Case 1:15-cv-00057-JCC-MSN Document 1 Filed 01/15/15 Page 1 of 19 PageID# 1 FILED

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA^ jAN j5 p |: 0g
ALEXANDRIA DIVISION

ABREHAM ZEMEDAGEGEHU P.O. Box 58097 Washington, D.C. 20037

CLERK US DISTRICT COURT ALEXANDRIA, VIRGINIA

Plaintiff,
ARLINGTON COUNTY BOARD
SERVE ON: Jay Fisetts, Chair Arlington County Board 2100 Clarendon Blvd., Suite 300 Arlington, Virginia 22201

Civil Action No. l'(5£i/£$~Sc/± -f&f
JURY TRIAL DEMANDED

ARLINGTON COUNTY SHERIFF'S OFFICE
SERVE ON: Elizabeth F.Arthur, Sheriff 1425 North Courthouse Rd.,
Suite 9100
Arlington, Virginia 22201

ARLINGTON COUNTY DETENTION
FACILITY
1435 North Courthouse Rd.
Arlington, Virginia 22201 SERVE ON: Elizabeth F.Arthur, Sheriff
1425 North Courthouse Rd.,
Suite 9100
Arlington, Virginia 22201

Defendants.

COMPLAINT
PlaintiffAbreham Zemedagegehu files this Complaint against Defendants the Arlington County Board, the Arlington County Sheriff's Office, and the Arlington County Detention
Facility (collectively, the "Defendants") and states:

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PRELIMINARY STATEMENT
1. Abreham Zemedagegehu ("Plaintiff" or "Mr. Zemedagegehu"), an individual who is deaf, brings this case against the Defendants for failing to provide him with qualified American Sign Language ("ASL") interpreter services and other auxiliary aids or services necessary to ensure effective communication during his nearly six-week-long detention at the Arlington County Detention Facility. This failure, and the resulting consequences, violated Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-12165 ("Title II"), and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Section 504"). Mr. Zemedagegehu seeks declaratory relief, compensatory damages, and attorneys' fees and costs.
JURISDICTION AND VENUE
2. This Courthas subjectmatter jurisdiction over this action under28 U.S.C. § 1331. 3. Venue is proper in this judicial district under 28 U.S.C. § 1391 because a substantial part of the acts or omissions giving rise to this action occurred inArlington, Virginia.
THE PARTIES
4. Plaintiff Abreham Zemedagegehu resides in Washington, D.C. and does not have a permanent residential address at this time. Mr. Zemedagegehu is deaf and communicates
primarily in ASL.
5. Defendant Arlington County Board (the "County Board") is the governing body for Arlington County. The County Board allocates funds for and engages in oversight over Defendant Arlington County Sheriff's Office. The County Board isa public entity subject to Title II. The County Board distributes federal financial assistance, including federal prisoner
reimbursements, and is subject to Section 504.

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6. Defendant Arlington County Sheriff's Office (the "Sheriff's Office") manages the Arlington County Detention Facility (the "Detention Facility"). The Sheriff's Office is a public entity subject to Title II. The Sheriff's Office is a recipient offederal financial assistance, including federal prisoner expense reimbursements, and is subject to Section 504.
7. Defendant Detention Facility is the jailfor Arlington County. The Detention Facility isa public entity subject to Title II. The Detention Facility is a recipient offederal financial assistance, including federal prisoner expense reimbursements, and is subject to Section
504.
FACTUAL ALLEGATIONS
Background
8. Mr. Zemedagegehu was born and raised in Ethiopia. He immigrated to the United
States in 2001, and became a United States citizen in 2008.
9. Mr. Zemedagegehu is deaf and has limited English proficiency. 10. As a child, Mr. Zemedagegehu first learned Amharic, the language of Ethiopia.
Later in his childhood, he learned Ethiopian Sign Language, the language ofthe deaf community
in Ethiopia.
11. Mr. Zemedagegehu began learning ASLafterimmigrating to the United States in
2001. He considers himself fluent inASL. ASL isa 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 - and has its
own vocabulary and rules for grammar and discourse structure.
12. English is Mr. Zemedagegehu's fourth language. Mr. Zemedagegehu learned the little English he knows by taking courses through the English Language Institute at Gallaudet

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University. He struggles towrite and understand even basic English sentences. He has no functional ability to speak English or to read lips.
13. Mr. Zemedagegehu's employment history is limited to manual labor jobs that did not require proficiency inspoken orwritten English. For example, he worked loading and
unloading trucks at Federal Express. 14. In 2010, Mr. Zemedagegehu left hisjob with Federal Express due to a lowerback
injury that had occurred in2008. This injury requires him to wear a back brace and take daily
medication.
Plaintiffs Arrest
15. On the evening ofFebruary 2,2014, Mr. Zemedagegehu went to Ronald Reagan Washington National Airport ("National Airport") to find a warm place to sleep.
16. Shortly after entering National Airport, Mr. Zemedagegehu was arrested by officers of the Metropolitan Washington Airports Authority.
17. Usinggestures and in writing, Mr. Zemedagegehu informed the officers that he is
deaf and did not understand them. He also requested an ASL interpreter in writing. The officers denied his request. Instead, the officers attempted to communicate with Mr. Zemedagegehu by
writing information on a notepad. 18. Because Mr. Zemedagegehu cannot read written English well, he did not know
why he had been arrested.
19. Mr. Zemedagegehu was in the custody of the Metropolitan Washington Airports Authority for only a shortperiod of time before being transported to the Detention Facility, which is located inArlington County, Virginia, close to National Airport.

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20. Mr. Zemedagegehu was detained at the Detention Facility for nearly six weeks. During this time, despite Mr. Zemedagegehu's repeated requests, Defendants refused to provide any effective means for Mr. Zemedagegehu to communicate. As a result, Mr. Zemedagegehu did
not understand why he had been arrested, could not communicate his needs or understand what was being said during booking or his medical evaluations, and could not inform the Detention Center of his medical needs and dietary restrictions. Because he could not understand the announcements and other communications made orally at the Detention Center, Mr. Zemedagegehu missed out on meals, recreation times, rehabilitative services, and other events at
the Detention Facility. He also was unable to place telephone calls while at the Detention Center. 21. Onmany occasions when Mr. Zemedagegehu requested interpreter services either
in writing or using gestures, he believes he was informed that interpreters were prohibited at the
Detention Facility. Booking Process
22. Mr. Zemedagegehu arrived at the Detention Facility during the early hours of February 3, 2014. Officers who worked for Defendants attempted to communicate with Mr. Zemedagegehu by speaking. However, Mr. Zemedagegehu was unable to understand what the
officers were saying.
23. During thisprocess, both in writing and using gestures, Mr. Zemedagegehu requested an ASL interpreter. Defendants refused to provide one.
24. Because Defendants did not provide an interpreter, Mr. Zemedagegehu did not know why he had been arrested or what to expect while he was detained.
25. During the booking process, the officers placed Mr. Zemedagegehu in front of a web camera, a microphone, and a computer monitor that appeared to show a judge on the screen. Thejudge on the monitor appeared to be speaking to Mr. Zemedagegehu, but he could not

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understand what the judge was saying. Mr. Zemedagegehu attempted to signal that he was deaf, but officers in the room with Mr. Zemedagegehu directed him to stay still. Mr. Zemedagegehu does notknow what occurred during that interaction with the judge.
26. Atone point, one of Defendants' officers handed Mr. Zemedagegehu a piece of
paper that was filled with writing. Mr. Zemedagegehu did not understand what it said and requested anASL interpreter by writing on the paper. After requesting an interpreter, Mr.
Zemedagegehu observed an officer placing a phone call. Upon information and belief, the phone call relayed Mr. Zemedagegehu's request for an interpreter to another prison officer.
27. When the phone call concluded, the officer denied Mr. Zemedagegehu's
interpreter request.
28. Without an interpreter, Mr. Zemedagegehu did not understand what was taking place during the booking process. Thus, Mr. Zemedagegehu could not understand any of the Detention Facility's rules or procedures that might have been explained to him. Similarly, Mr. Zemedagegehu was unable to advise the Detention Facility personnel of critical information
concerning himself, such as his dietary restrictions and medical needs. 29. OnFebruary 4, 2014, Mr. Zemedagegehu was arraigned. TheArlington General
DistrictCourt provided an interpreterfor his arraignment. 30. Not until his arraignment, more than 24 hours after his arrest, did Mr.
Zemedagegehu first learn that he had been arrested and incarcerated for allegedly stealing an
iPad. Medical Evaluations
31. After booking, but before his arraignment, Defendants'employees sent Mr.
Zemedagegehu for a medical evaluation.

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32. The employee conducting the evaluation attempted to communicate with Mr. Zemedagegehu in writing, but Mr. Zemedagegehu did not understand whatwas written. He
informed the evaluator that he did not understand and requested in writing an ASL interpreter.
The evaluator refused to provide one.
33. Without an interpreter, Mr. Zemedagegehu was unable to explain to the employee
that he had back problems and required a prescription. Consequently, throughout his entire six week incarceration at the Detention Facility, Mr. Zemedagegehu did not receive the medicine he
requires to alleviate his back pain. 34. The evaluator handed Mr. Zemedagegehu what is nowbelieved to be a consent
form to sign for a medical procedure. Mr. Zemedagegehu could not read the form. He refused to sign it and asked in writing for an interpreter.
35. The evaluator summoned a second employee into the room. Mr. Zemedagegehu asked, in writing, for the second employee to provide an interpreter.
36. Instead of providing an interpreter, the second employee held down Mr. Zemedagegehu's arm and forced a needle into it. At the time, Mr. Zemedagegehu was confused as to what they were doing to his arm.
37. After the medical evaluation, an officer put Mr. Zemedagegehu into ajail cell by himself. Mr. Zemedagegehu did know why he was being placed in isolation.
38. Mr. Zemedagegehu was scared and confused during this time. 39. Mr. Zemedagegehu repeatedly banged on the door and gestured at the cameras to getan officer's attention to obtain an interpreter. He wanted the Detention Facility officers to explain to him what was happening: Mr. Zemedagegehu still did not know why he had been

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arrested, why he was incarcerated, when he might be released, what had just been done to his
arm, when he might be fed, or any other vital information. 40. Mr. Zemedagegehu's skin had a negative reaction to the forcible medical
procedure that was conducted onhis arm. Following this reaction, Mr. Zemedagegehu underwent an additional medical procedure. Once again, Defendants refused to provide an interpreter to explain this medical procedure. Because ofthe lack ofcommunication, Mr. Zemedagegehu did not know what was happening to him orwhy. He remained inisolation for several days.
Dietary Needs
41. At some point during Mr. Zemedagegehu's isolation, one of Defendants' officers
slid a tray offood into Mr. Zemedagegehu's cell. The food tray contained pork. Mr.
Zemedagegehu does not eat pork for religious reasons.
42. Because Defendants refused to provide Mr. Zemedagegehu with an interpreter, he
was unable to informDefendants of his dietary restrictions.
43. Asa result of the loneliness and frustration of being unable to effectively communicate with anyone, Mr. Zemedagegehu protested by refusing to eatfor an extended
period of time. TelephoneAccess
44. After his arraignment, Mr. Zemedagegehu attempted to communicate to Defendants' officers that he needed to place a telephone call. In response, Defendants' officers gestured to a traditional telephone. Defendants' officers appeared to suggest to Mr. Zemedagegehu to use the traditional telephone onmultiple occasions when he requested to make
a phone call.
45. Because he is deaf, Mr. Zemedagegehu cannot place a call using a traditional telephone. Instead, Mr. Zemedagegehu places calls through a videophone.
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46. A videophone is a device with a camera and a video monitor that allows both
parties to see each other simultaneously, similar to Skype and FaceTime. Videophones allow deaf individuals to communicate with one another directly in ASL without having to communicate through written English. Any computer or smartphone with a camera and appropriate software
can be used to place a videophone call.
47. Although Defendants state that the Detention Facility is "[o]ne of the most technically advanced 'Direct Supervision' jailsin the country," upon information and belief, it does nothave a videophone or any device equipped with videophone software.
48. Mr. Zemedagegehu repeatedly pleaded with Defendants' officers to let him place a call to his public defender. Finally, one of Defendants' officers took the piece of paper with the public defender's phone number on it and gestured to Mr. Zemedagegehu thatthe officer would
place the call for him. 49. Mr. Zemedagegehu waited for the officer to return, but the officer never did.
50. Mr. Zemedagegehu did not find out whether the officer had followed through with placing the call for Mr. Zemedagegehu, or what else had happened, until days later, when a public defender appeared at the Detention Facility to see Mr. Zemedagegehu.
51. More than one week after Mr. Zemedagegehu began asking to make a phone call, Defendants' officers provided himwith a teletypewriter ("TTY").
52. ATTYis an electronic device that allows typed communication to be sent to another TTY via a telephone line. Based on sixty-year-old technology, the TTY is basically a telephone equipped with a keyboard and a screen capable of displaying a single line of text, giving it less functionality than the text-messaging function of a cellular phone. Fortwo parties to have a TTY conversation, each party must have a TTY. Though a TTY may be a helpful

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communication tool, it ultimately relies on the user's ability to communicate in written English and, in all events, is a much more time-intensive communication tool than a telephone, computer, orany other modern communication device. ATTY conversation does not enable parties to communicate inASL. TTY has been almost entirely supplanted by the videophone and most deaf individuals no longer have TTYs. They communicate by videophone or by using any number of
computer programs that provide for more efficientvideo- and text-based communication, such as FaceTime, email, and instant messaging programs.
53. Mr. Zemedagegehu cannot communicate effectively using a TTY because a TTY requires proficiency inEnglish. Mr. Zemedagegehu cannot read orwrite English well enough to carry on a conversation using written English. He can communicate effectively usinga
videophone because a videophone allows him to communicate in ASL. 54. Mr. Zemedagegehu attempted to use theTTYprovided to call a friend, who is
also deaf. Like Mr. Zemedagegehu and most other deaf individuals, she uses a videophone in place of a standard telephone. Also like Mr. Zemedagegehu and most other deafindividuals, she does notown a TTY; she owns only a videophone. ATTY cannot connect directly to a
videophone.
55. Consequently, Mr. Zemedagegehu attempted to butcould not place a telephone call to his friend or anyone else, includinghis attorney.
56. Upon information and belief, inmates at the Detention Center who can hear have access to a telephone to place outgoing calls.
57. Instead of Mr. Zemedagegehu placing the call to his friend, one of Defendants'
officers placed the call for Mr. Zemedagegehu through a standard telephone. Because the officer was calling a deafindividual, the officer's call connected automatically to a videophone relay
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service operator, who used a videophone to attempt to contact Mr. Zemedagegehu's friend and
relay the guards communication in ASL to the friend. Because the friend did not answer and due
to the communication limitations between the officer and Mr. Zemedagegehu, the officer apparently left a message for Mr. Zemedagegehu's friend to come to the Detention Facility. The message the friend received was in the format of a video message of the relay service operator using ASL to translate the officer's message. The video relay service can translate spoken
English to ASL, but such relay service cannot receive TTY calls and translate those into ASL. Mr. Zemedagegehu could not use the relay service himself because he would have had to use the standard telephone.
58. Because Mr. Zemedagegehu could not communicate with his friend via telephone, his friend had to come to the Detention Facility to communicate with Mr. Zemedagegehu.
59. The Defendants never provided a different device other than a TTY for Mr. Zemedagegehu to make a telephone call. Because of the lackof a videophone, Mr. Zemedagegehu was unable to place telephone calls for the entire time he was detained.
Meal and Recreation Times
60. The Defendants' failure to provide auxiliary aids and services to ensure effective communication caused Mr. Zemedagegehu to miss meals and recreation times.
61. Upon information and belief, Defendants' personnel signaled the beginning of meal and recreation times by using an auditory alert. When inmates heard the alert, they could press a button that would open their cell doors. With the cell doors open, inmatescould leave
their cells and proceed to the cafeteria or recreation yard. 62. BecauseMr. Zemedagegehu is deaf, he could not hear the auditory alerts. 63. After Detention Facility personnel moved Mr. Zemedagegehu out of isolation to
the floor with the general population, Mr. Zemedagegehu was placed in a cell by himself. Mr.
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Zemedagegehu would know that he could leave hiscell only if he was looking outside his cell at the time the alert sounded. He would observe other inmates open their cell doors. Initially, Mr. Zemedagegehu did not understand that he had to press a button inside the cell for his door to open and sowhen he attempted to open the door, it would not open. Only after being placed in a cell with another inmate the next day, did Mr. Zemedagegehu learn that he had to press a button
for the door to open.
64. Onmultiple occasions, Mr. Zemedagegehu was not looking outside his cell at the time the alert sounded, often because he was sleeping. Mr. Zemedagegehu would awaken to see that other inmates were outside of their cells. At that time, he would press the button to open his cell door, but the door would not open. He would attempt to signal to Defendants' officers to have them open his cell door, but they would not respond, causing Mr. Zemedagegehu to miss meals approximately two to three times perweek and recreation times approximately once per week due to the lack of auxiliary aids or services, such as visual alerts.
RehabilitativeProgrammingand OtherServices
65. Defendants deprived Mr. Zemedagegehu of access to rehabilitative programming and other services due to the lack of anASL interpreter and other auxiliary aids and services.
66. Defendants' failure to provide Mr. Zemedagegehu with anASL interpreter or other auxiliary aids and services resulted in Mr. Zemedagegehu being unable to understand what information, if any, Defendants might have provided about rehabilitative programming or other services during booking or throughout the nearly six weeks he spent at the Detention Facility. As
a result, he was unaware of these programs or services while at the Detention Facility and therefore could not take advantage of them.
67. If Defendants had provided anASLinterpreter and other auxiliary aids and services, such as visual alerts and notifications, Mr. Zemedagegehu could have learnedof and
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would have participated in the various rehabilitative programming and other services offered by
the Defendants at the Detention Facility. 68. Even in cases when Mr. Zemedagegehu did learn of available services from other
inmates, he was unable to participate in or benefit from the services because Defendants failed to provide auxiliary aids and services necessary for him to have access to the services.
69. For example, Mr. Zemedagegehu believed that he could visit the Detention Center's library by putting his name on a certain list. Mr. Zemedagegehu wrote his name on what
he believed to be the library list. Defendant's, however, never allowed Mr. Zemedagegehu to
access the library. He does not know why. It is possible that Defendants called his name to visit the library, but Mr. Zemedagegehu could not hear his name being called and therefore was
unable to respond.
70. Each of the many times that Mr. Zemedagegehu requested a sign language interpreter either inwriting or using gestures, the Defendants refused to provide one.
71. By the time Mr. Zemedagegehu was released from Defendants' custody, he had spent six weeks in near-isolation, unable to effectively communicate with anyone at the Detention Center but the sole visitorhe briefly had.
72. Throughout his detention, Mr. Zemedagegehu suffered anxiety, stress, loss of dignity, and frustration due to the intense isolation and repeated instances of exclusion from or limited participation in Defendants' programs, services, and activities.
COUNTI (Title II of the Americans With Disabilities Act)
73. Mr. Zemedagegehu repeats and re-alleges each and every allegation above as if
fully set forth herein.
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74. On July 12,1990, Congress enacted the Americans with Disabilities Act ("ADA")
"to provide a clear and comprehensive national mandate for the elimination of discrimination
against individuals with disabilities." 42 U.S.C. § 12101(b)(1). 75. Title IIof the ADA states that "no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied the benefits of the
services, programs, oractivities ofa public entity, orbe subjected to discrimination by any such
entity." 42 U.S.C. § 12132.
76. Title II of the ADA defines "qualified individual with a disability" as "an individual with a disability who, with orwithout reasonable modifications to rules, policies, or practices, theremoval of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt ofservices orthe participation in programs oractivities provided by a public entity." 42
U.S.C. § 12131(2). 77. Mr. Zemedagegehu has a disability because he is substantially limited in the
major life activities ofhearing and speaking. He also meets the essential eligibility requirements for the receipt ofservices or the participation in programs or activities provided by a public
entity. He is therefore a "qualified individual with a disability" underTitle II of theADA. 78. The County Board is the governing body forArlington County; as such, it is a
"public entity" within the meaning of theADA, 42 U.S.C. § 12131(1)(B). 79. The Sheriff's Office is a department, agency, special purpose district, or other
instrumentality of Arlington County; as such, it is a "public entity" within the meaning of the
ADA, 42 U.S.C. § 12131(1)(B).
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80. The Detention Facility is a department, agency, special purpose district, or other instrumentality ofArlington County; as such, it is a "public entity" within the meaning ofthe
ADA, 42 U.S.C. § 12131(1)(B). 81. At all times relevant to this action, the ADA was in full force and effect in the
United States and Mr. Zemedagegehu had a right not to be subjected by Defendants to discrimination on the basis of his disability. 42 U.S.C. § 12132.
82. Defendants knowingly failed to provide Mr. Zemedagegehu with an ASL
interpreter and other necessary auxiliary aids or services resulting in Mr. Zemedagegehu being:
a. Unable to effectively communicate with Defendants' officers and other personnel
during the booking process;
b. Unable to effectively communicate with Defendants' personnel performing
medical functions; c. Unable to effectively communicate dietary needs; d. Deprived of access to telephone calls; e. Deprived of access to meals and recreation times; and
f. Deprived of knowledge of and access to rehabilitative programming and other
services.
83. These failures violated Mr. Zemedagegehu's rights underTitle II of theADA.
84. Defendants knew of the substantial likelihood of a violation of Mr.
Zemedagegehu's federally protected rights and failed to act on this likelihood. 85. Upon information and belief, the failure to provide effective communication to
deaf individuals, such as Mr. Zemedagegehu, and the failure to provide comparable access to services, programs, and activities as provided to hearing individuals are policies, regular practices, or customs of the Defendants. This failure is ongoingand continues to date.
86. As a result of Defendants' violation of the ADA, Mr. Zemedagegehu has suffered discrimination, exclusion from services, benefits, activities, programs, and privileges, lossof
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dignity, frustration, humiliation, emotional pain and suffering, anxiety, trauma, embarrassment,
and injury to his physical and mental health.
COUNT II (Section 504 ofThe Rehabilitation Act of 19731
87. Plaintiff repeats and re-alleges each and every allegation above as iffully set forth
herein.
88. Section 504 states "No otherwise qualified individual with a disability in the United States ... shall, solely by reason of heror his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance "
89. Plaintiff is substantially limited in the major life activities of hearing and speaking; as such, he isan individual with a disability under 29 U.S.C. § 705(20)(B) who is
qualified under Section 504.
90. The County Board is a program or activity that distributes federal financial
assistance within the meaning of 29 U.S.C. § 794(b)(1), because it distributes money to the Sheriff's Office from the General Fund. Upon information and belief, this money includes
federal prisoner expense reimbursements. 91. The Sheriff's Office is a recipient of federal financial assistance within the
meaning of 29 U.S.C. § 794(b)(1), (4) because it receives federal financial assistance, including
but not limited to federal prisoner expense reimbursements. 92. The Detention Facility is a program or activity receivingfederal financial
assistance within the meaning of 29 U.S.C. § 794(b) because it receives federal financial assistance, including federal prisoner expense reimbursements.
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93. At all times relevant to this action, Section 504 was in full force and effect in the
United States and Mr. Zemedagegehu had a right not to be subjected to discrimination on the basis of his disability by Defendants.
94. Defendants knowingly failed to provide Mr. Zemedagegehu with an ASL
interpreter and other necessary auxiliary aids or services resulting in Mr. Zemedagegehu being:
a. Unable to effectively communicate with Defendants'guards and other personnel during the booking process;
b. Unable to effectively communicate with Defendants' employees
performing medical functions;
c. Unable to effectively communicate dietary needs; d. Deprived of access to telephonecalls; e. Deprived of access to meals and recreation times; and f. Deprived of knowledge of and access to rehabilitative programming and
other services.
95. These failures violated Mr. Zemedagegehu's rights under Section504.
96. Defendants knew of the substantial likelihood of a violation of Mr.
Zemedagegehu's federally protected rights and failed to act on this likelihood. 97. Upon information and belief, the failure to provide effective communication to
deaf individuals, such as Mr. Zemedagegehu, and the failure to provide comparable access to services, programs, and activities as provided to hearing individuals are policies, regular practices, or customs of the Defendants. This failure is ongoing and continues to date.
98. As a result of the Defendants' violation of Section 504, Mr. Zemedagegehu has suffered discrimination, exclusion from services, benefits, activities, programs, and privileges, loss of dignity, frustration, humiliation, emotional painand suffering, anxiety, trauma,
embarrassment, and injury to his physical and mental health.
JURY DEMAND
99. Plaintiff hereby demands thatthis action be tried before a jury.
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PRAYER FOR RELIEF
100. WHEREFORE, Plaintiff respectfully requests that the Court provide the
following relief:
a. Declare that Defendants' refusal to provide a qualified ASL interpreter and other
necessary auxiliary aids or services to ensure effective communication with Mr. Zemedagegehu violated Title II of the ADA and Section 504 of the Rehabilitation Act;
b. Award compensatory damages as a result of the violations of Title II of theADA
and Section 504 ofthe Rehabilitation Act inan amount to be determined at trial;
b. Award reasonable costs andattorneys' fees; and
c. Award any and all other legal or equitable relief that the Court deems necessary
and appropriate.

