Mr. Tinsley wants to open his own business when he is released from Powhatan and believes that the classes offered by VDOC and VC Education would help him to improve his skills and increase his chances of success upon release.
90. Mr. Tinsely has requested to participate In the offered programs with an interpreter, but his requests have been denied. Due to a lack of sign language interpreters at these classes, Mr. Tinsley has been and continues to be unable to participate in educational programs that are available to and allow hearing individuals to gain new skills intended to benefit them upon releasc.
91. VDOC and VC Education's failurc to provide adequate access to sign language interpreters for educational and mental health services has resulted in harm, and may result in future harm, to deaf individuals in VDOC's custody. Such failure also violates their rights under the U.S. and Virginia Constitutions, the Americans with Disabilities Act, the Rehabilitation Act, and the Virginians with Disabilities Act. Further, it is a violation of VDOC and VC Enterprises' obligation to provide sign language interpreters under the Code of Virginia § 2.2-3401.
v. Work Programs 92. VDOC, thorough VC Enterprises, operates work programs in VDOC facilities. 93. VC Enterprises does not provide sign language interpreters in connection with its work programs, including for mandatory work meetings held at its Powhatan worksites. 94. The lack of interpreters for VC Enterprises work programs limits the ability of deaf individuals in VDOC custody to obtain ajob in VC Enterprises. For those deaf individuals who do obtain VC Enterprises jobs, the lack of interpreters limits their opportunities to advance,

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opportunitics that are available to their hearing pccrs.Mr. More works in the shop at Powhatan that produces license plates for antique cars and motorcyclcs. The shop is operatcd by VC Enterprises. There is currently no sign language interpretation available for group meetings at work, so he is unable to understand crucial work-related information.
95. For example, in March 2009, he had to attcnd a mandatory work meeting. lIe was requircd to sit through the meeting without an interpreter. Afterwards, he wrote a note to his supervisor asking what the mccting was about. The supcrvisor gave him a short answer that left Mr. More feeling like he was "in the dark" and wondering whether he was missing important information about opportunities to change assignments. Additionally, in April 2009, Mr. Morc and another deaf individual were at work whcn all the other individuals went into another room for no apparent rcason. Mr. More and thc other deaf individual followed them but the samc supervisor angrily threw them out of the meeting and gavc thcm a two day suspension from work for being "late" to the mceting. His hearing co-workcrs latcr told Mr. More that the supervisor had announced an "immediate meeting" over the loudspeaker. Mr. More was able to write a note explaining the situation to Capt. .lones, who talked to Mr. More's supervisor and had the suspension revcrsed. On information and belief, suspensions such as the ones rcccived by Mr. More and his friend result in lost pay and can eventually result in the loss of ajob.
96. VDOC's and VC Entcrprises' failure to providc adequate access to sign language interpreters for work programs has resulted in harm, and may result in future harm, to deaf individuals in VDOC's custody. It also violates their rights under the U.S. and Virginia Constitutions, the Americans with Disabilities Act, the Rehabilitation Act, and the Virginians with Disabilities Act. Further, it is a violation of VDOC and VC Enterprises' obligation to provide sign language interpreters under the Code of Virginia § 2.2-3401.

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vi. Religious services 97. VDOC provides religious services for individuals in its custody, including but not limited to individuals incarcerated at Powhatan. VDOC may not impede thc religious freedom of the people in its custody. VDOC provides chaplains to organize religious services and discussion groups and to oversee outside volunteers who assist with the services. 98. Deaf individuals under the custody of VDOC require sign language interpreters to effectively participate in the religious services and programs of their choice. 99. VDOC is aware that deaf individuals need sign language interpreters to effcctively benefit from these programs and services. 100. Currently, VDOC has a policy of not providing sign language intcrpreters for its weekly Protestant worship services. A deaf pastor does conduct a Protestant sign language service, but only one Sunday a month, and a volunteer interpreter occasionally comes one additional Sunday per month. In contrast, hearing individuals may attend and participate in these services every week. 101. Deaf individuals incarcerated at Powhatan have rcquested that VDOC provide sign language interpreters for thesc religious services. 102. Since at least 2008, Mr. More has requested that VDOC provide sign language interpreters at weekly Protestant worship services and has actively sought community volunteers to assist with interpreting. 103. Despite Mr. More's efforts, VDOC still does not provide sIgn language interpreters for weekly Protestant worship servIces or any other worship service or religious programs.

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104. VDOC's failure to provide sign language interpreters for religious services and programs imposes a substantial burden on deaf individuals' religious exercise. VDOC's failure to provide adequate access to sign language interpreters for religious services has resulted in harm, and may result in future harm, to deaf individuals in VDOC's custody. It also violates their First Amendment right to the free exercise of religion. Therc is no valid, rational connection between VDOC's failure to provide interpreters for weekly religious services and a legitimate governmental interest. No alternative means of exercising their right to the free exercise of their religion remains open to deaf individuals in VDOC custody, and accommodation will have little to no impact on fellow individuals in custody or prison stafl. VDOC's failure to accommodate deaf individuals' free exercise also violates their rights under the Americans with Disabilities Act, the Rehabilitation Act, and the Virginians with Disabilities Act, and a violation of the Religious Land Use and Institutionalized Persons Act of 2000 and thc Code of Virginia § 2.2-3401.
vii. Communications with Prison Staff, Employees and Officials 105. As the state agency responsible for the custody of inmates, VDOC must ensure that deaf individuals in its custody can communicate with and understand the instructions given by its stafl and employees. 106. Upon information and belief; none of the named Defendants or staff at Powhatan are qualified sign language interpreters. !O7. Thus, deaf individuals in the custody of VDOC require sign language interpreters to adequately communicate with and understand instructions from prison staff and employees. Without sign language interpretation, deaf individuals are unable to understand VDOC policies and safety measures or understand and respond to prison staff instructions.

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108. VDOC is aware that deaf individuals require sign language interpreters to adequately communicate with prison statr.
\09. Howcver, due to VDOC policy that allows deaf individuals in its custody only approximately 25 minutes per week with a sign language interpreter, deaf individuals in VDOC's custody are frequently required to communicate with prison staff and employees through less effective means, such as written communication and gestures.
110. For the majority of time when there is no sign language interpreter present, deaf individuals incarcerated at Powhatan attempt to communicate with prison staff by writing short messages in English. Prison staff, especially COs, frequently rcfuse to read these messages or fail to respond to them in a way that deaf individuals ean understand by, for example, writing back to them. This refusal to write messages back and forth has resulted in a lack of communication and even in incidents that have given rise to disciplinary measures against deaf individuals incarcerated at Powhatan.
Ill. For example, on May 14,2009, Mr. Wolfsburger approached a CO and attempted to request hcr help in locating a form. The CO rcfused to communicate with Mr. Wolfsburger by writing notes or by other means and gestured for him to go away while mocking him in front of other individuals in custody.
112. In response, Mr. Wolfsburger put his linger to his nose - the ASL sign for being "bored" or "fed up." The CO accused Mr. Wolfsburger of approaching her in a "threatening manner" and brought disciplinary charges against him. Mr. Wolfsburger was tried, convicted and sentenced to isolation, in spite of expert testimony cxplaining that the gesture the CO described was in fact the ASL sign for being "bored" and not a threatening gesture.

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113. VDOC's failure to provide adequate access to sign language interpreters for communications between staff and incarcerated individuals has resulted in harm, and may result in future harm, to dcaf individuals in VDOC's custody. It also violates their rights under the U.S. and Virginia Constitutions, the Americans with Disabilities Act, the Rehabilitation Act, and the Virginians with Disabilities Act. Further, it is a violation of VDOC's obligation to provide sign language interpreters under the Code of Virginia § 2.2-3401.
B. Inadequate Access to Prison Alerts 114. VDOC is responsible for ensuring that deaf individuals in its custody can understand the numerous life-cvcnt announcements and safety alcrts made in each correctional facility every day. 115. Given the nature of institutional life, incarcerated individuals rely on VDOC to notify them of basic daily events like wake up calls, meal times, sick calls, recreation times, work times, program times, and lights out. In addition, individuals in VDOC's custody rely on VDOC to notify them of events like the arrival of a letter or a visitor. 116. On information and belief, VDOC uses auditory means, such as a loudspeaker or a CO calling out the announcement, to convey these life-event announcements. 117. Incarcerated individuals also rely on VDOC to notify them when there is an institution-wide emergency, such as a fire or a riot, that requires evacuation, or in the event of a lock-down. 118. On information and belief, VDOC primarily uses auditory means, such as a loudspeaker or a CO calling out the announcemcnt, to convey these safety alerts. 119. Deaf individuals III VDOC's custody cannot hear auditory life-event announcements or safety alerts.

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120. VDOe is aware that deaf individuals in its custody require alternative means of receiving these auditory alerts and announcements, but it refuses to provide an adequate alternative notification system.
121. Deaf individuals incarcerated at Powhatan routinely miss life event announcements. Because thcy are in a correctional setting, missing the designated time for waking up, eating, recreation, or work can cause them to forego the activity, such as a meal, altogether, or face discipline for being late.
122. Mr. Richardson and Mr. Roman often miss counts, calls, meals, recreation, and othcr prison activities because they cannot hear the announcements for them.
123. In October 2009, Mr. Richardson missed breakfast, lunch, and dinner meals because he was unable to hear the announcements. He told pee staff about this, but they continue to fail in communicating the announcements to him and the other deaf individuals in custody.
124. Mr. Richardson and other deaf individuals also miss out on recreational opportunities available to hearing individuals in VDOe custody when VDOe staff fail to take simple steps like turning on the closed captioning on the DVDs played in Powhatan.
125. Some deaf individuals in custody have arrived late to work because they wcre unable to hear the announcements. For instance. on August 9, 2009, after not hearing and not being notified of the work-call announcement. Mr. Richardson was late for work.
126. Mr. More is also unable to hear the life-event announcements over the loudspeaker. For example, Mr. More recently needed to exchange his clothing for mending. He missed the weekly announcement for the clothing exchange because he could not hear it. When he submitted a written request to exchange his clothing mid-week, the VDOe employee

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responsible for the exchange would not let him exchange his clothing and would not accept Mr. More's explanation that he could not hear the weekly announcement. The VDOC employee told Mr. More to wait for the next announcement - which would again be made over the loudspeaker.
127. Deaf individuals incarcerated at Powhatan have missed or nearly missed important non-recurring events, like the arrival of a visitor, because they cannot hear the announcement.
128. In summer 2008, Mr. More had a visitor who waited half an hour and almost left Powhatan without seeing him. Because Powhatan personnel made only oral announcements concerning the visitor, Mr. More was unaware that someone had come to see him until another person in custody took the time to communicate with him directly.
129. Deaf individuals incarcerated at Powhatan have also missed safety alerts, including fire alarms, putting them at risk of suffering serious harm if there is a fire or similarly dangerous event at Powhatan.
130. In April 2009, there was a fire alarm and evacuation at Powhatan. Deaf individuals had to rely on others in custody to alert them and assist them in leaving the building. In addition to being frightening and disorienting for the deaf individuals in VDOC custody, the situation also showed what a significant safety threat the lack of visual alerts poses to deaf individuals. Mr. Wolfsburger complained in writing to VDOC about the April fire drill, but VDOC still has not done anything to remedy the situation. In a subsequent fire drill in winter 2009, Mr. Roman was in his room when a hearing individual in custody came and tapped on his door. Because Mr. Roman has limited lipreading ability, the other individual was able to tell him to evacuate. Mr. Roman noted that he was one of the last people to leave his area. He

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understood that it was a fire drill only when he got outside and was able to ask others to explain the situation. Being one of the last to leave created unnecessary stress for Mr. Roman, and in a real emergcncy, could have put him in serious danger.
131. Mr. Richardson, Mr. Roman, and Mr. More have each requested that VDOC install an alternative notification system, such as electronic displays or beepers, so that the deaf and hard of hearing individuals in VDOC custody can receive life-event announcements and safety alerts through non-auditory means.
132. VDOC has denied these requests for an alternative notification system. 133. VDOC has responded to complaints by deaf individuals in its custody by instructing the individuals to refer to prison daily plans or schedules but, on information and belief these plans and schedules are often kept in places that are difficult or impossible for incarcerated individuals to access. VDOC has also told some deaf individuals in custody that VDOC staff will alert them individually in the future, but VDOC staff havc consistently failed to follow through on these promises. 134. VDOC's failure to provide alternative means of notifying deaf individuals in its custody about life-event announcements and safety alerts has resulted in harm, and may result in serious future harm, to deaf individuals in VDOC's custody. It also violates their rights under the U.S. and Virginia Constitutions, the Americans with Disabilities Act, the Rehabilitation Act, and the Virginians with Disabilities Act. C. Inadequate Access to Communication Devices 135. VDOC provides hearing individuals In its custody with access to telecommunications services in order for them to communicate with family, friends, and other individuals outside of prison.

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136. Communication with friends and family during incarceration is essential to maintaining the kind of community ties that enable incarcerated individuals to re-integrate into civilian life upon release.
137. Oeaf individuals In VOOC's custody cannot use traditional telephones to communicate with individuals outside of prison.
138. VOOC is aware that deaf individuals in its custody require alternative means of communicating with individuals outside of prison, but it does not provide sufficient alternatives.
i. Telecommunications Devicesfor the Deaf 139. As the federal Bureau of Prisons has recognized, "[tJelephone privileges are a supplemental means of maintaining community and family ties that will contribute to an inmate's personal development." 28 C.F.R. § 540.100. Telephone and other forms of telecommunication are very important to individuals in VOOC custody because they foster the family and community ties that are fundamental to motivating them to improve themselves and that prepare them to make a positive transition back to civilian life once their sentence is complete. 140. VOOC provides deaf individuals in its custody with very limited access to telecommunications devices for the deaf ("TOO"). A TOO is a telephone equipped with a keyboard and a display screen, used by individuals who have hearing or speech impairments. A TOD allows individuals to send and receive typed messages using a keyboard attached to a telephone line. For two parties to have a direct TOD conversation, each party must have a TOO. 141. On information and belieC two kinds of TOO units are available at Powhatan: permanent TDD units are installed in the phone banks in the cellblocks and at least one portable

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TOO unit is usually kept in the Watch Office, the office used by on-duty COs. There are problems with both kinds ofTDDs at Powhatan.
142. On infonnation and belief, many of the cellblock TDDs are broken or inoperative. In addition, the cellblock TDDs are blocked by VDOC policy from dialing the 1-800 or 71 I numbers necessary to use special federally-mandated relay services that allow deaf individuals to communicate with hearing individuals by telephone.
143. Deaf individuals may access the relay services using the portable TOO unit, but they must submit a request in advance and they can ordinarily use the portable unit only after 9:00 pm unless they make special arrangements with mental health staff to usc the unit during the day. Deaf individuals in VDOC custody at Powhatan are therefore frequently unable to communicate with people outside the prison, in contrast to their hearing peers. Deaf individuals are entitled to fully operational cellblock TDDs on which the relay numbers have been unblocked so that they can use relay services on these units.
ii. Cellblock TDDs 144. VDOC has been aware since at least April 2009 that many of the cellblock TDDs are broken and give error messages when deaf individuals attempt to use them to contact other TOO users. 145. For example, in the Spring of 2009, Mr. Wolfsburger attempted to use the TOO units installed in the cellblock phone banks to place a direct call to individuals outside of prison who have TDD units. However, Mr. Wolfsburger was unable to get through because the TDD unit in the phone bank gave him an error message. 146. Mr. Roman has unsuccessfully attempted to call his mother and girl friend, both of whom have TDDs. After following VDOC telephone procedures and adding his mother's and

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his girlfriend's TDD numbers to the TDD contact list, Mr. Roman tried calling them directly, but their numbers still came up as invalid on the TDD line. As a result of VDOC's policy, Mr. Roman was unable to contact his mother and girlfriend directly using the TDD in the cellblock phone banks at Powhatan.
iii. Portable TDDs and Relay Services 147. Under VDOC policy, individuals incarcerated at Powhatan cannot dial 711 or 800 numbers from the TDDs installed in the cellblocks because they are blocked. On information and belief, these numbers can be easily unblocked by VDOC. Thus, deaf individuals cannot use the cellblock TDD units to place relay calls to friends and family who do not have their own TDD units 6 They must use the portable TDD units that, on information and belief, are ordinarily kept in the Watch Office, on which the 711 and 800 numbers have been unblocked. 148. Mr. Wolfsburger, Mr. Tinsley, Mr. Roman, and Mr. Minnis have friends and family who do not own TDDs, and they must use a relay service to communicate with those individuals outside of prison. These men have complained in writing to prison officials since at least November 2008 that they are unable to access relay services through the TDD units

6

Relay services allow TOO users to communicate with individuals who do not have TDDs. Since many

individuals and businesses do not have TDD devices, federally-mandated rclay services have been established

throughout the United States.

Relay services operate as follows: the party using the TOD places a call to a relay center, and a relay operator answers the call using another TOO. The caller provides the operator with the phone number of the party with whom they wish to communicate, and the operator places the call. When a hearing person answers the phone, the relay operator explains the rclay service and states the name of the caller. The responses of the hearing person are typed by the relay operator into a TOO, and transmitted over the telephone lines to the TOO user. The call proceeds with the relay operator voicing what the TDD user types to the hearing person receiving the call, and typing what the hearing person speaks. The process can also work the other way - a hearing person who has no TDO can call deaf individuals from a traditional telephone by using the relay service.

The relay service is free of cost to the users, and the caller pays only for the cost ofthe call to the party with whom the caller wishes to converse. To connect to a relay services center, an individual can either dial "711" from anywhere within the United States or dial the toll-free "800" number of the relay service in the caller's locality. Accordingly, TOO relay services in Virginia may be accessed in two ways - by calling 711 or by calling Virginia's toll-free relay service number.

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installed in the inmate-accessible cellblock areas. VOOC of1icials have informed them that relay services are inaccessible on those telephones because it is VOOC policy to block the 711 and 800 numbers necessary to connect with relay services on the TOOs installed in the cell blocks. However, on information and belief, VOOC can unblock 711 and 1-800 numbers on these phones.
149. Deaf individuals thus must make personal calls from the Watch Office, in the presence ofVOOC staff. VOOC staff have the TOO unit set to print out a written record of each conversation, which they confiscate and keep. On information and belief, hearing individuals making calls from the eellblocks are not subjeet to this level of monitoring.
150. Further, VOOC staff provide access to the portable TOO units only on a limited basis. For example, when the TOO unit is kept in the Watch Office, deaf individuals are allowed to use the TOO unit only after approximately 9:00 pm. Thus, unlike hearing individuals incarcerated at Powhatan, deaf individuals who need to make calls during regular business hours or who have family members who are unavailable at night have restricted aceess to a relay service to place these calls before 9:00 pm.
151. For example, Mr. Minnis cannot contact his mother using the relay service in the Watch Office because she goes to bed before 9:00 pm.
152. Also unlike hearing individuals, deaf individuals wishing to use the TOO in the Watch Onice must submit a written request in advance of using the TOO unit. If the commanding oi1icer decides that he and his stafT are too busy, he may postpone the callsometimes for up to 24 hours.
153. Mr. Wolfsburger and Mr. Tinsley have both experienced disruption in their TOO calls because the COs continue to talk loudly while they are attempting to use the unit-even

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after Mr. Wolfsburger and Mr. Tinsley have asked them to be quiet. The TOO picks up the extra noise and it results in garbled messages. If a deaf individual needs to make a call through a relay service during regular business hours, he must make a special request to have the portable TOO unit moved to his case worker's office.
154. Mr. Wolfsburger and Mr. Tinsley have been required to make special requests to use the portable TOO unit during business hours and have that unit moved to their case workers' offices. Hearing individuals do not have to make special appointments to use the telephones during business hours.
ISS. In addition, communications usmg a TOO take longer than vOIce communications, because each word must be typed by the relay operator or TOO user. As a result, it takes deaf individuals more time to have a conversation using the TOO and relay service than it does for hearing individuals to have the same conversation over a traditional telephone. When the TOO unit is in the Watch Oflice, deaf individuals arc allowed to use it only for a short period of time. In January 2009, Mr. Wolfsburger was using the TOO unit in the Watch Office when COs slammed the table to tell him his time was up, well before he had the opportunity to finish his conversation.
iv. Voice Carry-Over Relay 156. Since Mr. Richardson is able to use his voice, he prefers using Voice Carry-Over relay ("veO") when placing phone calls. veo is for individuals who can speak clearly, yet have hearing loss significant enough to prevent them from hearing through a standard telephone. 157. veo works like a regular relay service, but the deaf or hard of hearing caller speaks instead of types his message. When the hearing caller replies, a relay service provider types the caller's comments and transmits them to the deaf or hard of hearing caller's TOO unit.

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158. Virginia Relay offers a veo service to Virginians with hearing disabilities. A veo caller uses the same 711 number used by traditional relay callers. All that is necessary to
use the service is a TDO unit and a standard telephone.
159. VOOC has stated that, by policy, veo service is not provided and has denied Mr. Richardson's request to use yeo.
v. Videophone 160. Videophones and free or low-cost internet-based video links such as Skype (collectively, "videophones") are replacing TDOs among deaf people because they allow deaf individuals to communicate with one another directly in ASL, without having to translate every statement into written English, a language in whieh it is difficult for them to communicate. When using a videophone, callers can see each other, usually over an Internet connection. As a result, many deaf households no longer have a TOO and have no way to accept a TOO call, as they rely exclusively on videophones for telecommunication. 16l. Oeaf individuals using videophones can also call a Video Relay Service ("VRS") to place calls to people who do not understand ASL or do not have a videophone. The mechanics of VRS are very similar to those of traditional TDD relay service ..- the caller is routed to an interpreter. the caller gives the interpreter the number of the party he is trying to reach, and the interpreter then interprets the conversation into spoken English. In VRS, however, the relay interpreter can see the caller and knows ASL. 162. Videophones and VRS permit deaf people to use ASL instead of having to carry out every phone call in written English. For deaf people who have difficulty with reading and writing English, this is a significant advantage over the traditional TDD telephone calls.

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163. Deaf individuals in VDOC's custody have repeatedly requested videophone access, but have been denied videophone access as a matter of VDOC policy.
164. On information and belief, in January 2010 VDOC instituted a "Lifetime Video Link" program that enables individuals in custody to communicate with their friends and family members over a two-way video connection. VDOC has thus demonstrated the feasibility of providing this service to accommodate deaf individuals' disability, and shown that there are no insurmountable security or technological barriers to setting up videophones for deaf individuals.
165. However, VDOC charges $15 per half hour or $30 per hour - an extremely high sum for indigent individuals in VDOC custody - for the use of the Lifetime Video Link service. It is illegal under federal regulations for VDOC to charge deaf individuals a "surcharge" to provide them with necessary auxiliary aids, such as videophones. 28 C.F.R. § 35.l30(f).
166. Mr. Tinsley requested access to a videophone so that he could communicate with his girlfriend. Mr. Tinsley's girlfriend is deaf and does not have consistent access to a TDD unit, so he cannot contact her using the TDD units in the cellblocks, even when the units are working.
167. Because Mr. Roman and Mr. More have used ASL nearly their entire lives, they prefer to communicate with family and friends through a videophone, instead of typing their messages on a TDD, as written communications are not effective for them.
168. Mr. Minnis needs to have access to a videophone to communicate with his brother and three of his friends, all of whom have access to videophones but not TDDs.
169. VDOC has denied Mr. Tinsley, Mr. Roman, Mr. More and Mr. Minnis' requests as a matter ofVDOC policy.
170. VDOC's failure to provide adequate means of allowing deaf individuals to communicate with individuals outside of prison has resulted in harm, and may result in future

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harm, to deaf individuals in VDOC's custody. It also violates their rights under the U.S. and Virginia Constitutions, the Americans with Disabilities Act, the Rehabilitation Act, and the Virginians with Disabilities Act.
vi. Hearing Aids and other Individual Auxiliary Devices 171. VDOC has consistently failed to provide prisoners with individual auxiliary aids that would enable them to hear prison alerts or participate in other aspects of prison life. Mr. More used a hearing aid before prison. With a hearing aid, he can understand some spoken language, and a hearing aid helps him modulate his voice enabling him to speak morc clearly. He has been sent for hearing tests twicc. There was no interpreter either time. Over a year ago, the prison doctor told him that they were waiting for funding for his hearing aid. Mr. More has still not received his hcaring aid. 172. Mr. Richardson received a medical order for in-line amplifiers and special noisereduction headphones, which are reasonable accommodations that would enable him to participate in prison life. However, when Mr. Richardson attempted to purchase the equipment, a non-physician in the Powhatan medical department informed him that the equipment would not be authorized by the medical department, and the warden denied his request on the grounds that "there is no medical indication for the use of these headphones; therefore, the medical department is not in the position to authorize this purchase." VDOC failed to provide Mr. Richardson with a reasonable accommodation when it prohibited him from obtaining these simple auxiliary devices, which a doctor had already determined were medically necessary. D. Improper Assignment of Incarcerated Deaf Men to Powhatan 173. VDOC uses Institutional Assignment Criteria to place prisoners in correctional facilities throughout Virginia based on their treatment needs, their offenses of conviction and

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their behavior while in pnson. See Commonwealth of Virginia, Department of Corrections, Institutions by Security Levels, http://www.vadoc.state.va.us/facilities/security-Ievels.shtm (last visited Jan. 28, 2010). According to VDOC, the Institutional Assignment Criteria serve as "a general guideline for use by both Institutional and Central Classification staff in their efforts to make recommendations and final decisions when determining the most appropriate institutional assignments." Id.
174. There are five institutional assignment levels, with LevcI I being the lowest security classification level and Level 5 being the highest security classification level.
175. Powhatan is a Level 3 facility. Individuals placed at Level 3 facilities generally have "single, multiple or life [plusJ sentences" and have served twenty consecutive years in prison. Id. Non-deaf individuals incarcerated at Powhatan may be considered for transfer to a less-secure Level I or 2 facility if they have not engaged in any disruptive behavior for twentyfour months and meet the other criteria for placement. Id.
176. In contrast, Level I facilities are reserved for individuals who have less serious convictions, are not escape risks, and are not disruptive. Id. Level I facilities are divided into Level I-Low and Level I-High groups. Id. Individuals convicted of murder I or II, robbery, sex-related crimes, kidnapping, carjacking, felonious assault or malicious wounding are not eligible for placement in Virginia's four Level I-Low security facilities. Jd. "Ibus, there is generally a significant difference between the offenses and behavior records of an individual in custody assigned to Level I-Low and one assigned to Level 3.
177. VDOC does not apply its standard classification process to deaf and hard of hearing individuals in its custody. Instead, on information and belief~ VDOC has a policy of

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asslgmng deaf men under VDOC's custody to Powhatan, regardless of the nature of their conviction or their prior behavior.
178. Mr. Wolfsburger, Mr. Tinsley, Mr. Richardson, Mr. Roman, Mr. Minnis and Mr. Morc are all incarcerated at Powhatan.
179. On information and belief, but for his disability, Mr. Wolfsburger would be designated as Class Level I.
180. On information and beliet~ but for his disability, Mr. Tinsley would be designated as Class Level 1.
181. On information and belief, but for his disability, Mr. More would be designated as Class Level I.
182. On information and belief, but for his disability, Mr. Minnis would be designated Class Level I.
183. VDOC's policy of assigning all male deaf individuals in its custody to Powhatan has resulted in harm, and may result in future harm, to deaf individuals in VDOC's custody. It also violates their rights under the U.S. and Virginia Constitutions, the Americans with Disabilities Act, the Rehabilitation Act, and the Virginians with Disabilities Act. VI. CLASS ACTION ALLEGATIONS
184. Plaintiffs Wolfsburger, Tinsley, Richardson, Roman, Minnis, and More brin g claims based on the ADA, the Rehabilitation Act, the Virginians with Disabilities Act, the Code of Virginia, the Religious Land Use and Institutionalized Persons Act of 2000, the Virginia Constitution, and the United States Constitution on behalf of themselves and all others similarly situated, pursuant to Rule 23 of the federal Rules of Civil Procedure.

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185. Plaintiffs seek to represent a class composed of all current and future deaf and hard of hearing individuals incarcerated by VDOC who primarily rely on American Sign Language for in-person communications and/or require auxiliary aids and services to hear or understand telephone communications or loudspeaker system announcements or alarms, and who have been denied effective communication due to lack of qualified sign language interpreters or other auxiliary aids and services, for any programs, services or privileges offered or available to individuals incarcerated by the Virginia Department of Corrections (hereinafter "Class"). As a result of their confinement in VDOC custody. members of the Class have been, are, and will be sUbjected to violations of their statutory and constitutional rights, as described in this Complaint. Plaintiffs represent a class of persons seeking declaratory and injunctive relief to eliminate Defendants' unlawful and unconstitutional policies and practices. Plaintiffs also seek compensatory damages and attorney fees, where appropriate.
186. There are currently at least fifteen to twenty deaf or hard of hearing individuals incarcerated at Powhatan who rely primarily on American Sign Language for m-person communication and/or reqUire auxiliary aids and servIces to hear or understand telephone communications or loudspeaker system announcements or alarms, and an unknown number of deaf or hard of hearing individuals in other correctional centers within the Virginia correctional system. The proposcd Class is so numerous, and membership so fluid, that joinder of all members is impracticable.
187. All Class members are equally subject to the conditions described in this Complaint, and numerous common questions of law and fact exist as to all Class members. These common questions include, but are not limited to: whether Defendants systemically fail to provide effective communication and adequate access to sign language interpreters and other

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auxiliary aids and services to individuals who are deaf or hard of hearing; whether Defendants' conduct has resulted in harm, and may result in serious future harm, to deaf or hard of hearing individuals by denying them effective communication with medical personnel; whether Defendants VDOC, VC Education, VC Enterprises, and their named employees sued in their official capacities systematically fail to provide individuals who are deaf or hard of hearing with access to VDOC's services, programs, or privileges comparable to access provided to hearing individuals in VDOC's custody; whether Defendants VDOC and its named employees sued in their official capa cities impose a substantial burden on deaf individuals' religious exercise; whether VDOC and its named employees sued in their official capacities fail to provide notification of prison announcements to deaf and hard of hearing individuals in a manner comparable to that provided to hcaring individuals; whether VDOC and its named employees sued in their individual capacities provide inadequate means of allowing deaf or hard of hearing individuals to communicate with individuals outside of prison; and whether VDOC and its named employees sued in their official capacities have impropcrly and in a discriminatory manner assigned deaf or hard of hearing individuals to Powhatan.
188. Plaintiffs' claims are typical ofthc claims of the Class. Plaintiffs are deaf or hard of hearing individuals incarcerated in a VDOC facility who primarily rely on American Sign Languagc for in-person communication and/or require auxiliary aids and services to hear or understand telephone communications or loudspeaker system announcements or alanns, and who have bccn denied effective communication due to lack of qualified sign language intcrpreters or other auxiliary aids and services, for any programs, services or privileges offered or available to individuals incarcerated by the Virginia Department of Corrections. The policies and practices described in this Complaint apply equally to the named PlaintifTs and to all the other members of

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the Class, and the injuries suffered by the named Plaintiffs stem from the same policies and practices that affect all members of the Class.
189. Plaintiffs and Plaintiffs' counsel will fairly and adequately represent the interests of the Class. Plaintiffs' interests are consistent with, and are not antagonistic to, the interests of the Class as a whole, and Plaintiffs seek no relief other than the relief sought on behalf of the Class. Plaintiffs' counsel are experienced in the protection and enforcemcnt of the statutory and constitutional rights of incarcerated individuals, especially deaf individuals.
190. The prosecution of separate actions by individual members of the class would create the risk of establishing incompatible standards of conduct for the party opposing the Class and/or would create the risk of substantially impairing or impeding the ability of individuals not parties to the adjudication from protecting their interests.
191. Defendants have acted and refused to act on grounds generally applicable to the VDOC Deaf Class, thereby making appropriate final injunctive and declaratory relief with respect to the Class as a whole.
VII. CLAIMS FOR RELIEF
A. COUNT I Discrimination on the Basis of a Disability in Violation of the Americans with Disabilities Act (42 U.S.c. § 12131 etscq.)
192. PlaintifTs reallege and incorporate by reference each and every allegation above as if fully set forth herein.
193. On July 12, 1990, Congress enacted the ADA "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities," 42 U.S.C. § 12101(b)(l). Title II of the ADA states that "no qualified individual

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with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.c. § 12132.
194. Plaintiffs are qualified individuals with a disability within the meaning of Title II of the ADA, 42 U.S.c. § 12131(2).
195. The claims under the ADA are brought only against Gene Johnson, Fred Schilling, Robin Hulbert, G.K. Washington, Lois Fegan, Donald Guillory, Walter A. McFarlane, Sharon Trimmer, Sheldon Retchin, John Duval, Deborah Davis, Amanda Dodd, Velma Seymour, Eddie Pearson, P.C. Bunnel, Sandra Parker, Ronald Toney, K. Watson, and B. Morris ("named defendants"), and only in their official capacities.
196. As departments, agencies, or instrumentalities of the Commonwealth of Virginia, VDOC, VC Enterprises, VC Education, VCUIlS, MeV, and any of their departments or agencies, including Powhatan, are "public entities'· within the meaning of 42 U.S.c. § 12131(1 )(B).
197. At all times relevant to this action, the ADA was in full force and effect in the United States and Plaintiffs had a right not to be subjected to discrimination on the basis of their disability by Defendants. 42 U.S.c. § 12132.
198. The U.S. Department of Justice (·'DO.!") regulation implementing Title 11 of the ADA clearly requires the provision of effective communication as part of its nondiscrimination mandate. 28 C.F.R. 35.160.
199. The regulation states that "fa] public entity shall take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others." 28 C.F.R. § 3S.160(a).

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200. Named defendants' failure to provide effective communication for individuals with hearing disabilities denied and continues to deny, on the basis of their disability, Plaintiffs the same access to Named defendants' services, benefits, activities, programs, or privileges as the access provided to hearing individuals.
201. PlaintitTs have been unable to communicate with medical personnel, participate in educational and mental health programs, learn of daily-life and safety alert notifications, and communicate with individuals outside of prison as effectively as hearing individuals in VOOC's custody.
202. In order to ensure effective communication, "a public entity shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity." 28 C.F.R. § 3S.160(b)(I).
203. Auxiliary aids include, but are not limited to, "qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments." 42 U.S.c. § 12103, such as computer-aided transcription services, assistivc listening systems, closed caption decoders, open and close captioning, TOO's, videotext displays, and written materials. 28 C.F.R. § 35.104
204. In addition, "Ial public entity may not place a surcharge on a particular individual
with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids or program accessibility, that are required to providc that individual or group with the nondiscriminatory treatment required by the Act or this part." 28 C.F.R. § 35.130(1).

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205. Named defendants subjected Plaintiffs to discrimination solely on the basis of their disability, in violation of their rights under the ADA. They have done this by failing to provide effective communication, and by not ensuring that adequate access to qualified sign language interpreter services and other auxiliary aids and services is made available to individuals with hearing impairments in VDOC's custody. Gene Johnson, Fred Schilling, Robin Hulbert, G.K. Washington, Lois Fegan, Donald Guillory, Walter A. McFarlane, Sharon Trimmer, Eddie Pearson, p.e. Hunnel, Sandra Parker, Ronald Toney, K. Watson, and B. Morris ("VDOC named defendants") have also done this by imposing a heavy surcharge for the use of videophones, which are an auxiliary aid required to provide deaf individuals with the nondiscriminatory trcatment required under the ADA.
206. 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. § l60(b )(2).
207. VDOe named defendants have failed to give consideration to Plaintiffs' requests, denying them their requests for an alternative notification system and use of veo and videophones to communicate with individuals outside of prison.
208. On information and belief, the failure to provide effective communication and the failure to provide comparable access to services, benefits, activities, programs, or privileges are policies, regular practices, and/or customs of named defendants. These failures are ongoing and continue to this date.
209. Named defendants' failure to provide sign language interpreters and/or appropriate auxiliary aids and services has subjected Plaintiffs to discrimination on the basis of

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their disability in violation of their rights under the ADA, In ways that include, but are not

limited to, the following:

a. inadequate access to sign language interpreters; b. inadequate access to prison alerts; c. inadequate access to communication devices; and d. improper assignment of deaf men under VDOC's custody to Powhatan.

210. Further, VDOC named defendants discriminate against Plaintiffs, solely on the

basis of their disability, by refusing to apply VDOC's standard classification process to deaf and

hard of hearing men in its custody and instead, assigning all deaf men in VDOC custody to

Powhatan, regardless of the nature of their conviction or their prior behavior while incarcerated.

211. As a proximate result of named defendants' violations of Plaintiffs' rights under

the ADA, Plaintiffs have suffered and continue to suffer from discrimination, unequal treatment,

exclusion (including exclusion from Defendants' services, benefits, activities, programs, and

privileges), violations of their rights under the laws of the United States, financial loss, loss of

dignity, frustration, humiliation, emotional pain and suffering, anxiety, trauma, embarrassment,

unnecessary loss of rights and privileges, including unnecessary disciplinary measures, and

injury to their health.

212. Named defendants' failure to comply with the ADA has resulted, and will

continue to result, in harm to Plaintiffs, as PlaintilTs will continue to be in the custody or under

the supervision of VDOC and will continue to attempt to use or avail themselves of the services,

beneJits, activities, programs, and privileges of the named defendants' state agency employers.

This harm will continue unless and until the named defendants are ordered by this Court to make

modifications to the policies, practices, and procedures of their respective state agencies pursuant

to the ADA.

B. COUNT II
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Discrimination on the Basis of a Disability in Violation of the Rehabilitation Act (29 U.S.c. § 794 et seq.)
213. Plaintiffs reallege and incorporate by reference each and every allegation above as

if fully set forth herein.

214. The purpose of the Rehabilitation Act is to ensure that no "qualified individual
with a disability in the United States ... shall, solely by reason of [ 1disability, 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).

215. Plaintiffs are qualified individuals with a disability within the meaning of the

Rehabilitation Act, 29U.S.C. § 705(20).

216. Defendants and State Agency Defendants receIve Federal financial assistance

within the meaning of29 U.S.c. § 794(a).

217. The operations of VDOC, VC Enterprises, VE Education VCUHS, MCV, and

their departments, agencies, and instrumentalities, including Powhatan, are "program[s] or

activitlies]" within the meaning of29U.S.C. § 794(b)(I)(A)-(B) and/or (b)(2)(B).

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

effect in the United States and Plaintiffs had a right not to be subjected to discrimination on the

basis of their disability by Defendants. 29 U.S.c. § 794(a).

219. The DOJ regulation implementing the Rehabilitation Act clarifies the

requirements for Federal financial recipients, including correctional facilities, stating that "la]

recipient that employs fifteen or more persons shall provide appropriate auxiliary aids to

qualified handicapped persons with impaired sensory, manuaL or speaking skills where a refusal

to makc such provision would discriminatorily impair or exclude the persons in the program

receiving federal financial assistance." 28 C.F.R. § 42.503(1).

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220. Appropriate auxiliary aids include, but are not limited to, "brailled and taped material, qualified interpreters, readers, and telephonic devices." 28 C.F.R. § 42.503(t).
221. Defendants and State Agency Defendants discriminatorily impaired Plaintiffs' ability to communicate effectively with medical personnel, prison staff, and individuals outside of prison and/or excluded Plaintiffs from educational, vocational, and religious services and prison-wide announcements. They have done this by failing to provide appropriate auxiliary aids in violation of the Rehabilitation Act.
222. Defendants' and State Agency Defendants' failure to provide appropriate auxiliary aids and services for individuals with hearing disabilities denied and continues to deny, on the basis of their disabilities, PlaintifTs the same access to Defendants' and State Agency Defendants' services, benefits, activities, programs, or privileges as the access provided to hearing individuals.
223. On information and belief, the failure to provide appropriate auxiliary aids and services and the failure to provide comparable access to services, benciits, activities, programs or privileges are policies, regular practices and/or customs of Defendants and State Agency Defendants. These failures are ongoing and continue to this date.
224. Defendants' and State Agency Defendants' failure to provide appropriate auxiliary aids and services has subjected Plaintiffs to discrimination on the basis of their disability in violation of their rights under the Rehabilitation Act, in ways that include, but are not limited to, the following:
a. inadequate access to sign language interpreters; b. inadequate access to prison alerts; c. inadequate access to communication devices; and d. improper assignment of deaf men under VDOC's custody to Powhatan.

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225. Further, VDOC named defendants discriminate against Plaintiffs, solely on the basis of their disability, by refusing to apply VDOC's standard classification process to deaf and hard of hearing men in its custody and instead, assigning all deaf men in its custody to Powhatan, regardless of the nature of their conviction or their prior behavior while incarcerated.
226. As a proximate result of Defendants' and State Agency Defendants' violations of Plaintiffs' rights under the Rehabilitation Act, Plaintiffs have suffered, and continue to suffer, from discrimination, unequal treatment, exclusion (including exclusion from Defendants' services, benefits, activities, programs, and requirements), financial loss, loss of dignity, frustration, humiliation, emotional pain and suffering, anxiety, trauma, embarrassment, unnecessary loss of rights and privileges, including unnecessary disciplinary measures, and injury to their health.
227. Defendants' and State Agency Defcndants' failure to comply with the Rehabilitation Act has resulted in harm to Plaintiffs, and Defendants arc liable to Plaintiffs for harms suffered. Defendants' and State Agency Defendants' failure to comply with the Rehabilitation Act will continue to result in harm to Plaintiffs, as Plaintiffs will continue to be in the custody or under the supervision of VDOC and will continue to attempt to use or avail themselves of the services, benefits, activities, programs, and privileges of Defendants and State Agency Defendants. This harm will continue unless and until Defendants and State Agency Defendants are ordered by this Court to make modifications to their policics, practices and procedures pursuant to the Rehabilitation Act.
C. COUNT III Violation of the Virginians with Disabilities Act (Code of Virginia § 51.5-40)

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228. Plaintiffs reallege and incorporate by reference each and every allegation above as if fully set forth herein.
229. The Virginians with Disabilities Act requires that no "qualified person with a disability shall, on the basis of disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving state financial assistance or under any program or activity conducted by or on behalf of any state agency." Code of Virginia. § 51.5-40.
230. Plaintiffs are qualified individuals with a disability within the meaning of the Code of Virginia § 51.5-40.
231. VDOC, VC Enterprises, VC Education, VCUHS, MCV, and Powhatan receive state financial assistance within the meaning of the Code of Virginia, § 51.5-40.
232. The operations of Defendants and their departments, agencIes, and
instrumentalities are "program[s1or activit[ies]" within the meaning of Code of Virginia. § 51.5-
40. 233. At all times relevant to this action, the Virginians with Disabilities Act was in full
force and effect in the United States and PlaintifTs had a right not to be subjected to discrimination on the basis of their disability by Defendants. Code of Virginia § 51.5-40.
234. Defendants, acting under color of Virginia law, subjected Plaintiffs to discrimination solely on the basis of their disability, in violation of their rights under the Virginians with Disabilities Act. They have done this by failing to provide effective communication and adequate access to qualified sign language interpreters and other auxiliary aids and services.

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235. Defendants' failure to provide efTective communication for individuals with

hearing disabilities denied and continues to deny, solely on the basis of their disabilities,

Plaintiffs the same access to Defendants' services, benelits, activities, programs, and privileges

as the access provided to hearing individuals.

236. On information and belief, the failure to provide efTective communication and the

failure to provide comparable access to services, benelits, activities, programs, or privileges are

policies, regular practices, andlor customs of Defendants. These failures are ongoing and

continue to this date.

237. Defendants' failure to provide effective communication and appropriate auxiliary

aids and services has subjected Plaintiffs to discrimination on the basis of their disabilities in

violation of their rights under the Virginians with Disabilities Act, in ways that include, but are

not limited to, the following:

e. inadequate access to sign language interpreters; a. inadequate access to prison alerts; b. inadequate access to communication devices; and c. improper assignment of deaf men under VDOC's custody to Powhatan.
238. Further, VDOC discriminates against Plaintiffs, solely on the basis of their

disability, by refusing to apply its standard classilication process to deaf and hard of hearing men

in its custody and instead, assigning all dcaf men in its custody to Powhatan, rcgardless of the

nature of their conviction or their prior behavior while incarcerated.

239. As a proximate result of Defendants' violations of PlaintifTs' rights under the

Virginians with Disabilities Act, Plaintiffs have sufTered and continue to suffer trom

discrimination, unequal treatment, exclusion (including exclusion from Defendants' services,

benelits, activities, programs, and requirements), violations of their rights under the laws of the

Commonwealth of Virginia, linancial loss, loss of dignity, frustration, humiliation. emotional

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pain and suffering, anxiety, trauma, embarrassment, unnecessary loss of rights and privileges, including unnecessary disciplinary measures, and injury to their health.
240. Defendants' failure to comply with the Virginians with Disabilities Act has resulted in harm to Plaintiffs, and Defendants are liable to Plaintiffs for harms suffered. Defendants' failure to comply with the Virginians with Disabilities Act will continue to result in harm to Plaintiffs, as PlaintitTs will continue to be in the custody or supervision of VDOC and will continue to attempt to usc or avail themselves of the services, benciits, activities, programs and privileges of Defendants. This harm will continue unless and until Defendants are ordered by this Court to make modifications to their policies, practices and procedures pursuant to the Virginians with Disabilities Act.
n. COUNT IV
Violation of Code of Virginia § 2.2-3401 241. Plaintiffs reallege and incorporate by reference each and evcry allegation above as if fully set forth herein. 242. The Code of Virginia requires that "[w]henever a deaf person applies for or receives any license, service, assistance or other right or benefit provided by alJ [state] agency, the agency shall either request the Virginia Department for the Deaf and Hard-of-Ilearing to appoint a qualified interpreter for the deaf or appoint such an interpreter from the list of qualified interpreters maintained by the Department to assist the deaf person in communicating with agency personnel." Code of Virginia, § 2.2-3401(B). 243. VDOC, VC Enterprises, VC Education, VCUHS, MCV and Powhatan are state agencies that provide services, assistance, and benefits to the Plainti ffs within the meaning of Code of Virginia § 2.2-3400. These services, assistance. and benefits including but not limited

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to classes and programs offered by VDOC, VC Education and VC Enterprises, medical services offered by VDOC, VCUHS and MCV, religious services, means of external communications, and communication with agency personnel.
244. Plaintiffs have requested services, assistance, and benefits from Defendants, including but not limited to, the services, assistance, and benefits alleged above and have requested that interpreters be provided.
245. Defendants, through their policies and practices, consistently fail to provide adequate access to sIgn language interpreters for deaf individuals III VDOC's custody and control, in violation of Code of Virginia § 2.2-3401.
246. Defendants' failure to comply with the Code of Virginia has resulted in harm to PlaintifTs, and Defendants are liable to PlaintilTs for harms suffered. Defendants' failure to comply with the Code of Virginia will continue to result in harm to Plaintiffs, as PlaintifTs will continue to be in the custody or supervision ofVDOC and will continue to attempt to use or avail themselves of the services, benefits, activities, programs, and privileges of Defendants. This harm will continue unless and until Defendants are ordered by this Court to make modilications to thcir policies. practices, and procedures pursuant to the Code of Virginia.
E. COUNT V Violation of the Religious Land Use and Institutionalized Persons Act of 2000
"Substantial Burden on Religious Exercise" (42 U.S.c. § 2000cc et seq.)
247. Plaintiffs reallege and incorporate by reference each and every allegation above as if fully set forth herein.

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248. Governments may not impose substantial burdens on the religious exercises of institutionalized persons even if the burden results from a rule of general applicability. 42 U.S.C. § 2000cc-l(a).
249. PlaintifTs are "institutionalized persons" within the meaning of The Religious Land Use and Institutionalized Persons Act of2000. 42 U.S.C. § 2000cc-1.
250. As a department, agency, or instrumentality of the Commonwealth of Virginia, VDOC is a government within the meaning of the Religious Land Use and Institutionalized Persons Act of2000 ("RLUIPA"). 42 U.S.c. § 2000cc-5(4).
251. The claims under RLUIPA are brought only against Gene Johnson, G.K. Washington, and B. Morris ("VDOC RLUIPA defendants"), and only in their official capacities as employees of VDOC.
252. The VDOC RLUIPA defendants have deprived and continues to deprive Plaintiffs of their right to the free exercise of religion, as secured by RLUIPA, by unlawfully imposing a substantial burden on Plaintiffs religious exercise. They have done this by failing to provide interpreters or other means for enabling plaintiffs to efTectively communicate at weekly worship services. The substantial burden VDOC RLlJIPA defendants have imposed on Plaintit1's religious exercise affects programs or activities that receive federal financial assistance.
253. VDOC RLUIPA defendants' failure to comply with RLlJIPA has resulted in harm to Plaintiffs, and will continue to result in harm to Plainti frs, as PlaintifTs will continue to be in VDOC's custody and continue to attempt to participate in weekly worship services unless and until VDOC RLUIPA defendants are ordered by this Court to make modifications to VDOC policies, practices, and procedures pursuant to RLUIP A.
F. COUNT VI

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Violation of the United States Constitution Freedom of Speech and Free Exercise of Religion: First and Fourteenth Amendments
(42 U.S.c. § 1983) 254. PlaintitTs reallege and incorporate by reference each and every allegation above as if fully sct forth herein. 255. Under the First and Fourteenth Amendments of the United States Constitution, States "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. Const. amend. I. 256. VDOC named defendants have, in their individual capacities, depri ved and continue to deprive Plaintiffs of their free exercise of religion and freedom of speech, as secured by the First Amendment to the United States Constitution and made applicable to the States by the Fourteenth Amendment, by discriminating against PlaintifTs because of their mode of speech and by substantially burdening their religious exercise. 257. VDOC named defendants' failure to comply with the First and Fourteenth Amendments of the United States Constitution has resulted in harm to Plaintiffs, and will continue to result in harm to Plaintiffs, as Plaintiffs will remain in the custody of VDOC and continue to attempt to participate in weekly worship services unless and until VDOC is ordered by this Court to make modifications to its policies, practices, and procedures pursuant to the First and Fourteenth Amendments ofthc United States Constitution. G. COUNTVIl
Violation of the Constitution of Virginia Free Exercise of Religion: Constitution of Virginia Article I, Section 16 258. Plaintiffs reallege and incorporate by rcference each and every allegation above as if fully set forth herein.