Dated: January 15,2015

Respectfully

By:
LarryT$nenbaum (pro hac vicemotion
forthcoming)
Jonathan Goodrich (VSB 78522)
AKIN QUMP STRAUSS HAUER & FELD LLP
1333 New Hampshire Avenue N.W. Washington, DC 20036 Telephone: (202) 887-4000 Facsimile: (202) 887-4288 Email: jgoodrich@akingump.com Counselfor Plaintiff*
CarolineE. Jackson, Esq. (pro hac vice forthcoming) DebraJ. Patkin,Esq. (pro hac vice forthcoming)
NATIONAL ASSOCIATION OF THE DEAF
LAW AND ADVOCACY CENTER
8630 Fenton Street, Suite 820 Silver Spring, MD 20910 Telephone: (301) 587-7466 Facsimile: (301) 587-1791 Email: caroline.jackson@nad.org Counselfor Plaintiff*

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* Counsel for Plaintiff gratefully acknowledge the support and work of the following students from the University of Maryland Carey School of Law: Juliana Kim, (Jamie Lee, and Michael
Levin.
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 Case 1:15-cv-00057-JCC-MSN Document 21 Filed 02/19/15 Page 1 of 27 PageID# 66

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

ABREHAM ZEMEDAGEGEHU

)

P.O. Box 58097

)

Washington, D.C. 20037

)

)

Plaintiff,

)

)

v.

)

)

ARLINGTON COUNTY SHERIFF

)

ELIZABETH F. ARTHUR IN HER

)

OFFICIAL CAPACITY

)

SERVE ON: Elizabeth F. Arthur, Sheriff

)

1425 North Courthouse Rd.,

)

Suite 9100

)

Arlington, Virginia 22201

)

)

VIRGINIA DEPARTMENT OF CORRECTIONS )

SERVE ON: Harold W. Clarke, Director

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6900 Atmore Drive

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Richmond, Virginia 23225

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VIRGINIA DEPARTMENT OF CORRECTIONS )

DIRECTOR HAROLD W. CLARKE IN HIS

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OFFICIAL CAPACITY

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SERVE ON: Harold W. Clarke, Director

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6900 Atmore Drive

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Richmond, Virginia 23225

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VIRGINIA BOARD OF CORRECTIONS

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SERVE ON: Carl R. Peed, Chairman

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6900 Atmore Drive

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Richmond, Virginia 23225

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VIRGINIA BOARD OF CORRECTIONS

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CHAIRMAN CARL R. PEED IN HIS OFFICIAL )

CAPACITY

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SERVE ON: Carl R. Peed, Chairman

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6900 Atmore Drive

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Richmond, Virginia 23225

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Defendants.

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Civil Action No. 1:15-CV-57-JCC-TRJ JURY TRIAL DEMANDED

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FIRST AMENDED COMPLAINT Plaintiff Abreham Zemedagegehu files this First Amended Complaint against Defendants Arlington County Sheriff Elizabeth F. Arthur in her official capacity, the Virginia Department of Corrections (“VDOC”), Harold W. Clarke in his official capacity as VDOC’s Director, the Virginia Board of Corrections (the “Board”), and Carl R. Peed in his official capacity as the Board’s Chairman (collectively, the “Defendants”) and states:
PRELIMINARY STATEMENT 1. Abreham Zemedagegehu (“Plaintiff” or “Mr. Zemedagegehu”), an individual who is deaf, brings this case against the Defendants for failing to provide American Sign Language (“ASL”) interpreter services and other auxiliary aids or services necessary to ensure effective communication during his nearly six-week-long detention at the Arlington County Detention Facility (the “Detention Facility”), intentional discrimination, and maintaining policies and procedures that had a disparate impact on Mr. Zemedagegehu because of his disability. These actions and inactions, and the resulting consequences, violated Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-12165 (“Title II”), and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504”). Mr. Zemedagegehu seeks compensatory damages and attorneys’ fees and costs.
JURISDICTION AND VENUE 2. This Court has subject matter jurisdiction over this action under 28 U.S.C. § 1331. 3. Venue is proper in this judicial district under 28 U.S.C. § 1391 because a substantial part of the acts or omissions giving rise to this action occurred in Arlington, Virginia.
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THE PARTIES 4. Plaintiff Abreham Zemedagegehu resides in Washington, D.C. and does not have a permanent residential address at this time. Mr. Zemedagegehu is deaf and communicates primarily in ASL. 5. Defendant Arlington County Sheriff Elizabeth F. Arthur, in her official capacity, (the “Sheriff”) manages and directs the Arlington County Sheriff’s Office and the Arlington County Detention Facility (the “Detention Facility”). The Sheriff is responsible for the day-today operations of the Sheriff’s Office and the Detention Facility. All personnel who work at the Detention Facility are employees of the Sheriff and/or the Sheriff’s Office. The Sheriff’s Office, which is managed and directed by the Sheriff, is a public entity subject to Title II. The Sheriff and her Office are recipients of federal financial assistance, including federal prisoner expense reimbursements, and are subject to Section 504. 6. Defendant Virginia Board of Corrections (the “Board”) is a nine-member, policymaking Board appointed by the Governor of Virginia and subject to confirmation by the Virginia General Assembly. The Detention Facility, where Plaintiff was detained, is a correctional complex that must meet the minimum standards set by the Board. The Board is a public entity subject to Title II, and, upon information and belief, is also a recipient of federal financial assistance, making it subject to Section 504. 7. Carl R. Peed is the Chairman of the Board. As head of the Board, Chairman Peed is responsible for setting the minimum standards for the Commonwealth’s jails, which include, but are not limited to: (1) requiring that upon intake each inmate be provided with information on how to obtain medical treatment and all other rules of conduct and policies and procedures governing inmate discipline; (2) requiring that upon intake all inmates receive a medical screening to include obtaining any information on special dietary requirements, current
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medications, and other health conditions; (3) providing telephone access during booking and detention, including for deaf and hard of hearing individuals; (4) ensuring each inmate is aware of all jail programs and is provided educational opportunities; (5) allowing for participation in religious services or counseling; (7) maintaining a written statement of the jail’s policies and procedures; and (8) providing access to a grievance procedure for all inmates. Chairman Peed is sued in his official capacity.
8. Defendant Virginia Department of Corrections (“VDOC”) is the Virginia state agency responsible for the supervision and custody of inmates and offenders and ensuring that each Virginia jail meets all minimum standards set by the Board. As a department of the Commonwealth, VDOC is a public entity subject to Title II, and is also a recipient of federal financial assistance including federal prisoner expense reimbursements, Medicaid funds, and a federal grant made pursuant to the Prison Rape Elimination Act, making it subject to Section 504.
9. Harold W. Clarke is the Director of VDOC. Director Clarke is responsible for the management and oversight of VDOC’s jails and correctional institutions as well as any other correctional facilities managed by Virginia sheriffs, superintendents, or regional institutions or authorities. Upon information and belief, the majority of inmates in Virginia’s correctional facilities are in local and regional jails managed by Virginia sheriffs or superintendents. Each jail must meet all minimum standards set by the Board to be certified by VDOC. Director Clarke is sued in his official capacity.
10. All individual named defendants are sued in their official capacities. At all relevant times, all 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
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of their employment as representatives of public entities, as defined in 42 U.S.C. § 12131(1); and as representatives of a “department, agency, special purpose district, or other instrumentality of a State” under 29 U.S.C. § 794.
FACTUAL ALLEGATIONS Background
11. Mr. Zemedagegehu was born and raised in Ethiopia. He immigrated to the United States in 2001, and became a United States citizen in 2008.
12. Mr. Zemedagegehu is deaf and has limited English proficiency. 13. As a child, Mr. Zemedagegehu learned Ethiopian Sign Language, the language of the deaf community in Ethiopia. 14. Mr. Zemedagegehu began learning ASL after immigrating to the United States in 2001. He currently uses ASL as his primary language. 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 English in hand signals – and has its own vocabulary and rules for grammar and discourse structure. 15. Mr. Zemedagegehu learned the little English he knows by taking courses through the English Language Institute at Gallaudet University. He struggles to write and understand even basic English sentences. He has no functional ability to speak English or to read lips. 16. Mr. Zemedagegehu’s employment history is limited to manual labor jobs that do not require proficiency in spoken or written English. For example, he worked loading and unloading trucks at Federal Express.
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17. In 2010, Mr. Zemedagegehu left his job with Federal Express due to a lower back injury that had occurred in 2008. This injury requires him to wear a back brace and take daily medication.
Plaintiff’s Arrest 18. On the evening of February 2, 2014, Mr. Zemedagegehu went to Ronald Reagan Washington National Airport (“National Airport”) to find a warm place to sleep. 19. Shortly after entering National Airport, Mr. Zemedagegehu was arrested by officers of the Metropolitan Washington Airports Authority. 20. Using gestures and in writing, Mr. Zemedagegehu informed the officers that he is deaf and did not understand them. He also requested an ASL interpreter in writing. The officers denied his request. Instead, the officers attempted to communicate with Mr. Zemedagegehu by writing information on a notepad. 21. Because Mr. Zemedagegehu cannot read written English well, he did not understand what the officers wrote and did not know why he had been arrested. 22. Mr. Zemedagegehu was in the custody of the Metropolitan Washington Airports Authority for only a short period of time before being transported to the Detention Facility, which is located in Arlington County, Virginia, close to National Airport.
Plaintiff’s Detention 23. Mr. Zemedagegehu was detained at the Detention Facility for nearly six weeks. During this time, despite Mr. Zemedagegehu’s repeated requests, Defendants refused to provide any effective means for Mr. Zemedagegehu to communicate. As a result, Mr. Zemedagegehu did not understand why he had been arrested, could not communicate his needs or understand what was being said during booking or his medical evaluations, and could not inform the Detention Facility personnel of his medical needs and dietary restrictions. Because he could not understand
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the announcements and other communications made orally at the Detention Facility, Mr. Zemedagegehu missed out on meals, recreation times, rehabilitative services, and other events at the Detention Facility. He also was unable to place telephone calls while at the Detention Facility, severely restricting his access to counsel.
24. On many occasions when Mr. Zemedagegehu requested interpreter services either in writing or using gestures, he believes he was informed that interpreters were prohibited at the Detention Facility.
Booking Process 25. Mr. Zemedagegehu arrived at the Detention Facility during the early hours of February 3, 2014. Detention Facility personnel attempted to communicate with Mr. Zemedagegehu by speaking. However, Mr. Zemedagegehu was unable to understand what the officers were saying. 26. During this process, both in writing and using gestures, Mr. Zemedagegehu requested an ASL interpreter. Detention Facility personnel refused to provide one. 27. Because the Detention Facility did not provide an interpreter, Mr. Zemedagegehu did not know why he had been arrested or what to expect while he was detained. 28. During the booking process, the officers placed Mr. Zemedagegehu in front of a web camera, a microphone, and a computer monitor that appeared to show a judge on the screen. The judge on the monitor appeared to be speaking to Mr. Zemedagegehu, but he could not understand what the judge was saying. Mr. Zemedagegehu attempted to signal that he was deaf, but officers in the room with Mr. Zemedagegehu directed him to stay still. Mr. Zemedagegehu does not know what occurred during that interaction with the judge. 29. At one point, one of the Detention Facility officers handed Mr. Zemedagegehu a piece of paper that was filled with writing. Mr. Zemedagegehu did not understand what it said
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and requested an ASL interpreter by writing on the paper. After requesting an interpreter, Mr. Zemedagegehu observed an officer placing a phone call. Upon information and belief, the phone call relayed Mr. Zemedagegehu’s request for an interpreter to another prison officer.
30. When the phone call concluded, the officer denied Mr. Zemedagegehu’s interpreter request.
31. Without an interpreter, Mr. Zemedagegehu did not understand what was taking place during the booking process. Thus, Mr. Zemedagegehu could not understand any of the Detention Facility’s rules or procedures that might have been explained to him. Similarly, Mr. Zemedagegehu was unable to advise the Detention Facility personnel of critical information concerning himself, such as his dietary restrictions and medical needs. These actions, among others, unlawfully discriminated against Mr. Zemedagegehu and denied him the due process and equal protection afforded to non-deaf inmates.
32. On February 4, 2014, Mr. Zemedagegehu was arraigned. The Arlington General District Court provided an interpreter for his arraignment.
33. Not until his arraignment, more than 24 hours after his arrest, did Mr. Zemedagegehu first learn that he had been arrested and incarcerated for allegedly stealing an iPad.
34. The lack of access to communication during the booking process exacerbated the feelings of frustration, humiliation, anger, anxiety, isolation, confusion, and loss of dignity that Mr. Zemedagegehu otherwise would have experienced as a result of his arrest and detention.
Medical Evaluations 35. After booking, but before his arraignment, Mr. Zemedagegehu underwent a medical evaluation at the Detention Facility.
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36. The employee conducting the evaluation attempted to communicate with Mr. Zemedagegehu in writing, but Mr. Zemedagegehu did not understand what was written. He informed the evaluator that he did not understand and requested in writing an ASL interpreter. The evaluator refused to provide one.
37. Without an interpreter, Mr. Zemedagegehu was unable to explain to the employee that he had back problems and required a prescription. Consequently, throughout his entire six week incarceration at the Detention Facility, Mr. Zemedagegehu did not receive the medicine he requires to alleviate his back pain.
38. The evaluator handed Mr. Zemedagegehu what is now believed to be a consent form to sign for a medical procedure. Mr. Zemedagegehu could not read the form. He refused to sign it and asked in writing for an interpreter.
39. The evaluator summoned a second employee into the room. Mr. Zemedagegehu asked, in writing, for the second employee to provide an interpreter.
40. Instead of providing an interpreter, the second employee held down Mr. Zemedagegehu’s arm and forced a needle into it. At the time, Mr. Zemedagegehu was confused as to what they were doing to his arm.
41. After the medical evaluation, an officer put Mr. Zemedagegehu into a jail cell by himself. Mr. Zemedagegehu did know why he was being placed in isolation.
42. Mr. Zemedagegehu was scared and confused during this time. 43. Mr. Zemedagegehu repeatedly banged on the door and gestured at the cameras to get an officer’s attention to obtain an interpreter. He wanted the Detention Facility officers to explain to him what was happening: Mr. Zemedagegehu still did not know why he had been
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arrested, why he was incarcerated, when he might be arraigned, when he might be released, what had just been done to his arm, when he might be fed, or any other vital information.
44. Mr. Zemedagegehu’s skin had a negative reaction to the forcible medical procedure that was conducted on his arm. Following this reaction, Mr. Zemedagegehu underwent an additional medical procedure. Once again, Defendants refused to provide an interpreter to explain this medical procedure. Because of the lack of communication, Mr. Zemedagegehu did not know what was happening to him or why. He remained in isolation for several days.
45. The lack of communication during the medical procedures and the administration of these procedures without Mr. Zemedagegehu’s consent exacerbated the feelings of frustration, humiliation, anger, anxiety, isolation, confusion, and loss of dignity that Mr. Zemedagegehu otherwise would have experienced as a result of his detention.
Dietary Needs 46. At some point during Mr. Zemedagegehu’s isolation, one of the Detention Facility’s officers slid a tray of food into Mr. Zemedagegehu’s cell. The food tray contained pork. Mr. Zemedagegehu does not eat pork for religious reasons. 47. Because Defendants refused to provide Mr. Zemedagegehu with an interpreter, he was unable to inform Detention Facility personnel of his religious and dietary restrictions. 48. As a result of the loneliness and frustration of being unable to effectively communicate with anyone and the denial of equal treatment, Mr. Zemedagegehu protested by refusing to eat for an extended period of time.
Telephone Access 49. After his arraignment, Mr. Zemedagegehu attempted to communicate to Detention Facility officers that he needed to place a telephone call. In response, the officers gestured to a
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traditional telephone. The officers appeared to suggest to Mr. Zemedagegehu to use the traditional telephone on multiple occasions when he requested to make a phone call.
50. Because he is deaf, Mr. Zemedagegehu cannot place a call using a traditional telephone. Instead, Mr. Zemedagegehu places calls through a videophone.
51. A videophone is a device with a camera and a video monitor that allows both parties to see each other simultaneously, similar to Skype and FaceTime. Videophones allow deaf individuals to communicate with one another directly in ASL without having to communicate through written English. Any computer or smartphone with a camera and appropriate software can be used to place a videophone call.
52. Although Defendant Sheriff states that the Detention Facility is “[o]ne of the most technically advanced ‘Direct Supervision’ jails in the country,” upon information and belief, it does not have a videophone or any device equipped with videophone software. See Sheriff, Detention Facility, http://sheriff.arlingtonva.us/detention-facility/ (last visited February 19, 2015).
53. Mr. Zemedagegehu repeatedly pleaded with the officers to let him place a call to his public defender. Finally, one of the officers took the piece of paper with the public defender’s phone number on it and gestured to Mr. Zemedagegehu that the officer would place the call for him.
54. Mr. Zemedagegehu waited for the officer to return, but the officer never did. 55. Mr. Zemedagegehu did not find out whether the officer had followed through with placing the call for Mr. Zemedagegehu, or what else had happened, until days later, when a public defender appeared at the Detention Facility to see Mr. Zemedagegehu. However, the
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public defender did not have an ASL interpreter. As a result, they were unable to effectively communicate, significantly impairing Mr. Zemedagegehu’s access to counsel.
56. More than one week after Mr. Zemedagegehu began asking to make a phone call, the officers provided him with a teletypewriter (“TTY”).
57. A TTY is an electronic device that allows typed communication to be sent to another TTY via a telephone line. Based on sixty-year-old technology, the TTY is basically a telephone equipped with a keyboard and a screen capable of displaying a single line of text, giving it less functionality than the text-messaging function of a cellular phone. For two parties to have a TTY conversation, each party must have a TTY. Though a TTY may be a helpful communication tool in some circumstances, it ultimately relies on the user’s ability to communicate in written English and, in all events, is a much more time-intensive communication tool than a telephone, computer, or any other modern communication device. A TTY conversation does not enable parties to communicate in ASL. The TTY has been almost entirely supplanted by the videophone and most deaf individuals no longer have TTYs. They communicate by videophone or by using any number of computer programs that provide for more efficient video- and text-based communication, such as FaceTime, email, and instant messaging programs.
58. Mr. Zemedagegehu cannot communicate effectively using a TTY because a TTY requires proficiency in English. Mr. Zemedagegehu cannot read or write English well enough to carry on a conversation using written English. He can communicate effectively using a videophone because a videophone allows him to communicate in ASL.
59. Mr. Zemedagegehu attempted to use the TTY provided to call a friend, who is also deaf. Like Mr. Zemedagegehu and most other deaf individuals, she uses a videophone in
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place of a standard telephone. Also like Mr. Zemedagegehu and most other deaf individuals, she does not own a TTY; she owns only a videophone. A TTY cannot connect directly to a videophone.
60. Consequently, Mr. Zemedagegehu attempted to but could not place a telephone call to his friend.
61. Upon information and belief, inmates at the Detention Facility who can hear have access to a telephone to place outgoing calls. Accordingly, Mr. Zemedagegehu was denied equal access to basic services that the Sheriff offers at the Detention Facility.
62. Instead of Mr. Zemedagegehu placing the call to his friend, one of the Detention Facility’s officers placed the call for Mr. Zemedagegehu through a standard telephone. Because the officer was calling a deaf individual, the officer’s call connected automatically to a videophone relay service operator, who used a videophone to attempt to contact Mr. Zemedagegehu’s friend and relay the guard’s communication in ASL to the friend. Because the friend did not answer and due to the communication limitations between the officer and Mr. Zemedagegehu, the officer apparently left a message for Mr. Zemedagegehu’s friend to come to the Detention Facility. The message the friend received was in the format of a video message of the relay service operator using ASL to translate the officer’s message. The video relay service can translate spoken English to ASL, but such relay service cannot receive TTY calls and translate those into ASL. Mr. Zemedagegehu could not use the relay service himself because he would have had to use the standard telephone.
63. Because Mr. Zemedagegehu could not communicate with his friend via telephone, his friend had to come to the Detention Facility to communicate with Mr. Zemedagegehu.
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64. The Sheriff never provided a different device other than a TTY for Mr. Zemedagegehu to make a telephone call. Because of the lack of a videophone, Mr. Zemedagegehu was unable to place telephone calls for the entire time he was detained.
65. The lack of telephone access exacerbated the feelings of frustration, humiliation, anger, anxiety, isolation, confusion, and loss of dignity that Mr. Zemedagegehu otherwise would have experienced as a result of his detention.
Assistance of Counsel 66. Due to the lack of telephone access, Mr. Zemedagegehu could not place or receive telephone calls to anyone, including his attorney. 67. As a result, Mr. Zemedagegehu could access his attorney only when the attorney came to the Detention Facility of his own accord. Mr. Zemedagegehu had no other means of contacting his attorney to ask the attorney to come to the Detention Facility or even to ask a simple question. If Mr. Zemedagegehu had had access to a videophone, he could have used the relay service to communicate with his attorney in ASL; consequently, he would have been able to ask questions, understand the answer, and otherwise participate in his own defense. 68. Upon information and belief, inmates who are not deaf can contact their attorneys by telephone, ask questions, understand the answer, and thus participate in their own defense. 69. The lack of access to counsel exacerbated the feelings of frustration, humiliation, anger, anxiety, isolation, confusion, and loss of dignity that Mr. Zemedagegehu otherwise would have experienced as a result of his detention.
Meals and Recreation Times 70. The Defendants’ discrimination and failure to provide auxiliary aids and services to ensure effective communication caused Mr. Zemedagegehu to miss meals and recreation times.
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71. Upon information and belief, Detention Facility personnel signaled the beginning of meal and recreation times by using an auditory alert. When inmates heard the alert, they could press a button that would open their cell doors. With the cell doors open, inmates could leave their cells and proceed to the cafeteria or recreation yard.
72. Because Mr. Zemedagegehu is deaf, he could not hear the auditory alerts. 73. After Detention Facility personnel moved Mr. Zemedagegehu out of isolation to the floor with the general population, Mr. Zemedagegehu was placed in a cell by himself. Mr. Zemedagegehu would know that he could leave his cell only if he was looking outside his cell at the time the alert sounded. He would observe other inmates open their cell doors. Initially, Mr. Zemedagegehu did not understand that he had to press a button inside the cell for his door to open and so when he attempted to open the door, it would not open. Only after being placed in a cell with another inmate did Mr. Zemedagegehu learn that he had to press a button for the door to open. 74. On multiple occasions, Mr. Zemedagegehu was not looking outside his cell at the time the alert sounded, often because he was sleeping. Mr. Zemedagegehu would awaken to see that other inmates were outside of their cells. At that time, he would press the button to open his cell door, but the door would not open. He would attempt to signal to Detention Facility officers to have them open his cell door, but they would not respond, causing Mr. Zemedagegehu to miss meals approximately two to three times per week and recreation times approximately once per week due to the lack of auxiliary aids or services, such as visual alerts. 75. The lack of access to meals and recreation times exacerbated the feelings of frustration, humiliation, anger, anxiety, isolation, confusion, and loss of dignity that Mr. Zemedagegehu otherwise would have experienced as a result of his detention.
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Rehabilitative Programming and Other Services 76. Defendants deprived Mr. Zemedagegehu of access to rehabilitative programming and other services due to the lack of an ASL interpreter and other auxiliary aids and services, their intentional discrimination, and their implementation and maintenance of policies and procedures that had a disparate impact on Mr. Zemedagegehu because of his disability. 77. Those actions and inactions by the Defendants’ resulted in Mr. Zemedagegehu being unable to understand what information, if any, the Sheriff might have provided about rehabilitative programming or other services during booking or throughout the nearly six weeks he spent at the Detention Facility. As a result, he was unaware of these programs or services while at the Detention Facility and therefore could not take advantage of them. 78. If Defendants had provided an ASL interpreter and other auxiliary aids and services, such as visual alerts and notifications, Mr. Zemedagegehu could have learned of and would have participated in the various rehabilitative programming and other services offered by the Sheriff at the Detention Facility. 79. Even in cases when Mr. Zemedagegehu did learn of available services from other inmates, he was unable to participate in or benefit from the services because of Defendants’ failure to provide auxiliary aids and services necessary for him to have access to the services and other discriminatory actions and inactions. 80. For example, Mr. Zemedagegehu believed that he could visit the Detention Facility’s library by putting his name on a certain list. Mr. Zemedagegehu wrote his name on what he believed to be the library list. The officers, however, never allowed Mr. Zemedagegehu to access the library. He does not know why. It is possible that an officer called his name to visit the library, but Mr. Zemedagegehu could not hear his name being called and therefore was unable to respond.
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81. Each of the many times that Mr. Zemedagegehu requested a sign language interpreter either in writing or using gestures, the Sheriff refused to provide one.
82. By the time Mr. Zemedagegehu was released from the Sheriff’s custody, he had spent six weeks in near-isolation, unable to effectively communicate with anyone at the Detention Facility but the sole visitor he briefly had.
83. Throughout his detention, Mr. Zemedagegehu suffered frustration, humiliation, anger, anxiety, isolation, confusion, and loss of dignity due to the intense isolation and repeated instances of exclusion from or limited participation in Defendants’ programs, services, and activities.
State Agency Defendants’ Knowledge of Discrimination Against Deaf Inmates 84. Mr. Zemedagegehu was discriminated against and denied access to effective communication by the Sheriff at the Detention Facility, which is a VDOC-certified correctional facility. (VDOC, its Director, the Board, and its Chairman are referred to herein as the “State Agency Defendants.”) VDOC-certified facilities are required to comply with minimum standards set by the Board. 85. The Board establishes minimum standards to ensure the health, safety, and welfare of all correctional facility inmates. The Board’s responsibility to create minimum standards in Virginia’s jails includes maintaining oversight over any policies and procedures regarding the treatment of and services provided to disabled inmates and detainees. 86. VDOC monitors and enforces these and other Board standards throughout the local jails, state correctional facilities, residential centers, probation and parole offices and other programs and facilities that make up the Commonwealth of Virginia’s correctional system.
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87. The State Agency Defendants are – or should be – aware of their obligations under Title II and Section 504, including the requirement that deaf inmates be provided with accommodations to enable them to enjoy the same services, privileges, facilities, advantages, and accommodations made available to non-deaf inmates. The State Agency Defendants’ knowledge of their duties and responsibilities owed to inmates with disabilities stems in part from the selfevaluation requirements found in the regulations implementing both Title II, 28 C.F.R. § 35.105, and Section 504, 45 C.F.R. § 84.6(c). The State Agency Defendants’ knowledge of their duties and responsibilities owed to deaf inmates in particular has been reinforced over the last fifteen years through a series of lawsuits deaf inmates have brought against state entities in Virginia for their repeated failure to abide by their legal obligations towards deaf inmates and detainees.
88. These lawsuits include Hill v. Virginia Dept. of Corrections, No. 948-4 (Va. Cir. Ct. 2002), wherein Otis Hill, a deaf inmate, sued VDOC for failure to provide him with a sign language interpreter that would enable him to participate in prison-run classes. VDOC eventually reached a settlement agreement with Hill, requiring VDOC to, among other things, provide Hill with a “qualified, certified sign language interpreter.”
89. In 2009, VDOC settled a lawsuit brought by a hard of hearing inmate who challenged a disciplinary action brought against him for missing morning count, on the ground that his hearing impairment prevented him from hearing the prison alerts. Sorrells v. Wheeler, No. 3:08-cv-39 (W.D. Va. 2009).
90. Within a year of the Sorrells settlement, VDOC inmates who were deaf or hard of hearing filed a class action lawsuit in the U.S. District Court for the Eastern District of Virginia in Alexandria, alleging that VDOC and other related individuals and entities violated the ADA, Section 504, and Virginia State law by failing to provide deaf and hard of hearing inmates with
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necessary access to qualified sign language interpreters, notification of daily events and safety
announcements, and means to communicate with individuals outside of prison. Minnis v.
Johnson, 1:10-cv-00096-TSE-TRJ (E.D. Va. Jan. 29, 2010). On October 13, 2010, the plaintiffs
and the VDOC defendants reached a settlement agreement (“Minnis Settlement Agreement”) in
which the defendants agreed to provide qualified sign language interpreters and other auxiliary
aids and services necessary to ensure that deaf inmates “have full and equal enjoyment” of all
privileges and services as that of similarly situated non-deaf inmates. Among other things, under
the Minnis Settlement Agreement, VDOC agreed to do the following:
A. Provide deaf inmates with access to qualified interpreters during the booking process.
B. Provide deaf inmates with access to qualified interpreters in situations concerning medical care, including scheduled appointments between deaf inmates and medical providers and during unscheduled medical emergencies.
C. Provide deaf inmates “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.” In addition, VDOC agreed to “share a list of communications equipment available to Deaf inmates upon their arrival at the facility.” Further, VDOC agreed to permit deaf inmates access to videophone technology.
D. Provide an effective visual notification system that will notify deaf inmates of prison-wide events and events specific to deaf inmates. VDOC acknowledged that deaf inmates incarcerated at VDOC state correctional facilities should not miss announcements, alarms, or any other auditory information from VDOC staff to the general inmate population solely because of their disability.
E. “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.” Such programs include: Adult Education, Community College Courses, Vocational Programs, Correctional Enterprises Programs, and Rehabilitative Programs.
91. In addition to the Minnis Settlement Agreement and other documented widespread
abuses, VDOC is aware of each correctional facility’s compliance with the Board’s minimum
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standards and other laws through VDOC’s performance of triennial certification audits for each facility, yearly unannounced life, health, safety inspections of local and regional jails and lockups, and other monitoring visits. VDOC’s auditing and monitoring responsibilities include maintaining oversight over any policies and procedures regarding the treatment of and services provided to disabled inmates and detainees. Upon information and belief, through required regular audits and inspections of Virginia jails, in particular by VDOC’s Compliance and Accreditation Unit’s “PREA and ADA Audits & Compliance” section, VDOC and Director Clarke are aware of the Sheriff’s policies and practices regarding disabled individuals, and more specifically, the Sheriff’s failure to provide Mr. Zemedagegehu and individuals like Mr. Zemedagegehu with effective communication in the form of a qualified ASL interpreter or other auxiliary aids at the Detention Facility. As a result, Director Clarke is also aware of VDOC’s continued inaction and deficient inspection and monitoring of the Detention Facility in order to ensure the health, safety, and welfare of Plaintiff and other offenders under the Sheriff’s custody and the Sheriff’s compliance with all other applicable laws, regulations, and procedures.
92. Further, through the above-referenced litigation and VDOC’s required regular audits and inspections of Virginia jails, the Board and Chairman Peed are, upon information and belief, aware of the Sheriff’s policies and practices regarding disabled individuals, and more specifically, the Sheriff’s failure to provide Mr. Zemedagegehu and individuals like Mr. Zemedagegehu with effective communication in the form of a qualified ASL interpreter or other auxiliary aids at the Detention Facility. As a result, the Board and Chairman Peed are also aware of the Board’s failure to institute minimum standards for Virginia’s jails that would ensure compliance with Title II and Section 504.
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93. The State Agency Defendants are or should be aware that access to qualified interpreters, visual alerts, telecommunications devices, and other auxiliary aids are necessary to ensure that deaf inmates have equal and meaningful access to the services offered to similarly situated non-deaf inmates. The State Agency Defendants likewise were aware or should have been aware that maintaining standards and/or certifying jails, like the Detention Facility, that fail to provide such reasonable accommodations posed a substantial risk that deaf inmates, like Mr. Zemedagegehu, would be denied their rights under Title II and Section 504. The State Agency Defendants likewise were aware or should have been aware that without their intervention, such a risk would continue.
COUNT I (Title II of the Americans With Disabilities Act) 94. Mr. Zemedagegehu repeats and re-alleges each and every allegation above as if fully set forth herein. 95. On July 12, 1990, Congress enacted the Americans with Disabilities Act (“ADA”) “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). 96. Title II of the ADA states that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. 97. Title II of the ADA defines “qualified individual with a disability” as “an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the
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receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2).
98. Mr. Zemedagegehu has a disability because he is substantially limited in the major life activities of hearing and speaking. He also meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity. He is therefore a “qualified individual with a disability” under Title II of the ADA.
99. The Sheriff’s Office, managed and directed by the Sheriff, is a department, agency, special purpose district, or other instrumentality of the Commonwealth; as such, it is a “public entity” within the meaning of the ADA, 42 U.S.C. § 12131(1)(B).
100. The Board, managed and directed by Chairman Carl Peed, is a department, agency, special purpose district, or other instrumentality of the Commonwealth; as such, it is a “public entity” within the meaning of the ADA, 42 U.S.C. § 12131(1)(B).
101. VDOC, managed and directed by Director Harold Clarke, is a department of the Commonwealth; as such, it is a “public entity” within the meaning of the ADA, 42 U.S.C. § 12131(1)(B).
102. At all times relevant to this action, the ADA was in full force and effect in the United States and Mr. Zemedagegehu had a right not to be subjected by Defendants to discrimination on the basis of his disability. 42 U.S.C. § 12132.
103. The U.S. Department of Justice (“DOJ”) regulation implementing Title II of the ADA clearly requires the provision of effective communication as a part of its nondiscrimination mandate. 28 C.F.R. § 35.160.
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104. The regulation states that “[a] 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. § 35.160(a).
105. Defendants’ failure to provide effective communication for Mr. Zemedagegehu denied, on the basis of his disability, Mr. Zemedagegehu the same access to Defendants’ services, benefits, activities, programs, or privileges as the access provided to hearing individuals.
106. To ensure effective communication, the ADA requires that “a public entity shall furnish appropriate auxiliary aids and services where necessary to afford qualified individuals with disabilities . . . an equal opportunity to participate in, and enjoy the benefits of, a service, program or activity conducted by a public entity.” 28 C.F.R. § 35.160(b)(1). Auxiliary aids and services include, but are not limited to, “qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments,” 42 U.S.C. § 12103, such as videophones and videotext displays. 28 C.F.R. § 35.104.
107. In determining what type of auxiliary aid and service is necessary, “a public entity shall give primary consideration to the requests of the individual with disabilities.” 28 C.F.R. § 35.160(b)(2).
108. Defendants knowingly and intentionally failed to provide Mr. Zemedagegehu with an ASL interpreter and other necessary auxiliary aids or services he requested, subjected him to discrimination, and/or maintained policies and procedures that had a disparate impact on Mr. Zemedagegehu because of his disability resulting in Mr. Zemedagegehu being denied the same benefits and services available to non-deaf inmates. Among other things, as a result of Defendants’ failures, Mr. Zemedagegehu was:
a. Unable to effectively communicate with the Sheriff’s officers and other personnel during the booking process;
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b. Unable to effectively communicate with the Sheriff’s personnel performing medical functions;
c. Unable to effectively communicate dietary needs; d. Deprived of access to telephone calls; e. Deprived of access to counsel; f. Deprived of access to meals and recreation times; and g. Deprived of knowledge of and access to rehabilitative programming and other
services. 109. These failures violated Mr. Zemedagegehu’s rights under Title II of the ADA. 110. Defendants knew of the substantial likelihood of a violation of Mr. Zemedagegehu’s federally protected rights and failed to act on this likelihood. 111. Upon information and belief, the failure to provide effective communication to deaf individuals, such as Mr. Zemedagegehu, and the failure to provide comparable access to services, programs, and activities as provided to hearing individuals are policies, regular practices, or customs of the Defendants. This failure is ongoing and continues to date. 112. As a result of Defendants’ violation of the ADA, Mr. Zemedagegehu has suffered discrimination, exclusion from services, benefits, activities, programs, and privileges, loss of dignity, frustration, humiliation, emotional pain and suffering, anxiety, trauma, embarrassment, and injury to his physical and mental health.
COUNT II (Section 504 of The Rehabilitation Act of 1973) 113. Plaintiff repeats and re-alleges each and every allegation above as if fully set forth herein. 114. Section 504 states “No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .” 29 U.S.C. § 794(a).
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115. Plaintiff is substantially limited in the major life activities of hearing and speaking; as such, he is an individual with a disability under 29 U.S.C. § 705(20)(B) who is qualified under Section 504.
116. The Sheriff’s Office, as managed and directed by the Sherriff, is a “program or activity receiving Federal financial assistance” because it is “a department, agency, special purpose district, or other instrumentality of a State or of a local government” and is recipient of federal financial assistance because it receives federal financial assistance, including but not limited to federal prisoner expense reimbursements. 29 U.S.C. § 794(b)(1), (4).
117. The Board is a “program or activity receiving Federal financial assistance” because it is “a department, agency, special purpose district, or other instrumentality of a State or of a local government” and, upon information and belief, is a recipient of federal financial assistance. 29 U.S.C. § 794(b)(1)(A), (B).
118. VDOC is a “program or activity receiving Federal financial assistance” because it is “a department . . . of a State” that receives federal prisoner expense reimbursements, Medicaid funds, and grants pursuant to the Prison Rape Elimination Act, among other assistance. 29 U.S.C. § 794(b)(1).
119. The operations of Defendants are “program[s] or activit[es]” within the meaning of 29 U.S.C. § 794(b)(1)(A)-(B) and/or (b)(2)(B).
120. At all times relevant to this action, Section 504 was in full force and effect in the United States and Mr. Zemedagegehu had a right not to be subjected to discrimination on the basis of his disability by Defendants.
121. Defendants knowingly and intentionally failed to provide Mr. Zemedagegehu with an ASL interpreter and other necessary auxiliary aids or services he requested, subjected him to
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discrimination, and/or maintained policies and procedures that had a disparate impact on Mr. Zemedagegehu because of his disability resulting in Mr. Zemedagegehu being denied the same benefits and services available to non-deaf inmates. Among other things, as a result of Defendants’ failures, Mr. Zemedagegehu was:
a. Unable to effectively communicate with the Sheriff’s guards and other personnel during the booking process;
b. Unable to effectively communicate with the Sheriff’s employees performing medical functions;
c. Unable to effectively communicate dietary needs; d. Deprived of access to telephone calls; e. Deprived of access to counsel f. Deprived of access to meals and recreation times; and g. Deprived of knowledge of and access to rehabilitative programming and
other services. 122. These failures violated Mr. Zemedagegehu’s rights under Section 504. 123. Defendants knew of the substantial likelihood of a violation of Mr. Zemedagegehu’s federally protected rights and failed to act on this likelihood. 124. Upon information and belief, the failure to provide effective communication to deaf individuals, such as Mr. Zemedagegehu, and the failure to provide comparable access to services, programs, and activities as provided to hearing individuals are policies, regular practices, or customs of the Defendants. This failure is ongoing and continues to date. 125. As a result of the Defendants’ violation of Section 504, Mr. Zemedagegehu has suffered discrimination, exclusion from services, benefits, activities, programs, and privileges, loss of dignity, frustration, humiliation, emotional pain and suffering, anxiety, trauma, embarrassment, and injury to his physical and mental health.
JURY DEMAND 126. Plaintiff hereby demands that this action be tried before a jury.
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PRAYER FOR RELIEF
127. WHEREFORE, Plaintiff respectfully requests that the Court provide the
following relief:
a. Declare that Defendants’ discrimination on the basis of Mr. Zemedagegehu’s disability, refusal to provide a qualified ASL interpreter and other necessary auxiliary aids or services to ensure effective communication with Mr. Zemedagegehu, and/or maintenance of policies and procedures that had a disparate impact on Mr. Zemedagegehu because of his disability violated Title II of the ADA and Section 504 of the Rehabilitation Act;
b. Award compensatory damages as a result of the violations of Title II of the ADA and Section 504 of the Rehabilitation Act in an amount to be determined at trial;
c. Award reasonable costs and attorneys’ fees; and
d. Award any and all other legal or equitable relief that the Court deems necessary and appropriate.