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259. Under the Article I, Section 16 of the constitution of Virginia, "all men are equally entitled to the free exercise of religion" and "no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise sutler on account of his religious opinions or belief." Va. Const. art. I § 16.
260. VDOC named defendants have failcd to provide interpreters or other means for the Plaintiffs to participate in weekly religious services at Powhatan. Plaintiffs must rely on volunteer interpreters who come once or twice a month to participate in these serviccs.
261. VDOC named defendants have deprived and continue to deprive Plaintiffs of their rights to free exercise of religion, as secured by Article I, Section 16 of the Constitution of Virginia, by discriminating against Plaintiffs because of their speech and by substantially burdening their religious exercise.
262. VDOC named defendants' failure to comply with Article I, Section 16 of the Constitution of Virginia has resultcd in harm to Plaintiffs, and will continue to result in harm to Plaintiffs, as PlaintitTs will remain in the custody of VDOC and continue to attempt to participate in weekly worship services unless and until VDOC named defcndants arc ordered by this Court to make modifications to their policies, practices, and procedures pursuant to Article I, Section 16 of the Constitution of Virginia.
H. COUNT VIII Violation of the Constitution of Virginia
Freedom of Speech: Constitution of Virginia Article I, Section 12 263. Plaintiffs reallege and incorporate by reference each and every allegation above as iffully set forth herein.

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264. Under the Article I, Section 12 of the constitution of Virginia, "any citizen may freely speak, write, and publish his sentiments on all subjects." Va. Const. art. I § 12.
265. Defendants have deprived and continue to deprive Plaintiffs of their rights to freedom of speech, as secured by Article I, Section 12 of the Constitution of Virginia. They have done this by failing to provide the plaintiffs with a means to effectively communicate.
266. Defendants' failure to comply with Article I, Section 12 of the Constitution of Virginia has resulted in harm to Plaintiffs, and Defendants are liable to Plaintiffs for harms suffered. Defendants' failure to comply with Article I, Section 12 of the Constitution of Virginia will continue to result in harm to Plaintiffs, as PlaintifTs will remain in the custody of VDOC and continue to attempt to etTectively communicate and avail themselves of medical treatment and other services unless and until Defendants are ordered by this Court to make modifications to their policies, practices, and procedures pursuant to Article I, Section 12 of the Constitution of Virginia.
I. COUNT IX Violation ofthe United States Constitution
Freedom from Cruel and Unusual Punishment: Eighth and Fourteenth Amendments (42 U.S.c. § 1983)
267. Plaintiffs reallege and incorporate by reference each and every allegation above as if fully set forth herein.
268. Under the Eighth and Fourteenth Amendments of the United States Constitution, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII.
269. VDOC named defendants have, III their individual capacities, deprived and continue to deprive Plaintilfs of their right to be tree trom cruel and unusual punishment as

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secured by the Eighth Amendment to the United States Constitution and made applicable to the States by the Fourteenth Amendment.
270. VDOC named defendants have systematically denied Plaintiffs access to basic human services and vital information during their incarceration in Powhatan. VDOC named defendants have failed to notify Plaintiffs of prison alerts, announcements, and safety instructions. Moreover, VDOC named defendants have not provided effective communication bctween Plaintiffs and prison officials and the medical staff at VDOC and MCV. VDOC named defendants' actions place Plaintiffs at a substantial risk of serious future harm.
271. VDOC named defendants have actual knowledge of the unconstitutional conditions to which PlaintilTs were, and continue to be, subject, as Plaintiffs have submitted numerous written complaints to VDOC stall' requesting that sign language interpreters and other auxiliary aids and services be made available to them and that an alternative notification system bc installed.
272. Despite VDOC named defendants' actual knowledge of the substantial medical and safety risks Plaintiffs face while in their custody, they continue to disregard Plaintiffs' medical and other needs in violation of the Eighth and Fourteenth Amendments of the United States Constitution.
273. VDOC named defendants' failure to comply with the Eighth and Fourteenth Amendments of the United States Constitution has resulted in harm to Plaintiffs, and will continue to result in harm to Plaintiffs, as Plaintiffs will remain in the custody of VDOC and continue to attempt to avail themselves of medical treatment and other services unless and until VDOC named defendants are ordered by this Court to make modifications to their policies,

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practices and procedures pursuant to Eighth and Fourteenth Amendments of the United States Constitution.
J. COUNT X Violation of the United States Constitution Equal Protection: Fourteenth Amendment (42 U.S.c. § 1983)
274. Plaintiffs reallege and incorporate by reference each and every allegation above as if fully set forth herein.
275. Under the Fourteenth Amendment of the United States Constitution, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV.
276. VDOC named defendants have, in their individual capacities, deprived and continue to deprive Plaintiffs of their rights to equal protection of the laws, as secured by the Fourtecnth Amendment to the United States Constitution, by discriminating against Plaintiff in their application of the laws of the Commonwealth of Virginia.
277. VDOC named defendants' failure to comply with the Fourteenth Amendment of the United States Constitution has resulted in harm to Plaintiffs, and VDOC named defendants are liable to Plaintiffs for harms suffered. Defendants' failure to comply with the Fourteenth Amendment of the United States Constitution will continue to result in harm to Plaintiffs, as Plaintiffs will remain in the custody of VDOC and continue to attempt to avail themselves of religious services, medical treatment, educational courses, and other services and programs that are available to other incarcerated people unless and until Defendants are ordered by this Court

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to make modifications to their policies, practices and procedures pursuant Fourteenth

Amendment of the United States Constitution.

K. COUNT XI

Violation of the Constitution of Virginia Equal Protection: Article I, Section 11
278. Plaintiffs reallege and incorporate by reference each and every allegation above as

if fully set forth herein.

279. Under Article I, Section II of the Constitution of Virginia, citizens have "the

right to be free from any governmental discrimination upon the basis of religious conviction,

race, color, sex, or national origin shall not be abridged, except that the mere separation of the

sexes shall not be considered discrimination." Va. Const. art. I § II.

280. VDOC named defendants have deprived and continue to deprive Plaintiffs of their

rights to equal protection of the laws, as secured by Article I, Section 11 of the Constitution of

Virginia, by discriminating against Plaintiff in their application of the laws of the

Commonwealth of Virginia.

281. VDOC named defendants' failure to comply with Article I, Section 11 of the

Constitution of Virginia has resulted in harm to Plaintiffs, and will continue to result in harm to

PlaintitTs, as Plaintiffs will remain in the custody of VDOC and continue to attempt to avail

themsclves of religious services, medical treatment, educational courses, and other services and

programs that are available to other incarcerated people unless and until VDOC named

defendants are ordered by this Court to make moditications to their policies, practices and

procedures pursuant to Article I, Section 12 of the Constitution of Virginia.

VIII. PRAYER FOR RELIKF 282. WIIEREFORE, Plaintiffs respectfully request that:

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283. The Court detennine that this action may proceed as a class action pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(3);
284. The Court appoint the undersigned as class counsel pursuant to Federal Rule of Civil Procedure 23(g);
285. The Court adjudge and decree that Defendants, by the organizations, systems, policies, practices, and conditions described above, have violated and continue to violate Title II of the ADA, Section 504 of the Rehabilitation Act, the Virginians with Disabilities Act, section 2.2-3401 of the Code of Virginia, the Religious Land Use and Institutionalized Persons Act, and the Constitutions of the United States and the Commonwealth of Virginia;
286. The Court enter such declaratory and injunctive relief against Defendants and in favor of Plaintiffs and the Class as it deems appropriate to remedy past violations of the laws of the United States and the Commonwealth of Virginia and to prevent future violations of the same;
287. Judgment be entered against Defendant in favor of Plaintiffs and the Class for such compensatory damages as suffered by Plaintiffs under Section 504 of the Rehabilitation Act and Code of Va. § 51.5-40 and -46 and 42 U.S.C. § 1983 in an amount to be determined at trial;
288. Judgment be entered against Defendant in favor of Plaintiffs and the Class for the costs oflitigation including reasonable attorneys' fees under Code of Va. § 51.5-46,
289. The Court retain jurisdiction of this maller until Defendants demonstrate that they have fully complied with the orders of this Court, and that there is a reasonable assurance that Defendants will continue to comply in the future absent continuing jurisdiction; and
290. The Court award PlaintifTs and the Class any further relief the Court deems appropriate.

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IX. JURY TRIAL DEMAND 291. Plaintiffs. by their counsel and pursuant to Federal Rule of Civil Procedure 38(b).
hereby demands a trial by jury on all claims so triable in this action.

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DATED this 29th day of January, 2010.

Plaintiffs,

By thcir attorneys,
~:klj ~
A~ttOn Auxier," VA BarNo. 76476 Attorney for Plaintiffs Minnis, More, Richardson, Roman, Tinsley, and Wolfsburger Winston & Strawn LLP 1700 K Street, N.W. Washington, DC 20006-3817 Tclcphone: (202) 282-5000 Facsimile: (202) 282-5100 aauxier@winston.com

Jay L. Levine Gregory L. Ewing Winston & Strawn LLP 1700 K Strcct, N.W. Washington, DC 20006-3817 Telcphone: (202) 282-5000 Facsimile: (202) 282-5100 jlevine@winston.com gewing@winston.com

E. Elaine Gardner Deborah Golden Laura Mancini Amadou K. Diaw Washington Lawyers' Committce for Civil Rights and Urban Affairs II Dupont Circle, N. W.; Suite 400 Washington, D.C. 20036 Telephone: (202) 319-1000 Facsimile: (202) 319-10 10 Elaine_ Gardner@washlaw.org Deborah_Golden@washlaw.org Laura_Mancini@washlaw.org

Counsel/i)r Plain/ills

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

GARY MINNIS, LARRY MORE, DAVID RICHARDSON, RONALD ROMAN, DELONTE TINSLEY, and WOLFJUNGE WOLFSBURGER, on behalf of themselves and all others similarly situated,
Plaintiffs,

Case No. 1:10-cv-96-TSE-TRJ

v.
GENE JOHNSON, Director, Virginia Department of Corrections (“VDOC”), FRED SCHILLING, Director of Health Services, VDOC, ROBIN HULBERT, Director of Mental Health Services, VDOC, G.K. WASHINGTON, Regional Director, VDOC, LOIS FEGAN, Agency Management Lead Analyst, VDOC, JAMES R. CAMACHE, Deputy Director, Community Corrections, MALCOLM TAYLOR, Regional Director, Community Corrections, TONY E. REESE, Chief Probation and Parole Officer, Eastern Region District 7, Community Corrections, DONALD GUILLORY, Director, Virginia Correctional Enterprises, WALTER A. MCFARLANE, Superintendent, Virginia Department of Correctional Education (“VC Education”), SHARON TRIMMER, Director of Special Education and Gifted Education, VC Education, SHELDON RETCHIN, CEO, Virginia Commonwealth University Health System Authority, JOHN DUVAL, CEO, Medical College of Virginia Hospitals (“MCV”), DEBORAH DAVIS, COO, MCV, AMANDA DODD, Manager of Guest Services/Patient Relations, MCV, EDDIE L. PEARSON, Warden, Powhatan Correctional Center (“Powhatan”), P.C. HUNNEL, Assistant Warden, Powhatan, SANDRA PARKER, Principal, Powhatan Education, RONALD W. TONEY, Medical Director, Powhatan, K. WATSON, Nurse, Powhatan, C. STEWART, Nurse, Powhatan, B. MORRIS, Chaplain, Powhatan, VIRGINIA

CLASS ACTION FIRST AMENDED COMPLAINT

Case 1:10-cv-00096-TSE-TRJ Document 34 Filed 04/13/10 Page 2 of 70 PageID# 269

DEPARTMENT OF CORRECTIONS, COMMUNITY CORRECTIONS, the VIRGINIA CORRECTIONAL ENTERPRISES, the VIRGINIA DEPARTMENT OF CORRECTIONAL EDUCATION, the VIRGINIA COMMONWEALTH UNIVERSITY HEALTH SYSTEM AUTHORITY, the MEDICAL COLLEGE OF VIRGINIA HOSPITALS, AND the POWHATAN CORRECTIONAL CENTER,
Defendants.

PLAINTIFFS’ FIRST AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES

I.

PRELIMINARY STATEMENT

1. This is a class action lawsuit based on the willf ul and deliberate refusal of the defendants,

all of whom are Virginia state agenci es, depart ments, or e mployees thereof, t o com ply with state and

federal laws protecting th e rights of th e Plaintiffs, w ho are deaf or hard of h earing indivi duals in the

custody or under the supervision of the Virginia Department of Corrections (“VDOC”).

2. The state ag encies and d epartments named as defendants in this case are VDOC,

Community Corrections, the Virg inia Correctional Enterprises (“VC Enterprises” ), the Virgin ia

Department of Correctional Education (“VC Education ”), the Virginia Commonwealth

University Health Sys tem Authority (“VCUHS”), the Me dical Colleg e of Virgin ia Hospita ls

(“MCV”), and the Powhatan Correctional Center (“Powhatan”) (co llectively, “state agency

defendants”). The individual nam ed defendants are state agency defendants’ employees sued in

their official and individ ual capacities (“nam ed defendants”). The state agency defendants and

the named defendants (collectively, “defendants”) have failed to com ply with s tate and f ederal

laws, including the Am ericans with Disabilities Act, 42 U.S.C. § 12131

et seq ., the

Rehabilitation Act, 29 U.S.C. § 794 et seq., the Virgin ians with Disabilities A ct, Code of

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Virginia § 51.5-40, and the Code of Virginia § 2.2-3401, the Religious Land Use and Institutionalized Persons Ac t of 2000, 42 U.S.C. § 2000c c et seq., and the Constitu tions of Virginia and the United States.
3. Through their policies and pr actices, defendants discrim inate against deaf and hard of hearing individuals in VDOC’s custody and und er VDOC’s supervision. They hav e done this by failing to prov ide adequate acces s to qualified sign languag e interpreters (“interpreters”) in a variety of settin gs including medical appointments, educational and mental health program s, and religious se rvices. VDOC refuses to provide deaf and hard of hearing individuals in its custody with adequate notification of impor tant da ily even ts and saf ety announcements, refuses to provide deaf and hard of hearing individual s in its custody with individual hearing devices, and denies deaf individu als in its custo dy adequate m eans to communicate with individuals outside of prison.
4. As a result of the defendants’ discrim inatory policies and practices, deaf and hard of hearing individuals in VDOC’s custody and under VDOC’s supervision:
 have been unable to effectively comm unicate with their health care providers at VDOC and MCV regarding serious medical conditions;
 have been excluded from participation in VDOC, VC Enterprises, and VC Education classes and work programs;
 have been unable to participate in worship services and practice their religion;  have been subject to disc iplinary action—including disc iplinary segregation—due to
misunderstandings with prison staff;  have missed prison-wide safety announcements;  have m issed prison counts and announcem ents for m eals and other important daily
activities;  have been prevented from contacting family and friends outside of prison; and
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 have been unable to understand the term s and conditions of thei r conditional release from prison.
5. VDOC compounds its discrim inatory practices by concentrating the deaf m en in its custody at the aging m edium-security Powhatan facility—even in cases where, under VDOC guidelines, similarly-situated hearing individuals are assign ed to lowe r-security facilities where they enjoy greater freedom and more opportunities for work and rehabilitation.
6. Plaintiffs seek declarato ry and in junctive relief and dam ages on their own behalf and on behalf of the class of all deaf and ha rd of hearing individua ls in VDOC’s custody or under VDOC’s supervision for the harm s they have suffered and continue to suffer a s a result of the defendants’ discrimination. II. JURISDICTION
7. This Court has su bject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 because th is action arises under the Cons titution and laws of the United States, and pursuant to 28 U.S.C. § 1343(a)(3 ) because this action seek s to red ress the deprivation, under color of state law, of Plaintiffs' civil rights.
8. This Court has jurisdiction to grant declaratory relief pursuant to 28 U.S.C. § § 2201 and 2202, and Rule 57 of the Federal Rules of Civil Procedure.
9. This Court has jur isdiction to gran t injunctive r elief pursua nt to Rule 6 5 of the Federal Rules of Civil Procedure. III. VENUE
10. Venue is proper in this judicial distri ct pursuant to 28 U.S.C. § 1391(b) because some defendants reside in this district and becaus e a substantial part of the events and omissions giving rise to Plaintiffs' claims occurred in this district.
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IV. PARTIES A. Plaintiffs 11. Named Plaintiffs Minnis, More, Richar dson, Roman, and Tinsley are m en with a
hearing disability currently incarcerated at Powhatan under VDOC’ s custody and control. Named Plaintiff W olfsburger is a m an with a h earing disability previ ously incarcerated at Powhatan and currently on conditional rel ease under Community Corrections and VDOC’s supervision. (collectively, “Plaintiffs”).
12. Mr. Gary Minnis has been deaf since early childhood. He relies on American Sign Language (“ASL”) to communicate and requires a sign language interpreter to allow him to communicate effectively with persons who do not know ASL.
13. Mr. Larry More has been deaf since early childhood. He re lies on ASL to communicate and requires a sign language interpreter to allow him to communicate with persons who do not know ASL.
14. Mr. David Richardson is deaf. He lost his hearing in pr ison. Since he lost his hearing as an adult, he can speak English but relies on tools like ASL to understand others.
15. Mr. Ronald Rom an has been deaf since early childhood. He relies on ASL to communicate and requires a sign language interpreter to allow him to comm unicate effectively with persons who do not know ASL.
16. Mr. Delonte Tinsley has been deaf si nce early childhood. He relies on ASL to communicate and requires a sign language interpreter to allow him to comm unicate effectively with persons who do not know ASL.
17. Mr. Wolfjunge Wolfsburger has been deaf since early childhood. He relies on ASL to communicate effectively and requires a sign language interpreter to allow him to communicate with persons who do not know ASL. Mr. Wolfsburger was incarcerated at
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Powhatan under the name Tony Branch. Mr. Wolfsburger was released from Powhatan on February 1, 2010 and is on conditional release in Virginia under the supervision of VDOC Community Corrections.
B. Defendants i. State Agency Defendants
18. Virginia Departm ent of Corrections (“ VDOC”) is the Virginia state agency responsible for the supervisi on and custody of over 30,000 incarcer ated individuals and nearly 60,000 individuals under court-ordered supervision.1
19. Community Corrections is the Virginia state agency responsible for the supervision and investigation of all probationers and parolees in the state of Virginia.
20. Virginia Correc tional Enterprises (“ VC Enterprises”) is th e Virginia sta te work program that employs individuals under VDOC’s custody, including individuals at Powhatan.
21. Virginia Department of Correctional Edu cation (“VC Education”) is the Virginia state agency responsible for providing educ ational program s to individuals under VDOC’s custody.
22. Virginia Commonwealth University Health System Authority (“VCUHS ”) is the health system affiliated with Virginia Commonwealth University, a state university.2
23. Medical College of Virginia Hospitals (“MCV”) are hospital facilities operated as part of the VCUHS system.3

1

See Virginia Department of Corrections, Strategic Planning Report, 2010-12,

http://www.vaperforms.virginia.gov/agencylevel/stratplan/spReport.cfm?AgencyCode=799.

2

See VCU Health System Organizational Structure,

http://www.vcuhealth.org/upload/docs/vcuhs%20org%20structure%209%2009.pdf (last visited

Feb. 27, 2010).

3

Id.

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24. Powhatan Correctional Center (“Powh atan”) is a m edium-security VDOC correctional facility in State Farm, VA.
ii. Defendants Sued in Their Individual and Official Capacities 25. Mr. Gene Johnson is the Dire ctor of VDOC and is respons ible for the day-to-day operations of VDOC. He is awar e of VDOC’s policies and practices regarding deaf and hard of hearing individuals. 26. Mr. Fred Schilling is the Director of Health Services at VDOC and oversees and directs medical, nursing, dental, and mental health services, am ong other VDOC services. He is additionally responsible for developing and ensu ring com pliance with policies and procedures related to health services th roughout the Virginia correctiona l system. On inform ation and belief, he is aware of VDOC’s policies and pr actices regarding deaf and hard of hearing individuals. 27. Dr. Robin Hulbert is the Director of Me ntal Health Services at VDOC and is responsible for mental health se rvices for all individuals in VDOC’s custody. Dr. Hulbert also advises on the training and developm ent of prison em ployees on m ental health issues. On information and belief, she is aware of VDOC’s policies and practices regarding deaf and hard of hearing individuals. 28. Mr. G.K. Washington is the Regional Direct or of VDOC for the Central Region of Virginia. He is responsible for overseein g prisons and correctiona l units in the Central Region, including Powhatan. He is also responsible for responding to appeals of complaints and grievances brought by individual s in VDOC’s custody. H e is aw are of VDOC’s policies and practices r egarding dea f and hard of hearing individuals a nd he is aware of specif ic written complaints by deaf individuals at Powhatan regarding the violation of their rights.
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29. Ms. Lois Fegan is the VDOC ADA Coordi nator and Agency Management Lead Analyst, VDOC Division of Oper ations, and is responsible for ensuring that individuals in VDOC’s custody have interpreters for offsite medi cal appointments. She is aware of VDOC’s policies and practices regarding deaf and hard of hearing individua ls and she is aware of specific written complaints by deaf individuals at Powhatan regarding the violation of their rights.
30. Mr. Jam es R. Cam ache is the Dep uty Di rector of Community Corrections at VDOC and oversees and directs th e probation and conditional rele ase programs provided in the Virginia correctional system. On inform ation and belief, he is awar e of VDOC and Community Corrections’ policies and practices regarding deaf and hard of hearing individuals.
31. Mr. Malcolm L. Taylor is the Regional Director of Community Correction s at VDOC for the Eastern Region of Virginia. He is responsibl e for m anaging, directing, and supporting all district of fices and reporting centers in the E astern Region, including the County of Powhatan and the City of Petersburg. On in formation and belief, he is aware of VDOC and Community Corrections’ policies and practices regarding deaf and hard of hearing individuals.
32. Mr. Tony E . Reese is the Chief Probati on and Parole Officer for Probation & Parole District 7 in the Eastern Region of Virginia. He is res ponsible for managing, supervising, and supporting all individuals in the probation or conditional release programs in District 7 in the Eastern Region of Virginia, including the County of Powhatan and the C ity of Petersburg. O n information and belief, he is aware of VDOC and Community Corrections’ policies and practices regarding deaf and hard of hearing individuals.
33. Mr. Donald Guillory is the Director of VC Enterprises and is responsible for the policies and procedures of the work program s provided in th e Virginia correctional system. On
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information and belief, he is aware of VDOC and VC Enterpr ises’ polic ies an d prac tices regarding deaf individuals.
34. Mr. W alter A. McFarlane is the Superi ntendent of VC Education and is responsible for VDOC e ducational programs. On information and belief, he is aware of VDOC and VC Education’s policies and practices regarding deaf and hard of hearing individuals.
35. Ms. Sharon Trimmer is the Director of Special Education and Gifted Education at VC Education, and is responsible for providing special education to the individuals in VDOC’s custody. She is aware of VDOC and VC Education’s policies and practices regarding deaf and hard of hearing individuals.
36. Dr. Sheldon Retchin is the Vice President of Health Services and Chief Executive Officer of the VCUHS, which includes MCV. I ndividuals in the custody of VDOC at Powhatan are routinely sent to MCV for offsite m edical care. Dr. Retchin is responsible for m edical services provided to individuals in VDOC’s custody taken to hospitals in VCUHS. On information and belief, he is aware of VCUHS’ po licies and practices regarding deaf and hard of hearing individuals.
37. Mr. John D uval is the Chief Executive O fficer of MCV and is responsible for medical services provided to individuals in VDOC’s custody taken to hospitals under his supervision. On information a nd belief, he is aware of MCV’s policies and practices regarding deaf and hard of hearing individuals.
38. Ms. Debora h Davis is the Chief Operating Of ficer of MCV Hospitals and is responsible for the day-to-day hospital operations and compliance with hosp ital policies. On information and belief, she is aware of MCV’s po licies and practices regarding deaf and hard of hearing individuals.
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39. Ms. Amanda Dodd is the Manager of Guest Services/Patient Relations at MCV. She is responsible for ensuring th at MCV pa tients have access to adequate services. On information and belief, she is aware of MCV’s po licies and practices regarding deaf and hard of hearing individuals. O n inform ation and belief, she is aware of specific written com plaints addressed to Guest Ser vices/Patient Relation s by deaf individuals at Powhatan regarding the violation of their rights.
40. Mr. Eddie L. Pearson is the Warden of Powhatan. As Warden, Mr. Pearson is the legal custodian of all individuals incarcerated at Powhatan, and is responsible for their safe, secure, and hum ane treatment. On inf ormation and belief, he is aware of VDOC’s polic ies and practices r egarding dea f and hard of hearing individuals a nd he is aware of specif ic written complaints by deaf individuals at Powhatan regarding the violation of their rights.
41. Mr. P.C. Hunnel is Assistant W arden of Powhatan. He is aware of VDOC’s policies and practices regarding deaf and hard of hearing individuals and he is aware of specific written complaints by deaf individuals at Powhatan regarding the violation of their rights.
42. Ms. Sandra Parker is the Principal of Powhatan e ducation program s run by VC Education and is responsible for all education services provided to the individuals incarcerated at Powhatan. She is aware of VDOC and VC Education’s policies and practices regarding deaf and hard of hearing individuals and she is aware of specific written complaints by deaf individuals at Powhatan regarding the violation of their rights by VC Education.
43. Dr. Ronald W. Toney, M.D. is m edical di rector at Powhatan. He is aware of VDOC’s policies and practices regarding deaf and hard of hearing i ndividuals and he is aware of specific wr itten com plaints by deaf indiv iduals at Powhatan regarding the violation of their rights.
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44. Ms. K. W atson, RN, is a m ember of the m edical unit at Powhat an. She is aware

of VDOC’s policies and practices regarding deaf and hard of hearing individuals and she is

aware of specific written com plaints by deaf indi viduals at Powhatan rega rding the violation of

their rights.

45. Ms. C. Stewart, RN, is a m ember of the medical unit at Powhatan. She is awa re

of VDOC’s policies and practices regarding deaf and hard of hearing individuals and she is

aware of specific written com plaints by deaf indi viduals at Powhatan rega rding the violation of

their rights.

46. Mr. B. Morris is the cha plain at Powhatan. He is aware of VDOC’s policies and

practices r egarding dea f and hard of hearing individuals a nd he is aware of specif ic written

complaints by deaf individuals at Powhatan regarding the violation of their rights.

47. All named defendants are sued in their official and individual capacities. At all

relevant times, all named defendants were acting under color of state law, pursuant to their

authority as officials, agents, contractors or employees of the Commonwealth of Virginia; within

the scope of their employment as representatives of public entities, as defined in 42 U.S.C. §

12131(1); as representatives of a “department, agency, special purpose district, or other

instrumentality of a State” under 29 U.S.C. § 794; and as representatives of “state agencies”

under Code of Va. § 51.5-40 and Code of Va. § 2.2-3401.

V. STATEMENT OF FACTS

48. VDOC has twice been sued by deaf m en in carcerated at P owhatan ov er lack of access to prison program s and services at Powhatan.4 In 2002, Otis Hill sued due to the lack of

any sign language interp reter services for VDOC ’s mandatory pre-release life sk ills course, and

4

The state agency actions, policies, practices, and customs described in this Complaint

were in fact carried out by the state agencies’ officers, agents, or employees acting in either their

individual or official capacities.

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in 2004, W esley Chase sued VDOC over lack of access to education al programs. To this day,

however, VDOC still refuses to provide sign language interpreters for educational and m ental

health programs at Powhatan, including mandatory pre-release courses. VDOC was also sued by

a hard of hearing woman incarcerated at Fluva nna Correctional Center (“Fluvanna”) after she

was repeatedly disciplined for m issing announcem ents that she could not hear. To this day,

however, VDOC has not im plemented visual alerts to acco mmodate deaf and hard of hearing

individuals throughout its facilities.

49. VDOC was also sued by a hard of h earing wom an incarcerated at Fluvanna

Correctional Center (“Fluvanna”) after sh

e was repeatedly disciplined for m

issing

announcements that she could not hear. To this day, how ever, VDOC has not implem ented

visual alerts to accommodate deaf and hard of hearing individuals throughout its facilities.

50. Hill v. Virg inia Dep t. of Correc tions, Chancery No. HS-948-4 (Va. Cir. Ct.

(Richmond) 2002) : Otis Hill, a deaf man incarcerated at Powhatan, sued VDOC under the

Virginians with Disab ilities Act, Code of Va. § 8.01-216. Hill, who wa s incarcerated in 199 7,

repeatedly “ attempted to enroll in pr ograms given at or by [ V]DOC f acilities, in cluding anger

management, substance abuse, and job training programs” throughout his ne arly five years in

prison. Hill’s requests for sign language interpreters to enable him to participate in these classes

and his resulting grievances were denied. In 2002, Hill was infor med that he would be required

to take a m andatory lif e skills cou rse pr ior to his re lease. Hill once again requ ested a s ign

language interpreter. VDOC employees told Hill that “we may not be ready for you” and instead

informed him that they would “waive[]” the requirement that he participate in the pre-release life

skills course. Hill, who continued to attend cl asses even without an in terpreter, eventually

reached a settlem ent with VDOC. Under the term s of the settlement, VDOC agreed to provide

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two course instru ctors a nd a “qualif ied, cer tified sign lang uage inte rpreter” to m eet with Hill, who by this tim e had been released from prison, and to provide him with all 54 hours of the life skills course instruction.
51. Chase v. Baskerville , 508 F. Supp. 2d 492 (E.D. Va. 2007), aff’d 305 Fed Appx. 135 (4th Cir. 2008): In 2004, just two years after VDOC se ttled with Hill, Wesley Chase filed a pro se lawsuit against various Powhatan and V DOC employees for their failure to provide him with a sign language interpreter for the functiona l literacy class in which he was enrolled at Powhatan.5 Som e of the defendants sued by Chase, including Sandra P arker, P rincipal of VC Education programs at Powhatan, and Sharon Trimmer, Director of Special Education and Gifted Education at VC Education, are still responsib le for overseeing educational program s at Powhatan. Another defendant su ed by Chase, Warden Alton Bask erville, was transferred from Powhatan to another institution in the VDOC system. Chase is still incarcerated at Powhatan and now, nearly five years after he filed his lawsuit and nearly seve n years after he first sought to take classes at Powhatan, VDOC still has not provided him with a sign language interpreter for educational programs.
52. Sorrells v. Wheeler, No. 3:08-cv-00039 (W.D. Va. 2009): Jannett Sorrells, a hard of hearing wom an incarcerated at Fluvanna, was repeatedly disciplined for m issing m orning count. She took to wearing her prison daytim e clothes to bed so that w hen she was awakened late by others who lived in her cellblock, she would not also be disciplined for wearing her night clothes during count. Although at different times over a three year period VDOC personne l promised in writing to provide bas ic accommodations to Ms. Sorrell, such as awakening her five

5

Chase’s complaint survived a motion to dismiss and an appeal to the Fourth Circuit on

sovereign immunity grounds. On remand, Chase, who was apparently not represented by counsel

at the time, failed to file an opposition to the state’s motion for summary judgment. Summary

judgment was eventually entered against him.

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minutes before count, they failed to follow through on these promises and even went so far as to subject Ms. Sorrell to disciplinary hearings after the fact. Ms. Sorrells’ suit was settled in March 2009.
53. VDOC is a ware of its obligations under st ate and federal laws. Nevertheless, VDOC and the other defendants have not rem edied their pa st pattern and practice o f discrimination and continue to discriminate against deaf and hard of hearing individuals, resulting in disability-based discrim ination in at least four different areas: (i) inadeq uate access to sign lang uage in terpreters; ( ii) in adequate ac cess to pris on aler ts; ( iii) inadequ ate ac cess to communication devices; and (iv) im proper assi gnment of de af m en und er VDOC’s custody to Powhatan, regardless of the nature of their conviction or their prior behavior.
A. Inadequate access to sign language interpreters 54. Individuals in the custody of VDOC are wholly dependent on VDOC for medical, dental, educational, m ental health, employm ent, and religious services, a mong other services. Individuals in the custody of VDOC are also dependent on VDOC and prison staff for all of their basic daily needs, including food, exercise, and safety. 55. For deaf or hard of hearing individuals who rely on ASL as their prim ary form of communication, use of a qualified Am erican S ign Language interpreter is necessary to ensure effective co mmunication between a deaf or hard of hearing individual and an individual who does not use ASL to communicate. 56. A qualified sign langu age in terpreter is neces sary b ecause ASL is a com plete, complex language that em ploys signs m ade wi th the hands and other m ovements, including facial expressions and postures of the body. It is a language distinct from English—it is not simply Engl ish in hand signals—it has its own vocabulary, and its own rules for grammar and syntax.
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57. Writing usually does not prov ide effective communication for a deaf individual. English is generally considered a second language for most deaf persons who becam e deaf before acquiring language—ASL is their native la nguage. Therefore, the English reading and writing sk ill level of m any deaf individuals, including those in carcerated at Powhatan, is generally much lower than that of hearing people.
58. Lip-reading usually does not provide effective communication for a deaf individual and is generally ev en less effective than written communication. It is extrem ely difficult to lip-read English because only a sm all fraction of the sounds used in language are clearly visible on the mouth and many sounds look identical on the lips. In addition to these linguistic difficulties in lip-reading, the ability to accurately lip-read is affected by the speak er’s facial bone structure, facial m usculature, facial hair, lighting, and other external factors. Moreover, even if an ASL user were able to understand the sounds appearing on a speaker’s lips, for the reasons discussed above he would not nece ssarily understand the English language or the vocabulary the speaker was using.
59. Thus, a qualified sign language interpreter is necessary to allow deaf individuals in VDOC’s custody and under VDOC’s supervisi on to effectively communicate with VDOC officials, VDOC employees, and medical personnel.
60. Defendants, through their policies and practices, fail to provide adequate access to sign language interpreters for deaf indivi duals in VDOC’s custody and control and under VDOC’s supervision.
61. On infor mation and belief, VDOC does not regularly provide interpreters for programs and services in the local and regional jails where individuals are held before being assigned to long-term correctiona l facilities. For exam ple, Mr. Wolfsburger was held at
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Riverside Regional Jail from 2005 to 2007. During the whole course of his tim e at Riverside Regional Jail, Mr. Wolfsburger did not have regular access to a sign language interpreter to assist him in co mmunicating with VDOC em ployees or en able him to participate in any classes or programs. In Nove mber 2007, he was transferre d to Middle River Regional Jail, where there were several other deaf individuals. On ce a gain, however, VDOC did not provide deaf individuals with regular access to a sign language interpreter.
62. On inform ation and belief, VDOC does no t provide adequate access to sign language interpreters at its f acilities throughout Virginia. For example, deaf individuals incarcerated at Greensville Correctional Center (“Greensville”) in the Eastern Region of Virginia have been d enied access to sign language interpreters at m edical appointments and educational classes. An individual incarcerated at Greensv ille is currently on dialysis and m ust regularly take pain and blood pressure m edication. De spite num erous requests for a sign language interpreter, he has never been pr ovided with an interpreter at hi s medical appointments, and thus has never had his diagnosis and treatm ent adequately explained to him . Fu rther, this individual would like to earn his General Educational Devel opment degree (“GED”), but he is unable to do so because he has been denied a sign language interpreter for the GED class.
63. VDOC has a policy of providing one sign language interpreter at Powhatan for six hours on one day a week.
64. On infor mation and belief, although the nu mber of deaf individuals in VDOC custody fluctuates, at any given tim e there ar e twenty to twenty-f ive deaf individuals incarcerated at Powhatan. Thus, each of these individuals has, on average, only twenty m inutes per week during which he can clearly comm unicate with and understand Pow hatan staff, counselors, and medical personnel. Further, since a sign language interpreter is present only one
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day per week, deaf individuals ar e without access to a sign language interpreter, and thus unable to clearly communicate with and understand staf f, counselors, and medical personnel, except for the short time they are scheduled to see the interpreter on that day.
65. VDOC’s failure to prov ide adequate acces s to sign langu age interpreters for the deaf individuals in its custody affects nearly every aspect of their lives.
i. Medica l services 66. VDOC is responsible for the m edical care of all individuals in its custody, including but not limited to individuals incarcerated at Powhatan. 67. Deaf individuals require sign language interpreters to co mmunicate ef fectively with medical staff. 68. After receiving num erous written requests, VDOC is aware that deaf individuals need sign language interpreters for their medical appointments. 69. Dr. Ronald Toney is the Medical Director at Powhatan. He is respo nsible for providing adequate m edical care to the individua ls incarcerated at Powhatan. Dr. Toney has personally disregarded requests from deaf individuals incarcerated at Powhatan for sign language interpreters at m edical appoint ments, and his staff routinely schedules deaf individuals for medical appointments on days when they know there is no interpreter present. 70. When this occurs, deaf individu als cannot effectively explain their cond ition to medical personnel. They have the unacceptable choice of either foregoing much-needed medical treatment or subjecting themselves to medical procedures that they do not understand, conducted by m edical staff that is unable to adequately communi cate with them or understand their symptoms. 71. For example, Mr. Richardson has had probl ems with his te eth. When he finally had a dental appointment last year, there was no interpreter present, so he had to choose between
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undergoing medical treatment without being able to understand his dentist, or foregoing needed treatment. Mr. Richardson needs to have an interpreter at his dental appointments so that he can communicate effectively with his dentist, and so that Mr. Richardson can understand why his teeth hurt.
72. Occasionally, Powhatan m edical staff w ill attem pt to communicate with deaf individuals by writing notes to them in English, using complicated medical terminology.
73. As noted above, written communication is often not sufficient to provide effective communication for a deaf individu al because E nglish is not a deaf person’s first language. Moreover, written communicatio n is slow and cum bersome in a healthcare setting, and information that would otherwise be spoken, or interpreted, may not be written down because it takes too much time.
74. For example, Mr. Minnis blacked out while playing basketball in sum mer 2008. There was no interpreter present at Powhatan at the time, and VDOC had no policy in place that would allow it to use one of the m any video interpreting-on-demand services designed f or emergencies such as this . Inst ead, Mr. Minnis had to write notes in th e middle of this m edical emergency in order to describe his condition to the nurse. This process took longer and was les s clear than if an interpre ter had been present, resulting in a lo wer standard of care than a hearing individual would have received.
75. Ms. Stewart, a nurse at Powhatan, has di sregarded deaf individuals’ requests for accommodations at Powhatan. For exam ple, in late 2009 Ms. Stewart to ld Mr. Rich ardson that he would not receive h is medications because he was not com pliant with the p ill line—one of many prison life-events that is nearly impossible for deaf individuals to participate in because of Powhatan’s failure to accommodate them. When Mr. Richardson tried to communicate with her
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about her refusal to provide his m edications, she pointed at her face, indicating that he should read her lip s. She eventually wrote him a not e (an inadequate accommodation) in which she said, among other things, that he should “grieve it to security.”
76. When individuals incarcerated at Powhat an cannot be cared for by m edical staff onsite, they are ref erred to MCV, a hospita l facility within the VCUHS system , for offsite care. MCV and VDOC each have independent duties under st ate and federal law to make sure that an interpreter is available for deaf individuals in V DOC’s custody when they are taken offfsite for medical care.
77. When deaf individuals in VDOC’s cust ody are referred to MCV for offsite medical care, VDOC p olicies require that they be awakened early, placed on a van with other individuals in VDOC’s custody, and put in a holding cell at MCV until their appointm ent. VDOC has a policy that while at MCV, the individuals awaiting medical care are shackled.
78. VDOC and MCV are aware that th e hand shac kles used to rest rain ind ividuals while they a re be ing tre ated at MCV prevent d eaf individuals from co mmunicating ef fectively with medical staff through a sign language interpreter.
79. Ms. Watson, a nurse at Powhatan, has also disregarded deaf individuals’ requests for accommodations. For exam ple, in July 2009 Mr. Wolfsburger reque sted that leather restraints be used when he was transported to MCV for treatm ent. Ms. W atson denied his request. T wo weeks later, h e sub mitted a ne w re quest. She again d enied the r equest, say ing “you do not have an order for restraints other than metal, nor have you ever asked for them”—an outright falsehood.
80. In m id-2009, Powhatan health care pe rsonnel referred Mr. W olfsburger to specialists at MCV beca use of his deteriorating vision and other health problems. Preservation
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of vision is extrem ely important for deaf individuals who use thei r sight as a prim ary means of communication. A sign language interpreter wa s present for Mr. W olfsburger’s July 22, 2009 appointment at MCV. However, Mr. W olfsburger was prevented from communicating with the interpreter and the health care providers because a VDOC Correctional Officer (“CO”) refused to remove the m etal handcuffs binding Mr. W olfsburger’s hands. The m etal handcuffs used by VDOC made it painful and nearly impossible fo r Mr. W olfsburger to comm unicate using sign language.
81. The sign language interp reter present on July 22, 2009 requested that the VDOC CO accom panying Mr. W olfsburger rem ove the handcuffs so that Mr. W olfsburger could communicate. The CO refused to do so.
82. Despite this incident and Mr. W olfsburger’s complaint, VDOC continues to use metal shackles on all d eaf individuals during offsite m edical appoin tments, even though the shackles prevent deaf individuals from communicating effectively.
83. Compounding the problem , on numerous occa sions over the past year, there has been no sign language interpreter present wh en deaf individuals under VDOC’s custody have been taken to MCV for medical appointments.
84. VDOC personnel transported Mr. Wolfsbur ger to the MC V on eight separate occasions b etween July 2009 and Nove mber 2009 for appointm ents related to h is vision and other health issues. Although both VDOC and MCV repeatedly acknowledged throughout this period that Mr. W olfsburger requ ired an interpreter for these appointm ents, they repeatedly failed to provide him with one. Mr. W olfsburger went to seven separate appointm ents with no interpreter present and was unable to communicate effectively with his medical provider.
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85. On July 7, 2009, Mr. Wolfsburger had an eye appointm ent with a specialist at MCV. Since an interpreter wa s not provided, Mr. Wolfsburger was unable to communicate wit h the m edical staff and understand why medications were put in his eyes and he could not effectively exerc ise h is righ t to p articipate in m edical d ecisions co ncerning his care. Mr. Wolfsburger’s vision has deteriorated since that visit.
86. VDOC and MCV have also failed to provi de interp reters dur ing hearing tests required to obtain a hearing aid. Mr. More had a hearing aid before he entered VDOC’s custody, but it broke while he was in VDOC’s custody. He ha s been sent for two separate offsite hearing tests, and there was no interpreter present either time. Over a year later, he has still not received his hearing aid. Mr. Wolf sburger was also sent offsite for a hearing test. He too had no sign language interpreter present for his hearing test.
87. MCV and VDOC each claim ed that they ar e not responsible for prov iding sign language interpreters at offsite m edical appo intments. When Mr. Wolfsburger asked MCV personnel about the lack of interpreters at his of fsite appointments, they told him that VDOC is responsible for providing the interpreters. When Mr. Wolfsburger asked VDOC personnel about the lack of interpreters at his offsite appointm ents, they told him that MCV is responsible for providing the interpreters.
88. The failure to provide adequate access to sign language interpreters for m edical services has resulted in harm to deaf individua ls in VDOC’s custody. It puts deaf people at risk of future serious harm from lack of adequate medical treatment, and it violates their rights under the Americans with Disabilities Act, the Rehabilitat ion Act, and the Virginians with Disabilities Act. Further, it is a violation of VDOC, VCUHS, and MCV’s obligation to provide sign
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language interpreters under the Code of Virgin ia § 2.2-3401 and a violation of the Constitu tions of the United States and Virginia.
ii. Educational and Mental Health Services 89. VDOC provides m ental health program s for individuals in VDOC’s custody, including but not limited to individuals incarcerated at Powhatan. 90. The m ental health program s provided by VDOC at Powhatan inc lude Anger Management, Substance Abuse, the Breaking Ba rriers program, and the Sex Offende r program. They also in clude the mandatory p re-release life skills program designed to prepare individuals for the return to civilian life and integration into the community. 91. VDOC, through VC Education, provides e ducational classes fo r individuals in VDOC’s custody, including but not limited to individuals incarcerated at Powhatan. Code of Va. § 22.1-340. 92. VC Education courses provided at Powhat an in clude cou rses such as the Adult Basic Education Program, com puter courses, b usiness courses, and the Dads, Inc. program for incarcerated fathers. VC Education is also required to “develop a functional literacy program for inmates testing below a selected grade level, which shall be at leas t at the twelfth grade or GED level” and “create a system for identifying prisoners with learning disabilities.” Code of Virginia § 22.1-344.1. 93. Deaf individuals require sign language in terpreters to ef fectively pa rticipate in these programs. 94. VDOC and VC Education are aware that deaf individuals need sign language interpreters to effectively participate in these programs.
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95. On information and belief, VDOC does not provide sign language interpreters for any of the m ental health program s it offers at Powhatan, includ ing th e m andatory lif e skills program.
96. On infor mation and belief, VDOC does not provide interpreters for any of the educational classes it offers at Powhatan. In a January 17, 2002 letter written by Ron Angelone, then Director of VDOC, Mr. Ange lone claims that providing inte rpreters for school program s is the responsibility of VC Education and not within the purview of VDOC.
97. VC Education does not provide interpreters for any of the e ducational classes it offers at Po whatan. In Decem ber 2008, em ployees from the Virgin ia Department for the Deaf and Hard of Hearing (“VDDHH”) participated in a resource fair at Po whatan. On inform ation and belief, VDDHH employees met with a repres entative of the VC Education program s at Powhatan, who informed them that VC Education does not provide sign language interpreters for its classes at Powhatan.
98. Deaf individuals under VDOC’s custody ha ve requested to participate in educational and m ental health pr ograms at Powhatan, but they ha ve been denied access or have been unable to effectively participate because VDOC and VC Education have not provided sign language interpreters.
99. Mr. Wolfsburger needed to participate in the mandatory life skills program and he also wanted to participate in a computer class and an art cl ass. In 2008, he requested to participate in a computer class. Instead, he was placed in a GED class—with no interpreter. On information and belief, he m et with VC Education principal Sandra Parker in summer 2009, and again requ ested to pa rticipate in com puter classes. Again, he was not given an interpreter. VDOC also failed to provide him with an interpreter for the mandatory life skills program.
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100. Due to a lack of sign language interpreters at the classes offe red to individuals incarcerated at Powhatan, Mr. W olfsburger was unable to attend, understand, and participate in the programs for which he was e ligible to the sam e extent as hearing individuals in the custody of VDOC.
101. Mr. Tinsley has requested to participat e in numerous classes offered by VDOC and VC Education, and has expressed particular interest in the computer skills class. Mr. Tinsley wants to open his own business when he is releas ed from Powhatan and believes that the classes offered by VDOC and VC Education would help hi m improve his skills and increase his chances of success upon release.
102. Mr. Tinsely has requested to particip ate in the offered program s with an interpreter, but his requests have been denied. Due to a lack of sign language interpreters at these classes, Mr. Tinsley has been and continue s to be unable to par ticipate in e ducational programs that ar e available to and allow hea ring indiv iduals to g ain new skills intended to benefit them upon release.
103. VDOC and VC Education’s failure to pr ovide adequate access to sign language interpreters f or educatio nal and m ental h ealth se rvices has r esulted in h arm, and may resu lt in future harm, to deaf individuals in VDOC’s custody. Such failure also violates their rights under the U.S. and Virginia Constitu tions, the Americans with Disabilities Act, the Rehabilitation Act, and the Virginians with Disabilities Act. Further, it is a violation of VDOC and VC Enterprises’ obligation to provide sign language interpreters under the Code of Virginia § 2.2-3401.
iii. Work Programs 104. VDOC, through VC Enterprises, operates work programs in VDOC facilities. 105. VC Enterprises does not provide sign langua ge interpreters in connection with its work programs, including for mandatory work meetings held at its Powhatan worksites.
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106. The lack of inte rpreters f or VC Enterprises wor k program s lim its the a bility of

deaf individuals in VDOC’s custody to obtain jobs in VC Enterprises. For those deaf individuals

who do obtain VC Enterprises jobs, the lack of inte rpreters limits their o pportunities to interact

with supervisors, learn about work opportunities, and attend and participate in work meetings.

107. Mr. More w orks in the shop at Powhatan that produces license plates for antique

cars and m otorcycles. The shop is oper ated by VC Ente rprises. Th ere is curr ently no sign

language interpretation available for group m eetings at work, so he is unable to understand

crucial work-related information.

108. For example, in March 2009, Mr. More had to attend a m andatory work meeting.

He was required to sit through the meeting without an interpreter. Afterwards, he wrote a note to

his supervisor asking what the m eeting was about. The supervisor gave him a short answer that

left Mr. More feeling like he was “in the dark” and wondering whether he was missing important

information about opportunities to change ass ignments. Addition ally, in April 200 9, Mr. Mo re

and another deaf individual were at work when all the oth er individuals went into another room

for, to them, no apparent reason. Mr. More and the other deaf individual eventually followed the

individuals but the same supervis or mentioned above angrily threw them out of the meeting and

gave them a two day suspension from work for being “late” to the m eeting. His hearing co-

workers later told Mr. More that the supervis or had announced an “imme diate meeting” over the

loudspeaker. Mr. More was able to write a

note explaining that he could not hear the

announcement to Captain Jones, who talked to Mr . More’s supervisor and had the suspension

reversed. On information and belief, suspensions such as the ones received by Mr. More and the

other individual result in lost pa y and can eventually result in th e loss of a job. Mr. More wa s

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never told what information was discussed at the meeting, and thus m ay have m issed important

safety-related work announcements.

109. VDOC and VC Enterprises’ failure to pr ovide adequate access to sign language

interpreters for work program s has resulted in harm, and m ay result in future harm, to deaf

individuals in VDOC’s custody. It also violat es their rights under th e U.S. and Virginia

Constitutions, the Am ericans with Disabilities Ac t, the Rehabilita tion Act, and the Virginians

with Disabilities Act. Further, it is a viol ation of VDOC and VC Ente rprises’ obligation to

provide sign language interpreters under the Code of Virginia § 2.2-3401.

iv. Religious services

110. VDOC provides religious services for indivi duals in its custody, including but not

limited to in dividuals incarcerated at Powhatan. VDOC m ay not im pede the religious freedom

of the people in its custody. VDOC provides chaplains to orga nize religious services and

discussion groups and to oversee outside volunteers who assist with the services.

111. Deaf individuals under the custody of VDOC require sign language interpreters to

effectively participa te in the religious serv ices and p rograms that are availab le to he aring

individuals.

112. VDOC is aware that deaf individuals

need sign language interpreters to

effectively benefit from these programs and services.

113. Currently, VDOC has a policy of not providi ng sign language interpreters for its

weekly Protestant or other worship services. A deaf pastor does conduct a Protestant sign

language service, but only one Sunday a m onth, and a volunteer interpreter occasionally com es

one additional Sunday per m onth—but VDOC itsel f does not provide any interpreters. I n

contrast, hearing individuals m ay attend and participa te in thes e and other religious services

every week. 25

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114. Deaf individuals incarcerated at Powhat an have requested that VDOC provide weekly sign language interpreters for these religious services.
115. Since at least 2008, Mr. More has reque sted that VDOC p rovide sign language interpreters at weekly Protestant worship services and has actively sought community volunteers to assist with interpreting.
116. Despite M r. More’s efforts, VDOC still d oes not provide sign language interpreters for weekly Protestant worship serv ices or any other worship service or religious programs.
117. VDOC’s f ailure to prov ide sign lan guage in terpreters f or r eligious serv ices and programs imposes a substantial bur den on deaf individuals’ religi ous exercise. VD OC’s failure to provide adequate access to sign language interp reters for religious services has resulted in harm, and m ay result in future harm, to deaf i ndividuals in VDOC’s cust ody. It also violates their First A mendment right to th e free exercise of religion. VDOC’s policy of not providing interpreters does not serve any compelling government interest. In fact, there is no valid, rational connection between VDOC’s failure to provide interprete rs for weekly religi ous services and a legitimate governm ent interest. The blanket polic y is also not the least restrictive m eans of advancing any government interest VDOC may assert. No alternat ive means of exercising their right to the free exercise of their religion re mains open to deaf individuals in VDOC’s custody, and accommodation will have little to no impact on fellow individuals in custody or prison staff. VDOC’s failure to accommodate d eaf individuals’ free exercise also violates their rights under the Americans with Disabilities Act, the Rehabilitat ion Act, and the Virginians with Disabilities Act, and a violation of the Re ligious Land Use and Institutionalized Persons Act of 2000 and the Code of Virginia § 2.2-3401.
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v. Communications with Prison Staff, Employees, and Officials 118. As the state agency responsible for th e custody of incarcerated individuals, VDOC must ensure that deaf individuals in its custody can communicate with and understand the instructions given by its staff and employees. 119. Upon information and belief, none of the named defendants or staff at Powhatan are qualified sign language interpreters. 120. Thus, deaf individuals in the custody of VDOC require sign language interpreters to adequately comm unicate with and understand instructions from prison staff and e mployees. Without sign language interpretation, deaf indi viduals are unable to understand VDOC policies and safety measures or understand and respond to prison staff instructions. 121. VDOC is aware that deaf individuals re quire sign lang uage inte rpreters to adequately communicate with prison staff. 122. However, due to VDOC policy that allo ws d eaf individ uals in carcerated at Powhatan only approxim ately 20 m inutes per week with a sign lan guage inte rpreter, deaf individuals in VDOC’s custody ar e frequently required to comm unicate with prison staff and employees through less effective m eans, such as written communication and gestures or lipreading. 123. For the m ajority of tim e when there is no sign language interpreter present, deaf individuals incarcerated at Powhatan attempt to communicate with prison staff by writing short messages in English. Prison staff, especially COs, frequently refuse to read these m essages or fail to respo nd to them in a way th at deaf individuals can understand by, for example, writin g back to the m. This r efusal to write m essages back an d f orth ha s resu lted in a lack of communication and even in incidents that have gi ven rise to disciplinary measures against deaf individuals incarcerated at Powhatan.
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124. For example, on May 14, 2009, Mr. Wolfsbur ger approached a CO and attem pted to request her help in locating a form. The CO refused to communicate with Mr. Wolfsburger by writing notes (itself an inadequate accommodation) or by other means and gestured for him to go away while mocking him in front of other individuals in custody.
125. In response, Mr. W olfsburger put his fi nger to his nose—the ASL sign for being “bored” or “fed up.” The CO accused Mr. Wolfsburger of appr oaching her in a “threatening manner” and brought disciplinary charges agains t him. M r. Wolfsburger was tried, convicted, and sentenced to isolation, in spite of expert testim ony explaining that the gesture the CO described was in fact the ASL sign for being “bored” and not a threatening gesture.
126. On numerous occasions, Powhatan employees have refused to communicate with Mr. Richardson by writing notes (itself an inadequate accommodation) and have instead told him to “read [their] lips.” Prison employees have even questioned Mr. Richardson’s deafness in front of other staff and incarcerated individuals, claim ing “he’s not deaf” and “we kno w [he] can hear.” On one occasion, Mr. Richardson was placed in the Hold-In Room, a disciplinary holding cell, because a CO refused to write with hi m and he could not understand that his unit had not been called for pill line. This same CO has repeatedly stated that Mr. Richardson is not deaf and has repeatedly threatened him with disciplinary action.
127. On infor mation and belief, VDOC’s failure to provide for adequate communication between its staff and incarcerated individuals with hearing i mpairments extends to its facilities throughout Virginia. For exam ple, deaf individuals incarcerated at Greensville have no access to sign language interpreters, and thus cannot effectively communicate with prison officials or em ployees. Staff at Greensvill e refuse to provide even lim ited, inadequate accommodations to deaf individuals, such as writing notes back and forth.
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128. VDOC’s fa ilure to provide adequate access to sign language interpreters for communications between staff and incarcerated i ndividuals has resulted in harm , and may result in future harm , to deaf individuals in VDOC’s custody. It also violat es their rights under the U.S. and Virginia Constitutions, the Americans with Disabilities Act, the Rehabilitation Act, and the Virginians with Disabilities Act. Fur ther, it is a violation of VDO C’s obligation to provide sign language interpreters under the Code of Virginia § 2.2-3401.
vi. Probation and Conditional Release 129. VDOC and Community Corrections are res ponsible for advising and supervising all individuals in Virginia probation and conditional release programs. 130. The m ission of the probation and condition al relea se pro grams is to enhance public safety by encouraging recently released individuals to lead crime-free lives and to prevent these individuals from future incarceration. 6 VDOC an d Co mmunity Corrections seek to accomplish these goals “through in vestigation and assessment of [indivi dual] risk and need, careful and focused plans of supervision, use of a wide variety of resources and treatm ent services, and purposeful and proportionate applic ation of sanctions,” where applicable, for delinquency and non-compliance with terms of probation or conditional release.7 131. Deaf individuals require sign language in terpreters to ef fectively pa rticipate in these program s and to understand the term s and conditions of their co nditional release from prison.

6

See Commonwealth of Virginia, Department of Corrections, Community Corrections –

Probation and Parole Overview, http://www.vadoc.state.va.us/community/overview.shtm (last

visited Feb. 27, 2010).

7

Id.

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132. VDOC and Community Correctio ns are awar e that d eaf indivi duals need sign language interpreters to effectively participate in these programs and to understand the terms and conditions of their conditional release.
133. VDOC and Community Corrections have fa iled to provide sign language interpreters to deaf individuals in the probation and conditional release programs.
134. For exam ple, in February 2010, Mr. W olfsburger was released from Powhatan subject to supervis ion by Community Correct ions. Mr. W olfsburger repeatedly asked Community Corrections em ployees to provide a si gn language interpreter for his m eetings with his probation officer. However, no interpreter w as provided. As a result, Mr. W olfsburger was unable to effectively communicate with his probation officer or adequately understand the terms and conditions of his conditional release from prison.
135. On infor mation and belief, failure to com prehend the term s of release, and to follow and obey those terms, can result in sanctions, including imprisonment.
136. VDOC and Community Corrections’ failure to provide adequate access to sign language interpreters for probation and conditional release programs may result in future harm to deaf individuals under VDOC’s supe rvision. It also violates their rights under the U.S. and Virginia Co nstitutions, the Am ericans with Disabi lities A ct, the Reh abilitation Act, and th e Virginians with Disabilities Act. Further, it is a violation of VDOC and Co mmunity Corrections’ obligation to provide sign language interpreters under the C ode of Vir ginia § 2.23401.
B. Inadequate Access to Prison Alerts 137. VDOC is responsible for ensuring that deaf individuals in its custody can understand the num erous life-event announcements and safety alerts m ade in each correctional facility every day.
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138. Given the nature of institutional life, incarcerated individuals rely on VDOC t o

notify them of basic daily events like wake up calls, m eal tim es, sick calls, recreation tim es,

work times, program times, and lights out. In addition, individuals in VDOC’s custody rely on

VDOC to notify them of events like the arrival of a letter or a visitor.

139. On information and belief, VDOC uses aud itory means, such as a loudspeaker or

a CO calling out the announcement, to convey these life-event announcements.

140. Incarcerated individuals also rely on VDOC to notify them when there is an

institution-wide emergency, such as a fire or a ri ot, that requires evacuation, or in the event of a

lock-down.

141. On infor mation and belief, VDOC prim arily uses auditory m eans, such as a

loudspeaker or a CO calling out the announcement, to convey these safety alerts.

142. Deaf and hard of hearing individuals in VDOC’s custody cannot hear auditory

life-event announcements or safety alerts.

143. VDOC is aware that deaf and hard of h earing individuals in its custody require

alternative means of re ceiving auditory alerts and announcem ents. In a letter dated October 10,

2009 from Lois Fegan, VDOC ADA Coordinator, to P.C. Hunnel, Powhatan Assistant W arden,

Ms. Fegan stated that Title II of the ADA re

quires public entities to provide reasonable

accommodations to individuals with disabilities. Sh e stated that a visual notification system for

daily activities is a reasonable accommodation.

144. However, VDOC refuses to provide adequate alternative notification systems. On

information and belief, VDOC does not provid e adequate m eans of conveying life-event

announcements and safety alerts at its faciliti es throughout Virginia. For exa mple, hard of

hearing individuals incarcerated a t Nottoway Correc tional Center (“No ttoway”) in the Centr al

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Region of Virginia routinely miss count, meals, recreation time, and other activities because they cannot hear and respond to the auditory life-e vent announcements. Upon hearing the auditory life-event announcements, individuals incarcerated at Nottoway m ust walk up to their cell door and waive their arm s to signal to th e COs that they would like to participate in the e vent. Some hard of hearing individuals are unable to hear these announcements and thus fail to waive their arms at their cell doors. Alt hough m any COs are aware that hard of hearing individuals are incarcerated at th is facility, they refuse to ope n the cell door of indi viduals who f ail to waive their arms. Additionally, hard of hearing individuals incarcerated at Wallens Ridge Correctional Center ( “Wallens Ridg e”) in the Western Region of Virginia are unable to he ar f ire ala rms because the alarm is auditory and does no t h ave a v isual sign al co mponent. Likewise, deaf individuals incarcerated at Gr eensville cannot hear life-event announcem ents m ade through auditory m eans a t th e f acility, and thus routinely m iss count, meals, recreation, and other activities.
145. Deaf individuals incarcerated at Po whatan also rou tinely m iss life event announcements. Becau se they are in a correct ional setting , m issing the designated tim e for waking up, eating, recreation, or work can cause them to forego the activity, such as a m eal, altogether, or face discipline for being late.
146. Mr. Richardson and Mr. Rom an oft en m iss counts, calls, m eals, recreation, and other prison activities because they cannot hear the announcements for them.
147. In October 2009, Mr. Richardson m issed breakfast, lunch, and dinner m eals because he was unable to hear the announcem ents. He told Powhatan staff about th is, but th ey continue to communicate the announcem ents to him and the other deaf individuals in custody in a manner that they cannot perceive.
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148. Some deaf individuals in custody have ar rived late to work because they were

unable to hear the announcem ents. For instance, on Augus t 9, 2009, a fter not hearing and not

otherwise being notified of the work-call announcement, Mr. Richardson was late for work.

149. Mr. More is also unable to hear

the life-event announcem ents over the

loudspeaker. For example, Mr. More recently needed to exchange his clothing for mending. He

missed the weekly ann ouncement for the clothing ex change because he could not hear it. W hen

he subm itted a written request to exchange his clothing m id-week, the VDOC em ployee

responsible for the exchange w ould not let him exchange his cl othing and would not accept Mr.

More’s explanation that he could not hear th e weekly announcement. The VDOC employee told

Mr. More to wait for the next announcement—which would again be made over the loudspeaker.

150. Deaf individuals incarcerated at Powh atan have m issed or nearly m issed

important non-recurring events, like the arrival of a visitor, because they cann ot hear th e

announcement.

151. In summer 2008, Mr. More had a visitor who waited half an hour and alm ost left

Powhatan without seeing him. Because Powhatan personnel made only auditory announcements

concerning the visitor, Mr. More was unaware that som eone had come to see him until another

person in custody took the time to communicate the visitor’s presence with him directly.

152. Mr. Richardson and other deaf indivi duals also m iss out on recreational

opportunities available to heari ng individuals in VDOC’s custody when VDOC staff fail to take

simple steps like turning on the closed captioning on the DVDs played in Powhatan.

153. Deaf individuals in carcerated at Powhat an have also m issed safety alerts,

including fire alarms, putting them at risk of suffer ing serious harm if there is a fire or sim ilarly

dangerous event at Powhatan.

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154. In April 2009, there was a fire alarm

and evacuation at Powhatan. Deaf

individuals had to rely on others in custody to alert them of the al arm and assist them in leaving

the build ing. In addition to being f rightening and disorienting for the deaf individuals in

VDOC’s custody, the situation also dem onstrated what a significant safety threat the lack of an

alternative notification system poses to deaf individuals. Mr. Wolfsburger complained in writing

to VDOC a bout the April fire drill, but VDOC still has not taken any action to rem edy the

situation. In a subsequent fire drill in winter 2009, Mr. Rom an was in his room when a hearing

individual in custody tapped on his door. Because Mr. Rom an has limited lip-reading ability, he

was able to understand when the other individual told him to evacuate. Mr. Rom an was one of

the last people to leave his area. He did not unde rstand that it was a fire drill until he got outside

and was able to ask others to explain the situation. Being one of the la st to leave created

unnecessary stress for Mr. Rom an, and in a real em ergency, could have put him in serious

danger.

155. Mr. Richardson, Mr. Rom an, and Mr. More have each requested that VDOC

install an alternative no tification system, such as electronic displays or beepers, so that the d eaf

and hard of hearing individuals in VDOC’s cu stody can receive life-event announcem ents and

safety alerts through non-auditory means.

156. VDOC has denied these requests for an alternative notification system.

157. VDOC has responded to com plaints by deaf individuals in its custody by

instructing the individuals to re fer to prison daily plans or sche dules. However, on infor mation

and belief, these plans and schedules are often kept in places that are difficult or impossible for

incarcerated individuals to access. VDOC has also told deaf individuals in custod y that VDOC

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staff will alert them individually in the future, but VDOC staff have consistently failed to follow

through on these promises.

158. VDOC’s f ailure to pro vide alterna tive means of notifying deaf and hard of

hearing individuals in its cust ody about life-event announcem ents and safety alerts has resulted

in harm, and may result in serious future harm , to deaf individuals in VDOC’s custody. It also

violates their rights under, the Americans with Disabilities Act, the R ehabilitation Act, th e

Virginians with Disabilities Act, and the U.S. and Virginia Constitutions.

C. Inadequate Access to Communication Devices

159. VDOC pr ovides hearing individuals in its custody with access to

telecommunications ser vices in ord er f or them to communicate with fam ily, friends, and other

individuals outside of prison.

160. As the federal Bureau of Prisons has recognized, “[t]elephone privileges are a

supplemental m eans of m aintaining comm unity and fa mily ties that will contribute to an

inmate’s personal developm ent.” 28 C.F.R. § 540.100. Telephone and other form

s of

telecommunication are very important to individuals in VDOC’s custody be cause they foster the

family and community ties that are fundam ental to motivate incarcerated individuals to improve

themselves and to pr epare th em to m ake a pos itive trans ition back to civilian lif e once th eir

sentence is complete.

161. Deaf individuals in VDOC’s custody cannot use traditional telephones to

communicate with individuals outside of prison.

162. VDOC is aware that deaf i ndividuals in its custody requi re alternative m eans of

communicating with individuals outside of prison, but it does not provide sufficient alternatives.

163. On infor mation and belief, VDOC does not provide sufficient alternative

telecommunications services at its facilities throughout Virginia. For exam ple, individuals with 35

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hearing impairments incarcerated at W allens Ridge are un able to comm unicate with individuals outside of prison becau se they can not use the trad itional telephones p rovided to incarcerated individuals and, on information and belief, other devices are not made available to them.
i. Telecommunications Devices for the Deaf 164. VDOC provides deaf individu als incarcerated at Powhatan with v ery lim ited access to telecommunications devices for the d eaf (“TDD”). A TDD is a telephone equipped with a keyboard and a displa y screen, used by individuals who have hearing or speech impairments. A TDD allows individ uals to se nd and receive typed m essages using a keyboard attached to a telephone line. For two parties to have a direct TDD conversation, each party must have a TDD. 165. On infor mation and belief, two kinds of TDD units are ava ilable at Po whatan: permanent TDD units are installed in the phone ba nks in the cellblocks and at least one portable TDD unit is usually kept in the Watch Offi ce, the office used by on-duty COs. There are problems with both kinds of TDDs at Powhatan.
ii. Cellblock TDDs 166. On information and belief, many of the cellblock TDDs are broken or inoperative. 167. VDOC has been aware since at least Apr il 2009 that many of the cellblock TDDs at Powhatan are broken and give error messages when deaf individu als attempt to u se them to contact other TDD users. 168. For example, in the Spring of 2009, Mr. Wolfsburger attempted to use the TDD units installed in the cellblo ck phone banks to place a direct call to an individual outside of prison who has a TDD unit. However, Mr. W olfsburger was unable to get through because th e TDD unit in the phone bank gave him an error message.
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169. Mr. Roman has unsuccessfully attempted to call his mother and girlfriend, both of whom have TDDs. After following VDOC tele phone procedures and adding his m other’s and his girlfriend’s TDD numbers to the TDD contact list, Mr. Roman tried calling them directly, but their numbers still came up as invalid on the TDD line.
170. In addition, the cellblock TDDs are bl ocked by VDOC policy from dialing the 1800 or 711 num bers necessary to u se special federa lly-mandated relay services that allow deaf individuals to communicate with hearing individuals by telephone . On infor mation and belief, these num bers can be easily unblocked by VDO C. W ithout this accomm odation, deaf individuals cannot use the cellblock TDD units to place relay calls to friends and fam ily who do not have their own TDD units. 8 They must use the portable TDD units that, on inform ation and belief, are ordinarily kept in the W atch Office, on which the 711 and 1-800 num bers have been unblocked.

8

Relay services allow TDD users to comm unicate with individuals who do not have

TDDs. Since m any individuals and businesses do not have TDD devices, federally-m andated

relay services have been established throughout the United States.

Relay services operate as follows: the party using the TDD places a call to a relay center, and a relay operator answers the call using anothe r TDD. The caller p rovides the operator with the phone number of the party with whom he wishes to communicate, and the operator places the call. When a hearing person answers the phone, the relay operator explains the relay service and states the name of the caller. The responses of the hearing person are typed by the relay operator into a TDD, and transm itted over the telephone lin es to the TDD user. The call pro ceeds with the relay operator voicing what the TDD user ty pes to the h earing person receiving the call, and typing what the hearing person speaks. The process can also work the other way—a hearing person who has no TDD can call deaf individuals from a traditional telephone by using the relay service.

The relay service is free of cost to the user s, and the caller pays only for the cost of the call to the party with whom the caller wishes to converse. To conn ect to a relay services center , an individual can either dial “711” f rom anywhere within the United States or dial the toll-free “1-800” number of the relay serv ice in the calle r’s locality. Accordingly, TDD relay services in Virginia m ay be accessed in two ways—by calling 711 or by calling Virginia’s toll-free relay service number.

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iii. Portable TDDs and Relay Services

171. Mr. Minnis, Mr. Rom an, Mr. Tinsley, an d Mr. W olfsburger have friends and

family who do not own TDDs, and they m ust us e a re lay servic e to c ommunicate with tho se

individuals outside of prison. Th ese men have complained in writing to prison officials since at

least November 2008 that they are unable to access relay services through the TDD units

installed in the cellblock areas.

172. Thus, they must m ake personal calls from the TDDs in the Watch Office, in the

presence of VDOC staff. TDDs deliver unread able messages when they pick up extra noise in a

room. Mr. Wolfsburger and Mr. Tinsley have bot h experienced disruption in their TDD calls

because the COs talk loudly while they are attem

pting to use th e unit—even after Mr.

Wolfsburger and Mr. Tinsley have asked them to be quiet.

173. VDOC staf f have the TDD unit set to p rint out a w ritten r ecord of each

conversation, which they confiscate and keep. On inform ation and beli ef, hearing individuals

making calls from the cellblocks are not subject to this level of monitoring.

174. Further, VDOC staff pr ovide access to the portable TDD un its only on a lim ited

basis. Deaf individuals may access the relay serv ice using the portable TDD unit, but they m ust

submit a request in advance and they can ordi narily use the portable unit only af ter 9:00pm

unless they m ake special arrangem ents with m ental health staff to use the unit during the day.

Thus, unlike hearing individuals incarcerated at Powhatan, deaf individuals who need to m ake

calls during regular business hours or who have family m embers who are unavailable at night

have restricted access to a relay service to place these calls.

175. For example, Mr. Minnis cannot contact hi s mother using the re lay service in the

Watch Office because she goes to bed before 9:00 pm.

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176. Deaf individuals wishing to use the TDD in the W atch Office m ust subm it a written request in advance of using the TDD unit. If the co mmanding officer decides that he and his staff are too busy, he may postpone the call—sometimes for up to 24 hours.
177. Mr. Wolfsburger and Mr. Tinsley have been required to make special requests to use the portable TDD unit during business hours and have that unit m oved to their case workers’ offices. He aring individuals do not have to make special appointm ents to use the telephones during business hours.
178. In addition, communications using a TDD or relay service take longer than voice communications, becau se each word m ust be type d by the relay op erator or TDD user. As a result, it takes deaf individuals more tim e to have a conversation using the TDD and relay service than it does for heari ng individuals to have the sam e conversation over a traditional telephone. When the TDD unit is in the Watch Office, deaf individuals are allowed to use it only for a short period of tim e. In January 2009, Mr . W olfsburger was using the TDD unit in the Watch Office when COs slammed the table to te ll him his tim e was up, well before he had the opportunity to finish his conversation.
iv. Voice Carry-Over Relay 179. Since Mr. Richardson is able to use his voice, he prefers using Voice Carry-Over relay (“VC O”) when placing phone calls. VCO is for individuals who can speak clearly, yet have hearing loss significant enough to prevent them from hearing through a standard telephone. 180. VCO works lik e a regu lar re lay s ervice, bu t th e deaf or h ard of hearing caller speaks instead of types his m essage. W hen the h earing caller rep lies, a relay service provider types the caller’s comments and transmits them to the deaf or hard of hearing caller’s TDD unit.
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181. Virginia Relay offers a VCO service to Vi rginians with he aring d isabilities. A VCO caller uses the sam e 711 number used by trad itional relay callers. All that is necessary to use the service is a TDD unit and a standard telephone with access to the 711 number.
182. VDOC has stated that, by policy, VCO service is not provided and has denied Mr. Richardson’s request to use VCO.
v. Videophones 183. Videophones and free or low-cost internet -based video links such as Skype (collectively, “videophones”) have replaced T DDs among most deaf people becau se they allo w deaf individuals to communicate with one another directly in ASL, without having to translate every statement into written English, a language in which it is difficult for them to communicate. When using a videophone, callers can see each other, usually over an In ternet connection. As a result, many deaf individuals no lon ger have a TDD and have no way to accept a T DD call, as they rely exclusively on videophones for telecommunication. 184. Deaf individuals using videophones can also call a Video Rela y Service (“VRS”) to place calls to people who do not understa nd ASL or do not have a videophone. The mechanics of VRS are very similar to those of traditional TDD relay service—the caller is routed to an interpreter, the caller gives the interpreter the number of the party he is trying to reach, and the interpreter then interprets the conversation in to spoken English. In VRS, howe ver, the relay interpreter can see the caller and knows ASL. 185. Videophones and VRS perm it deaf people to use ASL instead of having to carry out every p hone call in written Eng lish. For deaf people who have difficulty with reading and writing English, this is a significant advantage over the traditional TDD telephone calls. 186. Deaf individuals in VDOC’s custody have repeatedly requested videophone access, but have been denied videophone access as a matter of VDOC policy.
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187. On infor mation and belief, in January 2010 VDOC instituted a “Lifetime Video Link” program that enables ind ividuals in custody to communicate with their friends and family members over a two-way video connection. VDOC has thus dem onstrated the feasibility of providing this service to accommodate deaf individuals’ disability, and shown that there are no insurmountable security or technological barriers to setting up videophones for deaf individuals.
188. However, VDOC charges $15 per half hour or $30 per hour–an extrem ely high sum for indigent individuals in VDOC’s custody–for the use of the Lifetim e Video Link service. It is illegal under federal regula tions for VDOC to charge deaf individuals a “surcharge” to provide them with necessary auxiliary aids, such as videophones. 28 C.F.R. § 35.130(f).
189. Mr. Tinsley requested access to a videophone so that he coul d communicate with his girlfriend, who uses a vide ophone. Mr. Tinsley’s girlfrie nd is deaf and does not have consistent access to a T DD unit, so he cannot c ontact her using the TD D units in the cellblocks, even when the units are working.
190. Because Mr. Rom an and Mr. Mo re have used ASL nearly th eir entire lives, they prefer to communicate with fam ily and friends through a videophone, instead of typing their messages on a TDD, as written communications are not effective for them.
191. Mr. Minnis needs to have access to a videophone to communicate with his brother and three of his friends, all of whom have access to videophones but not TDDs.
192. VDOC has denied Mr. Tins ley, Mr. Roman, Mr. More, and Mr. Minnis’ requests as a matter of VDOC policy.
193. VDOC’s f ailure to pro vide adequa te m eans of allowing deaf individ uals to communicate with individuals outside of prison has resulted in harm , a nd m ay result in f uture harm, to deaf individuals in VDOC’s custody. It also violates their rights under the U.S. and
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Virginia Co nstitutions, the Am ericans with Disabi lities A ct, the Reh abilitation Act, and th e Virginians with Disabilities Act.
vi. Hearing Aids and other Individual Hearing Devices 194. VDOC has consistently f ailed to p rovide deaf and hard of hear ing individuals in its custody with individual hearin g devices that would enable th em to hear prison alerts or participate in other aspects of prison life. 195. On information and belief, VDOC does not pr ovide individual he aring aids at its facilities throughout Virginia. For exam ple, ha rd of hearing individuals incarcerated at Nottoway have requested hearing aids but have either had their requests denied or have been told that they must pay prohibitively expensive fees in order to obtain them. Additionally, hard of hearing individuals incarcerated at Haynesvill e Correctio nal Center (“Haynesville”) in th e Eastern Region of Virginia have been unable to use their hearing aids for days at a tim e because they were required to attend prison-m andated activities during the ten m inute period for battery distribution, and they were not otherwise allo wed to rece ive batte ries necessary for powering their hearing aids. 196. Mr. More used a hearing aid before be ing in carcerated at Powhatan. W ith a hearing aid, he can understand som e spoken language, and a hearing aid helps him modulate his voice enabling him to speak m ore clearly. He has been sent for hearing tests twice. There was no interpreter present either tim e. Over a year ago, the prison doctor told him that they were waiting for funding for his hearing aid. Mr. More has still not received his hearing aid. 197. Mr. Richardson received a m edical order fo r in-line am plifiers and special noisereduction h eadphones, which are reasonab le acco mmodations that would enable him to participate more ef fectively in p rison lif e. However, when Mr. Richardson attem pted to purchase the equipment, a non-physician in the P owhatan medical department informed him that
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the equipment would not be aut horized by the m edical department, and the W arden denied his request on the grounds that “there is no m edical indication for the us e of these headphones; therefore, the medical department is not in the position to authorize this purchase.” VDOC failed to prov ide Mr. Richardson with a reason able accomm odation when it p rohibited him from obtaining these simple auxiliary devices, which a doctor had already determ ined were medically necessary.
D. Improper Assignment of Incarcerated Deaf Men to Powhatan 198. VDOC uses Institution al Assignment Criteria to place ind ividuals in correctional facilities throughout Virginia base d on their treatm ent needs, their offenses of conviction, and their behavior while in prison.9 According to VDOC, the Institutional Assignment Criteria serve as “a general guideline for use by both Instituti onal and Central Classifi cation s taff in their efforts to make recommendations and final deci sions when determ ining the m ost appropriate institutional assignments.”10 199. There a re f ive in stitutional as signment levels, with Leve l 1 being th e lowest security classification level and Level 5 being the highest security classification level. 200. Powhatan is a Level 3 facility. Individuals plac ed at Level 3 f acilities generally have “sing le, m ultiple or lif e [ plus] sentences ” and have s erved twen ty consecutive years in prison.11 Non-deaf individuals inca rcerated at Powhatan may be considered for transfer to a less-secure Level 1 or 2 f acility if they have not engaged in any disruptive behavior f or twentyfour months and meet the other criteria for placement.12

9

See Commonwealth of Virginia, Department of Corrections, Institutions by Security

Levels, http://www.vadoc.state.va.us/facilities/security-levels.shtm (last visited Feb. 20, 2010).

10

Id.

11

Id.

12

Id.

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201. In contrast, Level 1 facilitie s are reserved for individua ls who have less serious convictions, are not escape ri sks, and are not disruptive. 13 Level 1 f acilities are divided into Level 1-Low and Level 1-High groups. 14 Individuals convicted of murder I or II, ro bbery, sexrelated crimes, kidnapping, carjack ing, felonious assault or m alicious wounding are not eligible for placem ent in Virgin ia’s four Level 1-Low s ecurity facilities. 15 Thus, there is generally a significant difference between the offenses and be havior records of an individual in custody assigned to Level 1-Low and one assigned to Level 3.
202. VDOC does not apply its sta ndard classification proces s to deaf and hard of hearing individuals in its cu stody. Instead, VDOC has a polic y of assigning deaf m en under VDOC’s custody to Powhatan, regardless of the nature of their conviction or their prior behavior.
203. Mr. Minnis, Mr. More, Mr. Richardson, Mr. Rom an, and Mr. Tinsley are all incarcerated at Powhatan and Mr. Wolfsburger was previously incarcerated at Powhatan.
204. On information and belief, but for his di sability, Mr. Minnis would be designated as Class Level 1.
205. On information and belief, but for his disability, Mr. More would be designated as Class Level 1.
206. On information and belief, but for his di sability, Mr. Tinsley would be designated as Class Level 1.
207. On infor mation and belief, but for his disability, Mr. W olfsburger would have been designated as Class Level 1.

13

Id.

14

Id.

15

Id.

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208. VDOC’s policy of assigning all m ale deaf individuals in its custody to P owhatan has resulted in harm , and m ay result in future harm, to deaf individuals in VDOC’s custody. It also vio lates their righ ts under th e U.S. a nd Virginia Constitu tions, the Am ericans with Disabilities Act, the Rehabilitation Act, and the Virginians with Disabilities Act. VI. CLASS ACTION ALLEGATIONS
209. Plaintiffs Minnis, Mo re, Richardson, Rom an, Tinsle y, and Wolfsburger bring claims based on the ADA, the Reha bilitation Act, the Virginians with Disabilities Act, the Code of Virginia, the Religious Land Use and Instit utionalized Persons Ac t of 2000, the Virginia Constitution, and the United Sta tes Constitution on behalf of themselves and all othe rs similarly situated, pursuant to Rule 23 of the Federal Rules of Civil Procedure.
210. Plaintiffs seek to rep resent a class com posed of all current and future deaf and hard of hearing individuals incarcerated by VDOC or under VDOC’s supervision who prim arily rely on Am erican Sign Language for in-pers on communications and/or require individual hearing devices, auxiliary aids a nd services to hear or understa nd telephone comm unications or loudspeaker system a nnouncements or alarm s, and who have been denied effective communication due to lack of qualified sign langua ge interpreters or ot her individual hearing devices, auxiliary aids and services, for any programs, services, or privileges offered or available to individuals incarcerated or supervised by VDOC (hereinafter “Class”). As a result of their confinement in VDOC’s custody and/or under VDOC’ s supervision, members of the Class have been, are, a nd will be subjec ted to violations of their statutory and c onstitutional rights, as described in this Com plaint. Plain tiffs repr esent a class o f persons seeking declarato ry and injunctive r elief to e liminate def endants’ unlaw ful and unco nstitutional polic ies and prac tices. Plaintiffs also seek nom inal, compensatory, and punitive dam ages and attorney fees, where appropriate.
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211. There are curren tly at leas t twen ty to twenty-f ive deaf or hard o f hearing

individuals incarcerated at Powhatan who rely primarily on Am erican Sign Language for in-

person communication and/or requir e individual hearing devices, auxi liary aids and services to

hear or understand telephone co mmunications or loudspeaker sy stem announcements or alarm s,

and an unknown num ber of deaf or hard of hear ing individuals in othe r correctional centers

within the Virginia correctional system. The proposed Class is so numerous, and membership so

fluid, that joinder of all members is impracticable.

212. All Class m embers are equally s ubject to the conditio ns describ ed in this

Complaint, and num erous comm on questions of law and fact exis t as to a ll Clas s m embers.

These common questions include, but are not lim ited to: whether defendants systemically fail to

provide effective communication an d adequate access to sign language interp reters and other

hearing dev ices, auxiliary aid s, and serv ices to individuals who are deaf or hard of hearing;

whether defendants’ conduct has resulted in harm, a nd may result in serious future harm , to deaf

or hard of hearing individuals by denying them effective communication with medical personnel;

whether defendants system atically fail to provide individuals who are deaf or hard of hearing

with access to services , program s, or privil eges com parable to access provid ed to hearing

individuals in VDOC’s custody; whether V DOC and nam ed defe ndants Johnson, Pearson,

Washington, Fegan, and Morris impose a substant ial burden on deaf i ndividuals’ religious

exercise; whether VDOC and na med defendants Johnson, Pearson, Washington, and Fegan fa il

to provide notification of prison announcem ents to deaf and hard of hearing individuals in a

manner co mparable to that provided to hearing individuals; whether VDOC

and na med

defendants Johnson, Pearson, Washington, and Fegan provide inadequate means of allowing deaf

or hard of hearing individuals to communicate with indiv iduals outside of prison; and whether

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VDOC and named defendants Johnson, Pearson, Washington, and Fegan have improperly and in a discriminatory manner assigned deaf or hard of hearing individuals to Powhatan.
213. Plaintiffs’ claims are typical of the claims of the Class. Plaintiffs are deaf or hard of hearing individuals incarcerated in a VDOC facility or under VDOC’s supervision who primarily rely on Am erican Sign Language for in -person communication a nd/or require hearing devices, auxiliary aids and se rvices to hear or understand telephone communications or loudspeaker system a nnouncements or alarm s, and who have been denied effective communication due to lack of qualified sign langua ge interpreters or other hearing devices, auxiliary aids, and services, for any programs, se rvices or privileges o ffered or available to individuals incarcerated or superv ised by th e Virginia Department of Cor rections. T he policies and practice s describ ed in this Complain t apply equally to the nam ed Plaintif fs and to all the other members of the Class, and the injuries suffered by the named Plaintiffs stem from the same policies and practices that affect all members of the Class.
214. Plaintiffs and Plaintiffs’ c ounsel will fairly and adequately represent the interests of the Class. Plaintif fs’ interests are consistent with, and are not antagonistic to, the interests of the Class as a whole, and Plaintiffs seek no reli ef other than the relief sought on behalf of the Class. Plaintiffs’ counsel are experienced in the protection and enforcement of the statutory and constitutional rights of incarcerated individuals, especially deaf individuals.
215. The prosecution of separate actions by individual m embers of the Class would create the risk of establishing incompatible standards of conduct for the party opposing the Class and/or would create the risk of substantially impairing or impeding the ability of individuals not parties to the adjudication from protecting their interests.
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216. Defendants have acted and refused to ac t on grounds generally applicable to the

Class, thereby making appropriate final injunctive and declaratory relief with respect to the Class

as a whole.

VII. CLAIMS FOR RELIEF

A. COUNT I

Discrimination on the Basis of a Disability in Violation of the Americans with Disabilities Act (42 U.S.C. § 12131 et seq.)

217. Plaintiffs reallege and incorporate by reference each and every allegation above as

if fully set forth herein.

218. On July 12, 1990, Congress enacted

the ADA “to provide a clear and

comprehensive national m andate for the elim ination of discrim ination against individuals with

disabilities.” 42 U.S.C. § 12101(b)(1). Title II of the ADA states that “no qualified individual

with a disa bility sh all, by r eason of such disability, be exclude d from participation in or be

denied the benefits of services , program s, or activities of a pub lic entity, or be subjected to

discrimination by any such entity.” 42 U.S.C. § 12132.

219. Plaintiffs are qualified individuals with a di sability within the m eaning of Title II

of the ADA, 42 U.S.C. § 12131(2).

220. The claim s under the A DA are brought ag ainst Gene Johnson, Fred Schilling,

Robin Hulbert, G.K. Washington, Lois Fegan, James Camache, Malcolm Taylor, Tony E. Reese,

Donald Guillory, Walter A. McFarlane, Sharon Trimmer, Sheldon Retchin, John Duval, Deborah

Davis, Amanda Dodd, Eddie Pearson, P.C. Hunnel, Sandra Parker, Ronald Toney, K. Watson, C.

Stewart, an d B. Morris (collec tively, “nam ed defendants”), in th eir official c apacities, and the

Virginia Departm ent of Corrections (“VDOC ”), Co mmunity C orrections, the Virginia

Correctional Enterprises (“VC Enterprises ”), the Virginia Department of Correctional Education

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(“VC Education” ), th e Virginia Commonwealth University Health Syste m Authority (“VCUHS”), the Medical Colleg e of Virgin ia Hospitals (“MCV”), and the Powhatan Correctional Center (“Powhatan”) (collectively, “state agency defendants”).
221. As departments, agencies, or instrumentalities of the Commonwealth of Virginia, VDOC, Community Corrections, VC Enterprise s, VC Education, VC UHS, MCV, and any of their departments or ag encies, including Powhata n, are “public entities” within the meaning of 42 U.S.C. § 12131(1)(B).
222. At all tim es relevant to this action, the ADA was in full force and effect in the United States and Plaintiffs had a right not to be subjected to discrimination on the basis of their disability by defendants. 42 U.S.C. § 12132.
223. The U.S. Departm ent of Justice (“DOJ”) regulation im plementing Title II of the ADA clearly requires the provision of effective communication as part of its nondiscrim ination mandate. 28 C.F.R. 35.160.
224. The regulation states that “[a] public entity shall take approp riate steps to ensure that comm unications with applican ts, particip ants, and m embers of the public with disabilities are as effective as communications with others.” 28 C.F.R. § 35.160(a).
225. Named defendants’ and state agency de fendants’ (collectively, “defendants”) failure to provide effective comm unication for i ndividuals with hearing disabilities denied and continues to deny, on the basis of their disab ility, Plain tiffs the sa me access to defendants’ services, b enefits, activ ities, p rograms, or pr ivileges as the acces s provid ed to h earing individuals.
226. Plaintiffs have been unable to communicate with medical personnel, participate in educational, mental health, em ployment, and probation and conditional release program s, learn
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of daily-life and safety alert notifications, and communicate with individuals outside of prison as effectively as hearing individuals in VDOC’s custody.
227. In order to ensure ef fective communication, “a public entity sha ll f urnish appropriate auxiliary aid s and services where nece ssary to a fford an individua l with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity.” 28 C.F.R. § 35.160(b)(1).
228. Auxiliary aids include, but are no t lim ited to, “qualif ied inte rpreters or other effective methods of making aurally delivered m aterials available to in dividuals with hearing impairments,” 42 U.S.C. § 12103, such as com puter-aided transcripti on services, assistive listening systems, closed caption decoders, open and close captioning, TDDs, videotext displays, and written materials. 28 C.F.R. § 35.104
229. In addition, “[a] public entity may not place a surcharge on a particular in dividual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the prov ision of auxiliary aids or program access ibility, that are required to provide that individual or group with the nondiscrim inatory tr eatment required by the Ac t or this part.” 28 C.F.R. § 35.130(f).
230. Defendants subjected Plaintiffs to disc rimination solely on the basis of their disability, in violation of their rights under the A DA. They have done this by failing to provide effective communication, and by no t ensuring that ad equate access to qualified sign language interpreter s ervices and other auxi liary aids and serv ices is m ade availa ble to ind ividuals with hearing im pairments in VDOC’s custody or unde r VDOC supervision. Johnson, Washington, Fegan, Camache, Taylor, Reese, Pearson, and Hunnel (“VDOC named defendants”) and VDOC have also done this by im posing a heavy surcharge for the us e of videophones, which are an
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auxiliary aid required to provide deaf individuals with the no ndiscriminatory treatment required under the ADA.
231. 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. § 160(b)(2).
232. VDOC and VDOC na med defendants have failed to give consideration to Plaintiffs’ requests, denying them their requests for an a lternative notification system and use of VCO and videophones to communicate with individuals outside of prison.
233. On information and belief, the failure to provide effective communication and the failure to p rovide comparable access to services , benefits, activities, programs, or privileges are policies, regular practices, and/or custom s of defendants. These failures are ongoing and continue to this date.
234. Defendants’ failure to provide sign langua ge interpreters and/or appropriate auxiliary aids and services has subjected Plai ntiffs to discrim ination on the basis of their disability in violation of their rights under the A DA, in ways that include, but are not lim ited to, the following:
a. inadequate access to sign language interpreters; b. inadequate access to prison alerts; c. inadequate access to communication devices; and d. improper assignment of deaf men under VDOC’s custody to Powhatan. 235. Further, V DOC and VDOC na med defendant s discrim inate against Plaintiffs, solely on the basis of their disability, by re fusing to apply VDOC’ s st andard classification process to deaf and hard of hearing men in VDOC’s custody and instead, assigning all deaf men in VDOC’s custody to Powhatan, regardless of th e nature of their conviction or their prior behavior while incarcerated.
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236. As a proxim ate result of defendants’ viol ations of Plaintif fs’ rights under the ADA, Plaintiffs have suffered a nd continue to suffer from di scrimination, unequal treatm ent, exclusion (including exclusion fr om de fendants’ services, bene fits, a ctivities, pr ograms, and privileges), violations of their rights under the laws of the United States, financial loss, loss of dignity, frustration, hum iliation, emotional pain and suffering, a nxiety, trauma, embarrassment, unnecessary loss of rights and privileges, in cluding unnecessary disciplinary m easures, and injury to their health.
237. Defendants’ failure to co mply with the ADA has resulted, and will continue to result, in h arm to Plaintiffs, as Plaintiffs will continue to be in the custody or under the supervision of VDOC and will cont inue to atte mpt to use or avail the mselves of the servic es, benefits, activities, programs, and privileges of the def endants. This harm will co ntinue unless and until th e def endants are orde red by this Court to make m odifications to th e polic ies, practices, and procedures of their respective state agencies pursuant to the ADA.
B. COUNT II Discrimination on the Basis of a Disability in Violation of the Rehabilitation Act
(29 U.S.C. § 794 et seq.) 238. Plaintiffs reallege and incorporate by reference each and every allegation above as if fully set forth herein. 239. The purpose of the Rehabilitation Act is to ensure that no “qualified individual with a disability in the United States . . . shall, solely by reason of [ ] disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrim ination under any program or activity receiving Federal financial assistance . . . .” 29 U.S.C. § 794(a). 240. Plaintiffs are qualified indi viduals with a dis ability with in the m eaning of the Rehabilitation Act, 29 U.S.C. § 705(20).
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241. Defendants receive Federal financial assistance within the meaning of 29 U.S.C. § 794(a).
242. The operations of VDOC, Co mmunity Corrections, VC Enterprises, VC Education, VCUHS, MCV, and their departm ents, agencies, and instrum entalities, includ ing Powhatan, are “program [s] or activit[ies]” with in the m eaning of 29 U.S.C. § 794(b)(1)(A)-(B) and/or (b)(2)(B).
243. At all tim es relevant to th is action, the Rehabilitation Act was in full force and effect in the United Sta tes and Pla intiffs had a right not to be subjecte d to discrimination on the basis of their disability by defendants. 29 U.S.C. § 794(a).
244. The DOJ regulation im plementing the Rehabilitation Act clarif ies th e requirements for Federal financial recipients, incl uding cor rectional f acilities, statin g that “[ a] recipient th at em ploys fifteen or more perso ns shall provide appropriate auxiliary aids to qualified handicapped persons with im paired sensory, manual, or speaking sk ills where a refusal to m ake suc h provision would discrim inatorily impair or exclude the persons in the program receiving federal financial assistance.” 28 C.F.R. § 42.503(f).
245. Appropriate auxiliary aids include, but are no t lim ited to, “brailled a nd taped material, qualified interpreters, readers, and telephonic devices.” 28 C.F.R. § 42.503(f).
246. Defendants discrim inatorily impaired Plaintiffs’ ability to co mmunicate effectively with m edical personnel, prison sta ff, and individuals outside of prison and/or excluded P laintiffs from educational, vocatio nal, and religious services and prison-wide announcements. They have done this by failing to provide appropriate auxiliary aids in violation of the Rehabilitation Act.
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247. Defendants’ failure to provide appropria te auxiliary aids and services for

individuals with hearin g disabilities denied and continue s to deny, on the basis of their

disabilities, Plaintiffs the sam e access to defendants’ services, be nefits, activities, program s, or

privileges as the access provided to hearing individuals.

248. On inf ormation and belief , the f ailure to provide appropriate auxiliary aids and

services and the failure to provide comparable access to services, benefits, activities, programs or

privileges are policies, regular practices and /or custom s of defendants. These failures are

ongoing and continue to this date.

249. Defendants’ failure to provide appropria te auxiliary aids and services has

subjected Plaintiffs to discrim ination on the basis of their disability in violation of their rights

under the Rehabilitation Act, in ways that include, but are not limited to, the following:

a. inadequate access to sign language interpreters; b. inadequate access to prison alerts; c. inadequate access to communication devices; and d. improper assignment of deaf men under VDOC’s custody to Powhatan.

250. Further, V DOC and VDOC na med defendant s discrim inate against Plaintiffs,

solely on the basis of their disability, by refu sing to apply VDOC’ s sta ndard classification

process to deaf and hard of hearing men in VDOC’s custody and instead, assigning all deaf men

in VDOC’s custody to Powhatan, regardless of th e nature of their conviction or their prior

behavior while incarcerated.

251. As a proxim ate result of defendants’ viol ations of Plaintif fs’ rights under the

Rehabilitation Act, Plaintiffs have suffered, and continue to suffer, from discrimination, unequal

treatment, exclusion (including exclusion from

defendants’ services, benefits, activ ities,

programs, a nd requirem ents), financial loss, lo ss of dignity, frustration, hum iliation, e motional

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pain and suffering, anxiety, traum a, e mbarrassment, unnec essary loss of rights and privileges, including unnecessary disciplinary measures, and injury to their health.
252. Defendants’ failure to comply with the Re habilitation Act has resulted in harm to Plaintiffs, and defendants are lia ble t o Pl aintiffs for harms su ffered. Defendants’ failure to comply with the Rehabilita tion Act will continue to result in harm to Plaintiffs, as Plaintiffs will continue to be in the custody or under the supe rvision of VDOC and will continue to attem pt to use or avail them selves of the services, bene fits, activ ities, program s, and privileges of defendants. This harm will con tinue unless an d until def endants ar e o rdered by th is Court to make modifications to their policies, practices and procedures pursuant to the Rehabilitation Act.
C. COUNT III Violation of the Virginians with Disabilities Act (Code of Virginia § 51.5-40)
253. Plaintiffs reallege and incorporate by reference each and every allegation above as if fully set forth herein.
254. The Virginians with Disabilities A ct requ ires that no “qua lified pe rson with a disability sh all, on the basis of disability, be excluded from pa rticipation in, be denied the benefits of, or be subjected to discrim ination under any program or activity receiving state financial assistance or under any program or a ctivity conducted by or on behalf of any state agency.” Code of Virginia. § 51.5-40.
255. Plaintiffs are qualified indi viduals with a dis ability with in the m eaning of the Code of Virginia § 51.5-40.
256. VDOC, Community Corrections, VC Ente rprises, VC Education, VCUHS, MCV, and Powhatan receive s tate financial ass istance w ithin the m eaning of the Code of Virgin ia, § 51.5-40.
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257. The operations of defendants and th

eir departments, agen cies, and

instrumentalities are “program[s] or activit[ies]” within the meaning of Code of Virginia. § 51.5-

40.