Dated: February 19, 2015

Respectfully submitted,

By: /s/ Jonathan Goodrich Larry Tanenbaum (admitted pro hac vice) Jonathan Goodrich (VSB 78522) Carolyn Perez (admitted pro hac vice) AKIN GUMP STRAUSS HAUER & FELD LLP 1333 New Hampshire Avenue N.W. Washington, DC 20036 Telephone: (202) 887-4000 Facsimile: (202) 887-4288 Email: jgoodrich@akingump.com
Caroline E. Jackson, Esq. (admitted pro hac vice) Debra J. Patkin, Esq. (admitted pro hac vice) NATIONAL ASSOCIATION OF THE DEAF LAW AND ADVOCACY CENTER 8630 Fenton Street, Suite 820 Silver Spring, MD 20910 Telephone: (301) 587-7466 Facsimile: (301) 587-1791 Email: caroline.jackson@nad.org
Counsel for Plaintiff
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 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

ABREHAM ZEMEDAGEGEHU,

)

)

Plaintiff,

)

)

v.

) 1:15cv57 (JCC/MSN)

)

ARLINGTON COUNTY SHERIFF

)

ELIZABETH F. ARTHUR, in her )

official capacity, et al.,

)

)

Defendants.

)

MEMORANDUM OPINION

Plaintiff Abreham Zemedagegehu (“Plaintiff”), a deaf

man who communicates using American Sign Language (“ASL”),

brought this action under Title II of the Americans with

Disabilities Act, 42 U.S.C. §§ 12131-12165 (“Title II”), and

Section 504 of the Rehabilitation Act of 1972, 29 U.S.C. § 794

(“Section 504”), based on the collective Defendants’ alleged

failure to provide Plaintiff with auxiliary aids and services

necessary to communication, and their alleged failure to make

reasonable accommodations of their policies and procedures,

during Plaintiff’s temporary incarceration at the Arlington

County Detention Facility (the “jail”).

This matter is before the Court on two separately

filed motions to dismiss. Defendant Elizabeth F. Arthur, the

Arlington County Sheriff, in her official capacity (the

1

“Sheriff”) filed a motion to dismiss the Title II ADA claim against her. (Sheriff’s Mot. to Dismiss [Dkt. 30]; Sheriff’s Mem. in Supp. [Dkt. 31].) Defendants Virginia Department of Corrections (“VDOC”), Harold W. Clarke, VDOC Director, in his official capacity (the “VDOC Director”), Virginia Board of Corrections (the “Board”), and Carl R. Peed, Chairman of the Board, in his official capacity (collectively the “State Defendants”) filed a motion to dismiss the amended complaint against them in its entirety. (State Defs.’ Mot. to Dismiss [Dkt. 36]; State Defs.’ Mem. in Supp. [Dkt. 37].) For the following reasons, the Court will deny the Sheriff’s motion and grant the State Defendants’ motion.
I. Background At the motion to dismiss stage, the Court must read the complaint as a whole, construe the complaint in a light most favorable to the plaintiff, and accept the facts alleged in the complaint as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plaintiff is deaf and has no functional ability to speak English or to read lips. (Am. Compl. [Dkt. 21] ¶¶ 12, 15.) Plaintiff was born and raised in Ethiopia but became a United States citizen in 2008. (Id. at ¶ 11.) He does know limited English through courses he took at Gallaudet University, but he “struggles” to read, write, and understand even basic English sentences. (Id. at ¶ 15.) Plaintiff’s primary language
2

is ASL and his employment history is limited to manual labor jobs that do not require proficiency in spoken or written English. (Id. at ¶¶ 14, 16.)
On February 2, 2014, Plaintiff was arrested at Ronald Reagan Washington National Airport (“National Airport”) after he went there to find somewhere warm to sleep.1 (Am. Compl. ¶¶ 1819.) Shortly after his arrest, in the early morning hours of February 3, 2014, Plaintiff was transported to the jail where he started the booking process. (Id. at ¶ 25.) Plaintiff attempted to communicate with the National Airport police officers and jail personnel using gestures and in writing. (Id. at ¶¶ 20, 26.) Plaintiff also requested an ASL interpreter but one was not provided. (Id.) Consequently, Plaintiff did not know why he had been arrested nor did he understand why he was being detained in the jail. (Id. at ¶ 27.) Plaintiff also appeared in front of a judge via video conference, but he could not signal to the judge that he was deaf because jail personnel instructed him to remain still. (Id. at ¶ 28.)
As part of the booking process, Plaintiff underwent a medical evaluation, where he made additional requests for assistance. (Am. Compl. ¶¶ 26-36.) His requests were again denied. (Id.) Without an ASL interpreter, Plaintiff did not
1 Plaintiff resides in Washington, D.C., but currently has no fixed address. (Id. at ¶ 4.)
3

understand the medical evaluation process and refused to sign a consent form that he could not read. (Id. at ¶¶ 37-39.) Jail personnel then forced a needle into Plaintiff’s arm without his consent and placed him in isolation. (Id. at ¶¶ 40-43.) Scared and confused, Plaintiff banged on the cell door and repeatedly gestured for assistance, still unaware as to why he was being incarcerated. (Id. at ¶ 43.) Plaintiff had a negative skin reaction to the forced medical procedure and underwent an additional medical procedure, but still did not understand what was happening. (Id. at ¶ 44.)
Approximately 24 hours after his arrest, on February 4, 2014, Plaintiff was arraigned in Arlington County General District Court through the assistance of an ASL interpreter. (Am. Compl. ¶¶ 32-33.) At his arraignment, Plaintiff first learned he had been arrested and incarcerated for allegedly stealing an iPad. (Id.) Plaintiff returned to the jail after his arraignment and remained incarcerated for nearly six weeks. (Id. at ¶ 23.) During his period of incarceration, Defendants refused to provide effective means for Plaintiff to communicate, and consequently, Plaintiff was deprived of meals (id. at ¶¶ 4648), recreation (id. at ¶¶ 70-75), and rehabilitative services at various times (id. at ¶¶ 76-83).2
2 The Jail uses auditory alerts to signal the beginning of meal and recreation times. (Am. Compl. ¶ 71.) When inmates hear the
4

During Plaintiff’s incarceration, the jail also failed
to provide Plaintiff with an adequate accommodation for
telephone access. (Am. Compl. ¶¶ 49-65.) The jail offered to
provide Plaintiff with a teletypewriter (“TTY”) to make phone
calls. (Id. at ¶ 56.) However, Plaintiff could not communicate
effectively using TTY because TTY requires proficiency in
English. (Id. at ¶ 57.) The jail does not have a videophone or
any device equipped with videophone software that Plaintiff
could have used to make telephone calls. (Id. at ¶¶ 50-52.)
Plaintiff attempted to place a telephone call to a friend using
TTY, but was unsuccessful. (Id. at ¶¶ 59-60.) Subsequently, an
officer at the jail placed a call to Plaintiff’s friend, who
eventually visited Plaintiff at the jail. (Id. at ¶¶ 62-63.)
Because of the lack of a videophone, Plaintiff was unable to
place telephone calls for the duration of his incarceration at
the jail. (Id. at ¶ 64.) Plaintiff also could not regularly
communicate with his court-appointed attorney via telephone,
unlike other inmates, and instead relied on in-person visits
made on the attorney’s own accord. (Id. at ¶¶ 66-69.)
alert, they press a button to open their cell doors. (Id.) When Plaintiff was in isolation, he could not hear the auditory alert and repeatedly missed meals and recreation time. (Id. at ¶ 73.) Once in general population, Plaintiff learned how the auditory signal worked by observing other inmates. (Id.) Consequently, Plaintiff missed meals approximately two to three times per week and missed recreation times approximately one time per week, due to the lack of auxiliary aids. (Id. at ¶ 74.)
5

Plaintiff claims that Defendants violated Title II of the ADA and Section 504 of the Rehabilitation Act by knowingly and intentionally failing to provide him with an ASL interpreter or other auxiliary aids and accommodations, which denied him the same benefits and services available to non-deaf inmates. (Am. Compl. at ¶¶ 108, 121.) Specifically, as a result of these violations, Plaintiff claims that he was unable to communicate with jail personnel during the booking process and medical procedures, that he was unable to effectively communicate his dietary needs, and that he was deprived access to telephone calls, access to counsel, meals and recreation, and rehabilitative services. (Id.) Plaintiff seeks declaratory and compensatory relief. (Id. at 27.)
In her motion to dismiss the Title II claim in count one, the Sheriff argues that she is immune from suit under the Eleventh Amendment and that Title II does not abrogate her sovereign immunity. (Sheriff’s Mem. at 4-8.) The Sheriff does not contest the Section 504 claim in count two. The State Defendants present two arguments in their motion to dismiss. First, the State Defendants argue that they are not liable on either count one or count two for the actions of the Sheriff, who is solely responsible for operation of the jail. (State Defs.’ Mem. at 3-7.) Second, the State Defendants argue that they are also immune from suit under the Eleventh Amendment and
6

ask that the Title II claim in count one be dismissed. (Id. at 8-10.) Both motions have been fully briefed and are ripe for disposition.
II. Legal Standard All Defendants filed their motion to dismiss based on sovereign immunity under the Eleventh Amendment, at least in part. The United States Court of Appeals for the Fourth Circuit has not resolved “whether a dismissal on Eleventh Amendment immunity grounds is a dismissal for failure to state a claim under Rule 12(b)(6) or a dismissal for lack of subject matter jurisdiction under Rule 12(b)(1).” Andrews v. Dew, 201 F.3d 521, 525 n.2 (4th Cir. 2000) (citations omitted). “The recent trend, however, appears to treat Eleventh Amendment immunity motions under Rule 12(b)(1).” Skaggs v. W. Reg’l Jail, Civ. A. No. 3:13-3293, 2014 WL 66645, at *4 (S.D.W. Va. Jan. 8, 2014) (citations omitted); see also Roach v. W. Va. Reg’l Jail & Corr. Auth., 74 F.3d 46, 48 (4th Cir. 1996) (“[T]he Eleventh Amendment limits the ability of a federal district court to exercise its subject-matter jurisdiction over an action brought against a state or one of its entities.”). Whether the Court evaluates the pending motions to dismiss with respect to the Eleventh Amendment immunity issue under Rule 12(b)(1) or Rule 12(b)(6) makes little practical difference, however. See Beckham v. Nat’l R.R. Passenger Corp.,
7

569 F. Supp. 2d 542, 547 (D. Md. 2008) (citation omitted). “A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction may contend either (1) that the complaint fails to allege facts sufficient to establish subject matter jurisdiction or (2) the alleged jurisdictional facts are untrue.” Id. (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). Defendants contend the factual allegations are insufficient and do not establish the abrogation of their sovereign immunity under the Eleventh Amendment. Thus, the Court must accept the allegations in the amended complaint as true and construe them in a light most favorable to Plaintiff, just as it would under a motion pursuant to Rule 12(b)(6). Id.
III. Analysis The Sheriff and the State Defendants argue that under the Eleventh Amendment, they are immune from Plaintiff’s Title II claim in Count One. The State Defendants additionally argue that Plaintiff has failed to plead sufficient facts to establish supervisory liability between the jail, its employees, and the State Defendants. The Court first addresses the State Defendants’ supervisory liability. A. Supervisory Liability of the State Defendants The State Defendants contend they are not liable for acts that occur in the jail, which is run solely by the Sheriff, and ask for dismissal from the lawsuit on this basis. (State
8

Defs.’ Mem. at 3-7.) Stated differently, the State Defendants
argue that Plaintiff fails to state a claim for relief because
under Virginia law, the State Defendants are too far removed
from the day-to-day operations of the jail and do not perform
any supervisory function. (State Defs.’ Reply [Dkt. 57] at 1-
7.) Plaintiff argues that the State Defendants are liable under a theory of supervisory liability.3 (Pl.’s Opp’n to State Defs.
[Dkt. 40] at 14-18.) For the following reasons, the Court will
grant the State Defendants’ motion and dismiss them from this
lawsuit.
The parties agree that to state claims against the
State Defendants under a theory of supervisory liability, which
is most often used in the context of 42 U.S.C. § 1983
litigation, a “plaintiff must show actual or constructive
knowledge of a risk of constitutional injury, deliberate
indifference to that risk, and an ‘affirmative causal link’
between the supervisor’s inaction and the particular
constitutional injury suffered by the plaintiff.” Carter v.
3 The amended complaint does not assert liability under a theory of respondeat superior, but instead, supervisory liability, which is the appropriate basis in this circuit. See Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994) (“[L]iability is not premised upon respondeat superior but upon ‘a recognition that supervisory indifference or tacit authorization of subordinates’ misconduct may be a causative factor in the constitutional injuries they inflict on those committed to their care.”) (quoting Slakan v. Porter, 737 F.2d 368, 372-73 (4th Cir. 1984)).
9

Morris, 164 F.3d 215, 221 (4th Cir. 1999) (“[R]espondeat superior is not the standard.”) (quoting Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994)). Implicit in the third element of the prima facie case is that the State Defendants must act as supervisors or “supervisory employees” whose inaction or deliberate indifference affirmatively caused the particular constitutional injury that Plaintiff has suffered. See Shaw, 13 F.3d at 798 (stating “supervisory officials may be held liable in certain circumstances for the constitutional injuries inflicted by their subordinates.”). Moreover, this inaction must itself be a “direct cause” of the injury alleged, which is a heavy burden. Newbrough v. Piedmont Reg’l Jail Auth., 822 F. Supp. 2d 558, 586 (E.D. Va. 2011).
Plaintiff alleges that Chairman Peed and the Board establish minimum standards regarding the health, safety, and welfare of all correctional facility inmates in Virginia, and that Director Clarke and the VDOC monitors implementation and enforcement of those standards. (Am. Compl. ¶¶ 85-86.); see also Va. Code §§ 53.1-5, 53.1-10. But as a matter of law, local county Sheriffs in the Commonwealth of Virginia are independent constitutional officers solely responsible for the operation of their local jail. See Va. Const., art. VII, § 4 (“There shall be elected by the qualified voters of each county and city a treasurer, a sheriff, an attorney for the Commonwealth, a clerk
10

. . . and a commissioner of revenue.”); see also Va. Code § 53.1-116.2 (“The sheriff of each county or city shall be the keeper of the jail thereof[.]”). It is of no import that Plaintiff alleges the deliberate indifference of the State Defendants actually caused the constitutional injuries he suffered. This is because it is undisputed that Plaintiff was incarcerated at the Arlington County Detention Facility, a local jail where Sheriff Arthur and the deputies who work under her command are responsible for applying the standards and policies set by the State Defendants. Therefore, for the following reasons, Plaintiff fails to state a claim for relief against the State Defendants for any alleged injury that occurred during his incarceration in the jail.
First, under the Virginia Code, local Sheriffs are solely responsible for running the locality’s jail. Plaintiff alleges the State Defendants, in their policy-setting role, had constructive knowledge of the deficient accommodations and aids available to deaf detainees in local jails throughout the Commonwealth of Virginia. See Guerrero v. Deane, 750 F. Supp. 2d 631, 657 (E.D. Va. 2010). On a Rule 12(b)(6) motion the Court assumes this allegation to be true. Regardless, “[t]he primary responsibility for application of [the Board’s] standards shall be with the sheriff or chief executive officer of the jail or lockup.” 6 Va. Admin. Code § 15-40-20; see also
11

Va. Code § 53.1-116.2 (“The sheriff of each county or city shall be the keeper of the jail thereof[.]”). Admittedly, the State Defendants are responsible for setting policies and auditing correctional facilities for compliance with those policies. But the Board and the VDOC do not apply or enforce these policies in local jails as Plaintiff alleges. As a matter of Virginia law, that responsibility resides only with the Sheriff. Instead, state correctional facilities, i.e. state prisons or penitentiaries, house convicted offenders sentenced to a year or more of incarceration and are “operated by the Department of Corrections[.]” Va. Code § 53.1-1. The Virginia Code expressly distinguishes between state correctional facilities (Chapter 2 under Title 53.1) and local correctional facilities like the jail (Chapter 3 under Title 53.1). Compare Va. Code § 51.1-18 through § 53.1-67.8, with Va. Code § 53.1-68 through 53.1133.10.
Second, the State Defendants do not supervise the Sheriff in the manner contemplated under the prima facie case of supervisory liability. While the Virginia Code does provide the Board with certain enforcement mechanisms to ensure compliance with standards and policies, the mechanisms are indirect and do not give the Board direct supervisory authority over sheriffs or the operation of the local jail. For one, Sheriffs are not employees of the Commonwealth of Virginia and thus not subject
12

to supervision by Virginia agencies. See Doud v. Commonwealth, 717 S.E.2d 124, 126 (Va. 2011) (“[T]he sheriff of Russell County was not an ‘employee’ of the Commonwealth within the definitions contained in the [Virginia Tort Claims Act]. The sheriff’s deputies and jailors were employees of the sheriff, not of the Commonwealth.”). Instead, Virginia sheriffs are independent constitutional officers who are responsible only to the voters. Id. (“Constitutional officers are responsible to the voters who elected them but do not depend upon either the government of the Commonwealth or upon the governing bodies of their counties or cities for their authority.”); see also Va. Const. art. 7, § 4. As the manager of the jail, the Sheriff is also responsible for the sheriff deputies who work in the jail. See Va. Code § 53.168 (“The sheriff shall establish minimum performance standards and management practices to govern the employees for whom the sheriff is responsible.”).
The Board can indirectly affect the operation of the jail, but not to the degree required for supervisory liability to attach. For instance, the Board may prohibit confinement and require transfer of prisoners in substandard jails. Va. Code § 53.1-69. But only the local circuit court can directly penalize the Sheriff for failure to properly operate the jail. Compare Va. Code § 53.1-69, with Va. Code § 53.1-118 (“If it appears to the circuit court having jurisdiction that the sheriff or jail
13

superintendent has in any respect failed to perform his duties with respect to operation of the jail, the court may, after summoning him to show cause against it, summarily fine him not more than fifty dollars.”). Additionally, under the Virginia Code, the Board can file a lawsuit against the Sheriff for failure to comply with any requirements set by the Board. See Va. Code § 53.1-125. Notably, however, the Virginia Code does not provide any other enforcement mechanism, and if the circuit court deems the complaint “justified, it shall enter an order directing the State Compensation Board to withhold approval of payment of any further salary to the sheriff . . . until there has been compliance with specified requirements of the Board.” Id. In short, while there are indirect enforcement mechanisms available to the Board and local circuit court to ensure the local jail’s compliance with standards and requirements, as a matter of Virginia law, these statutory provisions do not establish the “affirmative causal link” necessary between the State Defendants and the particular constitutional injury suffered by Plaintiff for supervisory liability to attach. Stated differently, by way of analogy, under Virginia law, assuming the other elements were satisfied, the Sheriff herself could theoretically be liable for any inaction related to her deputies who she directly manages under a theory of supervisory liability. See Va. Code § 53.1-68. But the relationship
14

between the State Defendants and the operation of local correctional facilities throughout Virginia is indirect and insufficient as a matter of law.
Ultimately, Plaintiff’s claims against the State Defendants cannot survive given his inability to establish “an affirmative causal link between the supervisor’s [State Defendants’] inaction and the harm suffered by the plaintiff.” Id. (quoting Slakan, 737 F.2d at 376; Rizzo v. Goode, 423 U.S. 362 (1976)). Therefore, the Court will grant the State Defendants motion to dismiss and dismiss this matter with prejudice as to them. This result does not totally prevent Plaintiff’s potential recovery, because as discussed below, both counts will remain against the Sheriff in her official capacity as keeper of the jail.
B. The Sheriff’s Motion to Dismiss Title II Claim By enacting Title II of the ADA, Congress “invoke[d] the sweep of congressional authority, including the power to enforce the fourteenth amendment . . . in order to address the major areas of discrimination faced day-to-day by people with disabilities.” 42 U.S.C. § 12101(b)(4). Title II of the ADA provides: [N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be
15

subjected to discrimination by any such entity. 42 U.S.C. § 12132. For purposes of the pending motions to dismiss, it is undisputed that Plaintiff is a “qualified individual with a disability” and the jail is a “public entity” under Title II, which expressly authorizes suits by private citizens for money damages against public entities that violate section 12132. 42 U.S.C. § 12133 (incorporating 29 U.S.C. § 794a). To state a claim for relief under Title II of the ADA, Plaintiff must allege: (1) he has a disability; (2) he is otherwise qualified to receive the benefits of a public service, program, or activity; and (3) he was excluded from participation in or denied the benefits of such service, program, or activity, or otherwise discriminated against, on the basis of his disability. Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 498 (4th Cir. 2005) (citations omitted). Stated differently, “if a person is disabled and otherwise qualified, the state must ensure that the person is not denied the benefits of services, activities, or programs because of his or her disability.” Chase v. Baskerville, 508 F. Supp. 2d 492, 498 (E.D. Va. 2007). The Sheriff does not contest the sufficiency of Plaintiff’s allegations to support a prima facie case under Title II. Instead, the Sheriff contends she is immune from suit
16

under the Eleventh Amendment and that Congress did not validly abrogate her sovereign immunity by enacting Title II.
1. Abrogation of Sovereign Immunity Sovereign immunity under the Eleventh Amendment applies not only to the state itself but “extends also to ‘state agents and state instrumentalities’ . . . or stated otherwise to ‘arm[s] of the State.’” Cash v. Granville Cnty. Bd. of Educ., 242 F.3d 219, 222 (4th Cir. 2001) (citations omitted). It is well-established that a suit against a state official in his or her official capacity should be treated as an action against the state. Hafer v. Melo, 502 U.S. 21, 25 (1991); see also Kitchen v. Upshaw, 286 F.3d 179, 183-84 (4th Cir. 2002) (“The Eleventh Amendment limits the Article III jurisdiction of the federal courts to hear cases against States and state officers acting in their official capacities.”). Here, filing suit against the Arlington County Sheriff in her official capacity is treated as an action against the state subject to Eleventh Amendment immunity. See Vollette v. Watson, 937 F. Supp. 2d 706, 714 (E.D. Va. 2013) (“Based on [Virginia law], federal district courts applying Virginia law have repeatedly held that Virginia Sheriffs, and their deputies, are ‘state officers’ for the purpose of the Eleventh Amendment.”). Nonetheless, the Sheriff is still subject to suit if (1) she unambiguously consents to that suit or (2) Congress,
17

acting under powers granted to it in section five of the Fourteenth Amendment, has clearly abrogated her immunity. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54-55 (1996); see also Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985). Because it is undisputed that the Sheriff did not consent to this suit under Title II, count one in the amended complaint survives only if Congress acted within its power to clearly abrogate her immunity.4 To make this determination, the Court “must resolve two predicate questions: first, whether Congress unequivocally expressed its intent to abrogate that immunity; and second, if it did, whether Congress acted pursuant to a valid grant of constitutional authority.” Tennessee v. Lane, 541 U.S. 509, 517 (2004) (quoting Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73 (2000)).
The first question is well-settled: Congress unequivocally expressed its intent under Title II to abrogate a state’s Eleventh Amendment sovereign immunity. Lane, 541 U.S. at 518 (citing 42 U.S.C. § 12202 (“A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent
4 The Sheriff validly waived her immunity from suit under Section 504 of the Rehabilitation Act in count two of the amended complaint. See Constantine, 411 F.3d at 496 (holding that recipients of federal financial assistance waive sovereign immunity under Section 504 of the Rehabilitation Act). Indeed, the Sheriff does not seek dismissal of count two.
18

jurisdiction for a violation of this chapter.”)). Thus, the thrust of this Court’s inquiry concerns the second question: whether Congress enacted Title II pursuant to a valid grant of constitutional authority, i.e. the enforcement power in Section 5 of the Fourteenth Amendment. Id. at 517; see also Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 727-28 (2003) (“[T]he Eleventh Amendment, and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment.”) (quoting Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976) (citation omitted)); Chase, 508 F. Supp. at 498 (“[T]he only question ‘is whether Congress had the power to give effect to its intent.’”) (quoting Lane, 541 U.S. at 518).
Congress has the power under Section 5 of the Fourteenth Amendment to enforce the provisions in Section 1 of the Fourteenth Amendment “by creating private remedies against the States for actual violations of those provisions.” United States v. Georgia, 546 U.S. 151, 158-59 (2006) (holding a paraplegic inmate’s Title II claims for money damages were based, at least in part, on conduct that actually violated the Eighth Amendment and thus actually violated Section 1 of the Fourteenth Amendment, including the deliberate refusal of prison officials to accommodate the inmate’s disability-related needs
19

in such fundamentals as mobility, hygiene, medical care, and almost all other prison programs) (emphasis in original).
Here, first, Plaintiff has not alleged actual violations of the Fourteenth Amendment. Instead, his amended complaint states two statutory causes of action: one under the ADA and the second under the Rehabilitation Act. Chase is instructive on this issue. There, the deaf Virginia state prisoner filed a civil rights action alleging “the failure to provide him with an interpreter to assist him in his school work violated his rights under the Due Process Clause of the Fourteenth Amendment, the Eighth Amendment, the Rehabilitation Act, and Title II of the Americans with Disabilities Act (ADA).” 508 F. Supp. 2d at 497. Here, in contrast, Plaintiff’s amended complaint alleges the failure to provide him with an ASL interpreter in the jail violated only his rights under Title II (count one) and Section 504 (count two). (See generally Am. Compl. at 21-26.) He does not expressly allege that the jail’s failure to provide an interpreter actually violated his rights under the Fourteenth Amendment. Stated differently, Plaintiff does not raise a claim under 42 U.S.C. § 1983 to vindicate any actual violations of his constitutional rights. Thus, the Court’s decision on this issue is not controlled by Georgia.
Instead, the issue now before this Court is, and the question left unanswered in Georgia was--assuming Plaintiff
20

failed to allege an actual Fourteenth Amendment violation-whether Title II is within the scope of Congress’s prophylactic enforcement powers in Section 5 as an appropriate remedy for Plaintiff’s alleged injuries. See Hibbs, 538 U.S. at 728 (“Section 5 legislation reaching beyond the scope of § 1’s actual guarantees must be an appropriate remedy for identified constitutional violations, not ‘an attempt to substantively redefine the States’ legal obligations.”) (quoting Kimel, 528 U.S. at 88); see also Lane, 541 U.S. at 518 (recognizing Congress’s power under Section 5 is broad and includes “the authority both to remedy and to deter violation of rights [by the Fourteenth Amendment and] by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment’s text.”) (quoting Kimel, 528 U.S. at 81 (quoting City of Boerne v. Flores, 521 U.S. 507, 518 (1997))). Section 5 authorizes the enactment of “prophylactic legislation proscribing practices that are discriminatory in effect, if not in intent, to carry out the basic objectives of the Equal Protection Clause.” Lane, 541 U.S. at 520. The scope of Congress’s power in this regard remains unsettled. See Georgia, 546 U.S. at 158 (“[T]he Members of this Court have disagreed regarding the scope of Congress’s ‘prophylactic’ enforcement powers under § 5 of the Fourteenth Amendment . . . .”) (citations omitted).
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Generally, legislation enacted pursuant to Section 5 of the Fourteenth Amendment is within Congress’s prophylactic enforcement power if there is “congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” Boerne, 521 U.S. at 520. The parties agree that to make this determination, the Court employs a three-part test first announced by the Supreme Court in Boerne, 521 U.S. at 518, and re-affirmed in Lane, 541 U.S. at 522-30: (1) identify the scope of the constitutional right Congress sought to enforce when enacting Title II; (2) determine whether Congress identified a history and pattern of unconstitutional disability discrimination; and (3) determine whether the remedies created by Title II are congruent and proportional to the constitutional violation. See also Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 365-74 (2001). With these standards in mind, the Court now turns to Plaintiff’s allegations under the Title II claim in count one of the amended complaint against the Sheriff.
2. Application of the Boerne Test The Sheriff argues that count one must be dismissed because Plaintiff fails to sufficiently plead an actual Fourteenth Amendment violation. (Sheriff’s Mem. at 4-8.) Moreover, the Sheriff argues that under the Boerne test, Title II does not validly abrogate her Eleventh Amendment sovereign
22