258. At all times relevant to this action, the Virginians with Disabilities Act was in full

force and effect in th e United S tates and P laintiffs had a right not to be subjected to

discrimination on the basis of their disability by defendants. Code of Virginia § 51.5-40.

259. Defendants, acting under color of Virg

inia law, subjected Pla intiffs to

discrimination solely on the basis of their di sability, in violation of their rights under the

Virginians with Disabilities Act. They have done this by failing to provide effectiv

e

communication and adequate access to qualified sign language interpreters and other auxiliary

aids and services.

260. Defendants’ failure to provide effec tive communication for individuals with

hearing disabilities denied and continues to deny, solely on the basis of their disability, Plaintiffs

the sam e access to defendants’ serv ices, ben efits, activities, program s, and priv ileges as th e

access provided to hearing individuals.

261. On information and belief, the failure to provide effective communication and the

failure to p rovide comparable access to services , benefits, activities, programs, or privileges are

policies, regular practices, and/or custom s of defendants. These failures are ongoing and

continue to this date.

262. Defendants’ failure to provide effective communication and appropriate auxiliary

aids and services h as s ubjected Plaintiffs to d iscrimination on the basis of the ir disability in

violation of their rights under the V irginians with Disabilities Act, in ways that include, but are

not limited to, the following:

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a. inadequate access to sign language interpreters; b. inadequate access to prison alerts; c. inadequate access to communication devices; and d. improper assignment of deaf men under VDOC’s custody to Powhatan.

263. Further, V DOC and VDOC na med defendant s discrim inate against Plaintiffs,

solely on the basis of their disability, by refu sing to apply VDOC’ s sta ndard classification

process to deaf and hard of hearing men in VDOC’s custody and instead, assigning all deaf men

in VDOC’s custody to Powhatan, regardless of the natu re of their convict ion or their prior

behavior while incarcerated.

264. As a proxim ate result of defendants’ viol ations of Plaintif fs’ rights under the

Virginians with Disabilities Act, Plaintif fs have suffered and continue to suffer fro

m

discrimination, unequal treatm ent, exclusion (inc luding exclusion from defendants’ services,

benefits, activities, program s, and requirements), violations of th eir rights under the laws of the

Commonwealth of Virg inia, f inancial los s, loss of dignity, f rustration, hum iliation, em otional

pain and suffering, anxiety, traum a, e mbarrassment, unnec essary loss of rights and privileges,

including unnecessary disciplinary measures, and injury to their health.

265. Defendants’ f ailure to com ply with the Virginians with Disabilities Act has

resulted in harm to Plaintif fs, and defendants are liable to P laintiffs for harms suffered.

Defendants’ failure to comply with the Virginians with Disabilities Act will continue to result in

harm to Plaintiffs, as Plaintiffs will continue to be in the cu stody or sup ervision of VDOC and

will continue to attempt to use or av ail themselves of the services, benefits, activities, programs,

and privileges of defendants. This harm will continue unless and until defendants are ordered by

this Court to m ake m odifications to their polic ies, p ractices and pro cedures pursuant to the

Virginians with Disabilities Act.

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D. COUNT IV Violation of Code of Virginia § 2.2-3401
266. Plaintiffs reallege and incorporate by reference each and every allegation above as if fully set forth herein.
267. The Code of Virginia requi res that “[w]hene ver a d eaf person applies for or receives any license, service, assistance or other right or benefit provided by a[] [state] agency, the agency shall e ither request the Virginia De partment for the Deaf and Hard-of-Hearing to appoint a qualified interpreter for the deaf or appoint such an interpreter from the list of qualified interpreters m aintained by the Departm ent to assist the d eaf person in comm unicating with agency personnel.” Code of Virginia, § 2.2-3401(B).
268. VDOC, Community Corrections, VC Ente rprises, VC Education, VCUHS, MCV, and Powhatan are state agencies that provide serv ices, assistance, and benefits to the Plaintiffs within the m eaning of Code of Virginia § 2.2-3400. These servic es, assistance, and benefits include but are not lim ited to: classes and program s offered by VDOC, VC Education and VC Enterprises, medical services offered by VDOC, VCUHS and MCV, religious services, means of external communications, and communication with VDOC personnel.
269. Plaintiffs have requested services, assi stance, and benefits from defendants, including but not lim ited to, the services, assi stance, and benefits alleged above and have requested that interpreters be provided.
270. Defendants, through their policies and prac tices, consistently fail to provide adequate access to sign language interpreters for deaf individua ls in VDOC’s cu stody, control, and supervision, in violation of Code of Virginia § 2.2-3401.
271. Defendants’ failure to c omply with the Code of Virginia ha s resulted in harm to Plaintiffs, a nd defendants are liable to Plaintif fs for har ms suffered. Defendant s’ fai lure t o
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comply with the Code of Virginia will continue to result in harm to Plaintiffs, as Plaintif fs will continue to be in the custody or supervision of VDOC and will continue to attempt to use or avail themselves of the serv ices, bene fits, activities, program s, and pr ivileges of defendants. This harm will c ontinue unless and until def endants are ordered by this Cour t to m ake modifications to their policies, practices, and procedures pursuant to the Code of Virginia.
E. COUNT V Violation of the Religious Land Use and Institutionalized Persons Act of 2000
“Substantial Burden on Religious Exercise” (42 U.S.C. § 2000cc et seq.)
272. Plaintiffs reallege and incorporate by reference each and every allegation above as if fully set forth herein.
273. Governments m ay not impose substantial burdens on the religious exercises of institutionalized persons even if the burden results from a rule of general a pplicability. 42 U.S.C. § 2000cc-1(a).
274. Plaintiffs are “institu tionalized pers ons” within the m eaning of The Relig ious Land Use and Institutionalized Persons Act of 2000. 42 U.S.C. § 2000cc-1.
275. As a departm ent, agency, or instru mentality of the Commonwealth of Virginia, VDOC is a governm ent within the m eaning of the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”). 42 U.S.C. § 2000cc-5(4).
276. The claims under RLUIPA are brought against VDOC and Johnson, Washington, Pearson, and Morris (“VDOC RLUIPA defendants”) in their official cap acities as em ployees of VDOC, and VDOC.
277. VDOC and the VDOC RLUIPA defendants have deprived and continue to deprive Plaintiffs of their right to the free exercise of religion, as secured by RLUIPA, by unlawfully imposing a substantial burden on Plainti ffs’ religious exercise. They have done this
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by failing to provide interprete rs or other m eans for enabli ng Plaintiffs to effectively

communicate at weekly worship services. Th e substantial burden VDOC RLUIP A defendants

and VDOC have im posed on Plaintiffs’ religious exercise affects program s or activities that

receive Federal financial assistance.

278. VDOC and the VDOC RLUIPA de fendants’ failure to comply with RLUIPA has

resulted in h arm to Plaintif fs, and will con tinue to result in h arm to Plaintif fs, as Plaintif fs will

continue to be in VDOC’s custody and continue to attem pt to participate in weekly worship

services unless and until VDOC an d VDOC R LUIPA defe ndants are ordere d by this Court to

make modifications to VDOC policies, practices, and procedures pursuant to RLUIPA.

F. COUNT VI

Violation of the United States Constitution Freedom from Cruel and Unusual Punishment: Eighth and Fourteenth Amendments
(42 U.S.C. § 1983)

279. Plaintiffs reallege and incorporate by reference each and every allegation above as

if fully set forth herein.

280. Under the E ighth and F ourteenth Amendments of the Unite d States Constitution,

“[e]xcessive bail shall not be required, nor excessive fi nes im posed, nor cruel and unusual

punishments inflicted.” U.S. Const. amend. VIII.

281. VDOC nam ed de fendants have, in their individual an d official capacities,

deprived and continue to depriv e Plaintiffs of their right to be free from cruel and unusual

punishment as secured by the Eigh th Am endment to the U nited States Constitutio n and m ade

applicable to the States by the Fourteenth Amendment.

282. VDOC named defendants have system atically d enied Plain tiffs access to basic

human services and vital inform ation during their incarcerati on in Powhatan. VDOC na med

defendants have failed to no

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instructions. VDOC n amed defen dants refuse to provide Plaintiffs w ith individual hearing devices. Moreover, VDOC na med defendants have not provi ded effective co mmunication between Plaintiffs and prison officials and the medical staff at VDOC and MCV. VDOC named defendants’ actions place Plaintiffs at a substantial risk of serious future harm.
283. VDOC nam ed def endants have actual kn owledge of the unco nstitutional conditions to which Plaintiffs were, and contin ue to be, subject, as Plaintiffs have subm itted numerous written complaints to VDOC staff reque sting that sign language interpreters and other auxiliary aids and services be m ade available to them and that an alterna tive notification system be installed.
284. Despite VDOC na med defendants’ actual knowledge of the substantial m edical and safety risks Plaintiffs face while in their custody, th ey continu e to disregard Plain tiffs’ medical and other needs in violation of the Ei ghth and Fourteenth Am endments of the United States Constitution.
285. VDOC na med defendants’ failure to com ply with the Eight h and Fourteenth Amendments of the United Sta tes Constitutio n has resulted in harm to Plaintif fs, and will continue to result in harm to Plaintiffs, as Plaintiffs will rem ain in the custody of VDOC and continue to attem pt to a vail themselves of medical treatment and other services unless and until VDOC na med defendants are ordere d by this Court to make m odifications to th eir po licies, practices and procedures pursuant to Eighth and Fourteenth Am endments of the United Sta tes Constitution.
61

Case 1:10-cv-00096-TSE-TRJ Document 34 Filed 04/13/10 Page 63 of 70 PageID# 330
G. COUNT VII Violation of the United States Constitution
Free Exercise of Religion: First and Fourteenth Amendments (42 U.S.C. § 1983)
286. Plaintiffs reallege and incorporate by reference each and every allegation above as if fully set forth herein.
287. Under the F irst and Fourteen th Amendm ents of the United States Con stitution, States “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const. amend. I.
288. VDOC na med defendants and Morris have , in their individual and official capacities, deprived and continue to deprive Plaintiffs of thei r free exercise of religion, as secured by the Firs t Amendm ent to the United Stat es Constitution and m ade applicable to the States by the Fourteenth Amendment, by discriminating against Plaintiffs because of their mode of speech and by substantially burdening their religious exercise.
289. VDOC na med defendants and Morris’ failu re to com ply with the First and Fourteenth Amendments of the United States Co nstitution has resulted in harm to Plaintiffs, and will continue to result in harm to Plaintiffs, as Plaintiffs will remain in the custody of VDOC and continue to attem pt to partic ipate in weekly worship serv ices unless and until VDOC na med defendants and Morris are ordere d by this Court to make m odifications to th eir polic ies, practices, and procedures pursuant to the F irst and Fourteenth Amendments of the United States Constitution.
62

Case 1:10-cv-00096-TSE-TRJ Document 34 Filed 04/13/10 Page 64 of 70 PageID# 331
H. COUNT VIII Violation of the United States Constitution
Free Speech: First and Fourteenth Amendments (42 U.S.C. § 1983)
290. Plaintiffs reallege and incorporate by reference each and every allegation above as if fully set forth herein.
291. Under the F irst and Fourteen th Amendm ents of the United States Con stitution, States “shall make no law… abridging the freedom of speech.” U.S. Const. amend. I.
292. VDOC nam ed de fendants have, in their individual an d official capacities, deprived and continue to deprive Plaintiffs of their freedo m of speech, as secured by the First Amendment to the Un ited States Constitu tion a nd m ade applic able to the Sta tes by th e Fourteenth Amendment, by preventing Plaintiffs from communicating with people outside of the prison. Despite m ultiple com plaints in writing to VDOC nam ed defendants, V DOC na med defendants continue to deny Plaintiffs access to telecommunication devices that would give them the ability and opportunity to communicate with people outside of prison.
293. VDOC nam ed def endants’ f ailure to com ply with th e First and Fourteen th Amendments of the United Sta tes Constitutio n has resulted in harm to Plaintif fs, and will continue to result in harm to Plaintiffs, as Plaintiffs will remain in the custody of VDOC or under the supervision of VDOC and continue to attemp t to communicate with people outside of prison unless and until VDOC nam ed defendants are ordere d by this Court to m ake m odifications to their policies, practices, and pro cedures pursuant to the First and Fourteenth Amendments of the United States Constitution.
63

Case 1:10-cv-00096-TSE-TRJ Document 34 Filed 04/13/10 Page 65 of 70 PageID# 332
I. COUNT IX Violation of the Constitution of Virginia
Free Exercise of Religion: Constitution of Virginia Article I, Section 16 294. Plaintiffs reallege and incorporate by reference each and every allegation above as if fully set forth herein. 295. Under the Artic le I, S ection 16 o f th e Constitution of Virginia, “all m en are equally entitled to the free exercise of religion” and “no m an shall be com pelled to frequent or support any religious worship, place, or m inistry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief.” Va. Const. art. I § 16. 296. VDOC, VDOC na med defendants, and Mo rris have f ailed to p rovide sign language interpreters or other m eans for Plaintif fs to participate in weekly religious services at Powhatan. Plaintiffs must re ly on volunteer interpreters who come only once or twice a m onth to participate in these services. 297. VDOC, VDOC na med defendants, and Morri s have deprived and continue to deprive Plaintiffs of their rights to free exercise of religion, as secured by Article I, Section 16 of the Constitution of Virg inia, by discriminating against Plaintiffs because of their spe ech and by substantially burdening their religious exercise. 298. VDOC, VDOC na med defendants, and Morris’ failure to c omply with Artic le I, Section 16 of the Constitution of Virginia has resulted in harm to Plaintiffs, and will continue to result in harm to Plaintiffs, as Plain tiffs w ill rem ain in the custody of VDOC and continue to attempt to participa te in weekly worship se rvices unless and until VDOC, VDOC na med defendants, and Morris are ordered by this Cour t to make m odifications to th eir policies, practices, and procedures pursuant to Article I, Section 16 of the Constitution of Virginia.
64

Case 1:10-cv-00096-TSE-TRJ Document 34 Filed 04/13/10 Page 66 of 70 PageID# 333
J. COUNT X Violation of the Constitution of Virginia
Freedom of Speech: Constitution of Virginia Article I, Section 12 299. Plaintiffs reallege and incorporate by reference each and every allegation above as if fully set forth herein. 300. Under the Article I, Se ction 12 of the co nstitution of Virginia, “any citizen m ay freely speak, write, and publish his sentiments on all subjects.” Va. Const. art. I § 12. 301. Defendants have deprived and continue to deprive Plaintiffs of their rights to freedom of speech, as secured by Article I, Section 12 of the Constitution of Virginia. They have done this by failing to provide Plaintiffs with means to effectively communicate. 302. Defendants’ f ailure to c omply with Article I, Section 12 of the Constitution of Virginia has resulted in harm to Plaintiffs, a nd defendants are liable to Plaintif fs for har ms suffered. Defendants’ failure to comply with Article I, Section 12 of the Constitution of Virginia will continue to result in harm to Plaintiffs, as Plaintiffs will remain in the custody of VDOC and under VDOC’s supervision and will continue to attempt to effectively comm unicate and avail themselves of m edical treatm ent an d other serv ices unless and until de fendants are ordered by this Court to make modifications to their policies, practices, and procedures pursuant to Article I, Section 12 of the Constitution of Virginia. VIII. PRAYER FOR RELIEF 303. WHEREFORE, Plaintiffs respectfully request that: 304. The Court determ ine that this action m ay proceed as a clas s action pu rsuant to Federal Rules of Civil Procedure 23(a) and 23(b); 305. The Court appoint the undersigned as cla ss counsel pursuant to Federal Rule of Civil Procedure 23(g);
65

Case 1:10-cv-00096-TSE-TRJ Document 34 Filed 04/13/10 Page 67 of 70 PageID# 334
306. The Court adjudge and decree that defe ndants, by the organizations, system s, policies, practices, and conditions described above, have violated and continue to violate T itle II of the ADA, Section 504 of the Re habilitation Act, the Vi rginians with Disabi lities Act, section 2.2-3401 of the Code of Virginia, the Religious Land Use and Institutionalized Persons Act, and the Constitutions of the United States and the Commonwealth of Virginia;
307. The Court enter su ch declaratory an d injunctive relief against defendants and in favor of Plaintiffs and the Class as it deem s appropriate to remedy past violations of the laws of the United States and the Commonwealth of Virgin ia and to prevent f uture vio lations of the same;
308. Judgment be entered against defendants in favor of Plaintiffs and the Class for such nominal, compensatory, and p unitive damages as suffered by Plaintiffs under Section 50 4 of the Rehabilitation Act and Code of Va. § 51.5-40 and -46 and 42 U.S.C. § 1983 in an am ount to be determined at trial;
309. Judgment be entered against defendants in favor of Plaintiffs and the Class for the costs of litigation including reasonable attorneys’ fees under Code of Va. § 51.5-46,
310. The Court retain jurisdiction of this matter until defendants dem onstrate that they have fully com plied with the orders of this Court, and that there is a reasonable ass urance that defendants will continue to comply in the future absent continuing jurisdiction; and
311. The Court award Plain tiffs and the Class any further relief the Court deems appropriate. IX. JURY TRIAL DEMAND
312. Plaintiffs, by their counsel and pursuant to Federal Rule of Ci vil Procedure 38(b), hereby demand a trial by jury on all claims so triable in this action.
66

Case 1:10-cv-00096-TSE-TRJ Document 34 Filed 04/13/10 Page 68 of 70 PageID# 335

DATED this 13th day of April, 2010.

Respectfully submitted,

Telephone:

_/s/___________________________ Adèle Hutton Auxier, Esq. Virginia Bar No. 76476 Attorney for Plaintiffs Minnis, More, Richardson, Roman, Tinsley, and Wolfsburger Winston & Strawn LLP 1700 K Street, N.W. Washington, DC 20006-3817
(202) 282-5000 Facsimile: (202) 282-5100 aauxier@winston.com

Jay L. Levine Gregory L. Ewing Luciano Racco Winston & Strawn LLP 1700 K Street, N.W. Washington, DC 20006-3817 Telephone: (202) 282-5000 Facsimile: (202) 282-5100 jlevine@winston.com gewing@winston.com lracco@winston.com

E. Elaine Gardner Deborah Golden Laura A. Mancini Amadou K. Diaw Washington Lawyers’ Committee for Civil Rights and Urban Affairs 11 Dupont Circle, N.W.; Suite 400 Washington, D.C. 20036 Telephone: (202) 319-1000 Facsimile: (202) 319-1010 elaine_gardner@washlaw.org deborah_golden@washlaw.org laura_mancini@washlaw.org amadou_diaw@washlaw.org

Counsel for Plaintiffs

67

Case 1:10-cv-00096-TSE-TRJ Document 34 Filed 04/13/10 Page 69 of 70 PageID# 336

CERTIFICATE OF SERVICE

I hereby certify that on this 13th day of April 2010, I electronically filed the foregoing Amended Complaint with the Clerk of Court using the CM/ECF system, which then sent a notification of such filing (NEF) to the following:

Charles Manley Allen, Jr Goodman, Allen & Filetti, PLLC 4501 Highwoods Parkway, Suite 210 Glen Allen, VA 23060 callen@goodmanallen.com
Attorneys for Defendants Retchin, Duval, Davis, Dodd, VCUHS, and MCV

George Walerian Chabalewski Office of the Attorney General Civil Litigation Division 900 E. Main St Richmond, VA 23219 gchabalewski@oag.state.va.us, cchill@oag.state.va.us, ddavis@oag.state.va.us

Edward J. McNelis, III Elizabeth Martin Muldowney Rawls & McNelis PC 1111 East Main Street Suite 1701 Richmond, VA 23219 emuldowney@rawlsmcnelis.com, dminnick@rawlsmcnelis.com, fbarnes@rawlsmcnelis.com
Attorneys for Defendants Toney and Watson

Mark Ralph Davis John Michael Parsons Office of the Attorney General Public Safety & Enforcement Division 900 E. Main St Richmond, VA 23219 mark.davis@oag.state.va.us, jparsons@oag.state.va.us, ayawn@oag.state.va.us, vferry@oag.state.va.us
Attorneys for Defendants Johnson, Schilling, Hulbert, Washington, Fegan, Guillory, McFarlane, Trimmer, Pearson, Hunnel, Parker, Morris, VDOC, VC Enterprises, VC Education, and Powhatan

68

Case 1:10-cv-00096-TSE-TRJ Document 34 Filed 04/13/10 Page 70 of 70 PageID# 337

I hereby certify that the following non-filing users are being served via summons issued by the Eastern District of Virginia:

James R. Camache Deputy Director Community Corrections Virginia Department of Corrections 6900 Atmore Drive Richmond, VA 23261-6963 (804) 674-3000

Tony E. Reese Chief Probation and Parole Officer Eastern Region, District 7 26317 W. Washington St., Bldg. #2 Petersburg, VA 23804 (804) 524-6542

Malcolm L. Taylor, Regional Director Community Corrections 1001 Obici Industrial Blvd., Suite F Suffolk, Virginia 23434 (757) 925-2231

C. Stewart Medical Unit Powhatan Correctional Center 3600 Woods Way State Farm, VA 23160 (804) 598-4251

_/s/____________________________ Adèle Hutton Auxier, Esq. Virginia Bar No. 76476 Attorney for Plaintiffs Minnis, More, Richardson, Roman, Tinsley, and Wolfsburger Winston & Strawn LLP 1700 K Street, N.W. Washington, D.C. 20006-3817 Telephone: (202) 282-5000 Facsimile: (202) 282-5100 aauxier@winston.com

69

 
 Case 1:10-cv-00096-TSE-TRJ Document 66 Filed 05/11/10 Page 1 of 1 PageID# 618

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

CAttY MINNIS, etaL, Plaintiffs,
V.
GENE JOHNSON, et at., Defendants.

:lO-ev-9<i-TSE-TRJ

IL
MAY I I 2010
CLERK, U.S. DISTRICT COURT ALEXANDRIA, VIRGINIA

ORDER
UPON CONSIDERATION of Plaintiffs' Consent Motion To Voluntarily Dismiss Counts III, IV, IX and X of Plaintiffs' First Amended Class Action Complaint For Declaratory And Injunciive Relief And Damages, and the record herein, it is hereby

ORDERED lhat the Motion is GRANTED, and that Counts III, IV, IX and X of

Plaintiffs' First Amended Class Action Complaint For Declaratory And Injunctive Relief And

Damages are hereby dismissed without prejudice.
ENTERED this /l*°dw of

2010.

United States District Judge

T. 8. Ellis. Ill United States

Judge

 
 Case 1:10-cv-00096-TSE-TRJ Document 100 Filed 06/21/10 Page 1 of 3 PageID# 848

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRJp
Alexandria Division

GARY MINNIS, LARRY MORE, DAVID RICHARDSON, RONALD ROMAN, DELONTE TINSLEY, AND WOLFJUNGE WOLFSBURGER, on behalf of themselves and all others similarly situated,

Plaintiffs,

JURY DEMANDED

v.

Civil Action No. l:10cv96

GENE JOHNSON, Director, etal..

Defendants.

STIPULATION OF VOLUNTARY DISMISSAL
NOW COME the parties, by counsel, pursuant to Rule 41(a)(l)(A)(ii) of the Federal
Rules of Civil Procedure, and hereby stipulate that all claims encompassed in the First Amended
Complaint filed by Plaintiffs shall be and are hereby dismissed as to Defendants Ronald W.
Toney, K. Watson, and C. Stewart.
Respectfully submitted,
GARY MINNIS, LARRY MORE, DAVID RICHARDSON, RONALD ROMAN, DELONTE TINSLEY, AND WOLFJUNGE WOLFSBURGER

Bv:

/s/

Adele Hutton Auxier, VSB#76476

WINSTON & STRAWN LLP

1700KStNW

Washington, DC 20006

(202) 282-5000 - Telephone

(202) 282-5100-Facsimile

Email: annxici^winston.coin

Case 1:10-cv-00096-TSE-TRJ Document 100 Filed 06/21/10 Page 2 of 3 PageID# 849

RONALD W. TONEY, K. WATSON, and C. STEWART

Bv:

/s/

Elizabeth M. Muldowney, VSB#46387

RAWLS & MCNELIS, P.C.

1111 East Main Street, Suite 1701

Richmond, Virginia 23219

(804) 344-0038 - Telephone

(804) 622-0676 - Facsimile

1 jiiuklowiiesa raw'lsmcnclis.com

GENE JOHNSON, FRED SCHILLING, ROBIN HULBERT, G. K. WASHINGTON, LOIS FEGAN, JAMES CAMACHE, MALCOM L. TAYLOR, TONY E. REESE, DONALD GUILLORY, WALTER McFARLANE, SHARON TRIMMER, EDDIE PEARSON, P. C. HUNNEL, SANDRA PARKER, B. MORRIS, VIRGINIA DEPARTMENT OF CORRECTIONS, VIRGINIA CORRECTIONAL ENTERPRISES, VIRGINIA DEPARTMENT OF CORRECTIONAL EDUCATION, and POWHATAN CORRECTIONAL CENTER

By:

/s/

MarkR. Davis, VSB# 18830

Office of the Attorney General

900 East Main Street

Richmond, Virginia 23219

(804)786-5631 -Telephone

(804) 786-4239 - Facsimile

mark.davis(<7'oaii.siatc.va.us

Case 1:10-cv-00096-TSE-TRJ Document 100 Filed 06/21/10 Page 3 of 3 PageID# 850

SHELDON RETCHIN, MD; JOHN DUVAL; DEBORAH DAVIS; AMANDA DODD; VIRGINIA COMMONWEALTH UNIVERSITY HEALTH SYSTEM AUTHORITY A MEDICAL
COLLEGE OF VIRGINIA HOPSITAL

By:

/§/

Charles Manley Allen, Jr., VSB#3O183

GOODMAN, ALLEN & FILETI*!. P.L.L.C.

4501 Highwoods Parkway, Suite 210

Glen Allen, Virginia 23060

(804) 346-0600 - Telephone

(804) 346-5954 - Facsimile

ca llento! ttoodimnallcn.com

T.S. Ellis, III United States listrict Judge

 
 Case 1:10-cv-00096-TSE-TRJ Document 105 Filed 11/09/10 Page 1 of 4 PageID# 862

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

GARY MINNIS, et al.,

Plaintiffs,

v.

)

GENE JOHNSON, et al.,

Defendants.

) ) ) )
) ) ) )

1:10-cv-96-TSE-TRJ

PLAINTIFFS’ CONSENT MOTION FOR VOLUNTARY DISMISSAL OF VIRGINIA DEPARTMENT OF CORRECTIONS DEFENDANTS

Plaintiffs Gary Minnis, Larry More, David Richardson, Ronald Roman, Delonte Tinsley,

and Wolfjunge Wolfsburger (“Plaintiffs”) move to dismiss the Virginia Department of Corrections (“VDOC”) defendants1 from this action under Federal Rule of Civil Procedure

41(a)(2). The VDOC defendants consent to this motion. In support of their motion, Plaintiffs

state as follows:

1. Plaintiffs have entered into a private settlement agreement (“Agreement”) with the

VDOC Defendants within the meaning of the Prison Litigation Reform Act (“PLRA”), 18 U.S.C. § 3626(g)(6).2 The PLRA applies to prisoners bringing civil actions under Federal law “with

respect to the conditions of confinement.” 18 U.S.C. § 3626(h)(2).

2. Under the Agreement, Plaintiffs agree to dismiss all claims against the VDOC defendants

with prejudice, except for the claim for an interpreter for weekly religious services at Powhatan

1 The VDOC defendants include the following parties to the case: Gene Johnson, Fred Schilling, Robin Hulbert, G. K. Washington, Lois Fegan, James Camache, Malcolm L. Taylor, Tony E. Reese, Donald Guillory, Walter McFarlane, Sharon Trimmer, Eddie Pearson, P. C. Hunnel, Sandra Parker, B. Morris, Virginia Department of Corrections, Community Corrections, Virginia Correctional Enterprises, Virginia Department of Correctional Education, and Powhatan Correctional Center (collectively, “VDOC Defendants”). 2 Under the PLRA, “the term ‘private settlement agreement’ means an agreement entered into among the parties that is not subject to judicial enforcement other than the reinstatement of the civil proceeding that the agreement settled.” 18 U.S.C. § 3626(g)(6).

Case 1:10-cv-00096-TSE-TRJ Document 105 Filed 11/09/10 Page 2 of 4 PageID# 863
Correctional Center brought by plaintiff Larry More, which the Plaintiffs agree to dismiss without prejudice. Ex. A (Agreement) at 20-21. 3. The Agreement expressly limits judicial enforcement of the settlement to (1) a motion in this Court to reinstate the lawsuit against the VDOC defendants or (2) an action brought in state court under state law. Ex. A at 21. 4. Parties claiming that a private settlement agreement entered into under the PLRA has been breached may seek “the reinstatement of the civil proceeding that the agreement settled” or bring an action “in State court [for] any remedy available under State law.” 18 U.S.C. § 3626(c)(2). 5. Thus, consistent with the PLRA, the Agreement may be enforced by “the reinstatement of the civil proceeding that the agreement settled” — that is, the reinstatement of the present lawsuit against the VDOC defendants. 18 U.S.C. § 3626(c)(2). 6. In order for this Court to retain federal subject matter jurisdiction to reinstate this lawsuit against the VDOC defendants in the event of a breach, the order of dismissal must expressly retain jurisdiction. Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375 (1994). As the Fourth Circuit has held, “[t]he obligation to comply with a settlement's terms must be expressly made part of a court's order for jurisdiction to enforce the settlement after dismissal of the action to exist.” Smyth v. Rivero, 282 F. 3d 268, at 283 (4th Cir. 2002). “Either incorporation of the terms of the agreement or a separate provision retaining jurisdiction over the agreement will suffice” to retain federal court jurisdiction over the private settlement agreement. Id. 7. Plaintiffs and the VDOC Defendants therefore request that this Court’s Order dismissing the case under Federal Rule of Civil Procedure 41(a)(2) expressly retain jurisdiction under Smyth, 282 F. 3d at 283, for the limited purpose of preserving this Court’s power to reinstate this lawsuit against the VDOC defendants under 18 U.S.C. § 3626(c)(2) only.
2

Case 1:10-cv-00096-TSE-TRJ Document 105 Filed 11/09/10 Page 3 of 4 PageID# 864

WHEREFORE, Plaintiffs respectfully request that this Honorable Court enter an Order

dismissing this matter with prejudice with respect to the VDOC defendants, except for the claim

for an interpreter for weekly religious services at Powhatan Correctional Center brought by

plaintiff Larry More, which the parties agree to dismiss without prejudice, and that this Court

expressly retain jurisdiction to reinstate this lawsuit in the future should the Plaintiffs so move.

November 9, 2010 Respectfully Telephone:

submitted, _/s/___________________________ Adèle Hutton Auxier, Esq. Virginia Bar No. 76476 Attorney for Plaintiffs Minnis, More, Richardson, Roman, Tinsley, and Wolfsburger Winston & Strawn LLP 1700 K Street, N.W. Washington, DC 20006-3817
(202) 282-5000 Facsimile: (202) 282-5100 aauxier@winston.com

Jay L. Levine Gregory L. Ewing Luciano Racco Amadou K. Diaw Winston & Strawn LLP 1700 K Street, N.W. Washington, DC 20006-3817 Telephone: (202) 282-5000 Facsimile: (202) 282-5100 jlevine@winston.com gewing@winston.com lracco@winston.com adiaw@winston.com

E. Elaine Gardner Ivy Finkenstadt Washington Lawyers’ Committee for Civil Rights and Urban Affairs 11 Dupont Circle, N.W.; Suite 400 Washington, D.C. 20036 Telephone: (202) 319-1000 Facsimile: (202) 319-1010 elaine_gardner@washlaw.org Ivy_Finkenstadt@washlaw.org
Counsel for Plaintiffs

3

Case 1:10-cv-00096-TSE-TRJ Document 105 Filed 11/09/10 Page 4 of 4 PageID# 865

CERTIFICATE OF SERVICE

I hereby certify that on this 9th day of November, 2010, I electronically filed the foregoing Notice of Motion with the Clerk of Court using the CM/ECF system, which then sent a notification of such filing (NEF) to the following:

Charles Manley Allen, Jr William Francis Demarest , III Goodman, Allen & Filetti, PLLC 4501 Highwoods Parkway, Suite 210 Glen Allen, VA 23060 callen@goodmanallen.com wdemarest@goodmanallen.com
Attorneys for Defendants Retchin, Duval, Davis, Dodd, VCUHS, and MCV

George Walerian Chabalewski Office of the Attorney General Civil Litigation Division 900 E. Main St Richmond, VA 23219 gchabalewski@oag.state.va.us, cchill@oag.state.va.us, ddavis@oag.state.va.us
Mark Ralph Davis John Michael Parsons Office of the Attorney General Public Safety & Enforcement Division 900 E. Main St Richmond, VA 23219 mark.davis@oag.state.va.us, jparsons@oag.state.va.us, ayawn@oag.state.va.us, vferry@oag.state.va.us

Attorneys for Defendants Johnson, Schilling, Hulbert, Washington, Fegan, Guillory, McFarlane, Trimmer, Pearson, Hunnel, Parker, Morris, Camache, Taylor, Reese, VDOC, VC Enterprises, VC Education, Powhatan, and Community Corrections

_/s/____________________________ Adèle Hutton Auxier, Esq. Virginia Bar No. 76476 Attorney for Plaintiffs Minnis, More, Richardson, Roman, Tinsley, and Wolfsburger Winston & Strawn LLP 1700 K Street, N.W. Washington, D.C. 20006-3817 Telephone: (202) 282-5000 Facsimile: (202) 282-5100 aauxier@winston.com

4

Case 1:10-cv-00096-TSE-TRJ Document 105-1 Filed 11/09/10 Page 1 of 2 PageID# 866

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

GARY MINNIS, et al.,

Plaintiffs,

v.

)

GENE JOHNSON, et al.,

Defendants.

) ) ) )
) ) ) )

1:10-cv-96-TSE-TRJ

[PROPOSED] ORDER

The Plaintiffs and the VDOC Defendants ha ve enter ed into a private settle ment

agreement (“Agreem ent”) pursuant to 18 U.S.C. § 3626. UPON CONSIDERATION o f

Plaintiffs’ Consent Motion For Vo luntary Dism issal of Virginia Departm ent of Corrections

Defendants, and the record herein, it is hereby:

1. ORDERED that all claim s against the VDOC Defendants are dism issed from the

above-captioned action with prejudice, except for the claim for an in terpreter for weekly

religious services at Powhatan Correctional Ce nter brought by plaintiff Larry More, which is

dismissed without prejudice;

2. ORDERED that by consent of th e par ties a nd consis tent with 18 U.S.C. §

3626(c)(2), the Court shall retain jurisd iction pursuant to Kokkonen v. G uardian Life Insurance

Co. of Ame rica, 511 U.S. 375 (1994) through October 18, 2015 for the lim ited purpose of

reinstating this lawsuit under the terms of the Agreement.

ENTERED this _____ day of _______________ 2010.

______________________________

Hon. T.S. Ellis United States District Judge

Case 1:10-cv-00096-TSE-TRJ Document 105-1 Filed 11/09/10 Page 2 of 2 PageID# 867

CERTIFICATE OF SERVICE

I hereby certify that on this 9th day of November 2010, I electronically filed the foregoing Proposed Order with the Clerk of Court using the CM/ECF system, which then sent a notification of such filing (NEF) to the following::

Charles Manley Allen, Jr William Francis Demarest , III Goodman, Allen & Filetti, PLLC 4501 Highwoods Parkway, Suite 210 Glen Allen, VA 23060 callen@goodmanallen.com wdemarest@goodmanallen.com
Attorneys for Defendants Retchin, Duval, Davis, Dodd, VCUHS, and MCV
Edward J. McNelis, III Elizabeth Martin Muldowney Kimberly Jane Raab Rawls & McNelis PC 1111 East Main Street Suite 1701 Richmond, VA 23219 emcnelis@rawlsmcnelis.com, emuldowney@rawlsmcnelis.com, dminnick@rawlsmcnelis.com, fbarnes@rawlsmcnelis.com, kraab@rawlsmcnelis.com
Attorneys for Defendants Toney, Watson, and Stewart

George Walerian Chabalewski Office of the Attorney General Civil Litigation Division 900 E. Main St Richmond, VA 23219 gchabalewski@oag.state.va.us, cchill@oag.state.va.us, ddavis@oag.state.va.us
Mark Ralph Davis John Michael Parsons Office of the Attorney General Public Safety & Enforcement Division 900 E. Main St Richmond, VA 23219 mark.davis@oag.state.va.us, jparsons@oag.state.va.us, ayawn@oag.state.va.us, vferry@oag.state.va.us
Attorneys for Defendants Johnson, Schilling, Hulbert, Washington, Fegan, Guillory, McFarlane, Trimmer, Pearson, Hunnel, Parker, Morris, Camache, Taylor, Reese, VDOC, VC Enterprises, VC Education, Powhatan, and Community Corrections

_/s/____________________________ Adèle Hutton Auxier, Esq. Virginia Bar No. 76476 Attorney for Plaintiffs Minnis, More, Richardson, Roman, Tinsley, and Wolfsburger Winston & Strawn LLP 1700 K Street, N.W. Washington, D.C. 20006-3817 Telephone: (202) 282-5000 Facsimile: (202) 282-5100 aauxier@winston.com

 
 Case 1:10-cv-00096-TSE-TRJ Document 109 Filed 11/16/10 Page 1 of 1 PageID# 907

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

! T 1 L E
IT NOV 1 6 2010
CIXRK US DISTRICT COURT
AlF.XANDRIA. VIRGINIA

GARY MINNIS, et al.,

Plaintiffs,

v.

l:10-cv-96-TSE-TRJ

GENE JOHNSON, et al.,

Defendants.

ORDER

The Plaintiffs and the VDOC Defendants have entered into a private settlement

agreement ("Agreement") pursuant to 18 U.S.C. § 3626. UPON CONSIDERATION of

Plaintiffs' Consent Motion For Voluntary Dismissal of Virginia Department of Corrections

Defendants, and the record herein, it is hereby:

1. ORDERED that all claims against the VDOC Defendants are dismissed from the

abovc-captioned action with prejudice, except for the claim for an interpreter for weekly

religious services at Powhatan Correctional Center brought by plaintiff Larry More, which is

dismissed without prejudice;

2. ORDERED that by consent of the parties and consistent with 18 U.S.C. §

3626(c)(2), the Court shall retain jurisdiction pursuant to Kokkonen v. Guardian Life Insurance

Co. of America, 511 U.S. 375 (1994) through October 18, 2015 for the limited purpose of

reinstating this lawsuit under the terms of the Agreement.

T.S.Ellis, III
United States District Judge

 
 Case 1:10-cv-00096-TSE-TRJ Document 110 Filed 11/17/10 Page 1 of 2 PageID# 908

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

GARYMINNIS,e/a/;, Plaintiffs,

l:10-cv-96-TSE-TRJ l CLEAHKle,xUa.nS.dUrilaSfRv.'ICPT^c,oniuiB"T'

GENE JOHNSON, et aL,

Defendants.

STIPULATION OF VOLUNTARY DISMISSAL

NOW COME the parties, by counsel, pursuant to Rule 41(a)(l)(A)(ii) of the Federal

Rules of Civil Procedure, and hereby stipulate that all claims encompassed in the First Amended

Complaint filed by Plaintiffs shall be and are hereby dismissed, with prejudice, as to Defendants

Sheldon Retchin, MD, John Duval, Deborah Davis, Amanda Dodd, Virginia Commonwealth

University Health System Authority, and Medical College of Virginia Hospital.

Each party shall bear its own costs.

Respectfully submitted,

November 15,2010

GARY MINNIS, LARRY MORE, DAVID RICHARDSON, RONALD ROMAN, DELONTE TINSLEY, AND WOLFJUNGE
WOLFSBURGER

. , 7/
*'/' f/IO
T. S. Ellis, III
United States District Judge

By:

/s/

Adele Hutton Auxier, VSB#76476

WINSTON & STRAWN LLP

1700KStNW

Washington, DC 20006

(202) 282-5000 - Telephone
(202) 282-5100 - Facsimile
Email: aauxiertt/ winsion.com

Case 1:10-cv-00096-TSE-TRJ Document 110 Filed 11/17/10 Page 2 of 2 PageID# 909

 
 . . Case 1:10-cv-00096-TSE-MSN Document 111 Filed 10/27/14 Page 1 of 30 PageID# 910

United States District Court Eastern District of Virginia
Alexandria Division

MJ:NNJ:S, ET AL

v. CASE NO. 1:10-CV-00096-TSE-TRJ JOHNSON, et al.

CLERK. L1 S. l: :m:cr COURT
R!Ct. II. ~·J[) \'A

MOTJ:ON FOR REJ:NSTATEMENT TO THE UNJ:TED STATES DJ:STRJ:CT COURT,
EASTERN DJ:STRJ:CT OF VJ:RGINIA DOCKET FOR APPOJ:NTMENT OF COUNSEL AND SANCTJ:ONS

Case 1:10-cv-00096-TSE-MSN Document 111 Filed 10/27/14 Page 2 of 30 PageID# 911
TABLE OF CONTENT
TABLE OF CONTENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i I. Plaintiff's Counsel Investigation and
Failure of Adequate Representation ............... 2 II. Virginia Department for the Deaf and Hard
of Hearing Investigations and Counsel ............ 8 III. Plaintiffs Attempts at Enforcement by
State Remedy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 IV. Proceeding at Attempts for Resolution ........... 16 V. Failure to Honor the Settlement Agreement
to Date ......................................... 17 VI. Failure of Negotiations and Mediation ........... 18 VII. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
[i]

Case 1:10-cv-00096-TSE-MSN Document 111 Filed 10/27/14 Page 3 of 30 PageID# 912
United States District Court Eastern District of Virginia
Alexandria Division
Minnis, et al
v. Case No. 1:10-cv-00096-TSE-TRJ
Johnson, et al
MOTiON FOR REINSTATEMENT TO THE UNITED STATES DiSTRiCT COURT,
EASTERN DISTRICT OF ViRGINiA DOCKET FOR APPOINTMENT OF COUNSEL AND SANCTiONS
The Deaf Plaintiffs in the above titled action move that the Court reinstate Case No.: 1:10-cv-00096 to the Court Docket in the United States District Court, for the Eastern District of Virginia, and that this court appoint an Attorney who is knowledgeable and actively maintains a legal practice in civil rights litigation and the Americans with Disabilities Act, to represent the Plaintiffs with the enforcement clause of the settlement agreement, which the Plaintiffs entered into with the Defendants on October 13, 2010. (See Exhibit #1) The Deaf Plaintiffs also move and seek sanctions against the Virginia Department of Corrections and the
[1]

Case 1:10-cv-00096-TSE-MSN Document 111 Filed 10/27/14 Page 4 of 30 PageID# 913
washington Lawyers' Committee for Civil Rights and Urban Affairs, with regard to the above titled action.
I. Plaintiffs Counsel Investigation and Failure ofAdequate Representation
1. On October 13, 2010, Plaintiffs (currently only five original Plaintiffs reside at Powhatan Correctional Center) entered into a settlement agreement with the Defendants within the meaning of
18 u.s.c. §3626.
2. Over the past four years the Defendants have failed to reach full compliance with regard to this settlement in accordance with 42 U.S.C §12103 and 28 C.F.R. §35.104 and the Americans with Disabilities Act as amended by the ADA amendments
Act of 2008 (See 42 u.s.c. §12102(4); P.L. 110-325.
3. Despite repeated communications (Exhibits #2-10) the Plaintiffs have been unable to get the Virginia Department of Corrections (VDOC), or the Washington Lawyers' Committee for Civil Rights and Urban Affairs (WLCCRUA) to act in good faith. Negotiations with regard to compliance and representation are no longer viable. The Plaintiffs ask for the matter to be reinstated to the the docket in light of failure of the Defendants to fully comply with the settlement agreement, the attorney's refusal to make appropriate inquiries,
[2]

Case 1:10-cv-00096-TSE-MSN Document 111 Filed 10/27/14 Page 5 of 30 PageID# 914
to represent the legal issues as previously approved by the Court. 4. The Plaintiffs have, in accordance with the provisions of the settlement agreement, notified the Virginia Department of Corrections of the material breach of non-compliance, and have given the Defendants 60 days to investigate and/or cure the alleged breach of the agreement as stipulated. (Exhibit #1 (Emphasis in red letters)) The Plaintiffs have sought non-binding mediation with the Defendants to no avail. (Exhibits #11 & #12) 5. The Plaintiffs have spoken with the attorneys and mailed copies of the enforcement letters; the Plaintiffs have repeatedly sought for specific and particular commitments to calls and conferences with the attorneys, Defendants, and ADA Coordinators for both the Virginia Department of Corrections; and the institutional ADA Coordinator to cure the defects. Any meetings with the Defendants have failed to produce good faith results. (Exhibit #13) 6. Up and until a July 16, 2014 meeting with the attorneys, they have repeatedly agreed to write the ADA Coordinator regarding enforcement, but failed to honor their commitments; by appearance it would seem when the money ran out the lawyers ran out.
[3]

Case 1:10-cv-00096-TSE-MSN Document 111 Filed 10/27/14 Page 6 of 30 PageID# 915
7. The Attorneys would not define the issues and demonstrate movement for and on behalf of the Plaintiffs for the first four years; activity indicative that actually intends that the Virginia Department of Corrections comply with their obligations to the settlement agreement of October 13, 2010. This lack of support has dissipated the plaintiff's ability to obtain full implementation of the defendant's commitment; the vital attorney/client communication has gone without discharge and the agreed upon performance.
8. The Virginia Department of Corrections continues to imply the Defendants are working to resolve the various articles I of which Plaintiffs have complained. Have ordered necessary communication devices I or are looking to employ various staffing. The Plaintiffs want to point out with some emphasis that the Defendants say work is being done on these matters I but the Defendants lack initiative to resolve the issues. For instance, a means of notification which has gone without resolution after four years. Questions have been repeatedly posed in this regard without any meaningful resolution.
9. For the past four years the attorneys have committed to the Plaintiffs that if they filed
[4]

Case 1:10-cv-00096-TSE-MSN Document 111 Filed 10/27/14 Page 7 of 30 PageID# 916

grievances against the Defendant's the attorneys

would address these

matters, for ~nstance;

routine (bi-annually scheduled) shakedowns being

a .. significant communication.. under the

settlement agreement clause, and therefore avail

the deaf with interpreters during these searches

where often more than thirty questions are posed.

Many grievances have been filed and sent to the

attorneys with no positive developments. (Exhibit

#14a, #14b, #14c, #14d, #14e, and #14£)

10. Communications with the Virginia Department of

Corrections and the Attorney General have at no

time been documented in ways (by email or

letters) that are demonstrative of necessary

follow-up communications to the Defendants, and

the named Plaintiffs have at no time (with one or

two exceptions) received copies of these or any

contacts. The attorneys have made specific

commitments to make such contacts, but have

failed to do so in any evidenced or productive

way.

11. There have been repeated requests that at least a

written inquiry by the attorneys be made on the

matters as outlined in the enforcement letter of

last year. (Exhibit #15) The Plaintiffs have

requested

a

letter

(to

appropriate

representatives in the Office of the Attorney

[ 5 ]

Case 1:10-cv-00096-TSE-MSN Document 111 Filed 10/27/14 Page 8 of 30 PageID# 917
General the ADA Coordinator for the Virginia Department of Corrections, and the ADA Coordinator at the institution) stating that one year ago the Plaintiffs agreed to allow the Defendants another year to come into complete compliance. The Plaintiffs have (by letters and grievances)created an awareness of the problems which exist, requesting that the attorneys please call the various state officials and offices to assert the need to at the very least do everything the Defendants have agreed to do in the settlement agreement; pointing out that doing so would eliminate a further need for litigious action. These communications have gone virtually without action or response by counsel for the Plaintiffs. 12. During the two year investigation period after the settlement as contained in the agreement, the attorneys for the Plaintiffs never once visited the institution to investigate implementation; the treatment of the deaf prisoners, status of various time sensitive compliance issues, and the many complaints as outlined in repeated correspondence to the lawyers for the Plaintiffs. 13. The Plaintiffs attorneys have entered into what appears to be an attorney/client relationship with an agent of the Defendants (Institutional ADA
[ 6 ]

Case 1:10-cv-00096-TSE-MSN Document 111 Filed 10/27/14 Page 9 of 30 PageID# 918
Coordinator, Barry Marano) that has in the Plaintiff's opinion created a conflict of interest, and a breach in the adversarial process, as it seems that agent Marano is a witness for the Plaintiff's lawyers in at least one other case. 14. On August 21, 2014 in response to a complaint by the Plaintiffs (as to a letter to Barry Marano about non-compliance, which Deborah Golden (attorney for the Plaintiffs) had previously indicated would be made available to Plaintiff Richardson for review before being mailed to the Defendants) attorney Mincberger (unknown to the Plaintiff's as original counsel) stated in response to the failure of allowing such a review of the letter, "If you don't like it you can fire us." The Plaintiffs feel this is both inappropriate and lacks professional ethics. 15. As addressed in (2) above, the Plaintiffs did in fact withdraw the enforcement action of 2013 because the Plaintiffs realized that they were getting absolutely no legal support, and it seemed it was the best course of action for a number of reasons at the time, including that the Defendants became at times hostile, dismissing, and intimidating. The Plaintiffs had hoped to discuss these issues with the Attorneys who could more appropriately raise them, but could not do so with
[ 7]

Case 1:10-cv-00096-TSE-MSN Document 111 Filed 10/27/14 Page 10 of 30 PageID# 919

any degree of success, despite sending them copies of the enforcement letter that the Plaintiffs themselves had drafted without legal assistance.