immunity because the accommodations provided for in Title II
extend beyond Congress’s prophylactic power in Section 5 of the
Fourteenth Amendment. (Sheriff’s Mem. at 4-6.) As support for
her argument, the Sheriff relies heavily on this Court’s holding
in Chase v. Baskerville, 508 F. Supp. 2d 492, 499 (E.D. Va.
2007), and the general proposition that a prisoner’s Fourteenth
Amendment claims must be “analyzed in light of the special
scrutiny and management concerns in the prison system.”
(Sheriff’s Mem. at 5-8 (citing Morrison v. Garraghty, 239 F.3d
648, 655 (4th Cir. 2001).) But the facts of this case, as
alleged in the amended complaint and when taken as true for
purposes of this motion, require a different result for the
following reasons.5
In Chase, this Court held that “in the context of
state prisons, Title II validly abrogates state sovereign
immunity and ‘creates a private cause of action for damages
5 Unlike the district court that ultimately decided Morrison on summary judgment, this matter is now before the Court on a motion to dismiss, where the allegations in the amended complaint are taken as true, and the Court cannot resolve factual disputes of the validity of defenses or other justifications. At this early stage, and without any evidence in the record, it would be premature for the Court to address whether the Sheriff had a rational basis for her actions. See Butler v. United States, 702 F.3d 749, 752 (4th Cir. 2012) (“[I]mportantly, [a Rule 12(b)(6) motion] does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.”) (citations and internal quotation marks omitted). Instead, this Court assumes the allegations in the Complaint are true for purposes of this motion, and construes them in a light most favorable to Plaintiff.
23

against the States’ only ‘for conduct that actually violates the Fourteenth Amendment.’” 508 F. Supp. 2d at 506 (emphasis in original). The deaf pro se prisoner in Chase claimed “that the failure to provide him with an interpreter to assist him in his school work [and to allow him to access the prison’s educational programs] violated his rights under . . . Title II of the [ADA].” Id. at 497. After applying the three-part test from Boerne, the Court concluded, under the facts of that case and in the context of a state prison, that “Title II’s comprehensive remedial scheme” is incongruent and disproportionate “for those rights and the policy of judicial restraint in the prison context.” Id. at 501-506.
Put simply, in Chase, the district court was faced with conduct that did not violate the prisoner’s constitutional rights, and the facts of that case are readily distinguishable from the allegations here regarding Plaintiff’s pretrial period of incarceration in a local jail. Moreover, the Chase court was concerned with much broader implications, including the possibility of setting a costly precedent where the requirements of Title II could be applied “to almost every interaction between inmates and prison officials[, which would impose significant] monetary liability upon the States for a host of actions in operating its prisons that are far removed from the . . . Due Process Clause . . . .” Id. at 502. Here, application
24

of the Boerne test to Plaintiff’s allegations compels a much narrower holding: Title II validly abrogates a local sheriff’s sovereign immunity in the pretrial, temporary detention setting of a local jail. As in Chase, “the pivotal inquiry is the third step of the City of Boerne test.” Id. at 499.
a. Step One: The Constitutional Rights at Issue In Constantine, the Fourth Circuit recognized that “Title II seeks to enforce the Fourteenth Amendment’s prohibition on irrational disability discrimination.” 411 F.3d 474, 486 (4th Cir. 2005) (“Importantly, the Fourteenth Amendment does not forbid all discrimination based on disability . . . [and] States may make distinctions on the basis of disability so long as ‘there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.’”) (quoting Heller v. Doe, 509 U.S. 312, 320 (1993)). Indeed, “Title II seeks to curb arbitrary or irrational exclusion of disabled inmates from the services, programs, or benefits provided by the state and to prevent cruel and unusual punishment flowing from the denial of adequate facilities or services to disabled inmates.” Id. at 499-500 (citing Georgia, 546 U.S. 151 (2006); Lane, 541 U.S. at 525 n.11; Miller v. King, 384 F.3d 1248, 1272 (11th Cir. 2004), vacated and superseded by, 449 F.3d 1149 (11th Cir. 2006)); see also Georgia, 546 U.S. at 162-63 (Stevens, J., concurring) (recognizing the “constellation
25

of rights applicable in the prison context” under Title II). Thus, like in Lane and Constantine, at issue here is the Fourteenth Amendment’s prohibition on irrational disability discrimination.
b. Step Two: History and/or Pattern of Conduct Under the second step, the Court must “consider whether Title II represents a legislative response to a pattern of unconstitutional disability discrimination in public services, programs, or activities generally.” Constantine, 411 F.3d at 487. Lane conclusively established that Title II of the ADA as a whole survives the historical inquiry under the second step of the Boerne test. See id. (“After Lane, it is settled that Title II was enacted in response to a pattern of unconstitutional disability discrimination by States and nonstate government entities with respect to the provision of public services.”); see also Chase, 508 F. Supp. 2d at 500 (citation omitted). Thus, the second step is satisfied. c. Step Three: Congruence and Proportionality “The remaining question is whether the remedial measures contained in Title II represent a congruent and proportional response to this demonstrated history and pattern of unconstitutional disability discrimination.” Constantine, 411 F.3d at 487-88 (citing Lane, 541 U.S. at 530). Following Lane and Constantine, this Court must consider Title II’s
26

remedial measures only as applied to the right to be free from irrational disability discrimination in pretrial detention facilities like the jail. Id. There are two competing notions at play here. On the one hand, Congress’s remedy “may not work a substantive change in the governing law.” Chase, 508 F. Supp. 2d at 501 (quoting Lane, 541 U.S. at 250 (quoting Boerne, 521 U.S. at 519)). Indeed, any remedy that “is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior” does not fall within Congress’s enforcement power under Section 5. Chase, 508 F. Supp. 2d at 501 (quoting Boerne, 521 U.S. at 532). On the other hand, however, Congress is given “wide latitude,” and the remedy need not be a “perfect fit for the pattern of discrimination” at issue, so long as it falls “within the sweep of Congress’ enforcement power even if in the process it prohibits conduct which is not itself unconstitutional.” Constantine, 411 F.3d at 490 (quoting Boerne, 521 U.S. at 518).
Plaintiff alleges that he is a qualified individual with a disability and Defendants are public entities as defined under Title II. (Am. Compl. ¶¶ 96-107 (citing 42 U.S.C. § 12131).) Specifically, Plaintiff claims that with “the provision of auxiliary aids and services, [he] meets the essential eligibility requirements for the receipt of services
27

or the participation in programs or activities provided by” the jail through Defendants. (Id.) Under Title II, Congress authorized the Attorney General to promulgate regulations that implement these provisions. 42 U.S.C. § 12134. Notably, “qualified inmates or detainees with disabilities shall not . . . be excluded from participation in, or be denied the benefits of, the services, programs or activities of a public entity, or be subjected to discrimination by any public entity.” 28 C.F.R. § 35.152(b)(1). Under the regulations implementing Title II, jails are thus required to “furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities . . . an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of [the jail].” 28 C.F.R. § 35.160(b)(1); see also 28 C.F.R. § 35.104(1) (“Auxiliary aids and services includes Qualified interpreters on-site or through video remote interpreting (VRI) services . . . video-based telecommunications products and systems, including text telephones (TTYs), videophones . . . or equally effective telecommunications devices . . . or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing.”). The question before the Court is whether this “remedial scheme is an appropriately calibrated enforcement mechanism for those rights” in the context of local jails. Chase, 508 F. Supp. 2d
28

at 501. For the reasons discussed below, Title II’s remedies are a congruent and proportional response to the pattern of disability discrimination as applied to local jails. See Constantine, 411 F.3d at 487-88 (citing Lane, 541 U.S. at 530).
i. Application and Distinction from Chase Unlike the pro se plaintiff in Chase, a convicted and sentenced Virginia state prisoner who sought an interpreter only to access educational services in the state penitentiary, the constitutional dimension of the temporary-detainee Plaintiff’s allegations here are congruent and proportional to the remedial scheme of Title II. Plaintiff’s factual allegations implicate important rights under the Fourteenth Amendment in at least three ways, and the remedial scheme under Title II is proportional to vindicate those rights, thus compelling abrogation of the Sheriff’s sovereign immunity under Title II. First, inmates “possess[] a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment.” Washington v. Harper, 494 U.S. 210, 22122 (1990) (citations omitted). Plaintiff claims that during the medical evaluation shortly after arriving at the jail, he was handed a consent form to sign for a medical procedure, which he could not read or understand and therefore refused to sign. (Am. Compl. ¶ 38.) Subsequently, after asking in writing for an
29

interpreter, a jail employee held down Plaintiff’s “arm and forced a needle into it” without Plaintiff’s consent and without any knowledge regarding the procedure. (Id. at ¶¶ 39-40.) Plaintiff’s “skin had a negative reaction to the forcible medical procedure that was conducted on his arm . . . [and he] underwent an additional medical procedure,” again without the assistance of the interpreter and without knowing the purpose of the procedure. When taking these facts as true and construing them in a light most favorable to Plaintiff, even though the exact nature of the forced intravenous procedure remains unknown at this early stage, Plaintiff’s allegations implicate his rights under the Fourteenth Amendment. See Harper, 494 U.S. 221-26.
Second, Plaintiff also alleges he appeared in front of a judge via closed circuit television during the booking process but could not understand or participate in the proceeding. “The Due Process Clause of the Fourteenth Amendment and the Confrontation Clause of the Sixth Amendment, as applied to the States via the Fourteenth Amendment, both guarantee to a criminal defendant . . . the ‘right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings.” Lane, 541 U.S. at 523 (quoting Faretta v. California, 422 U.S. 806, 819 n.15 (1975)). The Tenth Circuit addressed this issue in Robertson v. Las Animas Cnty. Sheriff’s
30

Dep’t, 500 F.3d 1185 (10th Cir. 2007). There, a deaf pretrial detainee was escorted to a room in the jail “to observe and participate in his probable cause hearing by closed-circuit television” when his attorney was present in the courtroom. Id. at 1189. The deaf pretrial detainee “did not know that he was attending his probable cause hearing, and he could not hear what the judge and his attorney were saying. He told the detention officer that he could not hear what was going on, but she did nothing about it.” Id. The Tenth Circuit held that because the deaf detainee was eligible to participate in the hearing, Title II applied, and he was denied the ability to participate in the hearing to the same extent as non-disabled individuals in violation of 42 U.S.C. § 12132. Plaintiff alleges similar factual circumstances here.
During the booking process, jail personnel placed Plaintiff “in front of a web camera, a microphone, and a computer monitor that appeared to show a judge on the screen.” (Am. Compl. ¶ 28.) Plaintiff saw that the judge appeared to be speaking, but naturally could not hear, understand, or participate in the proceeding. (Id.) Moreover, when Plaintiff “attempted to signal that he was deaf . . . officers in the room . . . directed him to stay still . . . [and Plaintiff] does not know what occurred during that interaction with the judge.” (Id.) These allegations constitute more flagrant violations
31

than those in Robertson. Not only did Plaintiff not understand the judicial proceeding, but jail personnel actively prevented his attempted participation, thus frustrating his right to be present at all stages of his trial. Lane, 541 U.S. at 523. Accordingly, at this stage, Plaintiff sufficiently alleges facts that constitute an actual Fourteenth Amendment violation in this regard as well.
Third, Plaintiff alleges his access to counsel was restricted in violation of the Sixth Amendment, as applicable to the States under the Fourteenth Amendment. “The Sixth Amendment right to counsel would be implicated if plaintiff was not allowed to talk to his lawyer for the entire four-day period.” Tucker v. Randall, 948 F.2d 388, 390-91 (7th Cir. 1991) (citations omitted). Here, in sum, Plaintiff alleges that because he uses ASL to communicate, he was unable to use the telephone for the duration of his six-week period of incarceration. (Am. Compl. ¶¶ 49-69.) To be clear, the jail does offer TTY services, and on at least one occasion, jail personnel seemed amenable to assist Plaintiff in making a telephone call to a friend. But TTY services were useless for Plaintiff, who does not effectively read or write in English. And ultimately, he was unable to initiate communication with his court-appointed attorney via telephone, and instead, “could access his attorney only when the attorney came to the [jail] of
32

his own accord.” (Id. at ¶ 67.) The factual allegations support a claim that Plaintiff was prevented from seeking and receiving the assistance of counsel throughout his six-week period of detention in violation of his Sixth Amendment right to counsel. See Procunier v. Martinez, 416 U.S. 396, 419 (1974) (“This means that inmates must have a reasonable opportunity to seek and receive the assistance of attorneys.”), overruled in part on other grounds by, Thornburgh v. Abbott, 490 U.S. 401 (1989).6
The allegations at issue here also stand in stark contrast to the allegations and context of Chase. The Court in Chase concluded that “Title II imposes an affirmative accommodation obligation in the administration of state prisons that far exceeds what” is required by the Eighth Amendment, Due Process Clause, and Equal Protection Clause. 508 F. Supp. 2d at 501-505. Stated differently, the Court determined that in the prison context, Title II was not tailored to remedy likely constitutional violations. Id. at 505-506. The Court found that to hold otherwise would open Virginia to potential liability under Title II in most aspects of prison operation,
6 The Court need not address all of Plaintiff’s allegations, including his alleged deprivation of medical care and access to meals, recreational, and educational programming, having found the above-mentioned allegations implicated his rights under the Fourteenth Amendment, and that ultimately, count one will survive against the Sheriff.
33

including educational, rehabilitative, and vocational programming, “pervasive part[s] of prison life” that are offered free and apart from any constitutional obligation. Id. at 505 (“Thus, where the States had no constitutional obligation to offer such programs, Title II potentially imposes liability on the States unless they adequately justify the lack of an interpreter or some other device to assist an inmate in enjoying the full benefits of the program.”).
But here, the allegations at issue implicate Plaintiff’s constitutional rights under the Fourteenth Amendment. The legislative history of the ADA indicates congressional intent to specifically remedy the disparate treatment of inmates in local jails through enactment of Title II of the ADA. See id. at 161-62 (citing 2 House Committee on Education and Labor, Legislative History of Public Law 101-336: The Americans with Disabilities Act, 101st Cong., 2d Sess., 1331 (Comm. Print 1990) (stating that persons with hearing impairments “have been arrested and held in jail over night without even knowing their rights nor what they are being held for”)). That is exactly the factual allegation here. Moreover, the Supreme Court has suggested in dicta that Title II’s remedial scheme was not limited to remedy only violations of the Eighth Amendment as applicable to the states through the Fourteenth Amendment. See Georgia, 546 U.S. at 161 (Stevens,
34

J., concurring). Thus, public entities do have a statutory obligation under Title II to accommodate access to the most basic jail services for deaf pretrial detainees, including, as relevant here, access to medical procedure information and access to the courts or counsel, as guaranteed under the Fourteenth Amendment. See, e.g., Georgia, 546 U.S. at 158. The provisions of Title II and the implementing regulations target precisely the sort of discrimination that Congress sought to address.
The Chase court also recognized that this obligation under Title II is limited by the “reasonable modification” principle, which requires public entities “only to make reasonable modifications that would not fundamentally alter the nature of the service or activity of the public entity or impose an undue burden.” Chase, 508 F. Supp. 2d at 506 (citing Bircoll v. Miami-Dade Cnty., 480 F.3d 1072, 1082-83 (11th Cir. 2007) (citing Lane, 541 U.S. at 531-32)). But the district court in Chase did not acknowledge the full breadth of the limitations under the regulations, and thus ultimately concluded that Title II’s remedies were too far reaching. Title II “does not require a public entity to permit an individual to participate in or benefit from the services, programs, or activities of that public entity when that individual poses a direct threat to the health or safety of others.” 28 C.F.R. § 35.139. And public
35

entities are only required to provide necessary accommodations, those “that would not fundamentally alter the nature of the service provided . . . [or] impose an undue financial or administrative burden.” Lane, 541 U.S. at 532; see also 28 C.F.R. § 35.164. At this stage, the Court need not speculate as to the appropriate limitation of services and accommodations in the pre-trial detention context of a local county jail. However, here, as pled in the amended complaint, no accommodation was provided that would have allowed Plaintiff to access services in the jail in the same manner as non-disabled inmates. With these limits included in Title II’s statutory scheme, Title II’s prophylactic and remedial scheme is congruent and proportional to the pattern of disability discrimination. See Georgia, 546 U.S. at 162 (Stevens, J., concurring); see also Constantine, 411 F.3d at 490.
Lastly, there is an important distinction between temporary pretrial detention in a local jail and incarceration in a state prison after conviction. See Bell v. Wolfish, 411 U.S. 520, 535 n.16 (1979) (“Due Process requires that a pretrial detainee not be punished. A sentenced inmate, on the other hand, may be punished, although that punishment may not be ‘cruel and unusual’ under the Eighth Amendment.”) (citing Ingraham v. Wright, 430 U.S. 651, 671-72 n.40 (1977)). This factual difference distinguishes this case from Chase, where the
36

Court was concerned only with the context of state penitentiaries operated by the VDOC and not local correctional facilities like the jail that are solely operated by the Sheriff. Chase, 508 F. Supp. 2d at 506. As such, Plaintiff was not required to endure “routine discomfort [as] part of the penalty that criminal offenders pay for their offenses against society.” Id. at 502-503 (quoting Hudson v. McMillian, 503 U.S. 1, 9 (1992)); see also Slade v. Hampton Roads Reg’l Jail, 407 F.3d 243, 250 (4th Cir. 2005) (“The Government concededly may detain a criminal defendant to ensure his presence at trial and may subject him to the restrictions and conditions of the detention facility, so long as those conditions and restrictions do not amount to punishment . . . .”) (quoting Bell v. Wolfish, 441 U.S. 520, 536-37 (1979)). Thus, this holding does not alter the Court’s holding in Chase, nor is it inconsistent, due to this important factual distinction.
In short, Plaintiff’s allegations, if true, demonstrate that Defendants wholly failed to accommodate Plaintiff’s disability as required by Title II and the associated regulations, and consequently, Plaintiff was completely unable to communicate with jail personnel regarding medical procedures, unable to access the courts and participate in the initial judicial proceeding conducted via closed circuit television, and denied the right to counsel for approximately
37

six weeks. Based on Plaintiff’s allegations, at the motion to dismiss stage, it cannot be said that Title II “is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior” and does not fall within Congress’s enforcement power under Section 5. Chase, 508 F. Supp. 2d at 501 (quoting Boerne, 521 U.S. at 532). Instead, under the “wide latitude” given to Congress, while not a “perfect fit for the pattern of discrimination” at issue, within the context of a local jail, Title II falls “within the sweep of Congress’ enforcement power even if in the process it prohibits conduct which is not itself unconstitutional.” Constantine, 411 F.3d at 490 (quoting Boerne, 521 U.S. at 518). Accordingly, at this stage, the Eleventh Amendment poses no bar to Plaintiff’s Title II claim in count one against the Sheriff. Lane, 541 U.S. at 517; Constantine, 411 F.3d at 490. Thus, the Court will deny the Sheriff’s motion to dismiss count one.
IV. Conclusion For the foregoing reasons, the Court will grant the State Defendants’ motion and deny the Sheriff’s motion. An appropriate Order shall issue.

April 28, 2015 Alexandria, Virginia

/s/ James C. Cacheris UNITED STATES DISTRICT COURT JUDGE
38

 
 Case: 1:15-cv-57 As of: 01/14/2017 04:00 PM EST 1 of 7
CLOSED,INTERPRETER,JURY
U.S. District Court Eastern District of Virginia − (Alexandria) CIVIL DOCKET FOR CASE #: 1:15−cv−00057−JCC−MSN

Zemedagegehu v. Arlington County Board et al Assigned to: District Judge James C. Cacheris Referred to: Magistrate Judge Michael S. Nachmanoff Cause: 42:12101 Americans with Disabilities Act
Plaintiff

Date Filed: 01/15/2015 Date Terminated: 12/20/2016 Jury Demand: Plaintiff Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Abreham Zemedagegehu

represented by Jonathan Graham Goodrich Akin Gump Strauss Hauer &Feld LLP (DC) 1333 New Hampshire Ave NW Washington, DC 20036 Email: jgoodrich@akingump.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Arlington County Board TERMINATED: 02/19/2015

represented by Ara Loris Tramblian Attorney County Attorney's Office 2100 Clarendon Blvd Suite 403 Arlington, VA 22201 (703) 228−3100 Fax: 703−228−7106 Email: atramblian@arlingtonva.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Arlington County Sheriff's Office TERMINATED: 02/19/2015

represented by Alexander Francuzenko Cook Craig &Francuzenko PLLC 3050 Chain Bridge Road Suite 200 Fairfax, VA 22030 (703) 865−7480 Fax: (703) 434−3510 Email: alex@cookcraig.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Arlington County Detention Facility TERMINATED: 02/19/2015

represented by Alexander Francuzenko (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Elizabeth F. Arthur Arlington County Sheriff, In her Official Capacity

represented by Alexander Francuzenko (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant

represented by

Case: 1:15-cv-57 As of: 01/14/2017 04:00 PM EST 2 of 7

Virginia Department of Corrections TERMINATED: 04/28/2015

John Michael Parsons Office of the Attorney General (Richmond) 202 North 9th Street Richmond, VA 23219 (804) 786−0046 Fax: 804−786−4239 Email: jparsons@oag.state.va.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Hull Davidson Office of the Attorney General (Richmond) 202 North 9th Street Richmond, VA 23219 (804) 692−0551 Fax: (804) 786−4239 Email: ndavidson@oag.state.va.us ATTORNEY TO BE NOTICED

Defendant
Harold W. Clarke Virginia Department of Corrections Director, in His Official Capacity TERMINATED: 04/28/2015

represented by John Michael Parsons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Hull Davidson (See above for address) ATTORNEY TO BE NOTICED

Defendant
Virginia Board of Corrections TERMINATED: 04/28/2015

represented by John Michael Parsons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Hull Davidson (See above for address) ATTORNEY TO BE NOTICED

Defendant
Carl R. Peed Virginia Board of Corrections Chairman, in His Official Capacity TERMINATED: 04/28/2015

represented by John Michael Parsons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Hull Davidson (See above for address) ATTORNEY TO BE NOTICED

Date Filed 01/15/2015
01/15/2015

# Docket Text
1 COMPLAINT against Arlington County Board, Arlington County Detention Facility, Arlington County Sheriff's Office filed by Abreham Zemedagegehu ( Filing fee $ 400.00, receipt number 14683048877). (Attachments: # 1 Cover Letter, # 2 Civil Cover Sheet, # 3 Receipt)(pmil, ) (Entered: 01/22/2015)
2 Summons Issued for service by SPS as to Arlington County Board, Arlington County Detention Facility, Arlington County Sheriff's Office. (pmil, ) (Entered: 01/22/2015)

Case: 1:15-cv-57 As of: 01/14/2017 04:00 PM EST 3 of 7

01/22/2015 01/22/2015 01/22/2015 02/05/2015 02/05/2015 02/05/2015 02/05/2015 02/05/2015 02/05/2015 02/05/2015 02/06/2015 02/06/2015
02/09/2015 02/12/2015 02/12/2015 02/12/2015 02/12/2015 02/18/2015 02/18/2015 02/18/2015