II. Virginia Department for the Deaf and Hard of Hearing Investigations and Counsel

16. In the settlement agreement (under section XVI,

Monitoring and Compliance) the Virginia Department

for the Deaf and Hard of Hearing (VDDHH) were to be

permitted "to conduct an investigation to determine

VDOC personnel's treatment of Deaf inmates. .. VDDHH

never knew about, nor did they agree to, this

stipulation prior to the settlement date (Exhibit

16a and 16b)

17. The ADA Coordinators and other departmental

officials have not failed to note that

Plaintiff's

lawyers and the Virginia

Department of Deaf and Hard of Hearing (VDDHH)

have done nothing to assist us or call with a

delineation of the Plaintiffs' concerns for

categorical implementation of the settlement

specifics. In one correspondence with the

attorneys, in the second paragraph of their

letter dated November 12, 2013, attorney Golden

pointed out, "I cannot speak for other offices,

but Plaintiffs are a very small organization

with limited resources, and Plaintiffs can very

rarely travel to out of state facilities.

Again, please let us know if there is a serious

issue that is not being addressed. I am under

the impression from these documents that prison

[ 8]

Case 1:10-cv-00096-TSE-MSN Document 111 Filed 10/27/14 Page 11 of 30 PageID# 920

officials are taking steps to address your

concerns, and this is the reason for the 'lack

of

activity'

you

wrote

. [Emphasis added] (Exhibit #17)

about. II

In this regard:

1) The attorneys were awarded more than a quarter of a million dollars for their representation of our claims. In addition they have a clause that covers their costs at 150% if the Defendants must take further action with regard to enforcement. The Defendants have brought it to our attention that writing and contacting our lawyers will cause a bill of assessment from our attorneys, and while it would seem that this too would be a motivating incentive to come into complete compliance, Defendants have failed to adequately address the legal issues and requirements. The attorneys, at best, misrepresented the role VDDHH would take to assist in enforcement.

2) Despite what the attorney asserted, the Plaintiffs would represent to this Court that all of the issues of noncompliance are II serious 11 in nature. The reason Plaintiffs and attorneys spent years working on these individual issues is because they were all

[9]

Case 1:10-cv-00096-TSE-MSN Document 111 Filed 10/27/14 Page 12 of 30 PageID# 921

important to ensuring social justice and equal treatment, as well as opportunities for the Deaf Community incarcerated in the VDOC consistent with the law. VDHH were represented as experts who would and could monitor compliance, this was never agreed to by VDDHH, and was untrue.

3) The reason for the point by point

character

of

the

settlement

agreement

.
l.S

because there is an expectation the

Defendants will do everything they have

agreed to do in this regard. None of the

matters in the enforcement letter have been

adequately addressed as of this date. No

monitoring by VDDHH or the lawyers was never

accomplished as stipulated.

4) As an example: the emergency notification system. The law clearly requires there must be a visual emergency notification system installed in each housing unit, and in each individual room for the deaf and hearing impaired. VDOC conducts routine fire drills at Powhatan Correctional Center on a monthly basis, and there are no visual notification systems for these drills, or for circumstances in the event of an actual emergency. The Plaintiffs have repeatedly
[10]

Case 1:10-cv-00096-TSE-MSN Document 111 Filed 10/27/14 Page 13 of 30 PageID# 922

requested that the Defendants simply install

a red strobe in the housing units for the

purpose of emergency evacuation, and have

presented printed material (a book on the

legal rights of the deaf and hearing

impaired from Gallaudet Press) to show them

how and why there is a need to come into

compliance with the settlement agreement.

Additionally,

the

Plaintiffs

have

demonstrated there is a law stipulating the

Defendants must install these systems at the

very least in each housing unit. The

Plaintiffs have not insisted notification

for the individual cells, which is legally

required and mandated. It would seem to the

Plaintiffs that agents of VDDHH would have

possessed this sort of knowledge.

5) The Plaintiffs have made repeated requests for eBooks to access free talk radio mediums, television digital video recorders, to facilitate the ability of the Deaf Community to be able to rewind more complicated intellectual and educational programming that is very fast or very complex, and other free information from sources that Plaintiffs cannot otherwise access, but are available to other

[11]

Case 1:10-cv-00096-TSE-MSN Document 111 Filed 10/27/14 Page 14 of 30 PageID# 923

prisoners. There has been no security

reasoning as to why these auxiliary aids

have not been approved, and no official

response to the formal requests for

approval.

The

request

for

these

accommodations is only to put the Deaf

Community on equal footing with the hearing

prisoners in general population. In

accordance with the settlement agreement

these i terns can only be denied for valid

security reasons. The VDOC has not provided

any security reasoning for the delays, which

amount to denials. However, a substantial

period after the settlement the VDOC entered

into a contract with a provider, that may

contradict or violate the agreement with the

Plaintiffs. The services of this contract

provider are to (for a fee to prisoners)

provide MP3 technology, but not materials

with options of accessibility for the deaf.

VDDHH could have assisted in support of

these needs for equal communication access,

but so far have declined.

6) The Plaintiffs have continually sought from the VDOC a means of communication with the Deaf Community (Plaintiffs) that is substantially as effective as verbal

[12]

Case 1:10-cv-00096-TSE-MSN Document 111 Filed 10/27/14 Page 15 of 30 PageID# 924

communication to the general population, 28

C.F.R. § 35.160(a}, and will, when

necessary, include the provision of

appropriate Auxiliary Aids and Services,

such as Qualified Interpreters. On Page 14

of the settlement agreement there are

stipulations about notifications as well as

Communication that affords an inmate who is

Deaf an opportunity to participate in, and

enjoy the benefits of, VDOC's services,

programs,

or

activities

that

is

substantially equal to that enjoyed by a

similarly situated inmate who is not Deaf.

VDDHH has repeatedly touted they are experts

in communication matters, but did not, and

were not, encouraged by the Defendants, or

by the Plaintiff's attorneys to participate

in these or any matters in this regard.

III. Plaintiffs Attempts at Enforcement by State Remedy
18. The attorneys contend in their previous letter; (Exhibit #17} that the Plaintiffs file a grievance in order to proceed with the enforcement clause of the settlement agreement. The legal fellow, Rebecca Turner stated, "We also recommend that you continue filing grievances as these issues come up." Rebecca Turner even sent a copy of the relevant clause:

[13]

Case 1:10-cv-00096-TSE-MSN Document 111 Filed 10/27/14 Page 16 of 30 PageID# 925
Section XVIII (E) of the settlement agreement to Plaintiffs for review, stating "I hope this clarifies the matter." 19. The Plaintiffs have copies of the settlement agreement, some of these copies are highlighted in several colors and underlined to make notable the various violations and lack of implementations. These versions also have a table of contents that is exhaustive, and clearly delineates each and every section and section heading. None of these matters are in need of clarification; none of them require further grievances. 20. One named Plaintiff has spent thirty-three years in the Virginia Department of Corrections. The Plaintiffs are aware, as the attorneys should be, that the grievance procedure is an adversarial process.
1. The grievance system was created by the Federal Courts to serve as a legal means to provide the possibility of state remedies in civil rights claims and complaints at the state level; the state remedy of the Plaintiff's claims have been exhausted previously.
2. Prisoners seldom get an unbiased response, despite the ombudsman process, because the ombudsman work and live in
[14]

Case 1:10-cv-00096-TSE-MSN Document 111 Filed 10/27/14 Page 17 of 30 PageID# 926

the community of those employees against

whom the plaintiff's complaints are

based.

21. The Plaintiffs have repeatedly attempted remedy

through grievance procedures. Founded grievances

have failed to find implementation. These grieved

matters have not been addressed with the state

officials by our attorneys. For instance, in the

first grievance (Exhibit

on providing

interpreters at scheduled shakedowns, the Virginia

Department of Corrections stated interpreters would

be provided. In a second grievance (Exhibit 41:1tf 1 ,

(prompted by the attorneys) the VDOC indicated

interpreters would. not be afforded; both of those

responses are in the possession of the attorneys,

who have failed to notify the Plaintiffs of any

further action in this regard as of this date.

22. A copy of a grievance form was supplied to the

Plaintiff's attorneys, clearly delineating the

repetitive clause: "This issue has been grieved

previously in Grievance #." At the prison, filing

repetitious grievances, is restricted by policy.

Many prisoners (obviously other than the

Plaintiffs) find that exercising their rights with

regard to grievance procedure can be a process that
generates retaliation by its nature; . and l.S a

[15]

Case 1:10-cv-00096-TSE-MSN Document 111 Filed 10/27/14 Page 18 of 30 PageID# 927
process (as in the case at point) that does not often lead to correction.
IV. Proceeding at Attempts for Resolution
23. Plaintiffs waited the additional year agreed to in a letter to the VDOC with regard to invoking the enforcement clause. Ninety (90) days prior to the end of that year Plaintiffs once again raised the issues not resolved by that date; no matter how petty these issues may appear to the parties outside of the prison, enforcement 1s not only necessitated, but what was agreed upon by the Defendants. Not being resolved by this time Plaintiffs desire the Court provide an attorney who can represent the class in the correct and appropriate manner.
24. The Plaintiffs desire to extend the length of the agreement beyond the five years as Plaintiffs proceed with the necessary litigious means to obtain further negotiations to bring the VDOC into compliance with applicable disability laws, and the terms of the settlement agreement; to at the very least reach full compliance with the existing agreement. This will require legal assistance, as no member of the class can represent the class, which (based upon conflicts with the current attorneys) requires appointment of a new attorney.
[16]

Case 1:10-cv-00096-TSE-MSN Document 111 Filed 10/27/14 Page 19 of 30 PageID# 928
We respectfully ask that the Court appoint counsel to represent the Plaintiffs in this regard who will act in our best interest to see a complete implementation, at the very least, of the present settlement agreement; ask for extension of the agreement; and seek the development of a policy in the VDOC consistent with the law and the Americans With Disabilities Act to protect disabled prisoners in the future.
V. Failure to Honor the Settlement Agreement to Date
25. Pursuant to 18 U.S.C. §3626(c) (2) the Plaintiffs move the Court for reinstatement. As a matter of record, the Washington Lawyers' Committee for Civil Rights and Urban Affairs (WLCCRUA) took on the responsibility to follow-up in these matters when the Defendants decided to settle the case and created a mechanism for both enforcement and compensation in the event that enforcement was necessary. Furthermore, the attorneys have failed in their commitments made to the Plaintiffs and have not been honored their duty to seeing these matters through to their legal end and obligation. The schedule in the settlement decree for lawyers to monitor these resolutions was in the interest of everyone, and that commitment was not (at any time) honored. It remains important to the existing
[17]

Case 1:10-cv-00096-TSE-MSN Document 111 Filed 10/27/14 Page 20 of 30 PageID# 929
Plaintiffs to achieve complete compliance. The alleged compliance of the VDOC to date is in no way indicative of adherence with the settlement agreement. This compliance is vi tal to the Plaintiffs in order to enjoy the protections guaranteed by law.
VI. Failure of Negotiations and Mediation
26. All attempts at the negotiations and mediation at Powhatan Correctional Center via meetings with the warden have been fruitless, but the named Plaintiffs continue to meet as scheduled. With every gathering the Defendants have violated the settlement agreement by having multiple unrelated and adversarial employees present, both from Powhatan Correctional Center and from many other offices within the VDOC. These are meetings which were established by the settlement agreement. These individuals are not supposed to be included in these meetings, and their attendance has continued to be a distraction. This diversion serves to limit the Plaintiffs from a meaningful dialog, and because of the pall cast on the meeting is a continuing violation of the letter of the agreement.
27. These other individuals (other than the VDOC's ADA Coordinator Thornton) have provided absolutely no
[18]

Case 1:10-cv-00096-TSE-MSN Document 111 Filed 10/27/14 Page 21 of 30 PageID# 930
positive input, and it appears that the Defendants are there at the behest of the warden for some sort of entertainment at the expense of the Deaf Community. The agreement states that the warden or assistant warden will meet with the Plaintiffs it in no way authorizes them to bring an entourage for what appears to the Plaintiffs to be some kind of amusement or confrontation. 28. While the Plaintiffs know these are matters outside of the Court •s control at present, the Plaintiffs have attempted at all times to negotiate for enforcement and compliance in good faith. At meetings over the past three years, as dictated by the settlement agreement, there have been concessions made with the warden and the assistant warden, on the Plaintiffs behalf, which have been continually violated, not implemented, or rescinded. (Exhibit #20) Below are some of the issues involved:
1) Plaintiffs were told the Deaf Community would be permitted to eat first, in order to facilitate communication needs with the Food Service Department in an area where communications are seriously hampered by a solid steel wall, with only an approximate 20 11 X 10 11 window is available for
[19]

Case 1:10-cv-00096-TSE-MSN Document 111 Filed 10/27/14 Page 22 of 30 PageID# 931

communication; a near impossible situation for the deaf.

2) In addition, being first, Plaintiffs

would not have to worry about when the

unit would be called (having to remain

vigilant} over often a several hour

period, and knowing that once it is

called, staff would often refuse to let a

deaf prisoner proceed late. This

accommodation was agreed to by the entire

administration,

and

then

the

administration was replaced, the new

administration decided to withdraw from

the previous accord, and that Plaintiffs

would have to eat with our units when the

Defendants verbally announce, "Chow."

There is no notification system in working

order for meal notification. The Deaf

Community must often rely upon other

prisoners to get notifications.

3} Plaintiffs were told that there would be adjustable chairs for a conference device (referred to Defendants as a videophone} but the Defendants have never supplied these chairs. The conference devices are on stands that are not adjustable, and chairs need to be provided so that height
[20]

Case 1:10-cv-00096-TSE-MSN Document 111 Filed 10/27/14 Page 23 of 30 PageID# 932

is appropriate for the utilization of sign language communication.

4) Repeated assurances have been given by

administrative staff that line staff will

apprise

the

Deaf

Community

of

institutional activities,

but

the

Defendants do not and will not follow

through; there is no verification system

to assure staff makes such notifications.

There is little or no follow-up for

accountability in this regard. There are

sixty (60) or more verbal announcements

and notifications daily. The defendants

have indicated they will not provide

notifications in real time; this clearly

violates the law.

5) It has been asserted more than once that the pagers, utilized for notification purposes, would revert at some point to being controlled and activated at the institution, either by the Institutional ADA Coordinator or otherwise; this has never taken place, nor does it appear that it ever will, and no reliable notification means has been established. There is a permanent and underlying hostility on the part of staff toward the Deaf Community as
[ 21]

Case 1:10-cv-00096-TSE-MSN Document 111 Filed 10/27/14 Page 24 of 30 PageID# 933
well as an obvious resentment over accommodations and notifications. 6) The staff has refused to set the pagers at the request of deaf individuals who desire to use them. They refuse to set the pagers at request of the institutional schedule, stating the pagers are incapable of programming with so many entries. They have refused to set them to coordinate with an electronic bulletin board; so the Deaf Community will know when there is a message for activities on the board; the electronic bulletin board is not real time and has only further confused the lack of notification. Section :IX, A &: B (Pg. 14) clearly delineates the Defendants will provide an effective visual notification system. (See Exhibit #1)
7) Members of the Deaf Community are routinely being rescheduled appointments because there is no oversight into scheduling process, and staff has no ability to understand how to determine who is deaf despite having been given a list repeatedly by the Institutional ADA Coordinator.
[22]

Case 1:10-cv-00096-TSE-MSN Document 111 Filed 10/27/14 Page 25 of 30 PageID# 934

8) Medical appointment scheduling is not accomplished in a way that does not interfere with other prisoners. The current system violates the settlement agreement and causes anger and frustration which is directed at the Deaf Community by other prisoners.

9) There are no indicators in bold lettering on the Deaf Offender's medical files as detailed in the settlement agreement.

lO)The Medical Department refuses to schedule

medical

appointments

with

the

Institutional ADA Coordinator ahead of

time and in ways that coordinate other

scheduled activities of the interpreters;

such interference results in delays in

receiving medical treatment, and the

rescheduling of needed appointments.

ll)The Medical Department, especially the

Powhatan Medical Unit (PMU), a separate

facility from the daily operation of PCC,

refuses to apprise the Institutional ADA

Coordinator

of

appointments

.
l.n

most

instances, making interpreters difficult

to schedule.

[23]

Case 1:10-cv-00096-TSE-MSN Document 111 Filed 10/27/14 Page 26 of 30 PageID# 935

12)The deaf ID cards called for by the settlement agreement have not been made in any way to denote disability information, or to render them readily identifiable for staff. For four years the Plaintiffs have been engaged in a struggle to get the VDOC to issue a consistent indicator that clearly identifies our deaf disability, the simply state, "Deaf," without success. Currently the indicators remain a number of different colors, and in no way indicate the Plaintiffs are deaf.

13) There is still no VRI in the dispensary,

and despite assertions that if a Deaf

Offender is in need of a VRI the

Defendants will be taken to the Powhatan

Medical Unit where

there

.
l.S

a

tele-med

station; no Deaf Offender has been availed

of this service and medical appointments

are rescheduled; this delays the process

for days where medical attention is

concerned. Often the Institutional ADA

Coordinator must intervene in order to get

a Deaf Prisoner necessary medical

attention.

14)The previous verbal commitment

Video

Remote

Interpreters

[ 24]

to five (VRis)

Case 1:10-cv-00096-TSE-MSN Document 111 Filed 10/27/14 Page 27 of 30 PageID# 936

throughout the institution has never materialized. There is no dedicated VRI at the institution.

15)The institutional scheduling being standardized so that the Deaf Community can depend upon such a timetable has failed to materialize. While scheduling has improved it is not dependable; especially the count, meal, and recreation times. The Defendants have erroneously asserted the posting of this schedule is sufficient notification.

16) Despite assertions to the contrary, staff

continually make accusations and insinuate

that deaf individuals do not listen to

them and their commands in order to cover

and

conceal

behaviors

that

are

inconsistent with professional standards

and techniques established by training

protocols and the settlement agreement for

communication with the deaf.

17) Re-entry is a sys tern wide priority, but members of the Deaf Community have been systematically excluded from the process because of their need for accommodations. Some of these prisoners should have been

[2 5]

Case 1:10-cv-00096-TSE-MSN Document 111 Filed 10/27/14 Page 28 of 30 PageID# 937

in the intensive re-entry program because of their institutional needs, but have been systematically excluded. (Exhibit #21)

18) School, apprenticeship classes, and other educational needs have not been facilitated for the Deaf Community generally. Special education facilitation, while available for a variety of other learning disabilities, has not been extended for deafness. There has been no effort to make vocational programming suitable for deaf individuals as it is to hearing prisoners, despite repeated requests for considerations.

19) Since the date of the implementation of

the

settlement

agreement

every

administrator at Powhatan Correctional

Center has been replaced. The current

administrators have a seemingly negative

and uncooperative response to the

settlement, and no working knowledge of

the particulars. Discussions regarding the

specifics, especially with Warden Dillman

would lead .one to conclude he has never

read the agreement, and displays responses

to specifics as if he has no legal

obligation to comply with the law, or the

[26]

Case 1:10-cv-00096-TSE-MSN Document 111 Filed 10/27/14 Page 29 of 30 PageID# 938
settlement agreement. Without rectification we have little hope for compliance by the present administration.
VII. Conclusion
Therefore, for these reasons and additional legal concerns the Plaintiffs respectfully request that this Honorable Court reinstate the matter to the docket, consider sanctions, and appoint an attorney to represent the class.
It~~~. Ronald Roman
The named Plaintiffs active in this action currently reside at: Powhatan Correctional Center 3600 Woods Way State Far.m, Virginia 23160-0002
[27]

Case 1:10-cv-00096-TSE-MSN Document 111 Filed 10/27/14 Page 30 of 30 PageID# 939

CERTIFICATE OF SERVICE
I hereby certify that on this~ day of f2dt:~h~.J'

1 2014

a true and correct copy of Plaintiff's MOTION FOR

REINSTATEMENT TO THE UNITED STATES DISTRICT COURT, along with

notated attachments, was placed in the "Legal Mail Box" in the

Main Hallway at Powhatan Correctional Center for mailing to

the following individuals, at the addresses defined below:

Deborah Golden, Attorney at Law 11 DuPont Circle, N.W. - Suite 400 washington, D.C. 20036
Harold Clarke, Director Virginia Department of Corrections 6900 Atmore Drive Richmond, VA 23225
Mark Herring, Attorney General Office of the Attorney General for Virginia 900 East Main Street Richmond, VA 23219

:J~~-
David A. Richardson, 1058541, C5A26B Powhatan Correctional Center 3600 Woods Way State Farm, VA 23160

 
 Case 1:10-cv-00096-TSE-MSN Document 130 Filed 11/25/15 Page 1 of 12 PageID# 1226

1

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

2

Alexandria Division

3

GARY MINNIS, et al.,

)

)

4

Plaintiff, )

)

5

v.

) CIVIL ACTION

)

6

GENE JOHNSON,

) 1:10-cv-96

)

7

Defendant. )

)

8

REPORTER'S TRANSCRIPT

9

MOTIONS HEARING

10

Friday, November 13, 2015

11

---

12

BEFORE:

THE HONORABLE T.S. ELLIS, III

13

Presiding

14

APPEARANCES:

15

16

17

LANA MARIE MANITTA, ESQ. Rich Rosenthal Brincefield Manitta Dzubin & Kroeger LLP 201 N. Union St. Suite 230 Alexandria, VA 22314

18

DEBORAH GOLDEN, ESQ.

Washington Lawyers' Committee

19

11 Dupont Circle, NW #400

Washington, DC 20036

20

For the Plaintiff

21

22 ---
23

24

MICHAEL A. RODRIQUEZ, RPR/CM/RMR

Official Court Reporter

25

USDC, Eastern District of Virginia

Alexandria Division

Case 1:10-cv-00096-TSE-MSN Document 130 Filed 11/25/15 Page 2 of 12 PageID# 1227

1

THE CLERK: Gary Minnis, et al., versus Gene

2

Johnson, et al.

3

Civil case number 1:10-cv-96.

4

THE COURT: All right.

5

Ms. Manitta, you are here?

6

ATTORNEY MANITTA: Yes, your Honor.

7

THE COURT: Who -- is anyone here for the

8

government?

9

ATTORNEY MANITTA: No.

10

I believe that the --

11

THE COURT: Yes, I have the pleading. But

12

the pleading arrived only late yesterday. And I am

13

going to make clear to that person that when I set a

14

hearing it's not up to them whether they want to appear.

15

They need to appear; and if they don't want to appear,

16

they have to ask the court's leave not to appear. But I

17

know you wish to be released.

18

Can you give me a brief thumbnail sketch of

19

this matter? I know it's an ADA claim by a number of

20

inmates, and that it was, originally, after I appointed

21

you and another entity, you all settled the matter.

22

Am I correct?

23

ATTORNEY MANITTA: Not quite, your Honor.

24

And --

25

THE COURT: All right.

Case 1:10-cv-00096-TSE-MSN Document 130 Filed 11/25/15 Page 3 of 12 PageID# 1228

1

ATTORNEY MANITTA: -- Deborah Golden, of the

2

Washington Lawyers' Committee for Human Rights and Urban

3

Affairs, is joining me.

4

Their organization was a part of the

5

original group of counsel that settled this matter with

6

the Commonwealth. And this settle agreement is an

7

interesting settlement agreement.

8

It is a class of plaintiffs, but it's not a

9

class-action suit. And so what that, basically, means

10

is that there is a settlement agreement that has very

11

limited enforcement -- enforcement provisions.

12

The court asked me to represent the

13

plaintiffs, and I am doing so in conjunction with the

14

Washington Lawyers' Committee after --

15

THE COURT: So, you weren't in the original

16

case.

17

ATTORNEY MANITTA: I was not in the original

18

case.

19

THE COURT: All right.

20

ATTORNEY MANITTA: Mr. Richardson, the

21

plaintiff, from whose representation we are seeking to

22

withdraw today, about a year and a half ago, filed a

23

motion to reinstate the original lawsuit, alleging that

24

the Commonwealth is not complying with the settlement

25

agreement and the conditions in the Virginia Department

Case 1:10-cv-00096-TSE-MSN Document 130 Filed 11/25/15 Page 4 of 12 PageID# 1229

1

of Corrections were not -- were not as they should be.

2

In that motion, he also sought sanctions

3

against his, then, current counsel, and he asked for the

4

appointment of new counsel.

5

I undertook the work, but along with working

6

alongside the Washington Lawyers' Committee, who had

7

been working on this case for years.

8

Since that time, we have engaged in -- I

9

have visited two -- I have visited the facility on a

10

number of occasions. I have, actually, visited both

11

facilities at which deaf inmates are housed -- Powhatan

12

and Greensville. I have been to Greensville twice.

13

My co-counsel and I have discussed, in an

14

ongoing manner, developments, and changes, and

15

improvements that are being made to the accommodations

16

at Greensville's Correctional Center.

17

To update the court, at the time of the

18

settlement, all of the deaf inmates were in Powhatan

19

Correctional. They were moved approximately 18 months

20

ago or so to Greensville. Greensville, frankly, was not

21

ready for them, and there were significant problems.

22

The accommodations that should have been in

23

place were not. And that's round the time that Mr.

24

Richardson filed his motion to reinstate, which skipped

25

a few of the steps required by the settlement agreement

Case 1:10-cv-00096-TSE-MSN Document 130 Filed 11/25/15 Page 5 of 12 PageID# 1230

1

but alerted the court, nonetheless, to the fact that

2

there were some problems, alerted Washington Lawyers'

3

Committee of some of the things that were still going on

4

and, myself, as new counsel.

5

So, we have been working, very doggedly, on

6

seeing the right accommodations put in place at

7

Greensville. But there has been a break between counsel

8

and Mr. Richardson, specifically.

9

He has, again, filed a motion to reinstate

10

on his own behalf, which we did not sign off on, and

11

with which we do not agree. And part of the agreement,

12

especially, when I came on to the case, was that that

13

really wasn't going to work, as far as an

14

attorney-client relationship, there couldn't be sort of

15

pro se motions being filed and what's not.

16

And, obviously, this is a very significant

17

motion. He has asked that the case be reopened,

18

reinstated, started from scratch on his own behalf.

19

This time he did not file it on behalf of all of the

20

plaintiffs.

21

And the other plaintiffs -- our position is

22

that we wish to continue representing all the rest of

23

the plaintiffs who are still active plaintiffs, who are

24

still in the Department of Corrections custody.

25

We want to continue doing the work that we

Case 1:10-cv-00096-TSE-MSN Document 130 Filed 11/25/15 Page 6 of 12 PageID# 1231

1

have been doing. And I am happy to report there have

2

been some significant improvements in the situation.

3

But Mr. Richardson -- Mr. Richardson's chosen course has

4

made that relationship completely untenable.

5

And it would be our plan to take no position

6

on his motion in any formal capacity. In other words,

7

we are not going to have the plaintiffs pitted against

8

one another. We would simply take no position so that

9

we can continue representing the remaining three men who

10

are still in the Department of Corrections custody who

11

are deaf inmates. And Mr. Richardson would be either

12

pro se or, I believe, he has, actually, asked the court

13

for appointment of new counsel.

14

Oddly, he has asked, in his motion to

15

reinstate, for new counsel but, then, objected to our

16

motion to withdraw as his counsel. So, I am not

17

sure -- you know, I think we've put that in our motion.

18

We've alerted the court to that.

19

He, certainly, has objected to our -- our

20

trying to object as his counsel. But I am not sure what

21

other solution there would be.

22

THE COURT: Well, he is not entitled to

23

counsel. When I, originally, appointed counsel, I don't

24

know how they got the Washington Lawyers' Committee. I

25

am glad they did. But it was -- I appointed you because

Case 1:10-cv-00096-TSE-MSN Document 130 Filed 11/25/15 Page 7 of 12 PageID# 1232

1

I am fully familiar with your competence, your

2

dedication, and I was -- I was confident that you would

3

represent these individuals fairly, and fully, and

4

competently, and it would get done. And I think you

5

did. And I am glad to hear that you are going to

6

continue.

7

Now, let's -- let's -- and I also want to

8

give you an opportunity to be heard. I hope you are

9

going to continue as well. But you all aren't saying --

10

ATTORNEY GOLDEN: Yes, your Honor.

11

THE COURT: -- that the -- you all are

12

negotiating with the Department of Corrections, and you

13

are not saying that you want to sue on the settlement

14

agreement. You want to go ahead and get things done.

15

And, in the end, if something isn't done, you can bring

16

a new lawsuit.

17

ATTORNEY GOLDEN: Yes, your Honor.

18

THE COURT: Well, that's what I think this

19

person ought to do, because circumstances have changed

20

so significantly and dramatically.

21

Litigating whether there is something in

22

this settlement agreement which, certainly, wouldn't go

23

on forever, in this event -- I don't know, did it have a

24

term?

25

ATTORNEY MANITTA: It did. It did, your

Case 1:10-cv-00096-TSE-MSN Document 130 Filed 11/25/15 Page 8 of 12 PageID# 1233

1

Honor. This was to expire in October.

2

THE COURT: Of?

3

ATTORNEY MANITTA: Of 2015. There are --

4

THE COURT: All right.

5

So, it's still in effect. What do you

6

recommend? I mean, I am perfectly happy to have Mr. --

7

what's his name?

8

ATTORNEY MANITTA: Mr. Richardson.

9

THE COURT: Mr. Richardson go ahead with any

10

claim he might have. But it seems to me that that

11

should not halt the efforts of the two of you to make

12

improvements and achieve results short of litigation.

13

That's much better than litigating things.

14

ATTORNEY GOLDEN: Certainly, agree. If we

15

can negotiate a resolution that's satisfactory to the

16

rest of the plaintiffs to make sure the current

17

conditions comply with the ADA, and the Constitution,

18

without assistance of your Honor or another court, we

19

are very happy to do so.

20

THE COURT: Well, I would hope it can be

21

done, because I don't think the Department of

22

Corrections wants to violate the law, and they don't

23

want to violate the Constitution.

24

Now, you may have a good difference of

25

opinion as to how much is required. And that, of

Case 1:10-cv-00096-TSE-MSN Document 130 Filed 11/25/15 Page 9 of 12 PageID# 1234

1

course, the court can hear. But it seems to me we are

2

not here yet.

3

What do you suggest I do for Mr. Richardson?

4

I think what he has done, he has filed a what, a motion

5

to reopen?

6

ATTORNEY MANITTA: To reinstate, which is,

7

basically, yes, to reopen.

8

THE COURT: And the other three don't want

9

that?

10

ATTORNEY MANITTA: They do not.

11

THE COURT: Well, I guess I could reopen it

12

just for his claim, and he could proceed alone, relieve

13

you, and he could proceed with or without counsel.

14

Maybe he can retain counsel somewhere.

15

ATTORNEY MANITTA: He could. There are

16

certain provisions within the settlement agreement,

17

certain prerequisites to reinstatement. And, again, we

18

are not taking the position --

19

THE COURT: All right.

20

I will look at those.

21

ATTORNEY MANITTA: Yes.

22

THE COURT: You don't need to be heard on

23

those.

24

ATTORNEY MANITTA: Thank you.

25

THE COURT: All right.

Case 1:10-cv-00096-TSE-MSN Document 130 Filed 11/25/15 Page 10 of 12 PageID# 1235

1

I will grant your motion to withdraw.

2

ATTORNEY MANITTA: Thank you.

3

THE COURT: And my view, at the moment, is,

4

and I'll enter an order after I reflect a bit more about

5

it, is that I will make clear that the desire to reopen

6

and reinstate is only his, not the other plaintiffs;

7

that the other plaintiffs are proceeding, represented by

8

competent counsel, to resolve these matters. And,

9

therefore, it won't be reopened as to them.

10

And I'll consider whether I reopen it as to

11

him based on your -- or based on my being alerted to the

12

need to go back to the agreement and look at the

13

prerequisites.

14

ATTORNEY MANITTA: I -- I concur with the

15

court's decision on all counts.

16

THE COURT: Thank you.

17

ATTORNEY MANITTA: Thank you, your Honor.

18

THE COURT: And I thank -- let me give a

19

special thanks to your committee and to you, Ms.

20

Manitta, for the work that you do.

21

I appointed you because of your

22

recognized -- that I recognized -- I have been here

23

since, before you started. And you have always

24

demonstrated competency, and that's why I pointed you,

25

and I have not been disappointed.

Case 1:10-cv-00096-TSE-MSN Document 130 Filed 11/25/15 Page 11 of 12 PageID# 1236

1

In fact, I have been pleased. And your

2

committee has that same reputation.

3

ATTORNEY GOLDEN: Thank you.

4

ATTORNEY MANITTA: Thank you.

5

THE COURT: All right.

6

---

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 1:10-cv-00096-TSE-MSN Document 130 Filed 11/25/15 Page 12 of 12 PageID# 1237

1

CERTIFICATE

2

3

I, MICHAEL A. RODRIQUEZ, an Official Court

4

Reporter for the United States District Court, in the

5

Eastern District of Virginia, Alexandria Division, do

6

hereby certify that I reported by machine shorthand, in

7

my official capacity, the proceedings had upon the

8

motions hearing in the case of GARY MINNIS, et al., v.

9

GENE JOHNSON.

10

11

I further certify that I was authorized and

12

did report by stenotype the proceedings in said motions

13

hearing, and that the foregoing pages, numbered 1 to 12,

14

inclusive, constitute the official transcript of said

15

proceedings as taken from my machine shorthand notes.

16

17

IN WITNESS WHEREOF, I have hereto subscribed

18

my name this 25th day of November

, 2015.

19

20

/S/

21

Michael A. Rodriquez, RPR/CM/RMR

Official Court Reporter

22

23

24

25

 
 Case 1:10-cv-00096-TSE-MSN Document 137 Filed 03/14/16 Page 1 of 7 PageID# 1536

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA
Alexandria Division

GARY MINNIS, et al

:

:

Plaintiffs,

:

:

v.

:

:

GENE JOHNSON, et al.,

:

:

Defendants.

:

____________________________________

Case 1:10cv96 (TSE/MSN)

STATUS REPORT

COMES NOW, co-counsel for active Plaintiffs Larry More, Ronald Roman and Delonte

Tinsley, Lana Manitta, Esq. (“Manitta”), who is joined in this report by Elliot Mincberg, Esq.

and Deborah Golden, Esq. of the Washington Lawyer’s Committee for Civil Rights and Urban

Affairs, (“Lawyer’s Committee”), and pursuant to this Court’s Order of February 22, 2016, (Doc.

136), hereby states that the following is a complete and accurate reporting of the progress made

on Plaintiffs’ behalf with respect to conditions of confinement for deaf inmates in the custody of

the Virginia Department of Corrections (“DOC”).

As the Court is aware, it was in or around October of 2014 when nearly all deaf inmates

in DOC custody were moved from the adequately-equipped Powhatan Correctional Center to the

Greensville Correctional Center, which was not at all equipped to accommodate their needs.

Shortly thereafter, Plaintiff David Richardson filed a pro se Motion to Reinstate alleging

significant deficiencies in DOC’s compliance with the settlement agreement entered into in this

matter. Richardson also sought appointment of new counsel and Attorney Manitta entered an

appearance as co-counsel to the Lawyer’s Committee. Attorney Manitta has since visited the

Greensville facility on three separate occasions (and Powhatan on one occasion) to speak with

Case 1:10-cv-00096-TSE-MSN Document 137 Filed 03/14/16 Page 2 of 7 PageID# 1537
Plaintiffs, tour the facility, and speak with both facility and DOC personnel regarding the allegations of breaches of the settlement agreement. She, Attorney Mincberg, and Attorney Golden have worked most closely with Barry Marano, ADA Coordinator for the DOC, throughout this process.
A number of significant problems were noted by the Plaintiffs, and during counsel’s first visit to Greensville in early 2015 she undertook to parse out which matters were covered by the settlement agreement and which were not, and which matters were related to the deaf inmates’ disability and equal treatment, and which were not. Plaintiffs were concerned with a variety of issues that warranted discussion, but which were not part of the agreement per se. The issues of particular concern, however, were those involving the visual notification system and interpreter services – both live and via a Video Relay Interpreter (“VRI”) system. These have remained the key areas of focus, while a constant dialogue between counsel and Mr. Marano regarding these as well as “smaller” concerns (such as the quality of the captioning service on televisions) or concerns not unique to or discriminatory against deaf inmates (such as the availability of certain reading material in electronic format) is maintained. Counsel maintains contact with Plaintiffs primarily through email when visits to Greensville are not feasible.
PRIMARY ISSUES ADDRESSED I. Visual Notification System The visual notification system refers to the method of notifying deaf inmates, who all reside in the same housing unit, of scheduled, and more importantly unscheduled, events occurring in the unit or facility, such as lockdown, “chow”, “rec,” etc. This system is comprised of more than one mechanism, and has evolved over time, representing one of the more significant areas of progress made over this past year. Originally, the visual notification system
2

Case 1:10-cv-00096-TSE-MSN Document 137 Filed 03/14/16 Page 3 of 7 PageID# 1538
at Greensville involved the flashing of the lights when there was a notice of a particular event or occurrence, and a sign being put up in the window of the unit control room indicating the event. Ideally, then, staff were to walk around the unit and make sure individual inmates were aware of the notifications. Sometime in the Spring of 2015, a scrolling “ticker” was added to the unit, which showed the daily schedule scrolling by, repeated. A problem remained because the “tickers” were hard to see and were not updated in real time – meaning they were never changed, even if there was a change in the schedule or something like a lockdown or cell search was being announced. In those events, the flashing lights, signage in the control room and the use of inmate-employees to walk around the unit with signs, were utilized.
In the Fall of 2015, a system with the potential to be vastly superior was installed in the housing unit – two 50” flat screens. The messages on the large screens were changed as needed by the floor officer using a remote control. While this was an improvement over the systems previously in place, counsel noted in December, 2015 that there were still significant delays between the event being announced, the lights flashing to notify inmates to look at the screens, and the message being updated. Counsel suggested that this was due to the fact that up to three staff members were required to convey one message to the unit, and that perhaps the control room officer who flashes the unit lights could also be equipped with the remote control to change the message on the screen. It was suggested that the window sign – which is very difficult to see and unnecessary if the screens are up-to-date – be eliminated, and that the more automated and more visible system be implemented by the control room officer. Presently, these suggested changes – all but the elimination of the sign in the window – have been implemented.
3

Case 1:10-cv-00096-TSE-MSN Document 137 Filed 03/14/16 Page 4 of 7 PageID# 1539
In addition, at this time, vibrating and flashing alarm clocks are “on order.” These will be in the individual cells, providing a better alternative/backup to the flashing lights in the unit to warn of a scheduled or unscheduled event.
II. Video Relay Interpreter When counsel first visited Greensville, there was one mobile VRI unit which was kept in a central location and could be purportedly be brought anywhere in the facility within ten minutes. This was problematic, and it was suggested that there be one in the unit housing deaf inmates as well as in the medical unit. Presently, there is a permanent “telemed” station in the medical unit which can be utilized as a VRI, and the aforementioned mobile unit is still utilized and kept in a central administrative office. On counsel’s latest visit in late December, 2015, it was noted that the mobile unit was not reliable. One must log in – which is not without connection problems -- move the unit via golf cart if necessary to the inmate’s location, and use the unit ideally near a window to avoid a lost connection. It was therefore suggested by Barry Marano during a conference with counsel that there be a tablet or cell phone with video capability kept in the housing unit for use as a VRI. Although this change has not yet been implemented, the facility is now testing the mobile unit more often than before, to ensure that there are not connection/login issues, and that it is in working order. Counsel continues to monitor this issue. III. Videophone Limitations Because of the location of the videophones that are used by deaf inmates as compared the standard phones utilized by hearing inmates (the latter of which can be in the housing unit), deaf inmates’ phone usage was more limited than that of hearing inmates. Counsel observed the phone location and discussed the schedule, and suggested the addition of five additional time
4

Case 1:10-cv-00096-TSE-MSN Document 137 Filed 03/14/16 Page 5 of 7 PageID# 1540
slots that will not interfere with security concerns and will allow for more access to phones for deaf inmates.
IV. Interpreters for Outside Medical Visits It has been noted that on occasion, interpreters were not available for outside medical visits, but counsel has determined that the facility and DOC personnel are fulfilling their obligations to notify the outside treatment facility of the need for an interpreter, and that it is the outside facility that is failing to provide one on some occasions. It is counsel’s intention to notify individuals at the specific medical facility of their own obligations under the ADA. V. Bulletin Board Deaf inmates rely on the bulletin board in the unit for other notifications – phone schedules, religious services, etc.-- and there was originally a complaint that inmates could remove notices from the unprotected bulletin board. In the past few months, a metal cage-like cover has been placed over the bulletin board to prevent that problem. However, on counsel’s visit in December, 2015, it was noted that the metal grate made it hard to read the material on the board and that the metal itself had sharp edges that seemed dangerous to the touch. It was agreed the edges would be filed down and a larger font would be used on the printed material so that it would be easier to read through the metal.
CONCLUSION All in all, progress continues to be made, though there is more to be accomplished by counsel, working with Mr. Marano and DOC and Greensville personnel, to ensure the implementation of practical and effective solutions to the remaining issues facing the Plaintiffs, and in fact all deaf inmates at Greensville. As recently as October, a detailed list of deficiencies was sent to the Office of the Attorney General, and as noted, a visit to the facility was made by
5

Case 1:10-cv-00096-TSE-MSN Document 137 Filed 03/14/16 Page 6 of 7 PageID# 1541
counsel in late December, 2015. Mr. Marano will attend a quarterly meeting at the facility on March 15, 2016, and will follow up with counsel after that meeting to convey any updates to the conditions described herein, as well as any new inmate concerns raised at said meeting. Should there be a significant update received, counsel will supplement this Status Report accordingly. Another counsel visit to Greensville will likely take place in April or May, ideally if/when the new alarm clocks are in place in order to see these in action and get Plaintiffs’ feedback, to view the revised visual notification system in operation, take an additional look at the mobile VRI unit and further discuss a need for an additional mobile VRI conduit inside the housing unit, and discuss other matters raised by Plaintiffs in the interim.
FEES FOR ATTORNEY MANITTA Attorney Manitta has expended just over 100 hours in this matter, but she has not contemplated the filing of an application for fees due to the fact that counsel is not aware at this time of any legal basis for such an application.
Respectfully submitted, ____________/s/_______________ Lana Manitta, VSB #42994 RICH ROSENTHAL BRINCEFIELD MANITTA DZUBIN & KROEGER, LLP 201 N. Union Street #230 Alexandria, Virginia 22314 Tel: 703 299 3440 Fax: 703 299 3441 E-mail: LMManitta@RRBMDK.com Counsel for Plaintiffs
6

Case 1:10-cv-00096-TSE-MSN Document 137 Filed 03/14/16 Page 7 of 7 PageID# 1542
CERTIFICATE OF ELECTRONIC FILING I hereby certify that on the 14th day of March, 2016, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send an electronic notification of such filing (NEF) to the following:
Michael J. Parsons, Esq. Assistant Attorney General for the Commonwealth of Virginia 900 E. Main St. Richmond, VA 23219 Counsel for Defendants
______________/s/__________________ Lana Manitta, VSB #42994 RICH ROSENTHAL BRINCEFIELD MANITTA DZUBIN & KROEGER, LLP 201 N. Union Street #230 Alexandria, Virginia 22314 Tel: 703 299 3440 Fax: 703 299 3441 E-mail: LMManitta@RRBMDK.com Counsel for Plaintiffs
7

 
 Settlement Agreement
I. DEFINITIONS
1. "Auxiliary Aids and Services" include, but are not limited to, "Qualified Interpreters or other effective methods of m~ing aurally delivered materials available to individuals with hearing impairments," 42 U.S.C. § 12103, such as hearing aids, computer-aided transcription services, assistive listening systems, closed caption decoders, open and close captioning, TDDs, TTYs, videotext displays, written materials, 28 C.F.R. § 35.104, as well as Videophones, access to telephone relay services, and visual alert or alarm systems. For purposes of this agreement, Auxiliary Aids and Services does not include vibrating clocks or in-line amplifiers meaning VDOC will not automatically provide or pay for such devices.
2. "Deaf' persons means individuals who are unable to hear well enough to rely on their hearing as a means of processing information and who rely on Auxiliary Aids and Services to Effectively Communicate and who qualify as individuals with disabilities under the Americans with Disabilities Act as amended by the ADA Amendments Act of 2008. See 42 U.S.C. § 12102(4); P.L. 110-325. All inmates listed in Ex. A are Deaf persons. Inmates whose hearing is corrected by hearing aids so that they can understand the spoken word and communicate orally are not covered by this Agreement.
3. "Direct Threat" means a significant risk to the health or safety· of the Deaf Inmate or others that cannot be reduced or elimmated by reasonable accommodation. A finding of Direct Threat must be based on and supported by objective evidence.
4. "Effective Communication" means communication with Deaf inmates that is substantially as effective as communication with the general inmate population, 28 C.F.R. § 35.160(a), and will, when necessary, include the provision of appropriate Auxiliary Aids and Services, such as Qualified Interpreters. Effective Communication affords an inmate who is Deaf an opportunity to participate in, and enjoy the benefits of, VDOC's services, programs, or activities that is substantially equal to that enjoyed by a similarly situated inmate who is not Deaf.
5. "Effective Date" means October 13, 2010.
6. "Offsite Medical Care" means medical care that is provided at a location not owned or operated by VDOC.
7. "Onsite Medical Care" means medical care that is provided at a VDOC facility, including medical care provided by third parties in facilities owned or operated by VDOC.
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8. «Qualified Interpreter" means a person who is able to interpret effectively, accurately, and impartially, both receptively and expressively, with the individual Deaf inmate using any necessary specialized vocabulary. A Qualified Interpreter could include an ASL interpreter, a sign language interpreter using more English based signs, an oral interpreter, a cued speech transliterator or a tactile interpreter for a person who is Deaf/blind. For sign language interpreters, a Qualified Interpreter is one who holds one or more ofthe following current, valid certifications:
• Registry of Interpreters for the Deaf Certification as a CIICT, CSC, MCSC, OTC, CDI or RSC;
• National Association ofthe Deaf(NAD) Certification Level3, 4, or 5;
• NAD/RlD National Interpreter Certification NIC, NIC Advanced or NIC Master
• A cued speech transliterator will be certified by the Cued Language Transliterator National Certification Examination.
A Qualified Interpreter may be provided by VDOC either in person, via video remote interpreting (VRI) or videoconferencing or other similar means.
The parties agree that future certifications that are the equivalent of these certifications will be considered valid minimum certification, so long as those certifications are kept current
9. "TTYs" or "TDDs" means devices that are used with a telephone to commurricate with persons who are Deaf or hard of hearing by typing and reading communications.
10. "VDOC employees," "VDOC staff," "VDOC personnel" include all employees, agents, and other staff of the Virginia Department of Corrections (VDOC) whose job responsibilities places them on a regular basis in contact with Deaf inmates, and the immediate supervisors of those employees, agents, or other staff.
11. "Video Remote Interpreting" (VRI) means video interpreting accomplished by use of video conference technology over high-speed internet lines.
12. "Videophone" means a telephone with a camera and screen for visual, real-time communications.
13. "VDDHH" means the Virginia Department of the Deaf and Hard of Hearing.
14. "VDOC" means Virginia Department of Corrections.
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II. GENERAL POLICIES
A. Non-discrimination Based on Disability
VDOC will ensure that Deaf inmates in its custody in state correctional facilities or under postrelease supervision by Community Corrections have full and equal enjoyment of its services, privileges, facilities, advantages, and accommodations as non-Deaf inmates similarly situated. VDOC shall provide Deaf inmates with access to services, privileges, facilities, advantages, and accommodations substantially equivalent to those offered to other non-Deaf inmates similarly situated who are in its custody in state correctional facilities or under post-release supervision by Community Corrections. VDOC retains the discretion to determine that certain activities present a Direct Threat of injury or death to Deaf inmates and may therefore choose not to provide such Deaf inmates substantially equal enjoyment of some of its services, privileges, facilities, advantages, and accommodations.
B. ADA Coordinator and Auxiliary Aids and Services Designees
VDOC has designated an ADA Coordinator and will maintain the ADA Coordinator position as required by law. The VDOC agrees that the ADA Coordinator shall be trained and · knowledgeable concerning the requirements of federal and state law regarding VDOC's obligations to provide full and equal enjoyment of its services, privileges, facilities, advantages, accommodations to Deaf inmates, and the contents of this Agreement
VDOC will notify counsel for the plaintiffs of the ADA Coordinator designee. The name and contact information for the ADA Coordinator will be kept updated on the VDOC website. The ADA Coordinator's name and contact information will also be posted in a secure area in any housing unit in which Deaf inmates are held.
Within thirty days of the Effective Date of this Agreement, VDOC will designate individuals at each facility where Deaf inmates are held and at any Probation and Parole Office where any Deaf former inmate is actively on post-re~ease supervision, who will be responsible for coordinating and overseeing Auxiliary Aids and Services for Deaf individuals and for implementing this Agreement. These designees will be familiar with and knowledgeable concerning the contents of this Agreement, and responsible for implementing this Agreement These designees, who are
located at a state correctional facility, with the assistance of a Qualified Interpreter, will aid in
the initial intake of all Deaf inmates.
VDOC agrees to train all Watch Commanders on the procedures necessary to satisfy this Agreement.
VDOC agrees that Deaf inm(ltes will be given the opportunity to meet with the Warden or Assistant Warden of Operations at least quarterly. At these meetings Deaf inmates will have the opportunity, with a Qualified Interpreter, to discuss issues of importance to their community.
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III. INITIAL CLASSIFICATION, ASSESSMENT, AND ASSIGNMENT
A. General Policy
VDOC will provide a Deaf inmate at a Reception and Classification Center with access to Qualified Interpreters. The purpose of this interpreter is to assist the Deaf inmate with medical, psychological, and educational testing and evaluation, and to help provide an explanation of prison policies and procedures, to include DOP 861-Inmate Discipline, DOP 866-0ffender Grievances, and how to utilize the TTY, Videophone and other Auxiliary Aids and Services.
For male inmates, the Reception and Classification Center is Powhatan Reception and Classification Center (PCC). For female inmates, the Reception and Classification Center is Fluvanna Reception and Classification Center (FCC).
B. Hearing Assessment
As part of the Initial Classification, Medical staff will assess and if necessary test all inmates for Deafness or hearing impairments who demonstrate either during Initial Classification.
If Medical staff determines that an inmate is Deaf, Medical staff will note the disability in the inmate's institutional file.
C. Auxiliary Aids and Services Assessment
After Medical staff determine that an inmate is Deaf, VDOC will presume that Auxiliary Aids and Services in the form of Qualified Interpreters, visual notifications, telecommunication devices, a11d other aids and services set forth in this Agreement are necessary to ensure substantially equal services, privileges, facilities, advantages, and acco;rn.m.odatiQns.
If a Deaf inmate indicates that he or she does not require any or all of the Auxiliary Aids and Services set forth in this Agreemen~ he or she will sign a Waiver of Auxiliary Aids and Services and that document will be kept in the inmate's institutional file.
D. Ensuring Staff Awareness Through Identification Cards
VDOC will take appropriate steps to ensure that all VDOC personnel having regular contact with a Deaf inmate are made aware of such person's need for Auxiliary Aids and Services so that Effective Communication with such person and the safety of the person will be ensured. Upon identifying an inmate as Deaf during Initial Classification, the inmate will receive a distinct identification (ID) card that clearly identifies him or her as Deaf. The ID card will signify to VDOC personnel that the inmate is Deaf, may not respond to oral commands, and may require Auxiliary Aids and Services. When staff take a Deaf inmate's ID card he or she will be given another indicator oftheir Deaf status.
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All staffhaving regular contact with a Deaf inmate will be trained on the meaning of the distinct ID cards.
VDOC will post at the entrance to all facilities that house Deaf inmates, a notice clearly stating that the facility houses Deaf inmates and that the Deaf inmates carry an ID card with them. The Notice will include a picture of the ID card carried by deaf inmates. The Notice will also be posted outside each housing unit where Deaf inmates are held.
E. Interpretation of Written Materials
As of the Effective Date of this Agreement, and upon a Deaf inmate's filling out a Request for Auxiliary Aids and Services form at the facility where the requesting inmate is incarcerated, VDOC, will provide Deaf individuals written materials it provides to all inmates either, and at its discretion:
• in a recorded video sign language interpreted, or otherwise appropriately interpreted, format ("interpreted materials") (If VDOC chooses this option, VDOC would then provide the equipment necessary to view the interpreted materials);
• or by providing a Qualified Interpreter to permit the Deaf inmate to understand the contents of the written materials.
At the request of the Deaf inmate, VDOC will provide that Deaf inmate with the opportunity to meet with a VDOC staff member and a Qualified Interpreter to ask any questions regarding the written or interpreted materials.
F. Creation and Interpretation of Rights Materials
VDOC will provide each Deaf inmate with written materials outlining the rights ofDeafinmates, along with the services available to them as guaranteed by this Agreement, the ADA, and Section 504 of the Rehabilitation Act. All currently incarcerated Deaf inmates will also be offered these materials when VDOC begins using them. VDOC will create these written materials using language designed to be accessible to Deaf inmates. VDOC will provide these written materials to Deaf inmates with the orientation materials provided to all other inmates at fuitial Classification.
VDOC will provide Deaf inmates with these written materials either:
• in a recorded video sign language interpreted, or otherwise appropriately interpreted, format ("interpreted materials") (If VDOC chooses this option, VDOC would then provide the equipment necessary to view the interpreted materials);
• or by providing a Qualified Interpreter to interpret these written materials to the Deaf inmate.
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VDOC shall create the Rights Materials and begin using them within three months of the Effective Date ofthis Agreement.
G. Continuation of Provision of Auxiliary Aids and Services After conducting the Initial Classification and documenting an inmate's hearing and Auxiliary Aids and Services assessments in his or her institutional file, VDOC will continue to provide Auxiliary Aids and Services to a Deaf inmate consistent with this Agreement, unless the Deaf inmate affirmatively indicates he or she does not want such services.
H. Subsequent Need for Accommodations If an inmate is not found to have a hearing impairment at his or her Initial Classification, initially refuses, or does not request Auxiliary Aids and Services, but later believes that Auxiliary Aids and Services are necessary to ensure Effective Communication, he or she will fill out a Request for Auxiliary Aids and Services form. VDOC will provide the inmate who was initially not found to have a hearing impairment with a hearing assessment if so ordered by medical staff. If that individual is found to be Deaf, VDOC will follow the procedures as set forth in Section IILB-G of this Agreement.
IV. HOUSING A. General Policy
VDOC has determined that it is in the best interests of VDOC ·and Deaf inmates to be incarcerated in one facility in order to provide them with the most effective Auxiliary Aids and Services. i 1..s of the date of this Agreement, VDOC has determined that Deaf male inmates will be housed at Powhatan Correctional Center, and Deaf female inmates will be housed at Fluvanna Correctional Center. VDOC has the discretion to house Deaf inmates at whatever facility it deems appropriate. At VDOC's discretion, ifPCC or FCC is determined to be an w.safe or inappropriate facility for an inmate, that inmate will retain all rights as required by the ADA and this Agreement at any other facility where that inmate is housed.
B. Schedule of Accommodations When a Deaf inmate is incarcerated at PCC or FCC, personnel at those facilities shall provide the Deaf inmate with a schedule showing when Qualified Interpreters and/or other Auxiliary Aids and Services are available. This schedule will be provided to currently incarcerated inmates within 3 months of the Effective Date ofthis Agreement.
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V. PROVISION OF AUXILIARY AIDS AND SERVICES
A. General Policy
In order to ensure substantial equality for Deaf inmates, VDOC will provide appropriate Auxiliary Aids and Services, as required by this Agreement, the U.S. Constitution, the ADA, and the Rehabilitation Act. Substantial equality shall also include programs or services to Deaf inmates provided by third party vendors, contractors, or state-funded entities such as comrtnmity colleges.
• Appropriate Auxiliary Aids and. Services, including Qualified Interpreters, shall be made available so that Deaf inmates may participate in all services, privileges, and programs offered to other inmates in VDOC's custody at Powhatan Correctional Center or Fluvanna Correctional Center, as the case may be.
• These shall include, but not be limited to: orientation, medical evaluations and treatments, disciplinary proceedings, and during any other programs including, but not limited to, rehabilitative, educational, or transitional programs offered to other similarly situated incarcerated individuals.
• In those instances where VDOC permits volunteers to provide activities to inmates at PCC or FCC, such as religious services and meetings, VDOC will make best efforts so that the volunteer organization or individual volunteer has an interpreter at those activities. The parties agree that the Interpreter at such vohmteer activities need not be a "Qualified Interpreter" as defined in this Agreement
• VDOC retains the discretion to determine that certain activities present a Direct Threat of injury or death to Deaf inmates and may therefore choose not to provide such Deaf inmates substantially equal enjoyment of some of its services, privileges, facilities, advantages, and accommodations.
• VDOC will provide written instructions for the use of all Auxiliary Aids and Services.
These instructions will cover, though not necessarily be limited to, use of TTYs and
Video Phones.
B. Medical Devices
All Auxiliary Aids and Services required by this Agreement, the ADA, and Section 504 of the Rehabilitation Act, which are deemed medically necessary, will be provided promptly upon request free of charge to Deaf inmates subject to a co-payment for that medical device, just as non-Deaf inmates are charged a co-payment for other medical appliances or devices. This copay shall not apply, howev~r, to hearing aid batteries. In the case of a Deaf inmate who is deemed indigent pursuant to VDOC Policy 802.2, the Deaf inmate's account will be charged the appropriate co-pay for such device just as non-deafinmates are charged.
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C. Maintenance of Auxiliary Aids and Services
VDOC shall maintain all Auxiliary Aids and Services for Deaf inmates in its custody in a state correctional facility in working condition at all times.
VI. QUALIFIED SIGN LANGUAGE INTERPRETERS
A. Contracts
VDOC will enter into one or more written contracts with Interpreter Service Providers (IS Providers), or otherwise arrange to provide Qualified Interpreters at the events and intervals set forth in this Agreement. The contracts with the IS Providers must specifically state that only
"Qualified Interpreters," as defined in this Agreement, will be used by VDOC and that the IS
Providers agree to provide only such interpreters to VDOC. If VDOC is currently bound by an IS Provider contract it will add this requirement at the next opportunity.
B. General Policy
VDOC will maintain the current rate of providing an in-person Qualified Interpreter two days per week for seven hours per day at PCC. If there is a material change in the number or needs of Deaf inmates, VDOC will reevaluate the number and/or frequency of in-person Qualified Interpreters.
VDOC shall provide an in-person Qualified Interpreter at FCC and other facilities where Deaf
inmates are incarcerated as circumstances warrant.
Examples of situations in which an in~person Qualified Interpreter is presumed to be needed include:
• communications concerning medical care and attention, including dental, vision, audiological, and mental health care;
• disciplinary hearings in which the Deaf inmate may be charged with a rule infraction;
• transfer and classification processes that impact on the Deaf inmate's status; and
• transitional programming.
Examples of situations in which a Qualified Interpreter is not presumed to be necessary but in which a Qualified Interpreter may become necessary at a Deaf inmate's request include:
• educational progra..llll1ing;
• work programming; and
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• other communications that are complex or lengthy. VDOC will be responsible for scheduling and overseeing the provision of Qualified Interpreters.
C. Other Means of Communication
1. General policy VDOC agrees that at all times VDOC employees will continue to attempt to communicate with Deaf inmates for such purposes and to the same extent, as they would communicate with the individuals but for their disability, using all available means of communication. This provision in no way lessens VDOC's obligation to provide Qualified Interpreters in certain situations and in a timely manner.
2. Video Remote Interpreting (VRI) VDOC shall provide access to and have available for, emergency situations and as necessary, ondemand video remote interpreting which comports with the following standards at all facilities at which Deaf inmates are incarcerated:
• high quality, clear, delay-free full-motion video and audio over a high-speed Internet connection;
• a clear, sufficiently large, and sharply delineated picture of the interpreter's and the Deaf individual's heads, arms, hands, and fingers, regardless of the body position ofthe Deaf individual;
• voices being transmitted are clear and easily understood, and
• operation is uncomplicated and easily accomplished by non,.technicians. VDOC shall implement VRl vvithin t..lrree mont.lJ.s ofthe Effective Date of this Agreement.
3. Written Notes
VDOC Employees will receive training with respect to com:rllunications difficulties Deaf inmates
!1ave. The training will include advising the VDOC Employees that note writing may be the only immediate form of communication available to a Deaf iru:pate, and that VDOC Employees are expected to respond to a Deaf inmate in writing where that is the best present means of communication, to the same extent they would make a verbal response in a similar situation involving a non-Deaf inmate. Where circumstances make a written response impractical at the time, training will instruct that the VDOC Employee should attempt to follow up with the Deaf inmate as time later permits.
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D. Onsite Medical Care
1. General Policy
VDOC will provide Qualified Interpreters for all scheduled appointments between Deaf inmates and medical personnel at VDOC facilities, including, but not limited to, review of medical history, medical appointments, follow up meetings or appointments, and treatment meetings.
2. Informing Appropriate Medical Staff
The VDOC employee responsible for coordinating Auxiliary Aids and Services for Deaf inmates at the facility at which a Deaf inmate is incarcerated, will ensure that Medical staff is aware that the inmate is deaf, if such classification has not already been performed by the Medical Staff at that facility. For each Deaf inmate, the Medical staff will note on the medical file cover in bold marking and in the inmate's medical file, the inmate's disability.
3. Scheduling Medical Appointments with Interpreters
The Medical Director in conjunction with facility staff, will schedule all medical appointments requiring Qualified Interpreters and will contact the IS Providers to arrange for interpreting services as necessary. Appointments for Deaf inmates will be scheduled within the same time period from the initial request as those for other inmates.
4. Emergency Events
VDOC will provide a VRI Qualified Interpreter for use in unscheduled medical emergencies. If remote interpreting services are not appropriate in the situation, VDOC personnel will work in conjunction with medical staff to attempt to secure an in-person Quali:fied Interpreter as soon as possible. Life saving medical care should never be delayed because no interpretation services are available.
For the follov-ling categories of Deaf it1.mates, a VRI Qualified Interpreter may not provide effective communication, and an in-person Qualified Interpreter may be the most appropriate auxiliary aid or interpretive service:
• Deaf inmates who have limited ability to move their heads, hands, or arms; vision problems; cognitive or consciousness issues; or pain issues;
• Deaf inmates who must be 'moved to areas of the VDOC facility that do not have a designated high speed Internet line; and
• Deaf inmates who will be treated in rooms where space considerations mitigate against using the service.
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E. Offsite Medical Care
VDOC will inform all offsite medical providers that a Deaf inmate requumg a Qualified Interpreter or other Auxiliary Aid or Service will be seeking medical care offsite as soon as possible.
In the case of an emergency, VDOC will inform an offsite medical provider that a Deaf inmate
requiring an in-person Qualified Interpreter or other Auxiliary Aid or Service is being
transported to the offsite care provider. VDOC will notify the offsite medical care provider as soon as possible. Notification will include the estimated time of arrival.
F. Educational, Vocational and Rehabilitative Programming
VDOC shall provide appropriate Auxiliary Aids and Services for all programs offered at VDOC facilities in which Deaf inmates are qualified, admitted into, and are actively participating in. When the Schedule of Accommodations referenced in Section IV.B changes, including when a Qualified Interpreter will be available, an updated Schedule of Accommodations will be given to all Deaf inmates.
The following appropriate Auxiliary Aids and Services will be provided:
1. VDCE Adult Basic Education
The VDOC in conjunction with the Virginia Department of Correctional Education (VDCE) will provide Deaf inmates with written materials and open or closed-captioned educational materials where available. In addition, and as necessary, VDOC and VDCE will provide a Qualified Interpreter to interpret Adult Basic Education classes. · The determination of what form of Auxiliary Aids and Services is appropriate will depend on a request by the Deaf in_mate for such services and any input by the Instructor ofthe class.
2. VDCE Community College Courses
The VDOC in conjunction with VDCE, will provide Deaf inmates with written materials and open or closed captioned educational materials where available. In addition, and as necessary, VDOC and VDCE will provide a Qualified Interpreter to interpret Community College classes. The determination of what form of Auxiliary Aids and Services is appropriate will depend on a request by t.1e Deaf inmate for such services and a.."ly input by the L'lstructor of the class.
3. Vocational Programs
VDOC, in conjunction with VDCE, will provide a Qualified Interpreter for Vocational Programs on an as needed basis.
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4. VDOC Correctional Enterprises Programs
VDOC will provide a Qualified Interpreter for Correctional Enterprises Programs and meetings on an as needed basis.
5. VDOC Rehabilitative Programs
The VDOC will provide Deaf inmates with written materials and open or closed-captioned
materials where available. In addition, and as necessary, VDOC will provide a Qualified
Interpreter to interpret Rehabilitative programs. The determination to provide a Qualified Interpreter will depend on a request by the Deaf inmate for such services. Rehabilitative programs include such things as anger management classes, parenting classes, sex-offender classes, mandatory pre-release life skills classes, and other similar programs. The determination of what form ofAuxiliary Aids and Services is appropriate will depend on a request by the Deaf inmate for such services and any input by the Instructor of the class.
VDOC will offer sign-language instruction to any inmate who be.comes deaf after incarceration if such instruction is ordered by a medical professional or other expert employed or retained by VDOC.
G. WorkAssignments
VDOC will provide opportunities for institutional work assignments that are consistent with the opportunities for the same assignments given to similarly situated non-Deaf inmates. VDOC retains the discretion to determine that certain work assignments present a Direct Threat ofinjury or death to Deaf inmates and may therefore choose not to provide Deaf inmates substantially equal opportt1t-rities to those work assigru-nents.
H. Religious Services
VDOC shall allow and encourage outside volunteers to provide religious services accessible to Deaf :hJIUates without regard to a volu..'lteer's hearing ability as long as the volu..'1teer meets t.lJ.e same security requirements that are imposed on all other outside volunteers.
No deaf offender will be required to attend a religious service where an interpreter is not provided in order to receive any religious meal, diet, or otherwise offered religious accorru-nodation.
I. Transfer and Classification Matters
VDOC will provide a Qualified Interpreter for any hearings or meetings relating to an inmate's
transfer to another facility or change in security classification or at1y other classification hearing involving the exchange of information between the Deaf inmate and VDOC personnel that could affect the inmate's status.
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J. Transitional Programming- Post-Release Supervision (Including Parole)
VDOC will provide Effective Communication for all Community Corrections supervised postrelease programs and activities. For lengthy or important communications, Effective Communication requires an in person interpreter or VRI.
VII. ADDITIONAL COMMUNICATIONS
VDOC will provide in person or VRI interpreting for any significant communication between inmates and staff that is not specifically discussed in this Agreement. A significant communication includes a communication for which the inmate requests an interpreter, subject to approval by the designated person responsible for coordinating Auxiliary Aids and Services.
VIII. DISCIPLINARY MATTERS
A. Qualified Interpreters For Disciplinary Proceedings
VDOC must provide Deaf inmates with a Qualified Interpreter in any disciplinary proceedings in which that Deaf inmate is a suspect or charged, and which is carried out under Operating Procedure 861 (Offender Discipline) or any replacement or supplemental disciplinary policies and procedures now in force or subsequently adopted by VDOC. A Qualified Interpreter must be available to the Deaf Inmate at the following stages of the above-described disciplinary proceedings:
• Staff investigations involving the exchange of information between the Deaf Inmate suspect and VDOC personnel, prior to filing a Disciplinary Offense Report or equivalent;
• Investigative interviews that involve the exchange of information between a Deaf inmate and VDOC personnel (such as when an adverse party is interviewed);
• Preparation of the Disciplinary Offense Report by the Reporting Officer which involves the exchange of information between the Deaf Inmate suspect and VDOC personnel;
• Supervisory Review of the Disciplinary Offense Report which involves the exchange of information between the Deaf Inmate suspect and VDOC personnel;
• During the Advisement of Rights/Service of the Disciplinary Report/Waiver of Hearing/Penalty Offer Process or equivalent proceedings, which involves the exchange of information between the charged Deaf inmate and VDOC personnel;
• During the Hearing, or any Re-Hearing which involves the exchange of information between the charged Deaf inmate and VDOC personnel. 13

Inmate or staff advisors will be provided to charged Deaf inmates on the same terms as they are provided to charged hearing inmates. Access to an advisor shall be the same for charged Deaf inmates as charged non-Deaf inmates. To the extent that a Deaf inmate has access to his advisor, a Qualified interpreter shall be made available to the Deaf inmate for any exchange of information between the Deaf inmate and his advisor.
B. Disciplinary Offense Reports
If a Disciplinary Offense Report is filed regarding a Deaf inmate and no Qualified Interpreter was provided to the inmate at the time of the pre-Report investigation or incident that led to the Report, the Officer in Charge shall meet with the Deaf inmate in the presence of a Qualified Interpreter to discuss the Report no less than 24 hours prior to when a Disciplinary Hearing has been scheduled.
C. Miscellaneous
If a Deaf inmate is a witness at a disciplinary hearing, VDOC will provide a Qualified Interpreter at the hearing.
VDOC must hold disciplinary hearings for Deaf inmates within the same time frame as it holds disciplinary hearings for non-Deaf inmates.
Nothing precludes a Deaf Inmate who is a suspect or charged with a disciplinary offense, from voluntarily waiving his right to a ~.mlified Interpreter and to proceed throug..h any stage of a disciplinary proceeding without the benefits of a Qualified Interpreter. Nor shall failure of the VDOC to provide a Qualified Interpreter in and of itself constitute a sufficient basis for the charged Deaf Ininate to reverse or overtu.-. n any disciplinary sanction. However, if a deaf offender did not waive his right to a Qualified Interpreter the disciplina..ry hearing must be reheard at a time that an interpreter can be present
IX. VISUAL ALERT NOTIFICATIONS
A. General Policy
Deaf inmates incarcerated at VDOC state correctional facilities should not miss announcements, alarms, or any other auditory information from VDOC staffto the general inmate population solely because oftheir disabilit'j.
B. Relaying Information
VDOC shall provide an effective visual notification system that will notify Deaf inmates of prison wide events and events specific to Deaf inmates. VDOC has t."1e discretion as. to which type ofnotification system it shall employ, and to change that system, as it deems necessary.
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C. Visual Alarms and Emergency Evacuation
VDOC will provide Deaf Inmates with an effective visual notification system which will advise them of an emergency evacuation or other emergency. VDOC has the discretion as to which type ofnotification system it shall employ, and to change that system, as it deems necessary.
VDOC personnel shall be responsible for the evacuation of Deaf inmates during an emergency.
X. TELECOMMUNICATION DEVIC:ES
A. General Policy
VDOC will provide Deaf inmates in its custody with telecommunication devices so that they will have access to communication with people outside of VDOC that is substantially on the same basis as the access to telecommunication VDOC provides inmates who are not Deaf.
B. Monitoring Communications
VDOC may provide for the monitoring of communications between Deaf inmates and individuals outside of VDOC to the same extent and with the same discretion applied to the monitoring of communications between non-Deaf inmates and those outside of VDOC.
C. Additional Time for Communication
VDOC agrees that "equal access" may necessitate access that sometimes appears to be greater access. VDOC will implement a policy that allows Deaf inmates at least twice as many minutes to complete a TTY call as the number of minutes afforded other non-Deaf inmates to make regular phone calls.
D. Technology VDOC Will Provide
VDOC will make the following communication technologies available at its facilities where Deaf inmates are incarcerated to facilitate communication between Deaf inmates and people outside ofVDOC facilities.
This list of technological equipment is not exhaustive. VDOC agrees to keep abreast of evolving technology and to consider adding additional equipment to reflect technological advances, as it deems appropriate.
VDOC state correctional facilities housing Deaf inmates will share a list of communications equipment available to Deaf inmates upon their arrival at the facility.
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1. TTY (teletypewriter) At every VDOC state correctional facility at which a Deaf inmate is incarcerated, VDOC shall provide at least one TTY in the telephone bank of each housing unit where any Deaf inmates are housed. At each facility where a Deaf inmate is incarcerated, VDOC shall keep an additional portable TTY unit for use when the regular TTY is broken or otherwise unavailable.
2. Relay Services VDOC will enable all TTYs to access publicly available relay service phone numbers such as 711 ·and local 1 800 numbers. Inmates will not be charged any more than they currently are for the use of relay services.
3. Videophones VDOC will allow Deaf inmates access to Videophone technology. Access to the Videophone will be made available at times that VDOC will designate. Those times may not be of equal length as access to the TTY. Subject to security concerns such as institutionallockdowns, the videophone generally will be made available during normal business hours. Normal business hours shall mean 8:30a.m.- 5:00p.m. Monday through Friday, excluding holidays. VDOC will also accommodate requests by Deaf inmates to use the videophone during nights and weekends to the best ofits ability. VDOC will enable all Videophones to access publicly available relay service phone nillnbers such as 711 and locall 800 numbers. Videophones will allow voice carry-over relay. On &'1 annual basis, VDOC vJill reevaluate the hours during which access to the Videophones are permitted to determine whether, based on actual usage, weekday, weeknight, or weekend time should be modified. VDOC will continue to investigate means by which Videophones will be made available during the same tjmes as regular telephones.
E. Responsibilit'j for Maintaining Equipment and Training Staff VDOC shall ensure that the technology used to permit communication between Deaf inmates and people outside of VDOC facilities is in working order. VDOC staff shall attempt to resolve complaints about any malfunctioning equipment within a reasonable time of receiving that complaint. VDOC will also ensure that designated staff members are adequately trained in t.h.e operation of the technology.
XI. MEDIA VDOC will ensure that all audio-visual media purchased for inmate use in VDOC facilities housing Deaf inmates includes open or closed captioning.
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Televisions which are purchased by VDOC for inmate use shall support open or closed captioning, and that captioning may be turned on at a Deafinmate's request.
VDOC will permit Deaf inmates to purchase TV's which reliably support open or closed captioning with their own funds. In the event that the closed captioning feature contained on TVs purchased through the facility Commissary malfunctions, VDOC personnel will work with the Deaf inmate to address and resolve the problem.
XII. HAND RESTRAINTS
A. · Off-site Medical Care
VDOC will implement an operating procedure relating to the handcuffmg of Deaf inmates that will, whenever possible, permit Deaf inmates to use their hands for effective communication. That procedure will permit VDOC personnel to consider the needs of a Deaf inmate to use his or her hands for Effective Communication purposes. That procedure will also permit VDOC to consider the use of alternative restraints, such as a stun-belt, in lieu of handcuffs that restrain the hands in a way that prevents Effective Communication. VDOC shall have the ultimate authority relating to decisions about the use/non-use of hand restraints, and whether to keep a Deaf inmate shackled or unshackled. VDOC will vest responsibility for safety and security determinations with a supervisor and not the escorting officer.
B. On-site Medical Care
If a Deaf inmate is permitted to see medical personnel, at a time when for behavioral reasons, his or her hands have been restrained, VDOC personnel will consider the needs of the Deaf inmate to use 1-tis or her hands for Effective Cornmunication purposes. VDOC personnel will also consider the use of alternative restraints, such as a stun-belt, in lieu of ha.11.dcll:ffs that restrain the hands in a way that prevents Effective Communication. VDOC shall have the ultimate authority relating to decisions about the use/non-use of hand restraints, and whether to keep a Deaf inmate shackled or unshackled. VDOC will vest responsibility for safety and security determinations with a supervisor and not the escorting officer.
C. On-site Other Circumstances
If a Deaf inmate is being moved about a facility for any other purpose, at a time when for behavioral reasons, his hands have been restrained, VDOC persow1.el will consider the needs of the Deaf inmate to use his or her hands for Effective Communication purposes. VDOC personnel will also consider the use of alternative restraints, such as a stun-belt, in lieu of handcuffs that restrain the hands in a way that prevents Effective Communication. VDOC shall have the ultimate authority relating to decisions about the use/non-use of hand restraints, and whether to keep a Deaf inmate shackled or unshackled. VDOC will vest responsibility for safety and security determinations with a supervisor.
17

'·
XIII. MISCELLANEOUS AUXILIARY DEVICES
Where devices such as vibrating clocks and in-line amplifiers are not deemed medically necessary, VDOC agrees to consider on a case by case basis, whether it will allow a particular Deaf inmate the opportunity to purchase these devices at his or her own expense. VDOC's decision in this regard will also consider whether these devices pose a security risk VDOC shall have the discretion to make the determination whether any of these devices, and the type of device, is permissible. VDOC agrees to allow Deaf inmates to purchase headphones, in-line amplifiers/equalizers, and televisions that meet the particular needs of their disability from an approved vendor so long as the items do not pose a security risk. VDOC retains the discretion to limit purchases to devices available through the Commissary. Deaf inmates may submit a request in writing to the ADA Coordinator requesting devices not available from the Commissary. VDOC will not deny a Deaf inmate the right to purchase these devices except where they present a documentable security risk. The ADA Coordinator will maintain records of all Deaf inmate requests for these devices and the outcome ofthe request.
XIV. TRAINING
A. General Policy
VDOC, in conjunction with the VDDHH will provide training as defined in Section XIV.B below to all VDOC employees, as defined in this Agreement. VDOC and VDDHH will begin providing this training within three months of the Effective Date of this Agreement, and no less than: annually thereafter. VDOC will incorporate ttJ.s training into its regularly scheduled training for new and existing employees. VDOC may provide this training using in-person training, or via recorded training. VDOC will update the training materials as required by law. VDOC agrees to provide any materials that may be used for training to the Washington Lawyers' Committee for Civil Rights and Urban Affairs prior to the first training session for revie-w and input. All such input will be considered in good faith.
B. VDOC Employees
Within three months of the Effective Date of this Agreement, VDOC in conjunction with VDDHH will begin training VDOC employees as that term is defined in this Agreement. Training will include the following topics:
• best practices in communicating with Deaf individuals;
• the unique needs and problems encountered by Deaf and late-Deafened individuals;
• identification of communication needs of persons who are Deaf;
• the psychological implications of Deafness and its relationship to interaction with hearing corrections personnel; 18

• the proper use and role of Qualified Interpreters;
• directions about using TTYs, TDDs, Videophones and other equipment currently available at the facility, which facilitates communication with Deafpeople; and
• disciplinary matters, described in Section VIII, and grievance proceedings, described in Section XV.
XV. GRIEVANCES
The ADA Coordinator will review all grievances submitted by Deaf inmates, and responses given to Deaf inmates, whether the grievance is terminated favorably, or unfavorably to the Deaf inmate, to ensure compliance with this Agreement.
ADA Coordinator review under this section is not a part of the VDOC Inmate Grievance Procedure_
XVI. MONITORING AND COMPLIANCE
A. VDDHH Investigation
VDOC will permit, on a semi-annual basis, and for a five-year period following the execution of this Agreement, VDDHH access to each facility in which Deaf Inmates are housed, to conduct an investigation to determine VDOC personnel's treatment of Deaf inmates. Dming this investigation, VDOC will permit VDDHH (1) access to Deaf inmates who are willing to meet with them; (2) access to any Grievances that a Deaf inmate made during the preceding twelvemont.lts, provided t.l).e Deaf iP.mate consents to such disclosure; (3) access to any medical records made during the preceding twelve~months, provided the Deaf inmate consents to such disclosure; (4) access to any non-security logs or other business records which VDOC keeps in the regular course of its business relating to Deaf inmates generally or any given Deaf inmate in particular prepared during the prior twelve month period; and (5) access to equipment provided to or for use by Deaf inmates.
B. Plaintiffs' Counsel Investigation
To the extent Plaintiffs' Counsel maintains a current attorney-client relationship with any Deaf innmte, they shall be provided the same access to that client and to the records relating to that client, as any other attorney with a similar relationship to another non-DeafVDOC inmate.
In addition, and regardless of whether an Attorney-Client relationship exists, on an annual basis for a two-year period following the execution of this Agreement, Plaintiffs' Counsel shall have access to each facility in which Deaf inmates are housed to conduct an investigation to determine VDOC personnel's treatment of Deaf inmates. Dming this investigation, VDOC will permit Plaintiffs' Counsel (1) access to Deaf inmates who are willing to meet with them; (2) access to
19

any Grievances that a Deaf inmate made during the preceding twelve months, provided the Deaf inmate consents to such disclosure; (3) access to any medical records made during the preceding twelve-months, provided the Deaf inmate consents to such disclosure; (4) access to any nonsecurity logs or other business records which VDOC keeps in the regular course of its business relating to Deaf inmates generally or any given Deaf inmate in particular prepared during the prior twelve month period; and (5) access to equipment provided to or for use by Deaf inmates.
XVII. NOTICE TO CURRENT INMATES OF AGREEMENT.
Within 30 days of the Effective Date of this Agreement, VDOC will deliver a copy of this Agreement and a notice to each non-Plaintiff Deaf inmate in its custody. The notice will inform the Deaf inmate of his or her rights under this Agreement to accept a monetary payment as set out in this Agreement in exchange for a release as outlined in Section XVIII.A of this Agreement.
XVTII.RELEASE AND SETTLEMENT OF CLAIMS
A. Release
In consideration of the representations, promises and agreements set forth herein, including the payments as set forth in this Agreement, the sufficiency of which is hereby acknowledged, the Plaintiffs, and any Deaf inmate who accepts a payment under this Agreement and executes a full and complete release, on their behalf and on behalf of their representatives, assignees, heirs, executors, family members, beneficiaries, administrators, successors, and a..11yone acting, or claiming to act on their behalf, hereby releases and forever discharges the Commonwealth of Virginia, its agencies, employees, agents, officials, and their representative, including but not limited to VDOC and VDCE, from any &."ld all claims · at'ld causes of action, lmown and unknown, asserted and unasserted, direct and indirect, and of any kind, nature or description whatsoever, which they had on or before the date of the execution of this Agreement arising out of the facts set forth in the discrimination charge they filed with the U.S. District Court for the Eastern District of Virginia, Alexandria Division, except for the claim for an interpreter for weekly religious services at Powhatan Correctional Center brought by plaintiff Larry More.
B. Dismissal
The plaintiffs agree to dismiss with prejudice all claims of the Amended Complaint filed with the U.S. District Court, Eastern District of Virginia, Alexandria Division, Case Number 1:10-cv-96, except for the claim for an interpreter for weekly religious services at Powhatan Correctional Center brought by plaintiff Larry More, which the parties agree to dismiss without prejudice. The parties agree that, if a claim for an interpreter for weekly religious services at Powhatan Correctional Center is brought by Larry More in the future, the Defendants will not raise the defense of lack of exhaustion.
20

The parties agree that the Eastern District ofVirginia shall retain jurisdiction over this settlement contract as set out in Subsection E ofthis Section.
C. Attorneys' Fees, Costs, Disbursements and Expenses
In settlement of all of Plaintiffs' claims arising out of their encounters with VDOC and VDCE up to and including the Effective Date, including any claims for attorney fees and costs, any disbursements and expenses, including experts fees incurred on behalf of Plaintiffs in this litigation, the parties agree that within sixty days of the Effective Date of this Agreement, VDOC shall pay plaintiffs' counsel $248,476.21.
Counsel who brings an enforcement action on behalf of a Deaf inmate pursuant to Subsection E in this Section, and who obtains a judgment against VDOC or VDCE, will only be entitled to attorneys fees starting from the date ofthe filing of the enforcement action, and only at an houriy rate limited to 150% of the hourly rate established under 18 U.S.C.S. § 3006A, regardless of jurisdiction ofthe suit.
D. Damages
Within sixty days of the Effective Date of this Agreement, VDOC shall pay each named plaintiff $750 in damages, provided each plaintiff shall execute a full and complete release of all claims. VDOC also agrees to pay within sixty days of the Effective Date of this Agreement all other Deaf inmates incarcerated in a VDOC facility, as of the date of this Agreement, the sum of $250 in damages, provided any Deaf inmate accepting this sum, executes a full and complete release as outlined in Section XVIII.A. A list of currently incarcerated Deaf inmates is attached, and aclmowledged by the parties to be full and complete.
E. Enforcement Powers
Only named Plaintiffs or Deaf inmates who are incarcerated in a VDOC facility as of the date of this Agreement, and who have received a payment for damages and executed a full and complete release of claims in t.llls case, can maintain an action for breach of this Agreement, no other person shall be considered a third-party beneficiary ofthis Agreement.
1. Pursuant to 18 U.S.C. §3626(c)(2), during the term of the Agreement, plaintiffs may move the court for reinstatement of the lawsuit, or may elect to proceed in state court and seek specific performance or institute an action for breach subject to notification as set forth in paragraph 2 of this Subsection. An action to enforce this Agreement does not include any action for damages. A Deaf inmate seeking to enforce this Agreement in state court can only seek to have a court order VDOC or VDCE to comply with the terms of this Agreement.
2. The lawsuit may not be reinstated, nor a ciaim for breach or specific performance of this Agreement brought, before the Deaf inmate first notifies VDOC or VDCE of the nature of the alleged material non-compliance, and gives VDOC or VDCE 60 days to investigate and/or cure
21

the alleged breach. The parties agree to non-binding mediation prior to any plaintiff moving to reinstate the lawsuit or filing an enforcement action in state court.
XIX. MISCELLANEOUS PROVISIONS
A. Non-Admission
It is understood and agreed that this Agreement is a compromise of a disputed claim, facts, and allegations. Nothing in this Agreement constitutes an admission of any liability, wrongdoing, or violation of any law, or the admission ofthe validity of any defense.
B. Private Settlement Agreement
This Agreement is a private settlement agreement within the meaning of 18 U.S.C. § 3626.
C. Confidentiality
No part of this Agreement is or will be considered confidential by the parties. This Agreement will be made available by request tinder the Freedom of Information Act.
D. Entire Agreement
This Agreement constitutes the entire Agreement between the parties. There were no inducements or representations leading to the execution of this document, except as stated within the document itself. The terms ofthis Agreement are contractual in nature.
E. Binding
This Agreement is fmal and binding oil the Parties, and any Deaf inmate who receives payment for damages and executes a full and complete release, including all principals, agents, executors, administrators, representatives, successors in interest, beneficiaries, assigns, heirs, and legal representatives thereof. Each Party has a duty to so inform any such successor in interest.
F. Non-Waiver
Failure by the plaintiffs or any Deaf inmate who receives payment for damages and executed a full and complete release to seek enforcement of this Agreement pursuant to its terms with respect to any instance or provision will not be construed as a waiver to such enforcement with regard to other instances or provisions.
G. Severability
In the event that a court determines that any provision of this Agreement is unenforceable, such provision will be severed from this Agreement and all other provisions will remain valid and enforceable, provided however that if the severance of any such provision materially alters the
22

rights or obligations of the Parties hereunder, the Parties will attempt, through reasonable, good faith negotiations, to agree upon such other amendments to this Agreement as may be necessary to restore the Parties as closely as possible to the relative rights and obligations initially intended by them hereunder.
H. Term of Agreement
This Agreement shall remain in effect for 5 years from the Effective Date.

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Table of Contents

I. DEFINITIONS ................................................................................................................................................. 1

II. GENERAl POLICIES........................................................................................................................................ 3

A. NON-DISCRIMINATION BASED ON DISABILITY ............................................................................................................ 3 B. ADA COORDINATOR AND AUXILIARY AIDS AND SERVICES DESIGNEES ............................................................................ 3

III.

INITIAL CLASSIFICATION, ASSESSMENT, AND ASSIGNMENT ..................................................................... 4

A. GENERAl POLICY ................................................................................................................................................. 4

B. HEARING AsSESSMENT ..............................::.......................................................................................................... 4

c.

AUXIliARY AIDS AND SERVICES ASSESSMENT............................................................................................................. 4

D. ENSURING STAFF AWARENESS THROUGH IDENTIFICATION CARDS ................................................................................. 4

E.

INTERPRETATION OF WRITTEN MATERIALS ............................................................................................................... 5

F.

CREATION AND INTERPRETATION OF RIGHTS MATERIALS ............................................................................................. 5

G. CONTINUATION OF PROVISION OF AUXILIARY AIDS AND SERVICES ................................................................................. 6

H. SUBSEQUENT NEED FORACCOMMODATIONS ....................................,....................................................................... 6

IV.

HOUSING ................................................................................................................................................. 6

A. GENERAL POLICY ...................................~ ............................................................................................................. 6
B. SCHEDULE OF ACCOMMODATIONS .......................................................................................................................... 6

v. PROVISION OF AUXILIARY AIDS AND SERVICES ............................................................................................ 7

A. GENERAL POLICY ...........................................................................................................................:..................... 7

B.

MEDICAL DEVICES ............................................................................................................................................... 7

c.

MAINTENANCE OF AUXILIARY AlDS AND SERVICES...................................................................................................... 8

VI.

QUALIFIED SIGN LANGUAGE INTERPRETERS ............................................................................................ 8

A. CONTRACTS ........................................................................................................................................................ 8

B.

GENERAL POliCY .................................................................................................................................................. 8

c.

OTHER MEANS OF COMMUNICAilbN·........................................................,............................................................. 9

1. General policy ............................................................................................................................................ 9 2. Video Remote Interpreting (VRI) .......................................................................~ ........................................ 9 3. Written Notes ............................................................................................................................................ 9

"Ll. ONSITE MEDICAL CARE....................................................................................................................................... 10
1. General Policy .......................................................................................................................................... 10 2. Informing Appropriate Medical Staff....................................................................................................... 10

3. Scheduling Medical Appointments with Interpreters .............................................................................. 10

4. Emergency Events .................................................................................................................................... 10

E.

0FFSITE MEDICAL CARE...................................................................................................................................... 11

F.

EDUCATIONAL, VOCATIONAL AND REHABILITATIVE PROGRAMMING ............................................................................ 11

1. VDCE Adult Basic Education ..................................................................................................................... 11

2. VDCE Community College Courses ........................................................................................................... 11

3. Vocational Programs ...............................................;............................................................................... 11

4. VDOC Correctional Enterprises Programs ................................................................................................ 12

5. VDOC Rehabilitative Programs ................................................................................................................ 12 G. WORKASSIGNMENTS......................................................................................................................................... 12
H. RELIGIOUS SERVICES .......................................................................................................................................... 12

24

I.

TRANSFER AND CLASSIFICATION MATTERS •..••••...••••••••••••••••••••••••••••••.•..••.••.••••••••••••••••.••••.•.•••.••..•••.••••••.•••••••..•••...•• 12

J.

TRANSITIONAL PROGRAMMING- POST~RELEASE SUPERVISION (INCLUDING PAROLE) •••••••.•.•..•••••.•••.•••.••••.•.•••••••..•••.•••• 13

VTI. ADDITIONAL COMMUNICATIONS .......................................................................................................... 13

VTII.
A. B. C.

DISCIPLINARY MATTERS......................................................................................................................... 13
QUALIFIED INTERPRETERS FOR DISCIPliNARY PROCEEDINGS....................................................................................... 13 DISCIPLINARY OFFENSE REPORTS .......................................................................................................................... 14 MISCELLANEOUS ............................................................................................................................................... 14

IX.

VISUAL ALERT NOTIFICATIONS............................................................................................................... 14

A.

GENERAL POLICY ............................................................................................................................................... 14

B.

RELAYING INFORMATION .................................................................................................................................... 14

C.

VISUAL ALARMS AND EMERGENCY EVACUATION...................................................................................................... 15

X. TELECOMMUNICATION DEVICES ..................................................................................,............................. 15

A.

GENERAL POLICY ..........................: .................................................................................................................... 15

B.

MONITORING COMMUNICATION$........................................................................................................:................ 15

c.

ADDITIONAL TIME FOR COMMUNICATION .............................................................................................................. 15

D.

TECHNOLOGY VDOC WILL PROVIDE ..................................................................................................................... 15

1. TTY (teletypewriter) ................................................................................................................................. 16

2. Relay SeJVices........................................................................................................................................... 16

3. Videophones ............................................................................................................................................ 16

E.

RESPONSIBILITY FOR MAINTAINING EQUIPMENT AND TRAINING STAFF......................................................................... 16

XI.
XIL
A.
B.
c.

M E D I A.................................................................................................................................................... 1 6
HAND RESTRAINTS ................................................................................................................................. 17
OFF~SITE MEDICAL CARE .................................................................................................................................... 17 ON-SITE MEpiCAL CARE ...................................................................................................................................... 17 ON-SiTE OTHER CiRCUMSTANCES ......................................................................................................................... 17

XIII. MISCELLANEOUS AUXILIARY DEVICES .................................................................................................... 18

XIV.
A. B.

TRAINING............................................................................................................................................... 18
GENERAL POLICY ..................,............................................................................................................................ 18 VDOC EMPLOYEES ............................................................................................................................................ 18

XV.
XVI.
A. B.

GRIEVANCES ...........................................................................................................................................19
MONITORING AND COMPUANCE..........,........................~....................................................................... 19
VDDHH INVESTIGATION .................................................................................................................................... 19 PLAINTIFFS' COUNSEL iNVESTIGATION ................................................................................................................... 19

XVII. NOTICE TO CURRENT INMATES OF AGREEMENT.................................................................................... 20

XVIII.

RELEASE AND SElTLEMENT OF CLAIMS ............................................................................................. 20

A.

RELEASE .......................................................................................................................................................... 20

B.

DISMISSAL. ....................................................................................................................................................... 20

c.

ATTORNEYS' FEES, COSTS, DISBURSEMENTS AND EXPENSES....................................................................................... 21

D.

DAMAGES ........................................................."............................................................................................... 21

25

E.
XIX.
A.
B. C. D. E. F. G. H.

ENFORCEMENT POWERS ..................................................................................................................................... 21
MISCELLANEOUS PROVISIONS ............................................................................................................... 22
NON-ADMISSION .............................................................................................................................................. 22 PRIVATE SETTLEMENT AGREEMENT....................................................................................................................... 22 CONFIDENTIALITY .............................................................................................................................................. 22 ENTIRE AGREEMENT .......................................................................................................................................... 22 BtiiiDING .......................................................................................................................................................... 22 NON-WAIVER................................................................................................................................................... 22 SEVERABILITY.................................................................................................................................................... 22
TERM OF AGREEMENT ........................................................................................................................................ 23

26

 
 Interpretation and Communication Assistance

Document Number:1302 Document Owner: Larry Little Author: Vilma Seymour
General Description

Procedure Policy

Revision #: Date Last Updated: 08/06/2010 Status: In Development

Scope: Patients, their family members or personal representatives who need assistance communicating with staff members regarding health care issues due to vision, speech, hearing or cognitive impairments.

Purpose: To provide instructions for staff on how to access communication assistance services.
Who Performs: All VCUHS staff When to Perform: Once a staff member becomes aware that a patient, their family member or personal
representative is in need of communication assistance.

Requirements
Definitions: Communication Aid Anything which assists with facilitating communication to include foreign or sign language interpretation, as well as devices such as magnifiers or hearing aid compatible phones.
OCL Office of Communication and Language Services
Off-Hours Monday-Friday before 8:00 a.m. and after 4:00 p.m., Weekends, Federal and State Holidays.
Personal Representative An individual who has the legal authority to exercise a patient's rights with respect to health care including, but not limited to, health care decision-making or access to the patient's health information.
Vital Documents Informed Consent, Discharge Instructions and Advance Directives
Forms/Documents Request Forms for on-site foreign language or American Sign Language interperters, document translation or Video Interpreter Service are available on the Office of Communication and Language Service website.

Virginia Commonwealth University Health System (VCUHS) Page 1 of 6

Status: In Development Printed: 08/06/2010

1302 Interpretation and Communication Assistance

Revision #: Updated: 08/06/2010

OCL will submit an annual report to the Director of Regulatory Affairs detailing the hospital's use of interpreters and communication aids.
Other Items Staff responsible for providing health care services will be trained on the use of the Video Interpreter Service at orientation and annually thereafter.

Warnings and Precautions
Attention: A. It is not a violation of HIPAA to provide patient information to certified interpreters. B. On-site foreign language interpreter requests must be made at least 24 hours in advance to ensure greater availability. C. On-site sign language interpreter requests must be made at least three (3) days in advance to ensure greater availability.

Please be aware: A. All hospital provided on-site foreign language interpreters must be have a certificate of
completion of Medical Interpreter Competency training (MIC) on file with OCL. B. All hospital provided on-site sign language interpreters must have certification on file with
the Virginia Department of Deaf and Hard of Hearing (VDDHH). C. Staff will not translate health care information while on duty unless they have successfully
completed MIC training. (See Attachment-MIC Certification Information) D. Staff who have a MIC certificate on file with OCL do not need to to have another interpreter
present when discussing or translating health care information with someone who speaks their target language.

Detailed Steps
A. Identification of Need

1. All patients will be asked/assessed as to any communication needs during registration/admission and the answer entered into the appropriate field in IDX or Cerner.

2. Communication needs which develop or are discovered during treatment will also be entered into the patient's medical record.

3. If Communication Aids are needed/requested, staff will provide notification that: a. Communication Aids are provided at no cost and b. VCUHS discourages the use of family members or friends as interpreters.

4. If a patient does not want to use a trained interpreter and/or other Communication Aid , staff will document refusal in the medical record.

NOTE: Staff should offer communication assistance for each new visit/admission as a refusal of a communication aid for one visit does not necessarily mean refusal for all future visits or admissions.

5. Staff may insist upon the use of a hospital interpreter or Communication Aid if it is determined by the provider to be in the best interest of the patient. It is suggested that staff use Communication Aids when: · discussing Vital Documents, "Do Not Resuscitate" orders, end of life care, treatment options, diagnosis or prognosis · obtaining a History and Physical or medication reconciliation · staff determine that it is appropriate due to the sensitive or complex nature of the information

Virginia Commonwealth University Health System (VCUHS) Page 2 of 6

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1302 Interpretation and Communication Assistance

Revision #: Updated: 08/06/2010

B. Non-English Speaking
1. How to request a hospital interpreter a. Less than 24 hours notice of need for interpreter 1) Between 8 a.m. and 4 p.m. call OCL at 628-1116 2) During Off Hours call one of the PRN On-Site Foreign Language Interpreters listed on "Communication and Language Services" intranet site.
b. 24 hours or greater notice of need for interpreter 1) Go to "Communication and Language Services" intranet site. 2) Click on "Request Forms" on the Left side of the screen. 3) Submit request form for "On-Site Foreign Language Interpreter".
2. If an on-site hospital interpreter is not available a. Staff will use the blue dual hand-set Cyracom interpreter phone or other similar system, approved for their area. 1) Every clinic and unit will have at least one interpreter phone available for use. 2) To obtain an interpreter phone system go to the "Request Forms" link on the "Communication and Language" site and click on "Request Forms".
b. Staff will use their best efforts to provide the most effective communication possible until an appropriate interpreter is available.
3. Required Documentation a. Staff will document their attempts to obtain an interpreter and the results.
b. When using an on-site or telephone interpreter, staff will note in the medical record: 1) interpreter's name, 2) identification number, if phone, and
3) nature of the communication
c. All consent forms must contain the signature, printed name and contact information of the interpreter providing sight translation. By signing the interpreter is stating that they have translated this document to the best of their ability.
4. Translation of Documents a. Free translated Vital Documents are available from OCL with advance notice, and will be offered to individuals who need them. To have documents translated: 1) Go to "Communication and Language Services" intranet site. 2) Click on "Request Forms" on the Left side of the screen. 3) Submit request form for "Document Translation".
b. OCL coordinates the translation of all Vital Documents as well as the following: · Medical Record Forms · VCUHS required signage · Marketing materials · any document intended for patient information or education
Trained interpreters may directly translate simple instructions such as those for discharge or patient care.
.