3 SUMMONS Returned Executed as to Arlington County Detention Facility; served on 1/15/2015, answer due 2/5/2015 (pmil, ) (Entered: 01/23/2015)
4 SUMMONS Returned Executed as to Arlington County Sheriff's Office; served on 1/15/2015, answer due 2/5/2015 (pmil, ) (Entered: 01/23/2015)
5 SUMMONS Returned Executed as to Arlington County Board; served on 1/15/2015, answer due 2/5/2015 (pmil, ) (Entered: 01/23/2015)
6 MOTION to Dismiss by Arlington County Detention Facility, Arlington County Sheriff's Office. (Francuzenko, Alexander) (Entered: 02/05/2015)
7 Memorandum in Support re 6 MOTION to Dismiss filed by Arlington County Detention Facility, Arlington County Sheriff's Office. (Francuzenko, Alexander) (Entered: 02/05/2015)
8 Notice of Hearing Date set for March 13, 2015; 10:00 am re 6 MOTION to Dismiss (Francuzenko, Alexander) (Entered: 02/05/2015)
9 Notice of Hearing Date AMENDED set for Thursday, March 12, 2015; 10:00 am re 6 MOTION to Dismiss (Francuzenko, Alexander) (Entered: 02/05/2015)
10 MOTION to Dismiss for Failure to State a Claim by Arlington County Board. (Tramblian, Ara) (Entered: 02/05/2015)
11 Memorandum in Support re 10 MOTION to Dismiss for Failure to State a Claim filed by Arlington County Board. (Tramblian, Ara) (Entered: 02/05/2015)
12 Notice of Hearing Date re 10 MOTION to Dismiss for Failure to State a Claim , 11 Memorandum in Support (Tramblian, Ara) (Entered: 02/05/2015)
Set Deadlines as to 6 MOTION to Dismiss . Motion Hearing set for 3/13/2015 at 10:00 AM in Alexandria Courtroom 1000 before District Judge James C. Cacheris. (clar, ) (Entered: 02/06/2015)
Set/Reset Deadlines as to 10 MOTION to Dismiss for Failure to State a Claim , 6 MOTION to Dismiss . Motion Hearing set for 3/12/2015 at 10:00 AM in Alexandria Courtroom 1000 before District Judge James C. Cacheris. (clar, ) (Entered: 02/06/2015)
Set Deadlines as to 10 MOTION to Dismiss for Failure to State a Claim . Motion Hearing set for 3/12/2015 at 10:00 AM in Alexandria Courtroom 1000 before District Judge James C. Cacheris. (clar, ) (Entered: 02/09/2015)
13 Motion to appear Pro Hac Vice by Larry Tanenbaum and Certification of Local Counsel Jonathan Goodrich Filing fee $ 75, receipt number 0422−4315852. by Abreham Zemedagegehu. (Goodrich, Jonathan) (Entered: 02/12/2015)
14 Motion to appear Pro Hac Vice by Debra Patkin and Certification of Local Counsel Jonathan Goodrich Filing fee $ 75, receipt number 0422−4315854. by Abreham Zemedagegehu. (Goodrich, Jonathan) (Entered: 02/12/2015)
15 Motion to appear Pro Hac Vice by Caroline Jackson and Certification of Local Counsel Jonathan Goodrich Filing fee $ 75, receipt number 0422−4315855. by Abreham Zemedagegehu. (Goodrich, Jonathan) (Entered: 02/12/2015)
16 Motion to appear Pro Hac Vice by Carolyn Perez and Certification of Local Counsel Jonathan Goodrich Filing fee $ 75, receipt number 0422−4315858. by Abreham Zemedagegehu. (Goodrich, Jonathan) (Entered: 02/12/2015)
17 ORDER granting 15 Motion for Pro hac vice. Signed by District Judge James C. Cacheris on 02/18/15. (pmil, ) (Entered: 02/18/2015)
18 ORDER granting 14 Motion for Pro hac vice. Signed by District Judge James C. Cacheris on 02/18/15. (pmil, ) (Entered: 02/18/2015)
19 ORDER granting 13 Motion for Pro hac vice. Signed by District Judge James C. Cacheris on 02/05/15. (pmil, ) (Entered: 02/18/2015)

Case: 1:15-cv-57 As of: 01/14/2017 04:00 PM EST 4 of 7

02/18/2015 02/19/2015 02/19/2015 02/19/2015 02/24/2015
02/26/2015 03/01/2015 03/12/2015 03/12/2015 03/12/2015 03/12/2015 03/16/2015 03/16/2015 03/16/2015 03/16/2015 03/16/2015

20 ORDER granting 16 Motion for Pro hac vice. Signed by District Judge James C. Cacheris on 02/18/15. (pmil, ) (Entered: 02/18/2015)
21 AMENDED COMPLAINT against All Defendants, filed by Abreham Zemedagegehu.(Goodrich, Jonathan) (Entered: 02/19/2015)
22 RESPONSE in Opposition re 10 MOTION to Dismiss for Failure to State a Claim , 6 MOTION to Dismiss filed by Abreham Zemedagegehu. (Goodrich, Jonathan) (Entered: 02/19/2015)
23 AMENDED COMPLAINT Summons Issued for service by SPS as to Elizabeth F. Arthur, Harold W. Clarke, Carl R. Peed, Virginia Board of Corrections, Virginia Department of Corrections. (Attachments: # 1 Cover Letter)(pmil, ) (Entered: 02/23/2015)
24 ORDER that Defts' 10 Motion to Dismiss for Failure to State a Claim is DENIED AS MOOT; The Clerk of Court is directed to terminate the following previously−named Defendants who are no longer named in the Amended Complaint:a. Arlington County Board; b. Arlington County Sheriffs Office; c. Arlington County Detention Facility; (3) The Clerk of Court is directed to add the following newly−named Defendants who are named for the first time in the Amended Complaint: a. Arlington County Sheriff Elizabeth F. Arthur, in her official capacity; b. Virginia Department of Corrections; c. Virginia Department of Corrections Director Harold W. Clarke, in his official capacity;d. Virginia Board of Corrections; e. Virginia Board of Corrections Chairman Carl R. Peed, in his official capacity; The Clerk of Court is directed to remove the hearing currently scheduled for March 12, 2015 from the Courts docket and shall forward copies of this Order to all counsel of record (see Order for details). Signed by District Judge James C. Cacheris on 02/24/15. (pmil, ) (Entered: 02/24/2015)
25 AMENDED COMPLAINT SUMMONS Returned Executed as to Elizabeth F. Arthur; served on 2/23/2015 (pmil, ) (Entered: 03/03/2015)
Case reassigned to Magistrate Judge Michael S. Nachmanoff (Chamber Phone Number 703−299−3367/Law Clerk Phone Number 703−299−3369). Magistrate Judge Thomas Rawles Jones, Jr. no longer assigned to the case. (rban, ) (Entered: 03/01/2015)
26 AMENDED COMPLAINT SUMMONS Returned Executed as to Harold W. Clarke; served on 2/23/2015 (pmil, ) (Entered: 03/12/2015)
27 AMENDED COMPLAINT SUMMONS Returned Executed as to Carl R. Peed; served on 2/23/2015 (pmil, ) (Entered: 03/12/2015)
28 AMENDED COMPLAINT SUMMONS Returned Executed as to Virginia Department of Corrections; served on 2/23/2015 (pmil, ) (Entered: 03/12/2015)
29 AMENDED COMPLAINT SUMMONS Returned Executed as to Virginia Board of Corrections; served on 2/23/2015 (pmil, ) (Entered: 03/12/2015)
30 MOTION to Dismiss for Failure to State a Claim (Pl's First Amended Complaint) by Elizabeth F. Arthur. (Francuzenko, Alexander) (Entered: 03/16/2015)
31 Memorandum in Support re 30 MOTION to Dismiss for Failure to State a Claim (Pl's First Amended Complaint) filed by Elizabeth F. Arthur. (Francuzenko, Alexander) (Entered: 03/16/2015)
32 Notice of Hearing Date set for April 16, 2015; 10:00 am re 30 MOTION to Dismiss for Failure to State a Claim (Pl's First Amended Complaint) (Francuzenko, Alexander) (Entered: 03/16/2015)
33 ANSWER to Complaint (First Amended Complaint) by Elizabeth F. Arthur.(Francuzenko, Alexander) (Entered: 03/16/2015)
34 NOTICE of Appearance by John Michael Parsons on behalf of Harold W. Clarke, Carl R. Peed, Virginia Board of Corrections, Virginia Department of Corrections (Parsons, John) (Entered: 03/16/2015)

Case: 1:15-cv-57 As of: 01/14/2017 04:00 PM EST 5 of 7

03/16/2015 03/16/2015 03/16/2015 03/17/2015 03/17/2015 03/18/2015 03/30/2015 03/30/2015 04/01/2015 04/03/2015 04/06/2015
04/06/2015 04/16/2015
04/28/2015 04/28/2015

35 NOTICE of Appearance by Nancy Hull Davidson on behalf of Harold W. Clarke, Carl R. Peed, Virginia Board of Corrections, Virginia Department of Corrections (Davidson, Nancy) (Entered: 03/16/2015)
36 MOTION to Dismiss for Failure to State a Claim by Harold W. Clarke, Carl R. Peed, Virginia Board of Corrections, Virginia Department of Corrections. (Davidson, Nancy) (Entered: 03/16/2015)
37 Memorandum in Support re 36 MOTION to Dismiss for Failure to State a Claim filed by Harold W. Clarke, Carl R. Peed, Virginia Board of Corrections, Virginia Department of Corrections. (Davidson, Nancy) (Entered: 03/16/2015)
Set Deadlines as to 30 MOTION to Dismiss for Failure to State a Claim (Pl's First Amended Complaint). Motion Hearing set for 4/16/2015 at 10:00 AM in Alexandria Courtroom 1000 before District Judge James C. Cacheris. (clar, ) (Entered: 03/17/2015)
38 Notice of Hearing Date set for April 16, 2015 at 10:00 a.m. re 36 MOTION to Dismiss for Failure to State a Claim (Davidson, Nancy) (Entered: 03/17/2015)
Set Deadlines as to 36 MOTION to Dismiss for Failure to State a Claim . Motion Hearing set for 4/16/2015 at 10:00 AM in Alexandria Courtroom 1000 before District Judge James C. Cacheris. (clar, ) (Entered: 03/18/2015)
39 RESPONSE in Opposition re 30 MOTION to Dismiss for Failure to State a Claim (Pl's First Amended Complaint) filed by Abreham Zemedagegehu. (Goodrich, Jonathan) (Entered: 03/30/2015)
40 RESPONSE in Opposition re 36 MOTION to Dismiss for Failure to State a Claim filed by Abreham Zemedagegehu. (Goodrich, Jonathan) (Entered: 03/30/2015)
ASL interpreter requested for the plaintiff. INTERPRETER flag(s) set. (krob, ) (Entered: 04/01/2015)
41 REPLY to Response to Motion re 30 MOTION to Dismiss for Failure to State a Claim (Pl's First Amended Complaint) filed by Elizabeth F. Arthur. (Francuzenko, Alexander) (Entered: 04/03/2015)
Interpreter Information: Amanda Fish and Patty Moers−Patterson (TCS Interpretings Inc.)are the Interpreters. ASL is the type of language required. Appointment is set for 4/16/15 @ 10:00 am for a motions hearing as to Abreham Zemedagegehu. (krob, ) Modified on 4/6/2015 (krob, ). Modified on 4/8/2015 (krob, ). (Entered: 04/06/2015)
42 Reply to 40 Response in Opposition to Motion filed by Harold W. Clarke, Carl R. Peed, Virginia Board of Corrections, Virginia Department of Corrections. (Davidson, Nancy) (Entered: 04/06/2015)
43 Minute Entry for proceedings held before District Judge James C. Cacheris: Motion Hearing held on 4/16/2015 re: Defendant's motion's 30 &36 to Dismiss for Failure to State a Claim. Jonathan G. Goodrich, Caroline Jackson, and Larry Tanenbaum present on behalf of plaintiff. Plaintiff present at counsel table w/ the aid of 2 sign language interpreters. Alexander Francuzenko, John M. Parson, and Nancy H. Davidson present on behalf of defendant. Matters briefed, argued and taken under advisement. Order to follow. (Court Reporter Julie Egal)(mpha) (Entered: 04/16/2015)
44 MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 04/28/15. (pmil, ) (Entered: 04/28/2015)
45 ORDER, for the reasons stated in the accompanying Memorandum Opinion, the 36 Motion to Dismiss filed by Defendants Virginia Department of Corrections, Harold W. Clarke, the Virginia Board of Corrections, and Carl R. Peed is GRANTED and the claims against these named Defendants are DISMISSED WITH PREJUDICE; Elizabeth F. Arthur's 30 Motion to Dismiss is DENIED; Elizabeth F. Arthur shall file an Answer to the Amended Complaint no later than 05/15/15; The Clerk of Court shall terminate Defendants Virginia Department of Corrections, Harold W. Clarke, the Virginia Board of Corrections, and Carl R. Peed as Defendants in this matter. This matter is continued. It is SO ORDERED.Signed by District Judge

Case: 1:15-cv-57 As of: 01/14/2017 04:00 PM EST 6 of 7

05/05/2015
05/06/2015 05/07/2015 05/07/2015 05/15/2015
05/20/2015 05/27/2015 06/01/2015
06/29/2015 07/02/2015 07/13/2015 07/15/2015

James C. Cacheris on 04/28/15. (pmil, ) (Entered: 04/28/2015)
47 SCHEDULING ORDER: Initial Pretrial Conference set for 5/27/2015 at 11:00 AM in Alexandria Courtroom 400 before Magistrate Judge Michael S. Nachmanoff. Final Pretrial Conference set for 8/20/2015 at 10:00 AM in Alexandria Courtroom 1000 before District Judge James C. Cacheris. Discovery due by 8/14/2015. Signed by District Judge James C. Cacheris on 05/05/2015. (Attachments: # 1 Magistrate Consent Form, # 2 Pretrial Notice)(mpha) (Entered: 05/06/2015)
46 MOTION to Quash Subpoena by Abreham Zemedagegehu. (Attachments: # 1 Exhibit)(Goodrich, Jonathan) (Entered: 05/06/2015)
48 Opposition to 46 MOTION to Quash Subpoena filed by Elizabeth F. Arthur. (Francuzenko, Alexander) (Entered: 05/07/2015)
49 ORDER granting 46 Motion to Quash. Signed by Magistrate Judge Michael S. Nachmanoff on 5/7/2015. (wgar, ) (Entered: 05/07/2015)
50 TRANSCRIPT of Motions Hearing held on April 16, 2015, before Judge James C. Cacheris, Court Reporter/Transcriber Julie Goodwin, Telephone number 571−970−3191. 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 6/15/2015. Redacted Transcript Deadline set for 7/15/2015. Release of Transcript Restriction set for 8/13/2015.(egal, julie) (Entered: 05/15/2015)
51 Joint Discovery Plan by Abreham Zemedagegehu.(Goodrich, Jonathan) (Entered: 05/20/2015)
52 Minute Entry for proceedings held before Magistrate Judge Michael S. Nachmanoff:Initial Pretrial Conference held on 5/27/2015. Appearances of counsel. Sign language interpreter present. Discovery plan approved. Order to issue. (cmar, ) (Entered: 06/01/2015)
53 Rule 16(b) Scheduling Order − Pursuant to the Rule 16(b) Conference it is ordered that: a. Parties shall deliver to my 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. No "general objection" may be asserted in response to any discovery demand except to preserve the attorney−client privilege and work product protection. d. The Rule 26(f) report filed by the parties is approved and shall control discovery to the extent of its application unless modified by the court herein or hereafter. (SEE ORDER FOR FURTHER DETAILS.) Signed by Magistrate Judge Michael S. Nachmanoff on 06/01/15. (cmar, ) (Entered: 06/01/2015)
54 Joint MOTION for Protective Order by Abreham Zemedagegehu. (Attachments: # 1 Exhibit)(Goodrich, Jonathan) (Entered: 06/29/2015)
55 ORDER granting 54 Motion for Protective Order. Signed by Magistrate Judge Michael S. Nachmanoff on 06/29/2015. (dvanm, ) (Entered: 07/02/2015)
56 Motion to appear Pro Hac Vice by George Laevsky and Certification of Local Counsel Jonathan Goodrich Filing fee $ 75, receipt number 0422−4539929. by Abreham Zemedagegehu. (Goodrich, Jonathan) (Entered: 07/13/2015)
57 ORDER granting 56 Motion for Pro hac vice. Signed by District Judge James C. Cacheris on 7/15/2015. (dvanm, ) (Entered: 07/15/2015)

Case: 1:15-cv-57 As of: 01/14/2017 04:00 PM EST 7 of 7

07/27/2015 07/27/2015 07/28/2015 07/28/2015
10/27/2015 10/29/2015 01/28/2016 02/04/2016 04/28/2016 05/04/2016 06/16/2016 06/21/2016
08/25/2016 08/30/2016 10/31/2016 11/03/2016 12/16/2016 12/20/2016

58 Joint MOTION to Stay Proceedings by Elizabeth F. Arthur. (Attachments: # 1 Proposed Order)(Francuzenko, Alexander) (Entered: 07/27/2015)
59 Notice of Hearing Date set for July 30, 2015; 10:00 am re 58 Joint MOTION to Stay Proceedings (Francuzenko, Alexander) (Entered: 07/27/2015)
Set Deadlines as to 58 Joint MOTION to Stay Proceedings. Motion Hearing set for 7/30/2015 at 10:00 AM in Alexandria Courtroom 1000 before District Judge James C. Cacheris. (clar, ) (Entered: 07/28/2015)
60 ORDER granting Motion 58 to Stay: ORDERED that all proceedings in this case are stayed until October 29, 2015, or upon application of one of the parties to lift the stay. The Clerk shall strike this case from active roll of cases. Signed by District Judge James C. Cacheris on 07/28/2015. (mpha) (Entered: 07/28/2015)
61 Joint MOTION to Stay Proceedings by Abreham Zemedagegehu. (Attachments: # 1 Proposed Order)(Goodrich, Jonathan) (Entered: 10/27/2015)
62 ORDER that all proceedings in this case will continue to be stayed until 01/29/16. Signed by District Judge James C. Cacheris on 10/29/15. (pmil, ) (Entered: 10/29/2015)
63 Joint MOTION to Stay Proceedings by Abreham Zemedagegehu. (Attachments: # 1 Proposed Order)(Goodrich, Jonathan) (Entered: 01/28/2016)
64 ORDER granting 63 Motion to Stay ORDERED that all proceedings in this case will continue to be stayed until April 29, 2016. Signed by District Judge James C. Cacheris on 2/4/16. (klau, ) (Entered: 02/04/2016)
65 Joint MOTION to Stay Proceedings by Abreham Zemedagegehu. (Attachments: # 1 Proposed Order)(Goodrich, Jonathan) (Entered: 04/28/2016)
66 ORDER granting 65 Joint Motion to Stay and all proceedings in this case will continue to be stayed until 06/17/16. Signed by District Judge James C. Cacheris on 05/04/16. (pmil, ) (Entered: 05/04/2016)
67 Joint MOTION to Stay by Abreham Zemedagegehu. (Attachments: # 1 Proposed Order)(Goodrich, Jonathan) (Entered: 06/16/2016)
68 ORDER granting 67 Joint Motion to Extend Stay and all proceedings in this case will continue to be stayed until 08/26/16. The Clerk shall strike this case from the active roll of cases. Signed by District Judge James C. Cacheris on 06/21/16. (pmil, ) (Entered: 06/21/2016)
69 Joint MOTION to Stay by Abreham Zemedagegehu. (Attachments: # 1 Proposed Order)(Goodrich, Jonathan) (Entered: 08/25/2016)
70 ORDER granting 69 Motion to Stay. ORDERED that all proceedings in this case will continue to be stayed until 10/31/2016. Signed by District Judge James C. Cacheris on 8/30/2016. (rban, ) (Entered: 08/30/2016)
71 Joint MOTION to Stay by Abreham Zemedagegehu. (Attachments: # 1 Proposed Order)(Goodrich, Jonathan) (Entered: 10/31/2016)
72 ORDER that all proceedings in this case will continue to be stayed until 12/02/16. Signed by District Judge James C. Cacheris on 11/03/16. (pmil, ) (Entered: 11/03/2016)
73 NOTICE of Voluntary Dismissal by Abreham Zemedagegehu (Goodrich, Jonathan) (Entered: 12/16/2016)
74 So Ordered re: 73 Stipulated Notice of Voluntary Dismissal with prejudice filed by Abreham Zemedagegehu. Signed by District Judge James C. Cacheris on 12/20/16. (pmil, ) (Entered: 12/20/2016)

 
 SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND ELIZABETH F. ARTHUR, IN HER OFFICIAL CAPACITY AS THE ARLINGTON COUNTY SHERIFF
U.S. DEPARTMENT OF JUSTICE DJ # 204-79-325
BACKGROUND
1. The parties (“Parties”) to this Settlement Agreement (“Agreement”) are the United States of America (“United States”) and Elizabeth F. Arthur in her official capacity as the Arlington County Sheriff.
2. This matter was initiated by a complaint filed with the United States against the Arlington County Sheriff’s Office (“ACSO”), alleging violations of Title II of the Americans with Disabilities Act of 1990, as amended (the “ADA”), 42 U.S.C. §§ 12131-12134, and its implementing regulation, 28 C.F.R. Part 35, and seeking to recover compensatory damages for the alleged discrimination caused by the violations. Specifically, Complainant PJ (the “Complainant”), who is deaf, alleged that the ACSO personnel failed to take appropriate steps to ensure that communications with him were as effective as communications with others, and failed to provide auxiliary aids and services that were necessary to ensure effective communication with the Complainant while he was incarcerated in the Arlington County Detention Facility (“ACDF”) for 40 days. Further, the Complainant alleges that the ACSO failed

to furnish appropriate auxiliary aids and services that would have afforded him an equal opportunity to use telecommunication services that the ACSO permits other detainees without disabilities.
3. The ACSO has fully cooperated with United States’ investigation of this matter. The ASCO without any delay responded to each and every request made by United States, including a personal meeting between Sheriff Arthur and representatives of the United States. The Parties have determined that the complaint filed with the United States can be resolved without litigation and have agreed to the terms of this Agreement
INVESTIGATION AND FINDINGS
4. The United States Attorney for the Eastern District of Virginia (“USAO”) is authorized under 42 U.S.C.§ 12131-34 and 28 C.F.R. Part 35, Subpart F, to investigate the allegations of the complaint in this matter to determine the ACSO’s compliance with Title II of the ADA. The USAO has the authority to, where appropriate, negotiate and secure voluntary compliance agreements, to resolve investigations through informal resolution such as settlement agreements, and to bring civil actions enforcing Title II of the ADA should it fail to secure voluntary compliance. 28 C.F.R. § 35.172(c).
5. The Complainant is deaf and as such is an individual with a “disability” within the meaning of the ADA. 42 U.S. C. § 12102; 28 C.F.R. § 35.104. The Complainant communicates using

American Sign Language (“ASL”), and is unable to communicate by reading or writing in English, or reading lips.
6. The ADA applies to the ACSO because it is a “public entity” pursuant to Title II of the ADA, 42 U.S.C. § 12131. Title II of the ADA prohibits discrimination against qualified individuals with disabilities on the basis of disability in the “services, programs, or activities of a public entity.” 42 U.S.C. § 12132. Pursuant to Virginia law, the ACSO operates the ACDF. Va. Code § 53.1116.2.
7. On the basis of its investigation, the USAO has determined that:
a. PJ was arrested late in the evening at Reagan Washington National Airport on February 2, 2014. Soon after his arrest, PJ was transferred to the Arlington County Detention Facility (“ACDF”), where he was detained until March 14, 2014.
b. The ACSO had an obligation to ensure effective communication with PJ while he was in its custody, and had an obligation to furnish appropriate auxiliary aids and services where necessary to ensure effective communication with PJ. 28 C.F.R. § 35.160.
c. ACSO failed to give primary consideration to PJ’s request for certain types of auxiliary aids and services as required by 28 C.F.R. § 35.160(b)(2). Instead, the ACSO provided a random assortment of ineffective “auxiliary aids.” The

ACSO failed to take appropriate steps required to comply with 28 C.F.R. § 35.160(b)(2), such as consulting with PJ regarding the type of auxiliary aids and services that he required for effective communication, conducting an informed evaluation of the types of auxiliary aids and services necessary to ensure effective communication with PJ, and giving primary consideration to PJ’s request for specific auxiliary aids and services.
d. Despite the ACSO’s failure to undertake an informed inquiry into the type of auxiliary aids and services that would establish effective communication with PJ, PJ expressly requested an ASL interpreter on multiple occasions, including during the following:
1. ACDF’s initial housing assessment;
2. ACDF’s medical assessment;
3. ACDF’s classification assessment; and
4. When meeting with ACDF’s ADA Coordinator.
e. During PJ’s incarceration at the ACDF, he attempted to explain to multiple ACDF staff members that he could not read or write in English and could not read lips. Further, the physician who attempted to conduct a medical exam of PJ noted in his inmate medical records that PJ could not read lips effectively.

f. During PJ’s incarceration, the ACSO failed to provide effective communication for multiple complex communications with the Complainant, including:
1. Communications about the types of auxiliary aids or services that would ensure effective communication;
2. Communications regarding PJ’s eligibility for financial assistance for legal representation;
3. An attempted arraignment of PJ that was held at the ACDF via video hookup;
4. PJ’s initial housing assessment;
5. PJ’s initial classification assessment;
6. PJ’s medical assessment, medical examination and other interactions with the medical staff, which would have enabled PJ to explain and receive treatment for his medical conditions;
7. PJ’s case management plan;
8. ACSO’s orientation of PJ to the ACDF;
9. ACDF’s Handbook provided to PJ in written English; and
10. Discussions on how PJ could make bond and be released from incarceration.

g. The ACSO’s failure to provide appropriate auxiliary aids and services to ensure effective communication with PJ for these complex interactions violates 42 U.S.C. § 12132; 28 C.F.R. §§ 35.152(b)(1) & 35.160.
h. A nurse employed by Corizon, ACDF’s medical contractor, noted in PJ’s infirmary record that he refused to provide consent to medical treatment because there was no sign language interpreter. Notwithstanding the fact that PJ never reversed his refusal of consent for medical treatment, ACDF’s medical contractor still performed medical procedures on PJ.
i. The ACSO enlisted three of its staff members, who did not have the requisite skills to be qualified interpreters, to facilitate communication during interactions with PJ that required complex communication, including a medical examination, his initial housing assessment, and his classification review. Prior to enlisting these staff members to facilitate communication, the ACSO failed to have the staff members evaluated to determine whether they had the requisite ASL skills to perform as a sign language interpreter. As part of the investigation, the United States arranged to have the sign language interpreting abilities of the three ACSO staff members evaluated. These evaluations revealed that these individuals did not have the requisite skills to be “qualified interpreters” pursuant to 28 C.F.R. § 35.104 because they could not “interpret effectively,

accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary.”
j. Pursuant to Virginia state regulations, 6 VAC 15-40-660, 730 & 1270, and ACDF’s internal policies, the detention facility permits inmates to make telephone calls to, among others, counsel, family, and friends. An ACSO staff member erroneously informed the Arlington County Public Defender’s Office, which represented PJ in a criminal case, that PJ could not communicate using a telephone because he is deaf. The ACSO offered to furnish a TTY device, but because a TTY requires knowledge of written English, it was not an appropriate auxiliary aid for PJ and the Complainant attempted to explain that he could not use the TTY device. The ACSO’s failure to furnish an auxiliary aid or service that would have afforded PJ telecommunication services, such as a device that would have afforded video telephone calls, violates 42 U.S.C. § 12132; 28 C.F.R. §§ 35 35.160 & 35.161. Further, the ASCO’s failure to give primary consideration to PJ’s request for certain auxiliary aids that would provide effective communication for telecommunication violated 28 C.F.R. § 35.160(b)(2).
8. Our Investigation also revealed additional general areas of ADA non-compliance, including:
a. The ACSO was unable to demonstrate that it had conducted an ADA self-evaluation, as required by 28 C.F.R. § 35.105.

b. The ACSO failed to ensure that interested persons, including persons with impaired vision or hearing, can obtain information as to the existence and location of accessible services, activities, and facilities, as required by 28 C.F.R. § 35.163.
c. The ACSO is required to have an ADA Coordinator who is familiar with the requirements of the ADA and whose responsibilities include ensuring that individuals who are dealing with a large public entity are able to easily find a responsible person who is familiar with the requirements of the ADA and the ADA regulations and can communicate those requirements to other individuals in the agency who may be unaware of their responsibilities. 28 C.F.R. § 35.107; 28 C.F.R. Part 35, Appendix B. At the time of the events in PJ’s complaint, the ACSO assigned the ADA Coordinator position to an employee who did not have the requisite knowledge to perform the responsibilities of this position. 28 C.F.R. Part 35, Appendix B. ACSO’s ADA Coordinator was not knowledgeable of the requirements of the ADA, the statute’s implementing regulations, or the relevant Department of Justice’s Technical Assistance Materials.
DEFINITIONS
9. “ACSO Personnel” means all employees, both full and part-time, and contractors and employees of contractors with contracts to work for or with the ACSO, including, without limitation, uniform

officers of the Sheriff’s Department, Inmate Service Counselors, nurses, physicians, social workers, administrative staff, therapists, and volunteers, who have or are likely to have direct contact with Inmates or Companions as defined herein.
10. “Auxiliary aids and services” includes qualified interpreters onsite or through video remote interpreting (VRI) services; notetakers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing. 28 C.F.R. § 35.104.
11. “Companion” means a family member, friend, legal representative, or associate of an individual seeking access to a service, program, or activity of a public entity, who, along with such individual, is an appropriate person with whom the public entity should communicate. 28 C.F.R. § 35.160(a)(2).
12. “Disability” is defined as it is in the ADA, 42 U.S.C. § 12102(2). See also 28 C.F.R. § 35.104. Specifically, a person is “deaf” or “hard of hearing” for the purposes of this Agreement if

she or he has a physical impairment that substantially limits the major life activity of hearing, with or without mitigating measures such as hearing aids or cochlear implants.
13. "Effective communication” means communication with persons with disabilities that is as effective as communication with others. Effective communication is achieved by furnishing appropriate auxiliary aids and services where necessary to afford qualified individuals with disabilities an equal opportunity to participate in or benefit from the services, programs, or activities of a public entity.
14. “Inmate” shall be broadly construed to include any individual who is being held or detained at the ACDF.
15. “Inmate Records” means the files and related records for an individual inmate, including both the paper and electronic records, and any infirmary records.
16. “Qualified interpreter” means an interpreter who, via a video remote interpreting (VRI) service or an on-site appearance, is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary, given the deaf or hard of hearing individual’s language skills and education. Qualified interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators. 28 C.F.R. § 35.104. Not all interpreters are qualified for all situations. For example, an interpreter who is qualified to interpret using American Sign Language (ASL) is not necessarily

qualified to interpret orally. Also, someone who has only a rudimentary familiarity with sign language or finger spelling is not a “qualified sign language interpreter.” Likewise, someone who is fluent in sign language but who does not possess the ability to process spoken communication into the proper signs or to observe people signing and translate their signed or finger-spelled communication into spoken words is not a qualified sign language interpreter. 28 C.F.R. Part 35, App. A. To be a qualified interpreter, the interpreter must be able to interpret in the language the individual with a disability uses (e.g., American Sign Language or Signed English).
17. “Video Remote Interpreting service” or “VRI” will mean an interpreting service that uses video conference technology over dedicated lines or wireless technology offering high-speed, widebandwidth video connection that delivers high-quality video images that do not produce lags, choppy, blurry, or grainy images, or irregular pauses in communication as provided in 28 C.F.R. § 35.160(d).
EQUITABLE RELIEF
18. ADA Self-Evaluation. The ACSO will complete an ADA selfevaluation within one year of the effective date of this agreement. 28 C.F.R. § 105. The ADA self-evaluation will include the elements discussed in the ADA Title II Technical Assistance Manual, at II-8.2000, which will be limited to policies and practices maintained by the ACSO. The ACSO will provide a copy

of the ADA self-evaluation to the United States once it is completed.
19. ADA Coordinators For Inmates
a. Designation
The ACSO has designated at least one employee with responsibility to coordinate the ACSO’s efforts to comply with and carry out its responsibilities under the ADA with respect to inmates, whose title is the “ADA Coordinator for Inmates.” Further, the ACSO has designated at least one employee as an ADA Deputy Coordinator for Inmates (“ADA Deputy Coordinator”), who is available in case the ADA Coordinator is not available.
Duties and Responsibilities
1) The ADA Coordinator and ADA Deputy Coordinator for Inmates shall have the responsibility and authority to: ensure that procedures for the prompt and equitable resolution of ADA complaints by inmates and/or requests by inmates with disabilities for reasonable modifications or appropriate auxiliary aids or services or addressing physical access issues are in place, publicized, and implemented; process, investigate, and promptly act upon inmate complaints and/or requests for reasonable modifications or auxiliary aids or services; ensure that all ACDF staff who interact with inmates with disabilities are provided with adequate and appropriate information and training on ADA issues;

ensure that inmates with disabilities are housed in facilities that accommodate their disabilities and that all applicable ACDF facilities and programs are ADA compliant; compile and maintain such information concerning inmates with disabilities in the custody of ACDF as is necessary to carry out the duties and responsibilities of the position; develop and maintain an inventory of written materials and other resources concerning ADA compliance (including, without limitation, laws, regulations, reference materials, educational materials, DOJ publications, and contact information); and otherwise coordinate ACDF’s efforts to comply with and carry out its responsibilities under the ADA with respect to inmates. The ADA Coordinator and ADA Deputy Coordinator for Inmates shall also serve as a resource for inmates, other ACDF employees, and for representatives of federal, state, and county government agencies who have questions regarding ACDF inmates with disabilities, ACDF's obligations with respect to inmates with disabilities, and ACDF procedures concerning ADA compliance.
2) The ACSO has received funding for an additional Full Time Equivalent (“FTE”) position at the Lieutenant rank or above to handle the ADA Coordinator’s responsibilities.
3) The ADA Coordinator for Inmates shall be generally available during normal business hours (9 a.m. to 5 p.m. on weekdays) to respond to inmate requests and complaints and answer questions from and provide advice and assistance to the ACDF personnel.

The ADA Deputy Coordinator shall be available when the ADA Coordinator is not available. If neither the ADA Coordinator or the Deputy ADA Coordinator are available, the Chief Deputy will appoint an interim ADA Coordinator of Captain or above until one of the Coordinators returns or one is newly appointed.
4) The ACSO has developed a job description for the position for the ADA Coordinator and ADA Deputy Coordinator for Inmates. The job description includes all duties, responsibilities, and qualifications set forth in this Agreement. The ACSO shall provide a copy of the job description to the United States Attorney’s Office for its review and approval. Upon receipt of the United States’ comments, the ACSO will address all of the United States’ concerns, if any, and will resubmit a draft for final approval, if any changes are necessary. The adoption of the final job description will occur within 90 days of the ACSO’s receipt of approval by the United States.
b. Qualifications
The ACSO has established qualifications for the positions of ADA Coordinator and ADA Deputy Coordinator for Inmates sufficient to ensure that the ADA Coordinator and ADA Deputy Coordinator for Inmates possess the educational background, experience, and skills necessary to carry out all of the duties and responsibilities of the position, and knowledge and experience dealing with the legal rights of persons with disabilities and the obligations of public

entities under federal and state disability laws. The ACSO shall not designate any person to serve as the ADA Coordinator or ADA Deputy Coordinator, or maintain any person in that position, who does not possess the requisite background, experience, and skills in carrying out the duties and responsibilities of the position.
c. Training For ADA Coordinators
1) Within 90 days of the effective date of this Agreement, the ACSO shall ensure that the ADA Coordinator and ADA Deputy Coordinator for Inmates have the training necessary to ensure that the ADA Coordinator and ADA Deputy Coordinator for Inmates are fully knowledgeable about the legal rights of inmates with disabilities and the legal obligations of the ACSO with respect to inmates with disabilities. Further, during the duration of this agreement, the ACSO shall ensure that the ADA Coordinator and ADA Deputy Coordinator attend at least 24 hours of training per year on ADA requirements and new developments.
2) Specifically, with regard to ACSO’s obligation to ensure effective communication with qualified individuals with disabilities, the ADA Coordinator and ADA Deputy Coordinator for Inmates will be trained in the following areas:
a. To promptly identify communication needs of inmates, visitors and other members of the public who

are deaf or hard of hearing and which auxiliary aids and services are necessary in different circumstances;
b. To secure qualified interpreter services as quickly as possible when necessary;
c. To work with ACDF staff members to comply with the effective communication provisions of the ADA and this Agreement;
d. To use, when appropriate, flash cards and pictographs (in conjunction with any other available means of communication that will augment the effectiveness of the communication);
e. How and when to use video remote interpreting services;
f. Making and receiving telephone calls using auxiliary aids and services such as videophones, captioned phones, telephone handset amplifiers, TTYs and the relay service; and
g. ACSO’s grievance resolution procedure described in paragraph 54 of this agreement.
20. Information Concerning Inmates with Disabilities

The ACSO has modified existing directives, rules, policies, and procedures concerning the screening and classification of inmates upon entry into the custody of the ACSO:
a. To ensure that, when a person with or claiming a disability is received into the custody of the ACSO, the ACSO Zone Supervisor shall contact the Shift Commander and the ADA Coordinator immediately. The ACSO Zone Supervisor shall inform the Shift Commander and the ADA Coordinator of the inmate's name, the nature of the inmate's disability, and any request for an auxiliary aid or service for communication, or related to physical accessibility or reasonable modifications of policies or procedures made by that inmate upon intake;
b. To require ACSO intake staff to document the inmate’s disability and any request made by the inmate for an auxiliary aid or service or related to physical accessibility or reasonable modifications of policies, practices or procedures in the inmate’s record;
c. To require the ADA Coordinator or the ADA Deputy Coordinator to meet with an inmate with a disability within the next business day of his/her arrival at the ACDF and at least weekly thereafter. Within 24 hours of the ACSO Zone Supervisor providing notification to the ADA Coordinator or ADA Deputy Coordinator of the inmate with a disability or the in-person meeting with the inmate, whichever is earlier,

the ADA Coordinator or ADA Deputy Coordinator shall ensure that the needs of the inmate with a disability are being met; and
d. To require that the monthly Medical Audit Committee includes a discussion of ADA issues.
21. Dissemination of Contact Information
The ACSO shall make available to visitors, inmate advocates, inmate family members, and representatives upon request, the name, office address, and telephone number of the ADA Coordinator and ADA Deputy Coordinator for Inmates. Further, such information shall be available in an accessible manner on the front page of ACSO’s web site in a location that is at least as conspicuous as the “Detention Center Ata-Glance” section of the current web site. 28 C.F.R. § 35.107. The identity of the ADA Coordinator and Deputy ADA Coordinator shall be on conspicuous posters of suitable size posted in locations in each facility where notices to inmates are normally posted, which are identified in Exhibit C. Moreover, the ACDF inmate handbook shall inform inmates that they can contact the ADA Coordinator and ADA Deputy Coordinator for Inmates through the housing unit deputy for each housing unit. Id.
Prohibitions on Discrimination
22. Nondiscrimination. With respect to all of its programs, services, and activities, the ACSO agrees not to engage in any act or practice, directly or through contracting, licensing, or other

arrangements, that has the purpose or effect of unlawfully discriminating against any person with a disability in violation of Title II of the ADA.
23. Coverage of Involuntary Participation. Throughout this Agreement, terms such as “enjoyment,” “benefit,” or “seek” that in other contexts might imply the voluntary and willing participation of a member of the public in ACSO programs, services, or activities, shall also refer to a member of the public’s involuntary participation in the Sheriff’s Department’s programs, services, and activities, such as arrest or detention. 28 C.F.R. § 35.152.
24. Retaliation and Coercion. The ACSO shall not retaliate against or coerce in any way any person who made, or is making, a complaint according to the provisions of this Agreement or exercised, or is exercising, his or her rights under this Agreement or the ADA. 28 C.F.R. § 35.134.
Effective Communication
25. Provision of Appropriate Auxiliary Aids and Services. The ACSO will ensure that appropriate auxiliary aids and services, including qualified interpreters, are made available to inmates, visitors, and other members of the public who interact with the ACSO, who are deaf or hard of hearing, where such aids and services are necessary to ensure effective communication, so that they may participate in or benefit from the ACSO’s services, programs, or activities on an equal basis with others. While this

Settlement Agreement focuses on the effective communication needs of individuals who are deaf or hard of hearing, the ACSO recognizes that it is required by the ADA to provide appropriate auxiliary aids and services to ensure effective communication with individuals with other disabilities, such as blindness.
26. Primary Consideration. In determining the type of auxiliary aid or service necessary to comply with the ADA, the ACSO agrees to give primary consideration to the expressed preference for a particular auxiliary aid or service by an individual who is deaf or hard of hearing. 28 C.F.R. § 35.160. “Primary consideration” will mean that personnel will inquire as to the choice of auxiliary aid or service of the individual with a disability and will honor the expressed choice unless the ACSO can demonstrate that another equally effective means of communication is available. Specifically, to determine whether someone who is deaf or hard of hearing wants a qualified sign language interpreter, in all nonemergency circumstances, personnel will use the American Sign Language pictogram for “sign language interpreter” available at Exhibit B to inquire as to the person’s preference.
27. Consultation Requirement. In order to provide primary consideration to the expressed preference of the individual with a disability regarding the type of auxiliary aids or services to provide, the ACSO will consult with the individual with a disability regarding the appropriate auxiliary aids or services, and the timing, duration, and frequency with which they will be provided. The ACSO personnel will provide a Communication

Assessment Form and take into account all relevant facts and circumstances, including, for example, the individual’s communication skills and knowledge, and the nature and complexity of the communication at issue. A Model Communication Assessment Form is attached to this Agreement as Exhibit A, and the ACSO will develop a form similar to Exhibit A within thirty (30) days of the Effective Date of this Agreement to be used at the ACDF. The ACSO shall provide a copy of the Communication Assessment Form that it develops to the USAO for review and approval prior to ACSO’s implementation of the Form. ACSO shall ensure that a completed Form is obtained from each individual inmate or companion who agrees to complete the Form. ACSO shall provide assistance in completing the Form at the Inmate’s or Companion’s request, including a sign language interpreter if the ACSO has any reason to believe that the inmate or companion does not understand the form. After being completed, the Form(s) shall be maintained in the inmate’s record, whether kept in paper or electronic form. If at any point during an inmate’s detention, a companion identifies himself or herself as deaf or hard of hearing, the ACSO shall promptly provide him/her with the Form, if it has not done so already.
28. Ongoing Need for Communication Assessments and Consultation. In addition to the initial communication assessment done at the time the need for auxiliary aids and services is first identified, ACSO personnel will reassess communication effectiveness regularly throughout the period of incarceration and

will consult with the individual who is deaf or hard of hearing on a continuing basis to assess the measures required to ensure effective communication. See 28 C.F.R. Part 35, App. A. For inmates, such reassessment will take place on a monthly or more frequent basis.
29. Documentation of Refusal of Auxiliary Aids or Services. If an inmate who is deaf or hard of hearing indicates that he or she does not require any or all of the Auxiliary Aids and Services set forth in the Agreement, he or she will sign a Waiver of Auxiliary Aids and Services and that document will be kept in the inmate’s file. The Waiver of Auxiliary Aids and Services will be the same as the form that the ACSO provided to the USAO on September 1, 2015. The ACSO will take steps to ensure that the Waiver of Auxiliary Aids and Services form is effectively communicated to inmates with disabilities, including providing auxiliary aids and services for discussion of the form. The ACSO understands that the lack of a completed Waiver of Auxiliary Aids and Service form is presumptive evidence that there was no refusal of services by the inmate. Notwithstanding an inmate’s completion of a waiver form, the ACSO still has a continuing obligation to assess an inmate’s communication needs on an ongoing basis as discussed in paragraph 28.
30. Qualified Interpreters for Detention Facility Programs. The following are examples of circumstances when it may be necessary to provide qualified interpreters to ensure effective communication with inmates or detainees who are deaf or hard of hearing:

a. initial intake and classification processing (see below for specifics);
b. medical care and health programs, such as medical, dental, visual, audiological, mental health examinations or treatment and drug and alcohol recovery services;
c. educational classes and activities;
d. any court hearing held at the facility, including those held via video hookup with the court;
e. official hearings in which the inmate or detainee is a participant;
f. criminal investigations that are conducted at the ACDF or that involve the ACSO;
g. classification review interviews;
h. grievance interviews or processes;
i. religious services; and
j. formal investigations that are conducted at the ACDF or that involve the ACSO.
The foregoing list of circumstances is not exhaustive; there may be other circumstances not identified here when it may be necessary to provide qualified interpreters for effective communication. Under

some circumstances other entities may have joint obligation to furnish a qualified interpreter.
31. Booking and Intake.
a. Qualified Interpreters. As soon as ACSO personnel learn that a person who is deaf or hard of hearing will arrive at the detention facility, whether pursuant to an arrest or a transfer from another jurisdiction or facility, personnel will inquire through all available means (including the use of Exhibit A) as to whether the person will need a qualified interpreter for effective communication. If so, a qualified interpreter will be provided to facilitate booking, intake, classification, orientation, and other such processes.
b. Video and Transcript. Within 180 days of the effective date of this Agreement, the ACSO will produce a Jail Orientation Video and written transcript designed to inform arrestees who are deaf or hard of hearing about the booking process. The Jail Orientation Video will feature a qualified sign language interpreter communicating what the arrestee or detainee should expect, through the fingerprinting, and other preliminary processes. The written transcript will communicate the same information in writing, for persons who are deaf or hard of hearing who do not use sign language, but can read English.