Virginia Commonwealth University Health System (VCUHS) Page 3 of 6

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1302 Interpretation and Communication Assistance

Revision #: Updated: 08/06/2010

C. Deaf or Hearing Impaired using sign language
Please Note: VCUHS is only able to access interpreters for American Sign Language and Cued Speech.
Dial 711 to call and speak with patients who have a TTY or similar device.
1. How to request a hospital interpreter a. Three (3) days notice or greater of need for an interpreter 1) Go to "Communication and Language Services" intranet site. 2) Click on "Request Forms" on the Left side of the screen. 3) Submit request form for "Sign Language Interpreter".
b. Less than Three (3) days notice of need for an interpreter 1) Between 8 a.m. and 4 p.m., call OCL at 628-1116. 2) During Off Hours staff need to call a sign language interpreter directly. Contact information for interpreters is on the "Communication and Language Service" intranet site under "Sign Language Interpreters".
c. If an interpreter is scheduled but has not yet arrived, staff may use the Video Interpreter Service, but only until the interpreter is available.
2. If an on-site hospital interpreter is not available a. After best efforts have been made to obtain an on-site interpreter and no one is available, staff will then use the Video Interpreter Service (VIS) for sign language interpretation.
b. Video Interpreter Service is not appropriate in some circumstances. An on-site interpreter should be used if at all possible for individuals: · who have limited ability to move their heads, hands or arms · who have cognitive or consciousness issues · who are to be treated in rooms where space issues preclude use of Video Interpreter Service
c. How to request a Video Interpreter Service monitor. 1) Video Interpreter Service is available seven (7) days a week, twenty-four (24) hours a day and is available for use on short notice for emergency situations.
a) Between 8 a.m. and 4 p.m. i. Go to "Communication and Language Services" intranet site. ii. Click on "Request Forms" on the Left side of the screen. iii. Submit request form for "Sign Language Video Conferencing" iv. The video unit should be delivered within the hour.
b) During Off Hours call Service Response at 628-4772. The video unit should be delivered within 90 minutes and a Biomedical Engineering employee will set up the device.
2) For technical problems with the unit call Biomedical Engineering at 628-4772.
3) Biomedical Engineering and the vendor will maintain the system to ensure that the device provides a clear picture of the interpreter and deaf individual's head, arms, hands and fingers and that voices being transmitted are clear and easily understood.
. .

Virginia Commonwealth University Health System (VCUHS) Page 4 of 6

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1302 Interpretation and Communication Assistance

Revision #: Updated: 08/06/2010

3. If an on-site hospital interpreter and a video conferencing monitor are not available · If after best efforts have been made and staff are unable to provide an on-site interpreter and VIS is inappropriate or unavailable, ONLY THEN is communication through note writing appropriate.
4. Required Documentation a. Staff will document their attempts to obtain an interpreter and the results.
b. When using an on-site or video interpreter, staff will note in the medical record: 1) interpreters name and 2) nature of the communication.
c. All consent forms must contain the signature, printed name and contact information of the interpreter. By signing the interpreter is stating that they have translated this document to the best of their ability.
5. Translation of Documents · Free American Sign Language or Cued speech translation ofvital documents is available through on-site interpreters. See #1 above, "How to request a hospital interpreter".

D. Deaf or Hearing Impaired not using sign language
1. TTY devices and hearing aid compatible amplified telephones are available from the Service Response Center, call 628-2447.
2. Call 711 to call and speak with patients who have a TTY or similar device.
3. All patient televisions should have a Closed Caption option available, for assistance contact the Service Response Center.

E. Blind or Vision Impaired F. Speech Impaired G. Cognitively Impaired

Troubleshooting
Common Problems: Patient's who need language assistance when making clinic appointments should contact the Call Center at 828-7069.
For Clinics which do not use the Call Center access to a telephone interpreter can be set up by OCL, please contact them at 628-1116. How to get help: For problems with Video Interpreter Service call the Service Response Center at 628-4772.

Virginia Commonwealth University Health System (VCUHS) Page 5 of 6

Status: In Development Printed: 08/06/2010

1302 Interpretation and Communication Assistance

Revision #: Updated: 08/06/2010

Attachments

MCI Certification Information
Medical Interpreter Competency Training

VCU Health System Office of Language Services offers two interpreter training porgrams.

For more information go to the Office of Communication and Language Services intranet site

and click on “Education” on the Left of the screen.

Virginia Commonwealth University Health System (VCUHS) Page 6 of 6

Status: In Development Printed: 08/06/2010

 
 SETTLEMENT AND RELEASE AGREEMENT This Settlement and Release Agreement (the "Agreement") is entered into, effective as of the _.____.~day of September, 2010 (the "Effective Date"), by, between, and among Virginia Commonwealth University Health System Authority (hereafter "VCUHSA"), the Medical College of Virginia Hospitals (hereafter "MCVH"), Sheldon Retchin, M.D., CEO, VCUHSA, John Duval, CEO, MCVH, Deborah Davis, COO, MCVH; and Amanda Dodd, Manager of Guest Services, MCVH (collectively the "Davis Defendants" or "Defendants") and Gary Minnis, Larry More, David Richardson, Ronald Roman, Delonte Tinsley, Wolfjunge Wolfsburger and the individuals identified on Schedule A attached hereto (collectively, "Plaintiffs"). The Davis Defendants and Plaintiffs are hereinafter collectively referred to as the "Parties." WHEREAS, Plaintiffs have asserted claims against the Davis Defendants in the case styled Gary Minnis, et al. v. Gene Johnson, et al., Case No. 1:1 Ocv96, pending in the United States District Court for the Eastern District of Virginia, Alexandria Division ("the Lawsuit"); WHEREAS, the Davis Defendants have contested those claims and deny that Plaintiffs have any legitimate claim against them or that they have any liability whatsoever to the Plaintiffs; WHEREAS, the Parties desire to amicably resolve their dispute without further legal proceedings. NOW, THEREFORE, in consideration of the foregoing recitals, the mutual covenants and representations set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows: 1. Within thirty (30) days ofthe Effective Date, the Davis Defendants shall pay to Plaintiffs the sum of$2,500.00 (Two Thousand Five Hundred United States Dollars), which

payment shall be solely for purposes of amicably resolving the Lawsuit and not constitute an
admission or acknowledgement of any wrongdoing or liability by any of the Davis Defendants.
2. Within thirty (30) days ofthe Effective Date, the Davis Defendants shall pay to
Plaintiffs' attorneys the sum of $35,000.00 (Thirty-Five Thousand United States Dollars), which
payment shall be solely for purposes of reimbursing attorneys' fees and in order to amicably
resolve the Lawsuit and shall not constitute an admission or acknowledgement of any
wrongdoing or liability by any of the Davis Defendants.
3. Immediately upon receipt of the payments set forth herein under paragraphs 1 and
2 of this Agreement, Plaintiffs shall dismiss the Defendants from the Lawsuit with prejudice.
Neither Plaintiffs nor any of their attorneys or agents shall seek to obtain any further
reimbursement of attorneys' fees or costs from the Davis Defendants whether by petition under
statutory authority or otherwise.
4. The Davis Defendants shall:
a. Amend the VCUHSA policy addressing Communications and Language Access Services for Patients and/or Their Companions (Policy No. 1302.01) to provide for the translation of vital documents related to the health care of a deaf or hearing-impaired patient by a Qualified Interpreter;
b. Amend the VCUHSA policy addressing Communications and Language Access Services for Patients and/or Their Companions (Policy No. 1302.01) to address the use of video interpreting services (VIS), such provisions to include, without limitation, that VIS should be used as the first alternative to an in-person Qualified Interpreter, the conditions under which VIS should not be utilized and that the VIS used by VCUHSA shall use qualified interpreters (Policy No. 1302.01, as amended, is attached to this Agreement as Attachment 1);
c. Distribute the amended policy by email notification to managers, directors and vice-presidents with an instruction to inform all staff members of the change in policy;
d. Provide a resource trained in the technology and the appropriate use of VIS to assist VCUHSA and MCVH staff utilizing VIS services, such resource to be available on a 24 hour/7 day per week basis;

e. Provide training for staff in the use of VIS services, including, without limitation, training for staff providing health care services in the Secure Care Unit ("SCU") (the "Orange room"), such training to occur as often as necessary to maintain staff competence in the
use of VIS, but not less than annually;

f.

Identify a point of contact ("POC") for complaints regarding

accommodations made for deaf and hearing-impaired inmate patients, such POC to be identified

in written materials available in the SCU and trained in the VCUHSA policy addressing

Communications and Language Access Services for Patients and/or Their Companions (Policy

No. 1302.01);

g. Publish information concerning the accommodations available for deaf or hearing-impaired inmate patients in written materials (the "publications"), such information to include the identification of the POC for complaints concerning such accommodations or lack thereof, the phone number for contacting the POC, such publications to be available in the SCU and to be reviewed and revised by VCUHSA and MCVH staff as often as necessary to keep
them up to date, and;

h. Review the information and records concerning the provision of medical services to deaf and hearing-impaired inmate patients at MCVH in the last 5 years (More, Roman, Richardson and Branch (aka Wolfsburger)) and identify, if applicable, and address, if necessary, any systemic issues attendant to the accommodations provided to such patients and to certify, by letter to counsel for plaintiffs, completion of such process within 60 days of the
Effective Date.

5. The Davis Defendants acknowledge and agree that the VCUHSA policy

addressing Communications and Language Access Services for Patients and/or Their

Companions (Policy No. 1302.01) (including, without limitation, that portion of the policy

requiring that "All identified [Limited English Proficiency] patients will have their preferred

language entered in the VCUHS registration system and in their medical record.") applies to

patients who are incarcerated with the Virginia Department of Corrections and they shall

endeavor to apply the policy to such patients to its fullest extent, consistent with any security

constraints imposed by the Department of Corrections or necessitated by each such patient's

status as an incarcerated person.

6. Nothing in this Agreement shall constitute an admission that any of the plaintiffs

executing this Agreement is a person with a disability.

7. Plaintiffs agree that, should litigation of this Lawsuit continue against other defendants after the Effective Date, they will not take and will not seek to take any deposition of the senior executive leadership ofVCUHSA or MCVH, including without limitation, Sheldon Retchin, M.D., Deborah Davis, and John Duval. Defendants agree that depositions of non-senior executive employees of VCUHSA and MCVH, including without limitation, any employees directly involved in providing care for or making arrangements to accommodate Plaintiffs, are not covered by this Agreement.
8. As of the Effective Date of this Agreement, Plaintiffs, each on his own behalf and on behalf of his agents, heirs, successors, executors, administrators, and assigns, unconditionally and irrevocably releases and forever discharges the Davis Defendants and each of their present and former parents, subsidiaries, affiliates, and related entities, and their officers, directors, shareholders, partners, employees, agents, servants, representatives, insurers, and attorneys, together with the heirs, agents, predecessors, successors, executors, administrators, assigns and transferees of each of them, of and from any and all claims and causes of action of any kind or nature whatsoever, whether known or unknown, complete or incomplete, absolute or contingent, and whether arising under the common law, equity, statute, or otherwise, that arise out of or relate in any way to any transaction, occurrence, event, act, omission, business relationship, agreement, understanding or statement occurring up to and including the Effective Date, that arise out of or relate in any way to the subject matter of the Lawsuit. This release does not apply to any claims that arise from or relate to events occurring after the Effective Date, including, but not limited to, a claim for breach of this Agreement.
9. No action to enforce this Agreement may be prosecuted unless the Defendant or Defendants in breach have been provided with written notice of the breach and have failed to

cure such breach within forty-five (45) days after receipt of such notice. Should Plaintiff or Plaintiffs secure a judgment of breach of this Agreement by a Defendant or Defendants, such judgment shall also include, in addition to any other relief or damages awarded, the costs of such action, including reasonable attorneys' fees.
10. This Agreement contains the entire agreement among the Parties with respect to the settlement described herein. There are no other understandings, representations, or agreements, oral or otherwise, between the Parties. The Parties acknowledge that this Agreement is made to resolve disputed legal and factual issues, and that they have not relied upon any statements or representations by any other party or its employees, agents, representatives, or attorneys, other than those contained in this Agreement, in accepting this Agreement.
11. This Agreement is a compromise of disputed claims and neither the existence of this Agreement nor any its terms and conditions, nor any obligation of any Party, should be construed as an admission of liability on the part of any Party.
12. By signing this Agreement, each Party represents and warrants that this Agreement is authorized, that the Agreement has been read and understood by that Party, and that the Agreement is being entered into by that Party of its own free will. Each Party also waives any claim that any Party did not understand, duly approve, or authorize this Agreement.
13. This Agreement cannot be amended or changed except by a written agreement executed by the Parties.
14. If any part of this Agreement is deemed to be invalid in any court of law, the remaining provisions shall remain in full force and effect and may be enforced in accordance with the provisions hereof, provided, however, that if the severance of any part of this

Agreement materially alters the rights or obligation of the Parties hereunder, the Parties will, through reasonable, good faith negotiations, agree upon such other amendments to this Agreement as may be necessary to restore the Parties as closely as possible to the relative rights and obligations initially intended by them hereunder.
15. This Agreement was jointly negotiated and drafted by the Parties and their respective counsel and shall not be construed against any Party as the drafter.
16. This Agreement shall bind and inure to the benefit of each Party, its successors, heirs, executors, assigns, transferees, parents, affiliates, stockholders, agents, directors, officers, attorneys, insurers, employees and agents.
17. No failure or delay by any Party in exercising any rights under this Agreement shall result in a waiver of the Agreement or of any rights under this Agreement. Moreover, no single or partial exercise or waiver of any rights under this Agreement shall preclude any other or further exercise of any other rights, powers or privileges under this Agreement.
18. Each Party has performed its own independent investigation of the facts of this case and executed this Agreement after the opportunity to consult with counsel.
19. This Agreement may be executed in counterparts, all of which, taken together, shall constitute one agreement binding on all the Parties, notwithstanding that all the Parties are not signatories to the original or the same counterpart.
20. This Agreement, and any construction thereof, shall be governed by Virginia law without resort to principles of conflicts of law. Venue for any action to enforce the terms of this Agreement shall be in a state or federal court of appropriate subject-matter jurisdiction in or for the Commonwealth of Virginia or any of its political subdivisions.

[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]

WHEREFORE, the Parties have executed this Agreement effective as ofthe date set forth

above.

VIRGINIA COMMONWEATLH UNIVERSITY HEALTH SYSTEM AUTHORITY

GARY MINNIS

BY= St.__M 1u2.
ITS: C-f£.0
DATE: Dt It<+ I 10
MEDICAL COLLEGE OF VIRGINIA HOSPITALS

DATE: _________________ LARRY MORE

DATE:________________

~k IT =----------~-----------
DATE:

DAVID RICHARDSON

DATE: '1 I,~/ l'O

DATE:________________

8

JOHN DUVAL
DATE: 7_i~Lv 7

RONALD ROMAN
DATE:_ _ _ _ _ _ _ _ __ DELONTE TINSLEY

DATE:_ _:_q___,-I:....__Lf.L._-_.!,.)-=-0_.- - -

DATE:. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _

~\=~D&D.&

WOLFJUNGE WOLFSBURGER

DATE:.____________________

DATE:__________________

DATE: _ _ _ _ _ _ _ _ _ _ _ __

9

WHEREFORE, the Parties have executed this Agreement effective as of the date set forth

above.

VIRGINIA COMMONWEATLH UNIVERSITY HEALTH SYSTEM AUTHORITY

GARY MINNIS

BY:________________________
ITS: ________________________

¥ - / DATE:

;2t7/ j

/

DATE:_ _ _ _ _ _ _ _ _ _ __

MEDICAL COLLEGE OF VIRGINIA HOSPITALS

LARRY MORE

BY: ________________________

ITS: ________________________

DATE:_ _ _ _ _ _ _ _ _ _ __

SHELDON RETCHIN, M.D.

DAVID RICHARDSON

DATE:_ _ _ _ _ _ _ _ _ _ __

DATE: Ol{)

JOHN DUVAL

DATE:_ _ _ _ _ _ _ _ __ DEBORAH DAVIS
DATE:_ _ _ _ _ _ _ _ __ AMANDA DODD

DELONTE TINSLEY

D!/i{H')t~ ../ k;:Jn~/

b
DATE: <S~Ai-6 ~/,.,. (/

/''
I JD J/)
)

WOLFJUNGE WOLFSBURGER a!k/a TONY BRANCH

DATE:_ _ _ _ _ _ _ _ __

DATE:_ _ _ _ _ _ _ _ __

DATE:_ _ _ _ _ _ _ _ __

DATE:_ _ _ _ _ _ _ _ __

JOHN DUVAL

RONALD ROMAN

DATE:_ _ _ _ _ _ _ _ __ DEBORAH DAVIS

DATE:_ _ _ _ _ _ _ _ __ DELONTE TINSLEY

DATE:- - - - - - - - - -
AMANDA DODD

DATE:_ _ _ _ _ _ _ _ __

DATE:_ _ _ _ _ _ _ _ __

DATE:_ _ _ _ _ _ _ _ __ DATE:_ _ _ _ _ _ _ _ __

Inmate:

SCHEDULE A Confinement Facility

Michael Branham___________________

Powhatan Correctional Center (PCC)

Vernon Buggs______________________

Powhatan Correctional Center (PCC)

Francis K. Cuffy____________________

Powhatan Correctional Center (PCC)

John C. Farley______________________

Powhatan Correctional Center (PCC)

Russell Grimsley____________________

Powhatan Correctional Center (PCC)

Anthony Neal Person_________________

Powhatan Correctional Center (PCC)

Derrick White_______________________

Powhatan Correctional Center (PCC)

Wesley Chase________________________

Powhatan Correctional Center (PCC)

Jerry Owens_________________________

Powhatan Correctional Center (PCC)

Jason P. Smith________________________

Powhatan Correctional Center (PCC)

Daniel Otten_________________________

Powhatan Correctional Center (PCC)

TTACHME T
1

Interpretation and Communication Assistance

Document Number: 1302 Document Owner: Larry Little Author: Vilma Seymour
General Description

Procedure Policy

Revision#: Date Last Updated: 08/06/2010 Status: In Development

Scope: Patients, their family members orpersonal representatives who need assistance communicating with staff members regarding health care issues due to vision, speech, hearing or cognitive impairments.

Purpose: To provide instructions for staff on how to access communication assistance services.
Who Performs: All VCUHS staff When to Perform: Once a staff member becomes aware that a patient, their family member or personal
representative is in need of communication assistance.

Requirements

Definitions:

Communication Aid Anything which assists with facilitating communication to include foreign or sign language interpretation, as well as devices such as magnifiers or hearing aid compatible phones.

OCL Office of Communication and Language Services

Off-Hours Monday-Friday before 8:00a.m. and after 4:00p.m., Weekends, Federal and State Holidays.

Personal Representative An individual who has the legal authority to exercise a patient's rights with respect to health care including, but not limited to, health care decision-making or access to the patient's health information.
Vital Documents Informed Consent, Discharge Instructions and Advance Directives

Forms/Documents Request Forms for on-site foreign language or American Sign Language interperters, document translation or Video Interpreter Service are available on the Office of Communication and Language Service website.

Virginia Commonwealth University Health System (VCUHS) Page 1 of 6

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1302 Interpretation and Communication Assistance

Revision#: Updated: 08/06/2010

OCL will submit an annual report to the Director of Regulatory Affairs detailing the hospital's use of interpreters and communication aids.
Other Items Staff responsible for providing health care services will be trained on the use ofthe Video Interpreter Service at orientation and annually thereafter.

Warnings and Precautions
Attention: A. It is not a violation ofHIPAA to provide patient information to certified interpreters. B. On-site foreign language interpreter requests must be made at least 24 hours in advance to ensure greater availability. C. On-site sign language interpreter requests must be made at least three (3) days in advance to ensure greater availability.

Please be aware: A. All hospital provided on-site foreign language interpreters must be have a certificate of
completion of Medical Interpreter Competency training (MIC) on file with OCL. B. All hospital provided on-site sign language interpreters must have certification on file with
the Virginia Department of Deaf and Hard of Hearing (VDDHH). C. Staff will not translate health care information while on duty unless they have successfully
completed MIC training. (See Attachment-MIC Certification Information) D. Staff who have a MIC certificate on file with OCL do not need to to have another interpreter
present when discussing or translating health care information with someone who speaks their target language.

Detailed Steps
A. Identification of Need

I. All patients will be asked/assessed as to any communication needs during registration/admission and the answer entered into the appropriate field in IDX or Cerner.

2. Communication needs which develop or are discovered during treatment will also be entered into the patient's medical record.

3. If Communication Aids are needed/requested, staff will provide notification that: a. Communication Aids are provided at no cost and b. VCUHS discourages the use of family members or friends as interpreters.

4. If a patient does not want to use a trained interpreter and/or other Communication Aid, staff will document refusal in the medical record.

NOTE: Staff should offer communication assistance for each new visit/admission as a refusal of a communication aid for one visit does not necessarily mean refusal for all future visits or admissions.

5. Staff may insist upon the use of a hospital interpreter or Communication Aid if it is determined by the provider to be in the best interest of the patient. It is suggested that staff use Communication Aids when: • discussing Vital Documents, "Do Not Resuscitate" orders, end of life care, treatment options, diagnosis or prognosis • obtaining a History and Physical or medication reconciliation • staff determine that it is appropriate due to the sensitive or complex nature of the information

Virginia Commonwealth University Health System (VCUHS) Page 2 of 6

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1302 Interpretation and Communication Assistance

Revision#: Updated: 08/06/2010

B. Non-English Speaking
1. How to request a hospital interpreter a. Less than 24 hours notice of need for interpreter 1) Between 8 a.m. and 4 p.m. call OCL at 628-1116 2) During QffHours call one of the PRN On-Site Foreign Language Interpreters listed on "Communication and Language Services" intranet site.
b. 24 hours or greater notice of need for interpreter 1) Go to "Communication and Language Services" intranet site. 2) Click on "Request Forms" on the Left side of the screen. 3) Submit request form for "On-Site Foreign Language Interpreter".
2. If an on-site hospital interpreter is not available a. Staff will use the blue dual hand-set Cyracom interpreter phone or other similar system, approved for their area. 1) Every clinic and unit will have at least one interpreter phone available for use. 2) To obtain an interpreter phone system go to the "Request Forms" link on the "Communication and Language" site and click on "Request Forms".
b. Staff will use their best efforts to provide the most effective communication possible until an appropriate interpreter is available.
3. Required Documentation a. Staff will document their attempts to obtain an interpreter and the results.
b. When using an on-site or telephone interpreter, staff will note in the medical record: 1) interpreter's name, 2) identification number, if phone, and
3) nature ofthe communication
c. All consent forms must contain the signature, printed name and contact information of the interpreter providing sight translation. By signing the interpreter is stating that they have translated this document to the best of their ability.
4. Translation of Documents a. Free translated Vital Documents are available from OCL with advance notice, and will be offered to individuals who need them. To have documents translated: 1) Go to "Communication and Language Services" intranet site. 2) Click on "Request Forms" on the Left side of the screen. 3) Submit request form for "Document Translation".
b. OCL coordinates the translation of all Vital Documents as well as the following: • Medical Record Forms • VCUHS required signage • Marketing materials " any document intended for patient information or education
Trained interpreters may directly translate simple instructions such as those for discharge or patient care.

Virginia Commonwealth University Health System (VCUHS) Page 3 of 6

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1302 Interpretation and Communication Assistance

Revision#: Updated: 08/06/2010

C. Deaf or Hearing Impaired using sign language
Please Note: VCUHS is only able to access interpreters for American Sign Language and Cued Speech.
Dial 7II to call and speak with patients who have a TTY or similar device.
1. How to request a hospital interpreter a. Three (3) days notice or greater of need for an interpreter I) Go to "Communication and Language Services" intranet site. 2) Click on "Request Forms" on the Left side of the screen. 3) Submit request form for "Sign Language Interpreter".
b. Less than Three (3) days notice of need for an interpreter I) Between 8 a.m. and 4 p.m., call OCL at 628-1I16. 2) During Off Hours staff need to call a sign language interpreter directly. Contact information for interpreters is on the "Communication and Language Service" intranet site under "Sign Language Interpreters".
c. If an interpreter is scheduled but has not yet arrived, staff may use the Video Interpreter Service, but only until the interpreter is available.
2. If an on-site hospital interpreter is not available a. After best efforts have been made to obtain an on-site interpreter and no one is available, staff will then use the Video Interpreter Service (VIS) for sign language interpretation.
b. Video Interpreter Service is not appropriate in some circumstances. An on-site interpreter should be used if at all possible for individuals: • who have limited ability to move their heads, hands or arms • who have cognitive or consciousness issues • who are to be treated in rooms where space issues preclude use of Video Interpreter Service
c. How to request a Video Interpreter Service monitor. I) Video Interpreter Service is available seven (7) days a week, twenty-four (24) hours a day and is available for use on short notice for emergency situations.
a) Between 8 a.m. and 4 p.m. i. Go to "Communication and Language Services" intranet site. ii. Click on "Request Forms" on the Left side of the screen. iii. Submit request form for "Sign Language Video Conferencing" iv. The video unit should be delivered within the hour.
b) During Off Hours call Service Response at 628-4772. The video unit should be delivered within 90 minutes and a Biomedical Engineering employee will set up the device.
2) For technical problems with the unit call Biomedical Engineering at 628-4772.
3) Biomedical Engineering and the vendor will maintain the system to ensure that the device provides a clear picture of the interpreter and deaf individual's head, arms, hands and fingers and that voices being transmitted are clear and easily understood.

Virginia Commonwealth University Health System (VCUHS) Page 4 of 6

Status: In Development Printed: 08/06/201 0

1302 Interpretation and Communication Assistance

Revision#: Updated: 08/06/2010

3. If an on-site hospital interpreter and a video conferencing monitor are not available • If after best efforts have been made and staff are unable to provide an on-site interpreter and VIS is inappropriate or unavailable, ONLY THEN is communication through note writing appropriate.
4. Required Documentation a. Staff will document their attempts to obtain an interpreter and the results.
b. When using an on-site or video interpreter, staff will note in the medical record: I) interpreters name and 2) nature of the communication.
c. All consent forms must contain the signature, printed name and contact information of the interpreter. By signing the interpreter is stating that they have translated this document to the best of their ability.
5. Translation of Documents • Free American Sign Language or Cued speech translation ofvital documents is available through on-site interpreters. See #I above, "How to request a hospital interpreter".

D. Deaf or Hearing Impaired not using sign language I. TTY devices and hearing aid compatible amplified telephones are available from the Service Response Center, call 628-2447. 2. Call 711 to call and speak with patients who have a TTY or similar device. 3. All patient televisions should have a Closed Caption option available, for assistance contact the Service Response Center.
E. Blind or Vision Impaired F. Speech Impaired G. Cognitively Impaired

Troubleshooting
Common Problems: Patient's who need language assistance when making clinic appointments should contact the Call Center at 828-7069.
For Clinics which do not use the Call Center access to a telephone interpreter can be set up by OCL, please contact them at 628-1116.
How to get help: For problems with Video Interpreter Service call the Service Response Center at 628-4772.

Virginia Commonwealth University Health System (VCUHS) Page 5 of 6

Status: In Development Printed: 08/06/2010

1302 Interpretation and Communication Assistance
Attachments
MCI Certification Information

Revision#: Updated: 08/06/2010

VCU Health System Office of Language Services offers two interpreter training )lllgrams. For more information go to the Office of Communication and language Services intranet site and click on "Education" on the left of the screen.

Virginia Commonwealth University Health System (VCUHS) Page 6 of 6

Status: In Development Printed: 08/06/2010

 
 Case: 1:10-cv-96 As of: 05/16/2019 03:17 PM EDT 1 of 22
CLOSED,JURY
U.S. District Court Eastern District of Virginia − (Alexandria) CIVIL DOCKET FOR CASE #: 1:10−cv−00096−TSE−MSN

Minnis et al v. Johnson et al Assigned to: District Judge T. S. Ellis, III Referred to: Magistrate Judge Michael S. Nachmanoff Cause: 42:12101 Americans with Disabilities Act
Plaintiff

Date Filed: 01/29/2010 Date Terminated: 11/16/2010 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Gary Minnis on behalf of himself and all others similarly situated

represented by Adele H. Auxier Winston & Strawn LLP (DC) 1700 K St NW Washington, DC 20006 202−282−5000 Fax: 202−282−5100 Email: aauxier@winston.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lana Marie Manitta Rich Rosenthal Brincefield Manitta Dzubin & Kroeger LLP 500 Montgomery Street Suite 600 Alexandria, VA 22314 703−299−3440 Fax: 703−299−3441 Email: LMManitta@rrbmdk.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Larry More on behalf of himself and all others similarly situated

represented by Adele H. Auxier (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lana Marie Manitta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
David Richardson on behalf of himself and all others similarly situated

represented by Adele H. Auxier (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lana Marie Manitta (See above for address) TERMINATED: 11/19/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Lee Jenkins , Jr. Bynum & Jenkins PLLC 1010 Cameron Street Alexandria, VA 22314 703−309−0899

Case: 1:10-cv-96 As of: 05/16/2019 03:17 PM EDT 2 of 22

Fax: 703−549−7701 Email: rjenkins@bynumandjenkinslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Ronald Roman on behalf of himself and all others similarly situated

represented by Adele H. Auxier (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lana Marie Manitta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Delonte Tinsley on behalf of himself and all others similarly situated

represented by Adele H. Auxier (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lana Marie Manitta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Wolfjunge Wolfsburger on behalf of himself and all others similarly situated

represented by Adele H. Auxier (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lana Marie Manitta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Gene Johnson Director, Virginia Department of Corrections ("VDOC")

represented by Mark Ralph Davis Office of the Attorney General 900 E Main St Richmond, VA 23219 (804) 786−2071 Email: mark.davis@oag.state.va.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Walerian Chabalewski Office of the Attorney General 900 E Main St Richmond, VA 23219 (804) 786−2071 Email: gchabalewski@oag.state.va.us ATTORNEY TO BE NOTICED

John Michael Parsons Office of the Attorney General (Richmond) 202 North 9th Street Richmond, VA 23219 (804) 786−0046 Fax: 804−786−4239

Case: 1:10-cv-96 As of: 05/16/2019 03:17 PM EDT 3 of 22

Email: jparsons@oag.state.va.us ATTORNEY TO BE NOTICED

Defendant
Fred Schilling Director Health Services, VDOC

represented by Mark Ralph Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Walerian Chabalewski (See above for address) ATTORNEY TO BE NOTICED

John Michael Parsons (See above for address) ATTORNEY TO BE NOTICED

Defendant
Robin Hulbert Director of Mental Health Services, VDOC

represented by Mark Ralph Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Walerian Chabalewski (See above for address) ATTORNEY TO BE NOTICED

John Michael Parsons (See above for address) ATTORNEY TO BE NOTICED

Defendant
G. K. Washington Regional Director, VDOC

represented by Mark Ralph Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Walerian Chabalewski (See above for address) ATTORNEY TO BE NOTICED

John Michael Parsons (See above for address) ATTORNEY TO BE NOTICED

Defendant
Lois Fegan Agency Management Lead Analyst, VDOC

represented by Mark Ralph Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Walerian Chabalewski (See above for address) ATTORNEY TO BE NOTICED

John Michael Parsons (See above for address) ATTORNEY TO BE NOTICED

Defendant
Donald Guillory Director, Virginia Correctional

represented by Mark Ralph Davis (See above for address)

Case: 1:10-cv-96 As of: 05/16/2019 03:17 PM EDT 4 of 22

Enterprises

LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Walerian Chabalewski (See above for address) ATTORNEY TO BE NOTICED

John Michael Parsons (See above for address) ATTORNEY TO BE NOTICED

Defendant
Walter A. McFarlane Superintendent, Virginia Department of Correctional Education ("VC Education")

represented by Mark Ralph Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Walerian Chabalewski (See above for address) ATTORNEY TO BE NOTICED

John Michael Parsons (See above for address) ATTORNEY TO BE NOTICED

Defendant
Sharon Trimmer Director of Special Education and Gifted Education, VC Education

represented by Mark Ralph Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Walerian Chabalewski (See above for address) ATTORNEY TO BE NOTICED

John Michael Parsons (See above for address) ATTORNEY TO BE NOTICED

Defendant
Sheldon Retchin CEO, Virginia Commonwealth University Health System Authority

represented by Charles Manley Allen , Jr. Goodman Allen & Filetti PLLC 4501 Highwoods Pkwy Suite 210 Glen Allen, VA 23060 (804) 346−0600 Email: callen@goodmanallen.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Francis Demarest , III Goodman Allen & Filetti PLLC (Glen Allen) 4501 Highwoods Pkwy Suite 210 Glen Allen, VA 23060 804−565−3520 Fax: 804−346−5954 Email: wdemarest@goodmanallen.com ATTORNEY TO BE NOTICED

Defendant

Case: 1:10-cv-96 As of: 05/16/2019 03:17 PM EDT 5 of 22

John Duval CEO, Medical College of Virginia Hospitals ("MCV")

represented by Charles Manley Allen , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Francis Demarest , III (See above for address) ATTORNEY TO BE NOTICED

Defendant
Deborah Davis COO, MCV

represented by Charles Manley Allen , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Francis Demarest , III (See above for address) ATTORNEY TO BE NOTICED

Defendant
Amanda Dodd Manager of Guest Services/Patient Relations, MCV

represented by Charles Manley Allen , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Francis Demarest , III (See above for address) ATTORNEY TO BE NOTICED

Defendant
Eddie L. Pearson Warden, Powhatan Correctional Center ("Powhatan")

represented by Mark Ralph Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Walerian Chabalewski (See above for address) ATTORNEY TO BE NOTICED

John Michael Parsons (See above for address) ATTORNEY TO BE NOTICED

Defendant
P. C. Hunnel Assistant Warden, Powhatan

represented by Mark Ralph Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Walerian Chabalewski (See above for address) ATTORNEY TO BE NOTICED

John Michael Parsons (See above for address) ATTORNEY TO BE NOTICED

Defendant
Sandra Parker Principal, Powhatan Education

represented by Mark Ralph Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:10-cv-96 As of: 05/16/2019 03:17 PM EDT 6 of 22

Defendant Ronald W. Toney Medical Director, Powhatan TERMINATED: 06/21/2010
Defendant K. Watson Nurse, Powhatan TERMINATED: 06/21/2010
Defendant B. Morris Chaplain, Powhatan

George Walerian Chabalewski (See above for address) ATTORNEY TO BE NOTICED
John Michael Parsons (See above for address) ATTORNEY TO BE NOTICED
represented by Edward Joseph McNelis , III Sands Anderson PC (Richmond) 1111 East Main St Suite 2400 Richmond, VA 23218−1998 (804) 648−1636 Fax: (804) 783−7291 Email: emcnelis@sandsanderson.com LEAD ATTORNEY
Elizabeth Martin Muldowney Sands Anderson PC (Richmond) 1111 East Main St Suite 2400 Richmond, VA 23218−1998 (804) 648−1636 Fax: (804) 783−7291 Email: emuldowney@sandsanderson.com ATTORNEY TO BE NOTICED
Kimberly Jane Raab The Joel Bieber Firm (Richmond) 6806 Paragon Place Suite 100 Richmond, VA 23230 804−358−2200 Fax: 804−358−2262 Email: kraab@joelbieber.com ATTORNEY TO BE NOTICED
represented by Edward Joseph McNelis , III (See above for address) LEAD ATTORNEY
Elizabeth Martin Muldowney (See above for address) ATTORNEY TO BE NOTICED
Kimberly Jane Raab (See above for address) ATTORNEY TO BE NOTICED
represented by Mark Ralph Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George Walerian Chabalewski (See above for address) ATTORNEY TO BE NOTICED

Case: 1:10-cv-96 As of: 05/16/2019 03:17 PM EDT 7 of 22

John Michael Parsons (See above for address) ATTORNEY TO BE NOTICED

Defendant Virginia Department of Corrections

represented by Mark Ralph Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Walerian Chabalewski (See above for address) ATTORNEY TO BE NOTICED

John Michael Parsons (See above for address) ATTORNEY TO BE NOTICED

Defendant Virginia Correctional Enterprises

represented by Mark Ralph Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Walerian Chabalewski (See above for address) ATTORNEY TO BE NOTICED

John Michael Parsons (See above for address) ATTORNEY TO BE NOTICED

Defendant
Virginia Department of Correctional Education

represented by Mark Ralph Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Walerian Chabalewski (See above for address) ATTORNEY TO BE NOTICED

John Michael Parsons (See above for address) ATTORNEY TO BE NOTICED

Defendant
Virginia Commonwealth University Health System TERMINATED: 04/13/2010

represented by Charles Manley Allen , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Medical College of Virginia TERMINATED: 04/13/2010

represented by Charles Manley Allen , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Powhatan Correctional Center

represented by Mark Ralph Davis (See above for address)

Case: 1:10-cv-96 As of: 05/16/2019 03:17 PM EDT 8 of 22

LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Walerian Chabalewski (See above for address) ATTORNEY TO BE NOTICED

John Michael Parsons (See above for address) ATTORNEY TO BE NOTICED

Defendant
James R. Camache Deputy Director, Community Corrections

represented by Mark Ralph Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Malcom Taylor Regional Director, Community Corrections

represented by Mark Ralph Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Tony E. Reese Chief Probation and Parole Officer, Eastern Region District 7, Community Corrections

represented by Mark Ralph Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
C. Stewart Nurse, Powhatan TERMINATED: 06/21/2010

represented by Edward Joseph McNelis , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Martin Muldowney (See above for address) ATTORNEY TO BE NOTICED

Kimberly Jane Raab (See above for address) ATTORNEY TO BE NOTICED

Defendant Community Corrections

represented by Mark Ralph Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Virginia Commonwealth University Health System Authority

represented by Charles Manley Allen , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Francis Demarest , III (See above for address) ATTORNEY TO BE NOTICED

Defendant Medical College of Virginia Hospitals

represented by

Case: 1:10-cv-96 As of: 05/16/2019 03:17 PM EDT 9 of 22
Charles Manley Allen , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Francis Demarest , III (See above for address) ATTORNEY TO BE NOTICED

Date Filed 01/29/2010
01/29/2010 02/24/2010 02/24/2010 02/25/2010 02/25/2010 02/25/2010

# Docket Text
1 COMPLAINT with Jury Demand against Gene Johnson, Fred Schilling, Robin Hulbert, G. K. Washington, Lois Fegan, Donald Guillory, Walter A. McFarlane, Sharon Trimmer, Sheldon Retchin, John Duval, Deborah Davis, Amanda Dodd, Eddie L. Pearson, P. C. Hunnel, Sandra Parker, Ronald W. Toney, K. Watson, B. Morris, Virginia Department of Corrections, Virginia Correctional Enterprises, Virginia Department of Correctional Education, Virginia Commonwealth University Health System, Medical College of Virginia, Powhatan Correctional Center ( Filing fee $ 350 receipt number 14683011297.), filed by Wolfjunge Wolfsburger, Gary Minnis, Larry More, David Richardson, Ronald Roman, Delonte Tinsley. (Attachments: # 1 Receipt, # 2 Civil Cover Sheet)(klau, ) (Entered: 01/29/2010)
Per counsel for plaintiff, defendants to be served by Notice of Lawsuit and Waiver Form. (klau, ) (Entered: 01/29/2010)
2 NOTICE of Appearance by Mark Ralph Davis on behalf of Gene Johnson, Fred Schilling, Robin Hulbert, G. K. Washington, Lois Fegan, Donald Guillory, Walter A. McFarlane, Sharon Trimmer, Eddie L. Pearson, P. C. Hunnel, Sandra Parker, B. Morris, Virginia Department of Corrections, Virginia Correctional Enterprises, Virginia Department of Correctional Education, Powhatan Correctional Center (Davis, Mark) (Entered: 02/24/2010)
3 NOTICE of Appearance by John Michael Parsons on behalf of Gene Johnson, Fred Schilling, Robin Hulbert, G. K. Washington, Lois Fegan, Donald Guillory, Walter A. McFarlane, Sharon Trimmer, Eddie L. Pearson, P. C. Hunnel, Sandra Parker, B. Morris, Virginia Department of Corrections, Virginia Correctional Enterprises, Virginia Department of Correctional Education, Powhatan Correctional Center (Parsons, John) (Entered: 02/24/2010)
4 NOTICE of Appearance by George Walerian Chabalewski on behalf of Gene Johnson, Fred Schilling, Robin Hulbert, G. K. Washington, Lois Fegan, Donald Guillory, Walter A. McFarlane, Sharon Trimmer, Eddie L. Pearson, P. C. Hunnel, Sandra Parker, B. Morris, Virginia Department of Corrections, Virginia Correctional Enterprises, Virginia Department of Correctional Education, Powhatan Correctional Center (Chabalewski, George) (Entered: 02/25/2010)
Notice of Correction re 3 Notice of Appearance, The signature block on the Certificate of Service does not match the filing users login. The filing user has been notified and has been asked to refile the Certificate of Service. (klau, ) (Entered: 02/25/2010)
8 WAIVER OF SERVICE Returned Executed Gene Johnson waiver sent on 2/1/2010, answer due 4/2/2010; Fred Schilling waiver sent on 2/1/2010, answer due 4/2/2010; Robin Hulbert waiver sent on 2/1/2010, answer due 4/2/2010; G. K. Washington waiver sent on 2/1/2010, answer due 4/2/2010; Lois Fegan waiver sent on 2/1/2010, answer due 4/2/2010; Donald Guillory waiver sent on 2/1/2010, answer due 4/2/2010; Walter A. McFarlane waiver sent on 2/1/2010, answer due 4/2/2010; Sharon Trimmer waiver sent on 2/1/2010, answer due 4/2/2010; Eddie L. Pearson waiver sent on 2/1/2010, answer due 4/2/2010; P. C. Hunnel waiver sent on 2/1/2010, answer due 4/2/2010; Sandra Parker waiver sent on 2/1/2010, answer due 4/2/2010; B. Morris waiver sent on 2/1/2010, answer due 4/2/2010; Virginia Department of Corrections waiver sent on 2/1/2010, answer due 4/2/2010; Virginia Correctional Enterprises waiver sent on 2/1/2010, answer due 4/2/2010; Virginia Department of Correctional Education waiver sent on 2/1/2010, answer due 4/2/2010; Powhatan Correctional Center waiver sent on 2/1/2010, answer due 4/2/2010. (Attachments: # 1 Letter)(tche) (Entered: 02/26/2010)

Case: 1:10-cv-96 As of: 05/16/2019 03:17 PM EDT 10 of 22

02/26/2010
02/26/2010 02/26/2010 03/03/2010 03/03/2010 03/03/2010 03/03/2010 03/03/2010 03/03/2010 03/04/2010 03/04/2010
03/04/2010
03/04/2010 03/04/2010 03/04/2010 03/29/2010 03/29/2010 04/02/2010

5 NOTICE of Appearance by John Michael Parsons on behalf of Gene Johnson, Fred Schilling, Robin Hulbert, G. K. Washington, Lois Fegan, Donald Guillory, Walter A. McFarlane, Sharon Trimmer, Eddie L. Pearson, P. C. Hunnel, Sandra Parker, B. Morris, Virginia Department of Corrections, Virginia Correctional Enterprises, Virginia Department of Correctional Education, Powhatan Correctional Center (Parsons, John) (Entered: 02/26/2010)
6 WAIVER OF SERVICE Returned Executed; K. Watson waiver sent on 2/1/2010, answer due 4/2/2010. (Attachments: # 1 Letter)(tche) (Entered: 02/26/2010)
7 WAIVER OF SERVICE Returned Executed; Ronald W. Toney waiver sent on 2/1/2010, answer due 4/2/2010. (Attachments: # 1 Letter)(tche) (Entered: 02/26/2010)
9 WAIVER OF SERVICE Returned Executed as to John Duval waiver sent on 2/1/2010, answer due 4/2/2010. (Attachments: # 1 Letter)(klau, ) (Entered: 03/03/2010)
10 WAIVER OF SERVICE Returned Executed as to Amanda Dodd waiver sent on 2/1/2010, answer due 4/2/2010. (Attachments: # 1 Letter)(klau, ) (Entered: 03/03/2010)
11 WAIVER OF SERVICE Returned Executed as to Deborah Davis waiver sent on 2/1/2010, answer due 4/2/2010. (Attachments: # 1 Letter)(klau, ) (Entered: 03/03/2010)
12 WAIVER OF SERVICE Returned Executed as to Sheldon Retchin waiver sent on 2/1/2010, answer due 4/2/2010. (Attachments: # 1 letter)(klau, ) (Entered: 03/03/2010)
13 WAIVER OF SERVICE Returned Executed as to Medical College of Virginia waiver sent on 2/1/2010, answer due 4/2/2010. (Attachments: # 1 Letter)(klau, ) (Entered: 03/03/2010)
14 WAIVER OF SERVICE Returned Executed as to Virginia Commonwealth University Health System waiver sent on 2/1/2010, answer due 4/2/2010. (Attachments: # 1 Letter)(klau, ) (Entered: 03/03/2010)
15 ORDER granting applicatin for Gregory L. Ewing to appear Pro hac vice Filing fee paid $ 50, receipt number 14683011918. Signed by District Judge T. S. Ellis, III on 3/4/10. (Attachments: # 1 Receipt, # 2 Letter)(klau, ) (Entered: 03/05/2010)
16 ORDER granting application for Amadou Kilkenny Diaw to appear Pro hac vice Filing fee paid $ 50, receipt number 14683011918. Signed by District Judge T. S. Ellis, III on 3/4/10. (Attachments: # 1 Receipt, # 2 Letter)(klau, ) (Entered: 03/05/2010)
17 ORDER granting application for Elizabeth Elaine Lorraine Gardner to appear Pro hac vice Filing fee paid $ 50, receipt number 14683011917. Signed by District Judge T. S. Ellis, III on 3/4/10. (Attachments: # 1 Receipt, # 2 Letter)(klau, ) (Entered: 03/05/2010)
18 ORDER granting applicatin for Deborah Maxine Golden to appear Pro hac vice Filing fee paid $ 50, receipt number 14683011917. Signed by District Judge T. S. Ellis, III on 3/4/10. (Attachments: # 1 Letter, # 2 Receipt)(klau, ) (Entered: 03/05/2010)
19 ORDER granting application for Jay Leonard Levine to appear Pro hac vice Filing fee paid $ 50, receipt number 14683011917. Signed by District Judge T. S. Ellis, III on 3/4/10. (Attachments: # 1 Receipt, # 2 Letter)(klau, ) (Entered: 03/05/2010)
20 ORDER granting application for Laura Ann Mancini to appear Pro hac vice Filing fee paid $ 50, receipt number 14683011917. Signed by District Judge T. S. Ellis, III on 3/4/10. (Attachments: # 1 Receipt, # 2 Letter)(klau, ) (Entered: 03/05/2010)
21 NOTICE of Appearance by Edward Joseph McNelis, III on behalf of Ronald W. Toney, K. Watson (McNelis, Edward) (Entered: 03/29/2010)
22 NOTICE of Appearance by Elizabeth Martin Muldowney on behalf of Ronald W. Toney, K. Watson (Muldowney, Elizabeth) (Entered: 03/29/2010)
23 MOTION to Dismiss by Lois Fegan, Donald Guillory, Robin Hulbert, P. C. Hunnel, Gene Johnson, Walter A. McFarlane, B. Morris, Sandra Parker, Eddie L. Pearson, Powhatan Correctional Center, Fred Schilling, Sharon Trimmer, Virginia Correctional

Case: 1:10-cv-96 As of: 05/16/2019 03:17 PM EDT 11 of 22

04/02/2010
04/02/2010 04/02/2010 04/02/2010 04/02/2010 04/02/2010 04/02/2010 04/05/2010 04/05/2010 04/07/2010
04/12/2010 04/13/2010 04/13/2010 04/13/2010

Enterprises, Virginia Department of Correctional Education, Virginia Department of Corrections, G. K. Washington. (Davis, Mark) (Entered: 04/02/2010)
24 Brief in Support to 23 MOTION to Dismiss filed by Lois Fegan, Donald Guillory, Robin Hulbert, P. C. Hunnel, Gene Johnson, Walter A. McFarlane, B. Morris, Sandra Parker, Eddie L. Pearson, Powhatan Correctional Center, Fred Schilling, Sharon Trimmer, Virginia Correctional Enterprises, Virginia Department of Correctional Education, Virginia Department of Corrections, G. K. Washington. (Davis, Mark) (Entered: 04/02/2010)
25 MOTION to Dismiss by Ronald W. Toney, K. Watson. (Muldowney, Elizabeth) (Entered: 04/02/2010)
26 Memorandum in Support re 25 MOTION to Dismiss filed by Ronald W. Toney, K. Watson. (Muldowney, Elizabeth) (Entered: 04/02/2010)
27 ANSWER to 1 Complaint,,, with Jury Demand by Ronald W. Toney, K. Watson.(Muldowney, Elizabeth) (Entered: 04/02/2010)
28 Financial Interest Disclosure Statement (Local Rule 7.1) by Ronald W. Toney, K. Watson. (Muldowney, Elizabeth) (Entered: 04/02/2010)
29 NOTICE of Appearance by Charles Manley Allen, Jr on behalf of Deborah Davis, Amanda Dodd, John Duval, Medical College of Virginia, Sheldon Retchin, Virginia Commonwealth University Health System (Allen, Charles) (Entered: 04/02/2010)
30 ANSWER to 1 Complaint,,, with Jury Demand by Deborah Davis, Amanda Dodd, John Duval, Medical College of Virginia, Sheldon Retchin, Virginia Commonwealth University Health System.(Allen, Charles) (Entered: 04/02/2010)
Notice of Correction re 23 MOTION to Dismiss. −−The filing user has been notified to file a Notice of Hearing Date or a Notice of Waiver of Oral Argument. (tche) (Entered: 04/05/2010)
Notice of Correction re 25 MOTION to Dismiss. −−The filing user has been notified to file a Notice of Hearing Date or a Notice of Waiver of Oral Argument. (tche) (Entered: 04/05/2010)
31 SCHEDULING ORDER: Initial Pretrial Conference set for 5/5/2010 at 10:00 AM before Magistrate Judge Thomas Rawles Jones Jr. Final Pretrial Conference set for 7/15/2010 at 11:00 AM before District Judge T. S. Ellis III. Discovery due by 7/9/2010. Signed by District Judge T. S. Ellis, III on 4/7/2010. (Attachments: # 1 Pretrial Notice, # 2 Magistrate Consent Form)(tche) (Entered: 04/07/2010)
32 Notice of Hearing Date set for June 18, 2010 at 10:00am re 25 MOTION to Dismiss (Muldowney, Elizabeth) (Entered: 04/12/2010)
Set Deadlines as to 25 MOTION to Dismiss. Motion Hearing set for 6/18/2010 at 10:00 AM before District Judge T. S. Ellis III. (clar, ) (Entered: 04/13/2010)
33 Notice of Hearing Date set for June 18, 2010 re 23 MOTION to Dismiss (Davis, Mark) (Entered: 04/13/2010)
34 AMENDED COMPLAINT with Jury Demand against Deborah Davis, Amanda Dodd, John Duval, Lois Fegan, Donald Guillory, Robin Hulbert, P. C. Hunnel, Gene Johnson, Walter A. McFarlane, Medical College of Virginia Hospitals, B. Morris, Sandra Parker, Eddie L. Pearson, Powhatan Correctional Center, Sheldon Retchin, Fred Schilling, Ronald W. Toney, Sharon Trimmer, Virginia Commonwealth University Health System Authority, Virginia Correctional Enterprises, Virginia Department of Correctional Education, Virginia Department of Corrections, G. K. Washington, K. Watson, James R Camache, Malcom Taylor, Tony E Reese, C. Stewart, Community Corrections, filed by Wolfjunge Wolfsburger, Ronald Roman, Gary Minnis, Larry More, Delonte Tinsley, David Richardson. (Attachments: # 1 Letter re Amended Complaint)(Auxier, Adele) Modified text on 4/14/2010 (klau, ). (Entered: 04/13/2010)

Case: 1:10-cv-96 As of: 05/16/2019 03:17 PM EDT 12 of 22

04/14/2010 04/14/2010 04/20/2010
04/20/2010 04/20/2010
04/21/2010 04/21/2010 04/22/2010 04/22/2010 04/22/2010 04/22/2010 04/28/2010
04/28/2010
04/28/2010 04/28/2010 04/28/2010 04/28/2010 04/28/2010

Set Deadlines as to 23 MOTION to Dismiss. Motion Hearing set for 6/18/2010 at 10:00 AM before District Judge T. S. Ellis III. (clar, ) (Entered: 04/14/2010)
35 Summons Issued on amended complaint for service by SPS as to defts' James R. Camache, Tony E. Reese, C. Stewart, Malcom Taylor. (nmck, ) (Entered: 04/15/2010)
36 NOTICE of Appearance by William Francis Demarest, III on behalf of Deborah Davis, Amanda Dodd, John Duval, Medical College of Virginia Hospitals, Sheldon Retchin, Virginia Commonwealth University Health System Authority (Demarest, William) (Entered: 04/20/2010)
37 NOTICE of Appearance by Kimberly Jane Raab on behalf of Ronald W. Toney, K. Watson (Raab, Kimberly) (Entered: 04/20/2010)
38 ANSWER to First Amended Complaint with Jury Demand by Deborah Davis, Amanda Dodd, John Duval, Medical College of Virginia Hospitals, Sheldon Retchin, Virginia Commonwealth University Health System Authority.(Demarest, William) Modified text on 4/21/2010 (klau, ). (Entered: 04/20/2010)
43 SUMMONS Returned Executedfor Amended Complaint as to C. Stewart served on 4/16/2010, answer due 5/7/2010 (klau, ) (Entered: 04/22/2010)
44 SUMMONS Returned Executed for Amended Complaint James R. Camache served on 4/16/2010, answer due 5/7/2010 (klau, ) (Entered: 04/26/2010)
39 NOTICE of Appearance by Edward Joseph McNelis, III on behalf of C. Stewart (McNelis, Edward) (Entered: 04/22/2010)
40 NOTICE of Appearance by Elizabeth Martin Muldowney on behalf of C. Stewart (Muldowney, Elizabeth) (Entered: 04/22/2010)
41 NOTICE of Appearance by Kimberly Jane Raab on behalf of C. Stewart (Raab, Kimberly) (Entered: 04/22/2010)
42 Financial Interest Disclosure Statement (Local Rule 7.1) by C. Stewart. (Muldowney, Elizabeth) (Entered: 04/22/2010)
45 MOTION to Dismiss Amended Complaint by James R. Camache, Community Corrections, Lois Fegan, Donald Guillory, Robin Hulbert, P. C. Hunnel, Gene Johnson, Walter A. McFarlane, B. Morris, Sandra Parker, Eddie L. Pearson, Powhatan Correctional Center, Tony E. Reese, Fred Schilling, Malcom Taylor, Sharon Trimmer, Virginia Correctional Enterprises, Virginia Department of Correctional Education, Virginia Department of Corrections, G. K. Washington. (Davis, Mark) (Entered: 04/28/2010)
46 Brief in Support to 45 MOTION to Dismiss Amended Complaint filed by James R. Camache, Community Corrections, Lois Fegan, Donald Guillory, Robin Hulbert, P. C. Hunnel, Gene Johnson, Walter A. McFarlane, B. Morris, Sandra Parker, Eddie L. Pearson, Powhatan Correctional Center, Tony E. Reese, Fred Schilling, Malcom Taylor, Sharon Trimmer, Virginia Correctional Enterprises, Virginia Department of Correctional Education, Virginia Department of Corrections, G. K. Washington. (Davis, Mark) (Entered: 04/28/2010)
47 MOTION to Dismiss First Amended Complaint by C. Stewart, Ronald W. Toney, K. Watson. (Muldowney, Elizabeth) (Entered: 04/28/2010)
48 Memorandum in Support re 47 MOTION to Dismiss First Amended Complaint filed by C. Stewart, Ronald W. Toney, K. Watson. (Muldowney, Elizabeth) (Entered: 04/28/2010)
49 Notice of Hearing Date set for June 18, 2010 at 10:00am re 47 MOTION to Dismiss First Amended Complaint (Muldowney, Elizabeth) (Entered: 04/28/2010)
50 ANSWER to Complaint with Jury Demand by C. Stewart, Ronald W. Toney, K. Watson.(Muldowney, Elizabeth) (Entered: 04/28/2010)
51 Discovery Plan by C. Stewart, Ronald W. Toney, K. Watson.(Muldowney, Elizabeth) (Entered: 04/28/2010)

Case: 1:10-cv-96 As of: 05/16/2019 03:17 PM EDT 13 of 22

04/29/2010 04/30/2010 04/30/2010 04/30/2010
05/05/2010
05/05/2010
05/07/2010 05/07/2010 05/10/2010 05/10/2010 05/10/2010 05/10/2010 05/10/2010

Set Deadlines as to 47 MOTION to Dismiss First Amended Complaint. Motion Hearing set for 6/18/2010 at 10:00 AM before District Judge T. S. Ellis III. (clar, ) (Entered: 04/29/2010)
52 Amended Complaint SUMMONS Returned Executed; Malcom Taylor served on 4/26/2010, answer due 5/17/2010. (tche) (Entered: 04/30/2010)
53 Amended Complaint SUMMONS Returned Executed; Tony E. Reese served on 4/19/2010, answer due 5/10/2010. (tche) (Entered: 04/30/2010)
54 ANSWER to First Amended Complaint with Jury Demand by James R. Camache, Community Corrections, Lois Fegan, Donald Guillory, Robin Hulbert, P. C. Hunnel, Gene Johnson, Walter A. McFarlane, B. Morris, Sandra Parker, Eddie L. Pearson, Powhatan Correctional Center, Tony E. Reese, Fred Schilling, Malcom Taylor, Sharon Trimmer, Virginia Correctional Enterprises, Virginia Department of Correctional Education, Virginia Department of Corrections, G. K. Washington.(Davis, Mark) Modified text on 5/3/2010 (klau, ). (Entered: 04/30/2010)
55 Minute Entry for proceedings held before Magistrate Judge Thomas Rawles Jones, Jr: Initial Pretrial Conference held on 5/5/2010. Appearance of counsel. Discovery plan approved (except as to de bene esse depositions). Order to issue. Pltf's expert designations due June 2nd. Deft's expert designations due July 2nd. Rebuttal due July 16th. Consent order to be submitted. Parties will call chambers to confirm date for settlement conference. (cmar, ) (Entered: 05/06/2010)
56 Rule 16(b) Scheduling Order − Pursuant to the Rule 16(b) Conference it is ordered that a) Parties shall deliver to chambers (not to the Clerk's office) a copy of every non−dispositive motion and every document relating to such a motion within one business day of filing it. b) Rule 26(a) disclosures, depositions, interrogatories, requests for documents and admissions, and answers thereto shall not be filed except on order of the court, or for use in a motion or at trial. c) The Rule 26(f) report filed by the parties is approved (except for the provision for de bene esse depositions), and shall control discovery to the extent of its application unless modified by the court herein or hereafter. d) Any motion to amend the pleadings or to join a party shall be made as soon as possible after counsel becomes aware of the grounds for the motion. e) No material designated "confidential" by any party shall be disclosed to anyone except counsel and their staffs until further order of the court. (No such material shall be filed with the court except in compliance with paragraph 2.) f) Unless the parties submit a consent order under Local Rule 26(D)(1), expert discovery shall be governed by Local Rule 26(D)(2−4). (SEE ORDER FOR DETAILS.) Signed by Magistrate Judge Thomas Rawles Jones, Jr on 05/05/10. (cmar, ) (Entered: 05/06/2010)
Notice of Correction re 45 MOTION to Dismiss Amended Complaint, The filing user has been notified to file a Notice of Hearing Date or a Notice of Waiver of Oral Argument.(klau, ) (Entered: 05/07/2010)
57 Notice of Hearing Date set for June 18, 2010 re 45 MOTION to Dismiss Amended Complaint (Davis, Mark) (Entered: 05/07/2010)
Set Deadlines as to 45 MOTION to Dismiss Amended Complaint. Motion Hearing set for 6/18/2010 at 10:00 AM before District Judge T. S. Ellis III. (clar, ) (Entered: 05/10/2010)
58 MOTION to Dismiss by Deborah Davis, Amanda Dodd, John Duval, Medical College of Virginia Hospitals, Sheldon Retchin, Virginia Commonwealth University Health System Authority. (Allen, Charles) (Entered: 05/10/2010)
59 Memorandum in Support re 58 MOTION to Dismiss filed by Deborah Davis, Amanda Dodd, John Duval, Medical College of Virginia Hospitals, Sheldon Retchin, Virginia Commonwealth University Health System Authority. (Allen, Charles) (Entered: 05/10/2010)
60 Notice of Hearing Date re 58 MOTION to Dismiss (Allen, Charles) (Entered: 05/10/2010)
61 Memorandum in Opposition re 45 MOTION to Dismiss Amended Complaint filed by Gary Minnis, Larry More, David Richardson, Ronald Roman, Delonte Tinsley, Wolfjunge Wolfsburger. (Auxier, Adele) (Entered: 05/10/2010)

Case: 1:10-cv-96 As of: 05/16/2019 03:17 PM EDT 14 of 22

05/10/2010 05/10/2010 05/10/2010 05/11/2010 05/11/2010 05/11/2010 05/11/2010 05/11/2010 05/11/2010 05/11/2010 05/17/2010
05/17/2010 05/24/2010 05/24/2010 05/24/2010
05/24/2010

62 Memorandum in Opposition re 47 MOTION to Dismiss First Amended Complaint filed by Gary Minnis, Larry More, David Richardson, Ronald Roman, Delonte Tinsley, Wolfjunge Wolfsburger. (Auxier, Adele) (Entered: 05/10/2010)
63 Consent MOTION to Dismiss Claims Voluntarily by Gary Minnis, Larry More, David Richardson, Ronald Roman, Delonte Tinsley, Wolfjunge Wolfsburger. (Attachments: # 1 Proposed Order)(Auxier, Adele) (Entered: 05/10/2010)
64 Notice of Hearing Date set for May 21, 2010 re 63 Consent MOTION to Dismiss Claims Voluntarily (Auxier, Adele) (Entered: 05/10/2010)
Notice of Correction re 64 Notice of Hearing Date. The filing user has been notified to file an Amended Notice of Hearing Date, as the Notice of Hearing Date set an untimely hearing. (clar, ) (Entered: 05/11/2010)
Set Deadlines as to 58 MOTION to Dismiss. Motion Hearing set for 6/18/2010 at 10:00 AM before District Judge T. S. Ellis III. (clar, ) (Entered: 05/11/2010)
Set Deadlines as to 63 Consent MOTION to Dismiss Claims Voluntarily. Motion Hearing set for 5/21/2010 at 10:00 AM before District Judge T. S. Ellis III. (Atty to re−file notice − filed untimely) (clar, ) (Entered: 05/11/2010)
65 Notice of Hearing Date set for 05/28/2010 re 63 Consent MOTION to Dismiss Claims Voluntarily (Auxier, Adele) (Entered: 05/11/2010)
Set Hearing: Settlement Conference set for 6/24/2010 at 11:00 AM before Magistrate Judge Thomas Rawles Jones Jr. (cmar, ) (Entered: 05/11/2010)
66 ORDER that 63 Motion to Dismiss is GRANTED, and that Counts III, IV, IX and X of Plaintiffs' First Amended Class Action Complaint for Declaratory And Injunctive Relief And Damages are hereby dismissed without prejudice. Signed by District Judge T. S. Ellis, III on 5/11/10. (klau, ) (Entered: 05/11/2010)
67 NOTICE − Pursuant to the Local Rules of this Court and the E−Filing Policies and Procedures manual, electronic case filing is mandatory;therefore, paper documents (VCUHS−MCVH Defendants' Rule 26(a)(1)Disclosures) were returned to counsel (William F. Demarest III) (klau, ) (Entered: 05/11/2010)
68 Rebuttal to Plaintiffs' Opposition to 23 Motion to Dismiss filed by James R. Camache, Community Corrections, Lois Fegan, Donald Guillory, Robin Hulbert, P. C. Hunnel, Gene Johnson, Walter A. McFarlane, B. Morris, Sandra Parker, Eddie L. Pearson, Powhatan Correctional Center, Tony E. Reese, Fred Schilling, Malcom Taylor, Sharon Trimmer, Virginia Correctional Enterprises, Virginia Department of Correctional Education, Virginia Department of Corrections, G. K. Washington. (Davis, Mark) Modified text on 5/18/2010 (klau, ). (Entered: 05/17/2010)
69 Rebuttal to Plaintiffs' Memorandum in Oppostion to 25 MOTION to Dismiss filed by C. Stewart, Ronald W. Toney, K. Watson. (Muldowney, Elizabeth) Modified text on 5/18/2010 (klau, ). (Entered: 05/17/2010)
70 CONSENT ORDER the court makes the following rulings regarding expert disclosures under Fed.R.Civ. Proc. 26(a)(2): 1. The plaintiffs' affirmative expert disclosures are due on June 2, 2010 −−−− (see order for details). Signed by Magistrate Judge Thomas Rawles Jones, Jr on 5/24/10. (klau, ) (Entered: 05/24/2010)
71 Memorandum in Opposition to 58 MOTION to Dismiss filed by Gary Minnis. (Auxier, Adele) Modified text on 5/25/2010 (klau, ). (Entered: 05/24/2010)
72 Notice of Hearing Date set for June 11, 2010 re 73 MOTION to Strike, in Part, VDOC Defendants' Rebuttal to Plaintiffs' Opposition to Motion to Dismiss or,in the Alternative, for Leave File Sur−Reply re 68 Response, by Gary Minnis, Larry More, David richardson, ronald Roman, Delonte Tinsley, and Wolfjunge Wolfsburger (Auxier, Adele) Modified text on 5/25/2010 (klau, ). (Entered: 05/24/2010)
73 MOTION to Strike, in Part, VDOC Defendants' Rebuttal to Plaintiffs' Opposition to Motion to Dismiss or,in the Alternative, for Leave File Sur−Reply re 68 Response, by Gary Minnis, Larry More, David richardson, ronald Roman, Delonte Tinsley, and Wolfjunge Wolfsburger. (Attachments: # 1 Proposed Order, # 2 Proposed Order, # 3 Exhibit A)(Auxier, Adele) Modified text on 5/25/2010 (klau, ). (Entered: 05/24/2010)

Case: 1:10-cv-96 As of: 05/16/2019 03:17 PM EDT 15 of 22

05/24/2010
05/24/2010 05/24/2010 05/24/2010 05/24/2010 05/24/2010 05/24/2010 05/24/2010 05/24/2010 05/24/2010 05/25/2010 06/01/2010 06/02/2010 06/02/2010 06/03/2010

74 Memorandum in Support re 73 MOTION to Strike, in Part, VDOC Defendants' Rebuttal to Plaintiffs' Opposition to Motion to Dismiss or, in the Alternative, for Leave to File Sur−Reply re 68 Response, filed by Gary Minnis, Larry More, David Richardson, Ronald Roman, Delonte Tinsley and Wolfjunge Wolfsburger. (Auxier, Adele) Modified text on 5/25/2010 (klau, ). (Entered: 05/24/2010)
75 MOTION to Strike 69 Reply to Response to Motion to Dismiss by Toney et al by Gary Minnis, Larry More, David Richardson, Ronald Roman, Delonte Tinsley, Wolfjunge Wolfsburger. (Attachments: # 1 Exhibit, # 2 Proposed Order, # 3 Proposed Order)(Auxier, Adele) (Entered: 05/24/2010)
76 Memorandum in Support re 75 MOTION to Strike 69 Reply to Response to Motion to Dismiss by Toney et al MOTION to Strike 69 Reply to Response to Motion to Dismiss by Toney et al filed by Gary Minnis, Larry More, David Richardson, Ronald Roman, Delonte Tinsley, Wolfjunge Wolfsburger. (Auxier, Adele) (Entered: 05/24/2010)
77 MOTION for Leave to File Sur−Reply by Gary Minnis, Larry More, David Richardson, Ronald Roman, Delonte Tinsley, Wolfjunge Wolfsburger. (Attachments: # 1 Exhibit, # 2 Proposed Order, # 3 Proposed Order)(Auxier, Adele) (Entered: 05/24/2010)
78 Memorandum in Support re 77 MOTION for Leave to File Sur−Reply to Toney et al Reply filed by Gary Minnis, Larry More, David Richardson, Ronald Roman, Delonte Tinsley, Wolfjunge Wolfsburger. (Auxier, Adele) (Entered: 05/24/2010)
79 Notice of Hearing Date set for June 11, 2010 re 75 MOTION to Strike 69 Reply to Response to Motion to Dismiss by Toney et al MOTION to Strike 69 Reply to Response to Motion to Dismiss by Toney et al (Auxier, Adele) (Entered: 05/24/2010)
80 Notice of Hearing Date set for June 4, 2010 re 77 MOTION for Leave to File Sur−Reply (Auxier, Adele) (Entered: 05/24/2010)
Set Deadline as to 73 MOTION to Strike, in Part, VDOC Defendants' Rebuttal to Plaintiffs' Opposition to Motion to Dismiss or,in the Alternative, for Leave File Sur−Reply. Motion Hearing set for 6/11/2010 at 10:00 AM before District Judge T. S. Ellis III. (stas) (Entered: 05/25/2010)
Set Deadline as to 75 MOTION to Strike 69 Reply to Response to Motion to Dismiss by Toney et al. Motion Hearing set for 6/11/2010 at 10:00 AM before District Judge T. S. Ellis III. (stas) (Entered: 05/25/2010)
Set Deadline as to 77 MOTION for Leave to File Sur−Reply. Motion Hearing set for 6/4/2010 at 10:00 AM before District Judge T. S. Ellis III. (stas) (Entered: 05/25/2010)
Notice of Correction re 73 MOTION to Strike 68 Response,, MOTION for Leave to File re 68 Response, The filing user has been notified to file a Notice of Hearing Date or a Notice of Waiver of Oral Argument(klau, ) (Entered: 05/25/2010)
81 Rebuttal to Plaintiffs' Opposition to 58 MOTION to Dismiss filed by Deborah Davis, Amanda Dodd, John Duval, Medical College of Virginia Hospitals, Sheldon Retchin, Virginia Commonwealth University Health System Authority. (Allen, Charles) Modified text on 6/2/2010 (klau, ). (Entered: 06/01/2010)
82 Notice of Hearing Date set for 06/18/10 re 73 MOTION to Strike 68 Response,, MOTION for Leave to File re 68 Response,, MOTION to Strike 68 Response,, MOTION for Leave to File re 68 Response,, (Auxier, Adele) (Entered: 06/02/2010)
83 Notice of Hearing Date re 77 MOTION for Leave to File Sur−Reply, 75 MOTION to Strike 69 Reply to Response to Motion to Dismiss by Toney et al MOTION to Strike 69 Reply to Response to Motion to Dismiss by Toney et al (Auxier, Adele) (Entered: 06/02/2010)
84 ORDER that the Fegan defendants' and the Toney defendants' respective 23 25 Motion to Dismiss the original complaint are DENIED AS MOOT. Oral argument on the defendants' respective remaining motions to dismiss the amended complaint will proceed, as currently scheduled, at 10:00 a.m., Friday, June 18, 2010. ORDERED that plaintiffs' duplicative motion to strike or file a sur−reply to the Toney defendants' reply brief 77 is DENIED AS MOOT, given the previous filing of an identical motion (Doc. 75). Accordingly, the hearing currently scheduled for 10:00 a.m., Friday, June 4,2010,

Case: 1:10-cv-96 As of: 05/16/2019 03:17 PM EDT 16 of 22

06/03/2010 06/07/2010
06/07/2010 06/07/2010 06/07/2010
06/11/2010 06/14/2010 06/14/2010 06/14/2010 06/14/2010

on Doc. 77 is CANCELLED. ORDERED that the June 11,2010 hearings on the remaining motions to strike or file a sur−reply (Docs. 73,75) are CONTINUED to 10:00 a.m., Friday, June 18,2010. Signed by District Judge T. S. Ellis, III on 6/3/10. (klau, ) (Entered: 06/03/2010)
Reset Deadlines as to 73 MOTION to Strike 68 Response,, MOTION for Leave to File re 68 Response, 75 MOTION to Strike 69 Reply to Response to Motion to Dismiss by Toney et al Motion Hearing set for 6/18/2010 at 10:00 AM before District Judge T. S. Ellis III. (klau, ) (Entered: 06/03/2010)
85 Opposition to 73 MOTION to Strike 68 Response,, MOTION for Leave to File re 68 Response, filed by James R. Camache, Community Corrections, Lois Fegan, Donald Guillory, Robin Hulbert, P. C. Hunnel, Gene Johnson, Walter A. McFarlane, B. Morris, Sandra Parker, Eddie L. Pearson, Powhatan Correctional Center, Tony E. Reese, Fred Schilling, Malcom Taylor, Sharon Trimmer, Virginia Correctional Enterprises, Virginia Department of Correctional Education, Virginia Department of Corrections, G. K. Washington. (Davis, Mark) Modified text on 6/8/2010 (klau, ). (Entered: 06/07/2010)
86 RESPONSE to Motion re 77 MOTION for Leave to File Sur−Reply filed by C. Stewart, Ronald W. Toney, K. Watson. (Muldowney, Elizabeth) (Entered: 06/07/2010)
87 Memorandum in Opposition re 75 MOTION to Strike 69 Reply to Response to Motion to Dismiss by Toney et al MOTION to Strike 69 Reply to Response to Motion to Dismiss by Toney et al filed by C. Stewart, Ronald W. Toney, K. Watson. (Muldowney, Elizabeth) (Entered: 06/07/2010)
88 ORDER that plaintiffs' 73 Motion to Strike, or in the alternative, 73 Motion for Leave to File sur−reply concerning the Fegan defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART. The motion is GRANTED IN PART insofar as plaintiffs may file a sur−reply. The motion is DENIED in all other respects. ORDERED that plaintiffs' 75 Motion to Strike, or in the alternative, to file a sur−reply concerning the Toney defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART. The motion is GRANTED IN PART insofar as plaintiffs may file a sur−reply. The motion is DENIED in all other respects. ORDERED that the hearing currently scheduled for 10:00 a.m., Friday, June 18, 2010, is CANCELLED with respect to these two motions (Docs. 73, 75). Nonetheless, the 10:00 a.m., Friday, June 18, 2010 hearing will proceed as scheduled with respect to the pending motions to dismiss the amended complaint (Docs. 45,47,58). Signed by District Judge T. S. Ellis, III on 6/7/10. (klau, ) (Entered: 06/09/2010)
89 MOTION for Order Providing Sign Language Interpreter Services at Hearing on Motions to Dismiss and Future Court Proceedings by Gary Minnis, Larry More, David Richardson, Ronald Roman, Delonte Tinsley, Wolfjunge Wolfsburger. (Attachments: # 1 Memo in Support, # 2 Exhibit, # 3 Exhibit, # 4 Proposed Order)(Auxier, Adele) Modified text on 6/14/2010 (klau, ). (Entered: 06/11/2010)
Notice of Correction re 89 MOTION for Interpreter, The filing user has been notified to file the Memorandum in Support separately. The filing user has been notified to file a Notice of Hearing Date or a Notice of Waiver of Oral Argument.(klau, ) (Entered: 06/14/2010)
90 NOTICE Waiver of Oral Argument by Gary Minnis, Larry More, David Richardson, Ronald Roman, Delonte Tinsley, Wolfjunge Wolfsburger re 89 MOTION for Interpreter (Auxier, Adele) Modified text on 6/15/2010 (klau, ). (Entered: 06/14/2010)
91 Memorandum in Support re 89 MOTION for Interpreter filed by Gary Minnis, Larry More, David Richardson, Ronald Roman, Delonte Tinsley, Wolfjunge Wolfsburger. (Auxier, Adele) (Entered: 06/14/2010)
92 ORDER that plaintiffs' Motion 89 for an ASL Interpreter to be present at the 10:00 a.m., Friday, June 18, 2010 hearing, and thereafter at future proceedings when a hearing−impaired plaintiff is in attendance, is GRANTED. ORDERED that plaintiffs are DIRECTED to provide timely notice that an ASL interpreter's services are required at a proceeding because a hearing− impaired plaintiff will be in attendance at least five (5) days prior to the proceeding so that appropriate arrangements can be made. Signed by District Judge T. S. Ellis, III on 6/14/10. (klau, ) (Entered: 06/15/2010)

Case: 1:10-cv-96 As of: 05/16/2019 03:17 PM EDT 17 of 22

06/17/2010 06/17/2010 06/17/2010 06/18/2010
06/18/2010 06/21/2010 06/21/2010
06/21/2010

93 UNOPPOSED MOTION to Amend/Correct the Pre−Trial Schedule by James R. Camache, Community Corrections, Lois Fegan, Donald Guillory, Robin Hulbert, P. C. Hunnel, Gene Johnson, Walter A. McFarlane, B. Morris, Sandra Parker, Eddie L. Pearson, Powhatan Correctional Center, Tony E. Reese, Fred Schilling, Malcom Taylor, Sharon Trimmer, Virginia Correctional Enterprises, Virginia Department of Correctional Education, Virginia Department of Corrections, G. K. Washington. (Davis, Mark) (Entered: 06/17/2010)
94 Memorandum in Support re 93 MOTION to Amend/Correct the Pre−Trial Schedule filed by James R. Camache, Community Corrections, Lois Fegan, Donald Guillory, Robin Hulbert, P. C. Hunnel, Gene Johnson, Walter A. McFarlane, B. Morris, Sandra Parker, Eddie L. Pearson, Powhatan Correctional Center, Tony E. Reese, Fred Schilling, Malcom Taylor, Sharon Trimmer, Virginia Correctional Enterprises, Virginia Department of Correctional Education, Virginia Department of Corrections, G. K. Washington. (Davis, Mark) (Entered: 06/17/2010)
95 Notice of Hearing Date set for June 18, 2010 re 93 MOTION to Amend/Correct the Pre−Trial Schedule (Davis, Mark) (Entered: 06/17/2010)
97 Minute Entry for proceedings held before District Judge T. S. Ellis, III: Motion Hearing held on 6/18/2010 re: 47 MOTION to Dismiss First Amended Complaint filed by Ronald W. Toney, C. Stewart, K. Watson, 45 MOTION to Dismiss Amended Complaint filed by G. K. Washington, Community Corrections, Sandra Parker, Lois Fegan, Robin Hulbert, Tony E. Reese, Walter A. McFarlane, Virginia Department of Correctional Education, Virginia Correctional Enterprises, James R. Camache, Donald Guillory, Malcom Taylor, Fred Schilling, Gene Johnson, Virginia Department of Corrections, P. C. Hunnel, B. Morris, Eddie L. Pearson, Sharon Trimmer, Powhatan Correctional Center, 58 MOTION to Dismiss filed by John Duval, Medical College of Virginia Hospitals, Deborah Davis, Virginia Commonwealth University Health System Authority, Sheldon Retchin, Amanda Dodd. Appearances: Adele Auxier for Pltff; Mark Davis, Charles Allen and Elizabeth Downy for Defts. Motions to dismiss heard and T.U.A. Parties to meet as planned w/ the Magistrate Judge, and then appear for a Status Conference set for 6/25/2010 at 10:00 AM before District Judge T. S. Ellis III. (Court Reporter M. Rodriquez.) (tbul, ) (Entered: 06/21/2010)
98 ORDER taking under advisement Defts' 45 Motion to Dismiss; 47 Motion to Dismiss; and 58 Motion to Dismiss, for reasons stated from the Bench, and DIRECTING parties to appear at 10:00 a.m. on Friday, 6/25/10, to apprise the Court of the status of their settlement negotiations, and if they choose, to renew their joint motion to extend the discovery period and continue the final pretrial conference. /s/ by District Judge T. S. Ellis, III on 6/18/10. (tbul, ) (Entered: 06/21/2010)
96 Notice of Hearing Date Amended set for June 25, 2010 re 93 MOTION to Amend/Correct the Pre−Trial Schedule (Davis, Mark) (Entered: 06/21/2010)
99 Stipulation of Voluntary Dismissal of Toney, Watson, Stewart by Gary Minnis, Larry More, David Richardson, Ronald Roman, Delonte Tinsley, Wolfjunge Wolfsburger, Gene Johnson, Fred Schilling, Robin Hulbert, G.K. Washington, Lois Fegan, James Camache, Malcom L. Taylor, Tony E. Reese, Donald Guillory, Walter McFarlane, Sharon Trimmer, Eddie Pearson, P.C. Hunnel, Sandra Parker, B. Morris, Virginia Department of Corrections, Virginia Correctional Enterprises, Virginia Department of Correctional Education, Howhatan Correctional Center, Sheldon Retchin, John Duval, Deborah Davis, Amanda Dodd, Virginia Commonwealth University Health System Authority, Medical College of Virginia Hospital, Ronald W. Toney, K. Watson and C. Stewart (Auxier, Adele) Modified text on 6/22/2010 to include all relevant party filer(klau, ). (Entered: 06/21/2010)
100 So Ordered re 99 Stipulation of Voluntary Dismissal, as to defts Ronald W. Toney, K. Watson, and C. Stewart, filed by G. K. Washington, Sandra Parker, Lois Fegan, John Duval, Wolfjunge Wolfsburger, Medical College of Virginia Hospitals, David Richardson, Robin Hulbert, Tony E. Reese, Walter A. McFarlane, Virginia Department of Correctional Education, Virginia Correctional Enterprises, James R. Camache, Donald Guillory, Deborah Davis, Malcom Taylor, Larry More, Virginia Commonwealth University Health System Authority, Fred Schilling, Gene Johnson, Virginia Department of Corrections, P. C. Hunnel, B. Morris, Delonte Tinsley, Eddie L. Pearson, Sheldon Retchin, Sharon Trimmer, Gary Minnis, Amanda Dodd, Powhatan Correctional Center, Ronald Roman. Signed by District Judge T. S. Ellis, III

Case: 1:10-cv-96 As of: 05/16/2019 03:17 PM EDT 18 of 22

06/22/2010 06/22/2010 06/24/2010 06/24/2010 06/24/2010
06/24/2010 06/24/2010 08/03/2010 08/24/2010 08/24/2010 09/16/2010 11/09/2010 11/09/2010 11/09/2010 11/15/2010 11/16/2010

on 6/21/10. (nmck, ) (Entered: 06/22/2010)
Notice of Correction re 99 Notice of Voluntary Dismissal, The text has been modified to reflect all party/filer of the document. The filing user selected the wrong event. Notice of Voluntary Dismissal was selected, and Stipulation should have been selected. The docket has been corrected (klau, ) (Entered: 06/22/2010)
Set/Reset Deadlines as to 93 MOTION to Amend/Correct the Pre−Trial Schedule. Motion Hearing set for 6/25/2010 at 10:00 AM before District Judge T. S. Ellis III. (clar, ) (Entered: 06/22/2010)
101 PROTECTIVE ORDER re Handeling and labeling of confidential materials (see order for details). Signed by Magistrate Judge Thomas Rawles Jones, Jr on 6/24/10. (klau, ) (Entered: 06/24/2010)
Per TSE chambers motions set for 6/25/10 are off (clar, ) (Entered: 06/24/2010)
102 ORDER 1. The status conference set for June 25, 2010, is CANCELLED. 2. The defendants' 93 Unopposed Motion to Amend the Pretrial Schedule is GRANTED. The discovery period is extended through September 10, 2010, and the final pretrial conference is CONTINUED to September 16, 2010, at 10:00 a.m.. Signed by Magistrate Judge Thomas Rawles Jones, Jr on 6/24/10. (klau, ) Modified text on 6/28/2010 (klau, ). (Entered: 06/28/2010)
Reset Scheduling Order Deadlines: Final Pretrial Conference set for 9/16/2010 at 10:00 AM before District Judge T. S. Ellis III. Discovery due by 9/10/2010. (klau, ) (Entered: 06/28/2010)
Minute Entry for proceedings held before Magistrate Judge Thomas Rawles Jones, Jr: Settlement Conference held on 6/24/2010. There were fourteen (14) attendees. Conference lasted approx. five (5) hours. (cmar, ) (Entered: 06/28/2010)
Minute Entry for proceedings held before Magistrate Judge Thomas Rawles Jones, Jr: Settlement Conference held on 8/3/2010. Lasted approximately 4 1/2 hours. Seven attendees were present. (cmar, ) (Entered: 08/04/2010)
103 ORDERED that the discovery period is extended through October 1, 2010, and the Final Pretrial Conference is continued to October 21, 2010, at 10:00 a.m. Signed by Magistrate Judge Thomas Rawles Jones, Jr on 8/24/2010. (tche) (Entered: 08/27/2010)
Reset Scheduling Order Deadlines: − Final Pretrial Conference set for 10/21/2010 at 10:00 AM before District Judge T. S. Ellis III. −Discovery due by 10/1/2010. (tche) (Entered: 08/27/2010)
104 MOTION for Extension of Time by David Richardson. (Attachments: # 1 Attachment, # 2 Envelope)(tche) (Entered: 09/16/2010)
105 Consent MOTION for Voluntary Dismissal of VDOC Defendants by Gary Minnis, Larry More, David Richardson, Ronald Roman, Delonte Tinsley, Wolfjunge Wolfsburger. (Attachments: # 1 Proposed Order)(Auxier, Adele) Modified text on 11/10/2010 (klau, ). (Entered: 11/09/2010)
106 NOTICE by Gary Minnis, Larry More, David Richardson, Ronald Roman, Delonte Tinsley, Wolfjunge Wolfsburger re 105 Consent MOTION to Dismiss VDOC Defendants Waiver of Oral Argument (Auxier, Adele) (Entered: 11/09/2010)
107 NOTICE by Gary Minnis, Larry More, David Richardson, Ronald Roman, Delonte Tinsley, Wolfjunge Wolfsburger re 105 Consent MOTION to Dismiss VDOC Defendants Submission of Exhibit A (Auxier, Adele) (Entered: 11/09/2010)
108 STIPULATION of Voluntary Dismissal of VCUHSA Defendants pursuant to Rule 41(a)(1)(A)(ii) of FRCP by Gary Minnis, Larry More, David Richardson, Ronald Roman, Delonte Tinsley, Wolfjunge Wolfsburger. (Auxier, Adele) Modified text on 11/16/2010 (klau, ). (Entered: 11/15/2010)
109 ORDER: The Plaintiffs and the VDOC Defendants have entered into a private settlement agreement ("Agreement") pursuant to 18 U.S.C. § 3626. UPON CONSIDERATION of Plaintiffs' Consent Motion For Voluntary Dismissal of Virginia

Case: 1:10-cv-96 As of: 05/16/2019 03:17 PM EDT 19 of 22

11/17/2010
10/27/2014
11/07/2014 12/31/2014 01/16/2015 02/05/2015 03/03/2015
03/03/2015
04/02/2015 04/15/2015 10/13/2015 10/22/2015 11/02/2015

Department of Corrections Defendants, and the record herein, it is hereby: 1. ORDERED that all claims against the VDOC Defendants are dismissed from the abovc−captioned action with prejudice, except for the claim for an interpreter for weekly religious services at Powhatan Correctional Center brought by plaintiff Larry More, which is dismissed without prejudice;2. ORDERED that by consent of the parties and consistent with 18 U.S.C. §3626(c)(2), the Court shall retain jurisdiction pursuant to Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375 (1994) through October 18, 2015 for the limited purpose of reinstating this lawsuit under the terms of the Agreement.Signed by District Judge T. S. Ellis, III on 11/16/10. (yguy) (Entered: 11/16/2010)
110 So Ordered granting 108 Stipulation of Voluntary Dismissal with prejudice as to Defendants Sheldon Retchin, MD, John Duval, Deborah Davis, Amanda Dodd, Virginia Commonwealth University Health System Authority, and Medical College of Virginia Hospital , each party shall bear its own costs filed by Larry More, Gary Minnis, Wolfjunge Wolfsburger, David Richardson, Delonte Tinsley, Ronald Roman. Signed by District Judge T. S. Ellis, III on 11/17/10. (klau, ) Modified text on 11/17/2010 (klau, ). (Entered: 11/17/2010)
111 MOTION For Reinstatement to the United States District Court, Eastern District of Virginia Docket for Appointment of Counsel and Sanctions by Gary Minnis, Larry More, David Richardson, Ronald Roman, Delonte Tinsley. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14a, # 15 Exhibit 14b, # 16 Exhibit 14c, # 17 Exhibit 14d, # 18 Exhibit 14e, # 19 Exhibit 14f, # 20 Exhibit 15, # 21 Exhibit 16a, # 22 Exhibit 16b, # 23 Exhibit 17, # 24 Exhibit 18, # 25 Exhibit 19, # 26 Exhibit 20, # 27 Exhibit 21, # 28 Envelope)(klau, ) (Entered: 10/30/2014)
112 Letter to the Court by David Richardson. (Attachments: # 1 Emergency Grievances, # 2 Envelope)(klau, ) (Entered: 11/13/2014)
113 Letter to the court from Jeffrey A. Smith. (dvanm, ) (Entered: 12/31/2014)
114 ORDER that Lana M. Manitta, Esq. is APPOINTED as counsel for plaintiffs. Signed by District Judge T. S. Ellis, III on 1/16/15. (klau, ) (Entered: 01/21/2015)
115 Brief in Support to 111 MOTION For Reinstatement to the United States District Court, Eastern District of Virginia Docket for Appointment of Counsel and Sanctions filed by Gary Minnis. (Attachments: # 1 Certificate of Service, # 2 Envelope)(gwalk, ) (Entered: 02/09/2015)
116 MOTION to Withdraw 111 MOTION For Reinstatement to the United States District Court, Eastern District of Virginia Docket for Appointment of Counsel and Sanctions, 115 Brief in Support, by Gary Minnis, Larry More, David Richardson, Ronald Roman, Delonte Tinsley, Wolfjunge Wolfsburger. (Attachments: # 1 Proposed Order)(Manitta, Lana) (Entered: 03/03/2015)
117 ORDER re 116 Motion to Withdraw, ADJUDGED, ORDERED and DECREED that the Plaintiffs' Motion to Reinstate and Brief in Support be and hereby are withdrawn, without prejudice. ADJUDGED, ORDERED and DECREED that the Order appointing Lana Manilla, Esq. as counsel for Plaintiff, entered on January 21,2015, remains in full force and effect.. Signed by District Judge T. S. Ellis, III on 3/2/15. (klau, ) (Entered: 03/04/2015)
118 Letter to the Court by David Richardson. (Attachments: # 1 Copy of letter to Mr. Marano, # 2 Envelope)(klau, ) (Entered: 04/06/2015)
119 Letter from Pro Se David Richardson. (gwalk, ) (Entered: 04/15/2015)
120 MOTION for Reinstatement by David Richardson. (Attachments: # 1 Letter, # 2 Envelope)(klau, ) (Entered: 10/14/2015)
121 Letter to the Court by Pro Se David Richardson. (Attachments: # 1 Envelope)(klau, ) (Entered: 10/23/2015)
122 MOTION to Withdraw as Attorney by Larry More, David Richardson, Ronald Roman, Delonte Tinsley. (Attachments: # 1 Proposed Order)(Manitta, Lana) (Entered:

Case: 1:10-cv-96 As of: 05/16/2019 03:17 PM EDT 20 of 22

11/02/2015 11/03/2015
11/03/2015 11/03/2015 11/04/2015 11/09/2015 11/09/2015 11/10/2015 11/12/2015 11/12/2015 11/13/2015 11/19/2015
11/25/2015

11/02/2015)
123 Notice of Hearing Date set for 11/13/2015 re 122 MOTION to Withdraw as Attorney (Manitta, Lana) (Entered: 11/02/2015)
Set Deadlines as to 122 MOTION to Withdraw as Attorney . Motion Hearing set for 11/13/2015 at 09:00 AM in Alexandria Courtroom 400 before Magistrate Judge Michael S. Nachmanoff. (Attorney has been notified to file an Amended Notice of Hearing with the appropriate time − Deadlines Terminated (clar, ) (Entered: 11/03/2015)
MOTIONS REFERRED to Magistrate Judge: Nachmanoff. 122 MOTION to Withdraw as Attorney (clar, ) (Entered: 11/03/2015)
124 Notice of Hearing Date (Amended/Corrected) set for 11/13/2015 re 122 MOTION to Withdraw as Attorney (Manitta, Lana) (Entered: 11/03/2015)
Reset Deadlines as to 122 MOTION to Withdraw as Attorney . Motion Hearing set for 11/13/2015 at 10:00 AM in Alexandria Courtroom 400 before Magistrate Judge Michael S. Nachmanoff. (clar, ) (Entered: 11/04/2015)
Reset Deadlines as to 122 MOTION to Withdraw as Attorney . Motion Hearing set for 11/13/2015 at 10:00 AM in Alexandria Courtroom 900 before District Judge T. S. Ellis III. (Per TSE chambers) (clar, ) (Entered: 11/09/2015)
125 Copy of Letter to Attorney by David Richardson. (Attachments: # 1 Letter, # 2 Envelope)(klau, ) (Entered: 11/09/2015)
126 MOTION for Writ of Habeas Corpus ad testificandum by Larry More, David Richardson, Ronald Roman, Delonte Tinsley. (Attachments: # 1 Proposed Order)(Manitta, Lana) (Entered: 11/10/2015)
Notice of Correction re 126 MOTION for Writ of Habeas Corpus ad testificandum . The filing user has been notified to file a Notice of Hearing Date or a Notice of Waiver of Oral Argument.(klau, ) (Entered: 11/12/2015)
127 RESPONSE to Motion re 122 MOTION to Withdraw as Attorney filed by Virginia Department of Corrections. (Parsons, John) (Entered: 11/12/2015)
128 Minute Entry for proceedings held before District Judge T. S. Ellis, III: Motion Hearing held on 11/13/2015 re: Plaintiff's motion 122 to Withdraw as Attorney. Lana M. Manitta present on behalf of plaintiff. Motion granted, order to follow. (Court Reporter Michael A. Rodriquez)(mpha) (Entered: 11/16/2015)
129 ORDERED that the Motion to Withdraw 122 is GRANTED; Ms. Manitta and Ms. Golden are hereby EXCUSED from further representation of plaintiff David Richardson in this matter. Ms. Manitta and Ms. Golden remain counsel of record for the three remaining deaf plaintiffs still in VDOC custody; defendants, by counsel, are DIRECTED to file a response to pro se plaintiff Richardson's pending Motion for Reinstatement and supporting letter by 5:00 p.m. Wednesday, December 2, 2015; the Court Reporter is DIRECTED to prepare the transcript of the November 13, 2015 hearing and to file the transcript in the CM/ECF record of this case; The Clerk is directed to send a copy of this Order to all counsel of record and to pro se plaintiff David Richardson. The Clerk is further directed to send a copy of the November 13, 2015 hearing transcript to pro se plaintiff Richardson free of charge. Signed by District Judge T. S. Ellis, III on 11/19/2015. (mpha) (Entered: 11/23/2015)
130 TRANSCRIPT of proceedings held on 11/13/2015, before Judge Ellis, Court Reporter/Transcriber Michael Rodriquez, Telephone number 301−213−4913. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the court reporter/transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 12/28/2015. Redacted Transcript Deadline set for 1/25/2016. Release of Transcript

Case: 1:10-cv-96 As of: 05/16/2019 03:17 PM EDT 21 of 22

12/02/2015 12/22/2015
01/07/2016 01/19/2016 02/22/2016
02/22/2016 02/22/2016
03/14/2016 03/20/2016 03/21/2016 03/29/2016 03/30/2016

Restriction set for 2/23/2016.(rodriquez, michael) (Entered: 11/25/2015)
131 Response in Opposition 120 MOTION for Reinstatement, 121 Letter filed by Virginia Department of Corrections. (Attachments: # 1 Exhibit I, # 2 Exhibit II − Part 1 of 2, # 3 Exhibit II − Part 2 of 2, # 4 Exhibit III, # 5 Exhibit IV)(Parsons, John) Modified text on 12/3/2015 (klau, ). (Entered: 12/02/2015)
132 REPLY to 131 Response in Opposition to 120 MOTION for Reinstatement filed by David Richardson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Envelope)(jlan, ) (Entered: 12/29/2015)
133 Submission by David Richardson. (rban, ) (Main Document 133 replaced on 1/19/2016) (klau, ). Modified on 1/19/2016 Redacted social security number on page 3 per order dated 1/19/16 dkt. no. 134 (klau, ). (Entered: 01/13/2016)
134 ORDER that the Clerk is DIRECTED to redact the first five digits of plaintiff's social security number located on docket entry 133 at page three −−−−−(see order for details). Signed by District Judge T. S. Ellis, III on 1/19/16. Copy mailed: yes(klau, ) (Entered: 01/19/2016)
135 ORDER for good cause, attorney Robert Jenkins,Esq. is APPOINTED to represent plaintiff David Richardson in all further proceedings in this case; plaintiff Richardson, by newly appointed counsel, is DIRECTED to file a supplemental brief in support of plaintiff's pending motion for reinstatement by 5:00 p.m., Tuesday, March 22, 2016; a hearing on plaintiff Richardson's motion for reinstatement is SCHEDULED for 10:00 a.m., Friday, April 8, 2016; the Clerk is directed to send a copy of this Order to all counsel of record, Robert Jenkins, Esq., and plaintiff David Richardson. Signed by District Judge T. S. Ellis, III on 02/22/2016. (mpha, ) (Entered: 02/22/2016)
Set/Reset Deadlines as to Motion 120 for Reinstatement. Motion Hearing set for 4/8/2016 at 10:00 AM in Alexandria Courtroom 900 before District Judge T. S. Ellis III. See Order 135 . (mpha) (Entered: 02/22/2016)
136 ORDER for good cause, Ms. Manitta is DIRECTED to file a pleading by 5:00 p.m., Monday, March 14, 2016, advising the Court, inter alia, of the following: (i) the progress that has been made thus far on behalf of plaintiffs Roman, Tinsley and More with respect to the ongoing negotiations with VDOC concerning the conditions of confinement for hearing impaired inmates, and (ii) when Ms. Manitta anticipates submitting a fee claim in this matter. Signed by District Judge T. S. Ellis, III on 02/22/2016. (mpha) (Entered: 02/22/2016)
137 STATUS REPORT by Larry More, and by Ronald Roman, Delonte Tinsley. (Manitta, Lana) (Entered: 03/14/2016)
138 Consent MOTION for Extension of Time to File Supplemental Brief in Support of Motion for Reinstatement by David Richardson. (Attachments: # 1 Proposed Order)(Jenkins, Robert) (Entered: 03/20/2016)
139 ORDER granting 138 Motion for Extension of Time to File. Counsel for plaintiff is ordered to file any supplemental brief in support of plaintiff request for reinstatement on or before March 29,2016. Signed by District Judge T. S. Ellis, III on 3/21/16. (klau, ) (Entered: 03/21/2016)
140 MOTION to Withdraw Motion for Reinstatement by David Richardson. (Jenkins, Robert) (Entered: 03/29/2016)
141 So Ordered re 140 MOTION to Withdraw Motion for Reinstatement filed by David Richardson. Signed by District Judge T. S. Ellis, III on 3/30/16. (klau, ) (Entered: 03/30/2016)

Case: 1:10-cv-96 As of: 05/16/2019 03:17 PM EDT 22 of 22 04/06/2016 142 Letter to Clerk of Court. (Parsons, John) (Entered: 04/06/2016)