c. Other Booking and Intake Processes. If a person who is deaf or hard of hearing has requested a qualified interpreter or responded to the mandatory inquiry that he or she wants a sign language interpreter, any booking process that relies on communication must be delayed until a qualified interpreter is present or VRI service is available. Such processes include, but are not limited to, medical screenings, taking criminal and personal histories, and obtaining or transmitting information for classification and housing assignments. If a person who is deaf or hard of hearing expresses an urgent medical need that cannot wait for a qualified interpreter, or personnel suspect there is an urgent medical need, personnel should not delay providing whatever medical care or service would be provided to an inmate without disabilities under the similar circumstances and should use the most effective available means of communicating with the person who is deaf or hard of hearing.
d. Completion of Booking. Once a qualified interpreter has arrived or VRI service is available, the booking process may be completed. The interpreter should accompany the inmate to the housing unit, if inmates generally receive information about their housing unit rules, expected standards of conduct, or other topics upon arrival.
e. Inmate Handbook. At the earliest reasonable time, the ACSO will effectively communicate the contents of the Inmate Handbook and similar publications to all inmates

who are deaf or hard of hearing, including those for whom written English is not an effective means of communication. The ACSO may choose to meet this obligation by providing a video of a qualified interpreter signing the contents of the Inmate Handbook, along with appropriate technology for viewing, or by providing a qualified interpreter who will read and interpret the contents of the Inmate Handbook to the person who is deaf or hard of hearing. At the request of an inmate who is deaf or hard of hearing, the ACSO will provide that inmate with the opportunity to meet with an ACSO staff member and a qualified interpreter to ask any questions regarding the Inmate Handbook and any other written materials that have been provided to inmates.
f. Notice in Inmate Handbook. The ACSO will revise its Inmate Handbook and all similar publications, including orientation materials, to include a statement to the following effect:
To ensure effective communication with inmates and their visitors or companions who are deaf or hard of hearing, we provide appropriate auxiliary aids and services free of charge, such as: qualified sign language interpreters and oral transliterators, videophones, TTY's, notetakers, computer-assisted real time transcription services, written materials, telephone handset amplifiers, assistive listening devices and systems, telephones compatible with hearing aids, closed caption decoders or TVs

with built-in captioning, and open and closed captioning of ACDF programs.
Please ask an Arlington County Detention Facility staff member for assistance.
32. Provision of Interpreters in a Timely Manner
a. Non-scheduled Interpreter Requests: A “non-scheduled interpreter request” means a request for an interpreter made by an inmate, visitor, companion, or other member of the public, who is deaf or hard of hearing with less than two (2) hours advanced notice. For non-scheduled interpreter requests, the interpreter shall be provided no more than (a) two (2) hours from the time of the request for an interpreter if the service is provided through a contract interpreting service or a staff interpreter who is located off-site or (b) 30 minutes from the request for an interpreter if the service is provided through a Video Remote Interpreting service. Deviations from this response time will be addressed with the interpreting service provider, and performance goals will be reviewed with the United States. If no interpreter can be located, ACSO Personnel will take the following additional steps:
i. ACSO Personnel will exert reasonable efforts (which shall be deemed to require no fewer than five (5) telephone inquiries and/or emails and/or text

messages unless exceptional circumstances intervene) to contact any qualified interpreters or interpreting agencies already known to the ACSO and request their services;
ii. Inform the ADA Coordinator and/or ADA Deputy Coordinator of the efforts made to locate an interpreter and solicit assistance in locating an interpreter;
iii. Inform the inmate, visitor, or the member of the public of the efforts taken to secure a qualified interpreter and that the efforts have failed, and follow up on reasonable suggestions for alternate sources of qualified interpreters; and
iv. Document all of the above efforts.
b. Scheduled Interpreter Requests. A “scheduled interpreter request” is a request for an interpreter made two (2) or more hours before the services of the interpreter are required. For scheduled interpreter requests, the ACSO will make a qualified interpreter available at the time of the scheduled appointment. If an interpreter fails to arrive for the scheduled appointment, upon notice that the interpreter failed to arrive, the ACSO will immediately use reasonable efforts (as defined in paragraph 32(a)(i)) to call an interpreter service for another qualified interpreter.

c. Data Collection on Interpreter Response Time and Feedback. The ACSO will monitor the performance of each qualified interpreter it uses to provide communication to inmates, visitors, companions, and members of the public, who are deaf or hard of hearing by monitoring their response time and seeking feedback from the individual who requires the services of the interpreter. As part of the Auxiliary Aid and Service Log, the ACSO shall collect and document information regarding response times and feedback for each request for an interpreter.
33. Use of Interpreting Service Agency(ies). Within thirty (30) days of the effective date of this Agreement, the ACSO agrees:
a. To contract with one or more qualified oral/sign language interpreter agencies to ensure that interpreting services will be available on a priority basis, twenty-four hours per day, seven days a week;
b. To confirm that the interpreter services selected have screened their interpreters for quality, skill and reliability. ACSO will review and update this list annually;
c. To provide the United States with documentation that such interpreter services are being made available; and
d. To record all requests it receives for oral/sign language interpreters and any action taken or denial of services. That record shall be provided to the United States for review of

compliance with this Agreement upon request by the United States and in compliance reports as required in paragraph 55 below entitled “Compliance Reports.”
34. Method for Obtaining Interpreters. The ACSO will establish internal procedures for ordering interpreting services that is consistent with the interpreter or interpreter agencies’ procedures. At a minimum, all of the ACSO’s requests for interpreters, including the time and date, will be confirmed in writing at the time of the request. Further, the ACSO will consider an order for interpreting services to be complete only after receiving written confirmation from the interpreting service that an interpreter will be provided at the time and date requested. The ACSO will file a copy of all written correspondence with interpreting services in the inmate’s record. Additionally, for the duration of this Agreement, the ACSO will file a copy of its written correspondence with interpreters and interpreting agencies in the Auxiliary Aid and Service Log discussed in paragraph 53.
35. Use of Other Members of the Public to Facilitate Communication.
a. The ACSO shall not require an individual who is deaf or hard of hearing to bring another member of the public to interpret for him or her. 28 C.F.R. § 35.160(c)(1).

b. The ACSO will not rely on an adult accompanying an individual who is deaf or hard of hearing to interpret or facilitate communication except:
c. In an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available, or
d. Where the individual who is deaf or hard of hearing specifically requests that the accompanying adult interpret or facilitate communication, the accompanying adult agrees to provide such assistance, and reliance on that adult for such assistance is appropriate under the circumstances. See 28 C.F.R. § 35.160(c)(2).
e. The ACSO shall not rely on a minor child to interpret or facilitate communication, except in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available. 28 C.F.R. § 35.160(c)(1).
f. The imminent threat exception in this paragraph and its subparts is not intended to apply to the typical and foreseeable emergency situations that are a part of the normal operations of the Sheriff’s Department’s programs, services, and activities. Personnel may rely on an accompanying individual to interpret or facilitate communication under this paragraph only in truly emergency circumstances, i.e., where any delay in providing

immediate services to the individual could have life-altering or life-ending consequences. See 28 C.F.R. Part 35, App. A. Once the emergency has lifted, personnel should revisit the decision of what auxiliary aids and services are appropriate and give primary consideration to those preferences.
36. Prohibition on The Use of Employees or Inmates as Sign Language Interpreters or Oral Transliterators. The ACSO will not use its personnel as sign language interpreters unless the employee’s sign language interpreting skills have been evaluated and the ACSO can document that the individual is a “qualified interpreter” pursuant to 28 C.F.R. § 35.104. Further, the ACSO will not use its employees as sign language interpreters or oral transliterators if the employee or volunteer’s presence poses a conflict of interest or raises confidentiality and privacy concerns. The ACSO shall not use inmates as interpreters or assistants to those with disabilities. On occasion, an inmate may possess the skill level necessary to provide interpreting services; however, the impartiality concerns remain, and inmate interpreters or transliterators shall not be used due to confidentiality, privacy, and security reasons.
37. Other Means of Communication. The ACSO agrees that between the time an interpreter is requested and the interpreter is provided, ACSO Personnel will continue to try to communicate with the inmate, visitor, companions, or member of the public who is deaf or hard of hearing for such purposes and to the same extent as they would have communicated with the person but for the disability,

using all available methods of communication, including using sign language pictographs. This provision in no way lessens the ACSO’s obligation to provide qualified interpreters in a timely manner as required by paragraph 32.
38. Video Remote Interpreting (VRI). VRI can provide immediate, effective access to interpreting services in a variety of situations including emergencies and unplanned incidents. When using VRI services, ACSO shall ensure that it provides: (1) Real-time, fullmotion video and audio over a dedicated high-speed, widebandwidth video connection or wireless connection that delivers high-quality video images that do not produce lags, choppy, blurry, or grainy images, or irregular pauses in communication; (2) A sharply delineated image that is large enough to display the interpreter’s face, arms, hands, and fingers, and the participating individual’s face, arms, hands, and fingers, regardless of his or her body position; (3) A clear, audible transmission of voices; and (4) Adequate training to users of the technology and other involved individuals so that they may quickly and efficiently set up and operate the VRI. 28 C.F.R. § 35.160(d). VRI shall not be used when it is not effective due, for example, to an individual’s limited ability to move his or her head, hands or arms; vision or cognitive issues; significant pain; or due to space limitations in a room. If, based on the circumstances, VRI is not providing effective communication after it has been provided or is not available due to circumstances outside of the ACSO’s control, VRI shall not be used as a substitute for an on-site interpreter. Further, if the VRI

device is not functioning properly and the ACSO is unable to get the VRI device to function properly within 30 minutes of when it started to malfunction, it will call an on-site interpreter pursuant to paragraph 34.
39. Reasonable Modification of Handcuffing Policies. When personnel deem it necessary to handcuff a person who is deaf or hard of hearing, personnel will, safety permitting, reasonably modify standard operating procedure and handcuff people who are deaf or hard of hearing so their hands remain in front of them to facilitate communication using sign language or writing.
40. Signs. Within thirty (30) days of the effective date of this Agreement, at the ACDF’s booking area, in the medical unit, and in each housing unit, the ACSO will post conspicuous signs. See 28 C.F.R. § 35.163. Such signs will advise persons who are deaf or hard of hearing of the availability of appropriate auxiliary aids and services, including qualified interpreters, as follows:
To ensure effective communication with individuals who are deaf or hard of hearing, the Arlington County Sheriff’s Office will provide auxiliary aids, such as qualified sign language, oral, or tactile interpreters; videophones; TTYs; and volume controlled telephones, free of charge.
Please ask for assistance by contacting the ACSO’s ADA Coordinator, [name and full contact information].

The posted signs will include the International Symbol for Hearing Loss, the International Symbol for TTYs, and a symbol to indicate the availability of sign language interpreters:
41. Videophones, Captioned Telephones, TTYs, Hearing-Aid Compatible Telephones, and Volume Control Telephones. Within sixty (60) days of the effective date of this Agreement, the ACSO agrees to provide, if it has not already done so, at least three devices capable of video telephone calls (including video relay calls), three TTYs, three captioned telephones, three hearing aid compatible telephones, and three volume control telephones for use by inmates and members of the public at the ACDF.
a. Where telephones are available to inmates or members of the public, devices that enable video telephone calls including video relay calls, captioned telephones, TTYs, hearing aid compatible telephones, and volume control telephones will be made available upon request. 28 C.F.R. § 35.161. Signage will be displayed at all telephone areas indicating the availability of the device for video telephone calls, TTY, the hearing aid compatible telephone, and the volume control telephone and the procedure for obtaining them.
b. The ACSO shall permit non-deaf inmates access to a device capable of video of video telephone calls, captioned telephone, or TTY, as needed to communicate with deaf and

hard of hearing individuals outside the ACDF on the same terms that non-deaf individuals outside of the ACDF.
c. Where inmate telephone calls are time-limited, the ACSO will provide inmates who are deaf or hard of hearing who use TTYs, captioned telephones, or a telecommunications relay system (including the Video Relay Service) three times the normal length of time to make those calls, due to the slower nature of TTY and relayed communications compared with direct voice communications.
d. If a device capable of video telephone calls including video relay calls, captioned telephone calls, TTY, hearing aid compatible telephone, or volume control telephone is not available in the same location as telephones used by arrestees or detainees who are not deaf or hard of hearing, arrestees or detainees who need to use a device capable of video telephone calls including video relay calls, captioned telephone, TTY, hearing aid compatible telephone, or volume control telephone will be allocated reasonable additional time to get to and from the location of the equipment.
e. The ACSO shall maintain all Auxiliary Aids for inmates and the public, who are deaf or hard of hearing, in working condition at all times. The ACSO shall attempt to resolve complaints about any malfunctioning equipment within a

reasonable time of receiving that complaint, but no later than 24 hours of receiving the complaint.
f. The ACSO shall ensure that sufficient staff members, including the ADA Coordinator and ADA Deputy Coordinator for Inmates, and at least two staff members per shift, are adequately trained in the operation of the technology used as auxiliary aids for telecommunication.
g. The ACSO shall not impose a surcharge on inmates for using a telecommunications relay service.
42. Privacy of Communications. The ACSO will ensure that the privacy of telephone calls by arrestees or detainees using a device capable of video telephone calls, TTY, hearing aid compatible telephones, or volume control telephones is equal to that of other arrestees’ or detainees’ telephone calls.
43. Television Programming. Inmates and detainees who are deaf or hard of hearing will have access to captioned television programming that is equivalent to the access to television programming available to inmates and detainees without disabilities in the same classification level.
44. Visual Alert Notifications.
a. Inmates who are deaf or hard of hearing and incarcerated at ACDF should not miss announcements, alarms, or any other auditory information from ACDF staff to the general inmate population solely because of their disability.

b. The ACSO shall provide an effective visual notification system that will notify inmates who are deaf or hard of hearing, of ACDF wide events and events specific to inmates who are deaf.
c. The ACSO will provide inmates who are deaf or hard of hearing, with an effective visual notification system which will advise them of an emergency evacuation or other emergency. ACSO personnel shall be responsible for the evacuation of inmates who are deaf, during an emergency.
d. The ACSO shall not rely solely on a “buddy” system, such as a system of using inmates or designated personnel, to communicate emergency information, announcements, alarms, or other auditory information to deaf and hard of hearing inmates.
45. Hearing Aid and Cochlear Processor Batteries. Whenever inmates or detainees who use hearing aids, cochlear implants, or other such personal devices, are housed in the detention facility, the ACSO will purchase appropriate types of hearing aid and cochlear process batteries when necessary. Replacement batteries for these devices will be provided to those requesting them as soon as possible, but no later than 24 hours after such request. To the extent the ACSO normally charges inmates and detainees for normal health maintenance items such as toothpaste, the ACSO may impose reasonable fees for batteries required under this paragraph. For inmates with cochlear implants or hearing aids that require

rechargeable batteries, ACSO must permit the inmate to access both rechargeable batteries and a device on which to recharge them. Because of the proprietary nature of such batteries and chargers, ACSO must permit such inmates to maintain possession of any batteries found on their person at the time they enter ACDF and to allow inmates to receive extra batteries or chargers from others. ACSO may maintain control of chargers and unused batteries, but must permit the inmate to have indirect access chargers and extra batteries as needed to maintain functionality of the inmate’s hearing aid or cochlear implant.
46. Repair of Hearing Aids and Other Such Personal Devices. The ACSO will send inmate and detainee hearing aids, cochlear processors, and other such devices to appropriate repair companies as soon as possible, but no later than the next day for which mail is picked up at the ACDF, following a request for the repair of such a personal device. The ACSO shall inform the inmate or detainee when the device was sent for repair and when it is expected to be returned by the repair company. The inmate or detainee will be provided with written documentation of all such repairs, including detailed information regarding the vendor used, the date of the repair, and the specific repairs performed. Should an inmate or detainee be unable to read this written documentation, then the ACSO will use appropriate auxiliary aids and services to convey the information in this documentation.
47. Identification. The ACSO will take appropriate steps to ensure that all personnel having contact with an inmate or detainee who is

deaf or hard of hearing are made aware of the person’s disability, and the person’s preferred auxiliary aids and services, so that effective communication with the person will be achieved. A person’s identity as someone needing appropriate auxiliary aids and services for effective communication will not be treated as confidential medical information for ACSO personnel.
48. Prohibition of Surcharges. All appropriate auxiliary aids and services required by this Agreement will be provided free of charge to the Inmate, visitor companion, or member of the public who is deaf or hard of hearing.
49. Effective Communication Policies and Procedures. Within sixty (60) days of the effective date of this Agreement, the ACSO will submit for review and approval to the United States its policies and procedures to implement fully the Settlement Agreement. Upon receipt of the United States’ comments, the ACSO will address all of the United States’ concerns, if any, and will resubmit a draft for final approval, if any changes were needed. The adoption of the final policies and procedures will occur within 30 days of the ACSO’s receipt of approval by the United States.
50. Training.
a. The ACSO has hired an independent agency or group to conduct the trainings described in this Agreement. The syllabus and training materials will be provided to the United States.

b. Within 90 days of the effective date of this Agreement, and at least once annually throughout the term of this Agreement, the ACSO will ensure that all personnel, including contractors and employees of contractors, who have contact with inmates, companion, visitors to the ACDF and other members of the public, will receive training as to effective communication with persons who are deaf or hard of hearing. The training will be sufficiently detailed to enable personnel to effectively implement all provisions of this Agreement, including the relevant Exhibits, all policies and procedures developed pursuant to this Agreement, and all effective communication requirements under the ADA.
c. The ACSO will ensure that all new personnel who will have contact with inmates, visitors to the ACDF and other members of the public will receive ADA training as a component of pre-service training and orientation.
51. Training Attendance Sheets. The ACSO will maintain in electronic form for the duration of this Agreement, confirmation of training conducted pursuant to paragraphs 19 and 50 of this Agreement, which will include the names, signature, and respective job titles of the attendees, as well as the date and time of the training session.
52. Report of Training. Within sixty (60) days of the effective date of this Agreement, the ACSO will provide the United States with a copy of all training materials used to train its staff, training

attendance sheets required in Paragraph 51, above, and photographs of the notices posted in its offices pursuant to this Agreement.
53. Auxiliary Aid and Service Log. The ACSO will maintain a log in which requests for qualified interpreters on site or through video remote services will be documented. The log will indicate the time and date the request was made, the name of the Inmate, companion, visitor or other member of the public who is deaf or hard of hearing, the nature of the auxiliary aid or service provided, and the time and date the appropriate auxiliary aid or service was provided. If no auxiliary aid or service was provided, the log shall contain a statement why the auxiliary aid and service was not provided. The log should include the identity of the ACSO personnel who conducted the assessment and made the determination. Such logs will be maintained by the ADA Coordinator for the entire duration of the Agreement, and will be incorporated into the Compliance Reports as described in paragraph 55 of this Agreement.
54. Disability Rights Grievance Procedures. Within 60 days of the effective date of this agreement, the ACSO shall submit to the United States for its review and approval a grievance procedure providing for the prompt and equitable resolution by the ADA Coordinator for Inmates of requests by inmates with disabilities for auxiliary aids and services, reasonable modifications of policies, practices or procedures, or complaints by inmates alleging any action that would be prohibited by the ADA. The ACSO will adopt and publish these grievance procedures once approved by the

United States. Such procedures shall provide for a written decision and, if appropriate, corrective action, on any complete complaint or complete request within no more than five business days after the date of its submission. If the ADA Coordinator for Inmates receives a complaint or request that is not complete, the ADA Coordinator for Inmates shall notify the inmate within one business days that the complaint or request is incomplete and identify the additional information that is needed to complete the complaint or request. Copies of all grievances related to ADA issues will be maintained by the ADA Coordinator for the entire duration of the Agreement, and will be incorporated into the semi-annual Compliance Reports as described in paragraph 55 of this Agreement. The ADA grievance procedures required to be implemented under this paragraph shall be printed in the Inmate Handbook that is provided to all inmates upon admission to the ACDF. 28 C.F.R. § 35.107(b).
55. Compliance Reports. Beginning six months after the Effective Date of this Agreement and every twelve months thereafter for the entire duration of the Agreement, the ACSO will provide a written report (“Compliance Report”) to the United States regarding the status of its compliance with this Agreement. The Compliance Report will include a narrative report of the actions taken by the ADA Coordinator and the ADA Deputy Coordinator for Inmates during the preceding year and any plans for action concerning ADA compliance in the coming year. The report shall include as an exhibit copies of all inmate complaints or requests for auxiliary

aids and services, or reasonable modifications of policies, practices or procedures, or requests related to physical access issues received by the ADA Coordinator and ADA Deputy Coordinator for Inmates and all documents reflecting any actions taken or decisions rendered by the ADA Coordinator for Inmates in response to such complaints or requests during the reporting period. The report will also include the Auxiliary Aid and Service Log described in paragraph 53. The ACSO will maintain records to document the information contained in the Compliance Reports and will make them available, upon request, to the United States. The United States may review compliance with this Agreement at any time.
56. Complaints. During the term of this Agreement, the ACSO will notify the U.S. Attorney’s Office if any person files a lawsuit or complaint, with a state or federal agency, alleging that the ACSO failed to comply with the ADA. Such notification must be provided in writing via certified mail within 30 days of the date the ACSO received notice of the allegation and will include, at a minimum, the nature of the allegation, the name of the person making the allegation, and any non-privileged documentation possessed by the ACSO relevant to the allegation. The ACSO will reference this provision of the Agreement in the notification to the U.S. Attorney’s Office.
Enforcement and Miscellaneous
57. This Agreement will be in effect for three (3) years from the Effective Date.

58. Monetary Relief. Within thirty (30) days after receiving the complainant’s signed release, the Virginia Department of Treasury, Division of Risk Management on behalf of the ACSO will issue a check in the amount of $250,000.00 made out to PJ (using his actual name). The check is compensation to the Complainant for the effects of the alleged discrimination suffered as described in paragraph 7 above. The checks shall be mailed to:
Financial Litigation Unit United States Attorney’s Office for Eastern District of Virginia 101 W. Main Street #8000 Norfolk, VA 23510
A copy of the checks shall be sent to:
Steven Gordon Assistant United States Attorney 2100 Jamieson Avenue Alexandria, VA 22314
59. In consideration of the terms of this Agreement as set forth above, the United States agrees to refrain from undertaking further investigation or from filing a civil suit under Title II of the ADA related to PJ’s allegations in paragraph 2, except as provided in paragraph 60. Nothing contained in this Agreement is intended or shall be construed as a waiver by the United States of any right to institute proceedings against the ACSO for violations of any

statutes, regulations, or rules administered by the United States or to prevent or limit the right of the United States to obtain relief under the ADA.
60. The United States may review compliance with this Agreement at any time and can enforce this Agreement if the United States believes that it or any requirement thereof has been violated by instituting a civil action in the U.S. District Court. If the United States believes that this Agreement or any portion of it has been violated, it will raise its claim(s) in writing with the ACSO, and the parties will attempt to resolve the concern(s) in good faith. The United States will allow the ACSO thirty (30) days from the date it notifies the ACSO of any breach of this Agreement to cure said breach, prior to instituting any court action to enforce the ADA or the terms of the Agreement.
61. This Agreement and the attachments hereto constitute the entire agreement between the parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained in this written agreement, shall be enforceable. This Agreement is limited to the facts set forth herein and does not purport to remedy any other potential violations of the ADA, such as violations relating to inmates other than PJ, or any other federal law.
62. This Agreement is final and binding on the parties, including all principals, agents, executors, administrators, representatives, successors in interest, beneficiaries, assigns, heirs, and legal

representatives thereof. The ACSO has a duty to so inform any such successor in interest of this Agreement.
63. Failure by the United States to seek enforcement of this Agreement pursuant to its terms with respect to any instance or provision shall not be construed as a waiver to such enforcement with regard to other instances or provisions.
64. The effective date of this Agreement is the date of the last signature below.
65. This Agreement may be executed in counterparts, each of which constitutes an original and all of which constitute one and the same Agreement. Electronically transmitted signatures shall constitute acceptable, binding signatures for purposes of this Agreement.
66. If any term of this Agreement is determined by any court to be unenforceable, the other terms of this Agreement shall nonetheless remain in full force and effect, provided, however, that if the severance of any such provision materially alters the rights or obligations of the parties, the United States and the ACSO shall engage in good faith negotiations in order to adopt mutually agreeable amendments to this Agreement as may be necessary to restore the parties as closely as possible to the initially agreed upon relative rights and obligations.
FOR THE UNITED STATES:
Lauren A. Wetzler Attorney for the United States

Acting Under Authority Conferred by 28 U.S.C. § 515
By: /s/ Steven Gordon STEVEN GORDON Assistant United States Attorney United States Attorney’s Office Eastern District of Virginia 2100 Jamieson Avenue Alexandria, Virginia 22314 Telephone: 703-299-3817 steve.gordon@usdoj.gov
DATED: 11/17/16
For the Arlington County Sheriff
By: /s/ Beth Arthur Elizabeth F. Arthur Arlington County Sheriff
DATED: 11/16/16