Case 1:12-cv-00001-JMS-MJD Document 1 Filed 01/03/12 Page 1 of 8 PageID #: 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

ROBERT DAVID,
Plaintiff:
v.
COMMISSIONER, INDIANA DEPARTMENT OF CORRECTION, in his official capacity,
Defendant.

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Complaint for Declaratory and Injunctive Relief

In t r o d u c t i o n

1. Robert David is a deaf prisoner confined to the Indiana Department of Correction

("DOC") and placed by the DOC in the New Castle Correctional Facility. Prisoners who are not

hearing impaired arc given, without the need to seek permission, unlimited daily access to

telephones on his unit from 6:00 a.m. to 11 :00 p.m., seven days a week. He is able to

communicate by telephone only through a teletypewriter or text ("TTY") telephone that is locked

in a correctional counselor's oflice. He is allowed access to the TTY telephone during working

hours only by making a written request that must be approved and at times it is not. Ifhe wishes

to make a call during the evening hours or on the weekend he must request permission 24 hours

in advance. Moreover, when he is allowed access his calls are restricted to a length that is not

comparable to the length of time allowed to the prisoners who are not hearing impaired. Mr.

David is therefore suffering discriminatory treatment in violation of both the Rehabilitation Act,

29 U.S.C. § 794, and the Americans with Disabilities Act, 42 U.S.C. § 12132. Appropriate

declaratory and injunctive relief should issue.

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Jurisdiction, venue, cause of action

2.

This Court has jurisdiction of this cause pursuant to 28 U.S.C. § 1331.

3. Venue is proper in this judicial district pursuant to 28 U.S.c. § 1391.

4. Declaratory relief is authorized by 28 U.S.C. §§ 2201, 2201 and Rule 57 of the Federal

Rules of Civil Procedure.

5. This action is brought, pursuant to 42 U.S.C. § 1983, to redress the deprivation, under

color of state law, of rights secured by federal law and pursuant to Title II of the Americans with

Disabilities Act, 42 U.S.c. § 12131, et seq.

Parties

6. Robert David is an adult person confined to the New Castle Correctional Facility in New

Castle, Indiana.

7. The Commissioner of the Indiana Department of Correction is the duly appointed chief of

the Indiana Department of Correction and is sued pursuant to Rule 17(d) of the Federal Rules of

Civil Procedure.

Legal background

8.

Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, prohibits a state government,

among other entities, that has received federal financial assistance from denying benefits to, or

discriminating against, an otherwise qualified individual with a disability because of his or her

disability.

9. For purposes of the Rehabilitation Act, the term "individual with a disability" means a

persons who has a disability as defIned in the Americans with Disabilities Act ("ADA")as

defined in 42 U.S.C. 12102. 29 U.S.c. §§ 794(a); 705(20).

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10. Under the ADA:
The term "disability" means, with respect to an individual--
(A) a physical or mental impaim1ent that substantially limits one or more major life activities of such individual;
(8) a record of such an impairment; or
(C) being regarded as having such an impairment (as described Il1 paragraph (3».
42U.S.C. § 12102(1).
11. The ADA further defines "major life aetivites" to include, among other things, hearing,
speaking, and communicating.
12. The ADA defines "regarding as having such an impainncnt" as used 42 U.S.C. § 12102(1 )(C) as follows:
For purposes of paragraph (l)(C):
(A) An individual meets the requirement of "being regarded as having such an impaim1ent" if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impainnent whether or not the impainnent limits or is perceived to limit a major life activity.
(8) Paragraph (1 )(C) shall not apply to impainnents that are transitory and minor. A transitory impainnent is an impainnent with an actual or expected duration of 6 months or less.
42U.S.C.A. § 12102 (3).
13. The ADA has as its purpose:
(1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;
(2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities;
(3) to ensure that the Federal Government plays a central role in enforcing the standards established in this chapter on behalf of individuals with disabilities; and
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(4) to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities. 42 U.S.c.A. ~ 12101 (b). 14. The ADA provides, at 42 U.S.c. § 12132, that: Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded iI"om 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. 15. A public entity includes "any department, agency, special purpose district, or other instrumcntality of a State or States or local government." 42 U.S.C ~ ] 2131 (1 )(B). Factual allegations 16. The DOC is a recipient of ihleral financial assistance. 17. Robert David is totally deaf and is a prisoner committed to the DOC. He does not speak. 18. As a deaf person, Robeli David has a physical impairment that substantially limits one or more of his major life activities. 19. The DOC is subject to both the ADA and the Rehabilitation Act. 20. Robelt David has been placed at the New Castle COlTectional Facility ("New Castle"). 21. New Castle is operated by a private company, the GEO Corporation, under contract with the DOC. 22. However, the prisoners confined to New Castle remain DOC prisoners and the DOC is ultimately in control of these prisoners. 23. Mr. David is confined to a dormitory unit where there are approximately 60 prisoners. 24. As it is a dormitory unit the prisoners are not confined to individual cells. 25. There are 5-6 conventional telephones in the dormitory and the prisoners are allowed to
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use the phones from 6:00 a.m to 11 :00 p.m., seven days a week. 26. Prisoners may use the phones without seeking and obtaining prior pennission from staff. 27. Phone ealls are restrieted to 15 minutes for each telephone call. However, there are no limits on the number of telephone calls that can be made each day. 28. Calls are restricted to persons on the prisoners' telephone list. 29. Because he is deaf, Robert David is unable to use a conventional telephone. 30. Instead, he must use a TTY telephone. This is a system where the conversation is typed, rather than spoken. 31. Robert David has a numher of persons on his telephone list, his mother, sisters, and other relatives, all of whom have TTY telephones so that they can communicate with other persons via TTY telephone. Messages are typed into the TTY keyhoard and are read on the TTY's text display of the person receiving the call. 32. Prior to his confinement at New Castle, Robert David was confined at another facility, the Plainfield Correctional Facility, for approximately five years. At this facility there was a TTY telephone in the hallway, beside a desk where the correctional officer sat. This enabled him to bc able to use the TTY telephone in the exact same manner and frequency as hearing pnsoners. 33. However, at New Castle Robert David does not have the same access to the TTY telephone as the hearing prisoners have to the conventional telephones as these telephones are not TTY telephones. 34. Instead, the only TTY telephone to which Robert David has any potential access is locked in the office of a correctional counselor who provides services to the donnitory where Robert David resides.
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35. As a result, in order to use the phone during working hours from Monday to Friday, when the counselor works, Robert David must make a written request and this request is not always honored. 36. If Mr. David wants to try to use the TTY telephone during the evening hours or on the weekend, when the counselor is not working, he must make a written request no later than 24 hours before he wants to use the telephone. These requests are not always honored. 37. When Robert David is allowed to use the TTY telephone he is only allowed one telephone call per day for no more than 20 minutes. 38. Because TTY telephone calls require that all words he typed, TTY telephone conversations take approximately three times as long as the identical regular telephone conversation. 39. Therefore, Robert David is not able to use the TTY telephone nearly as often nor as effectively as the hearing prisoners in his living area are able to utilize the standard telephones. 40. Robert David is being discriminated against because of his disability in his ability to make telephone calls and is being denied the benefits of telephone access because of his disability. 41. Robert David has fully and timely exhausted all grievance remedies provided by the DOC to challenge this discrimination. A copy of his grievance history is attached as Exhibit 1. 42. Additionally, Robert David wrote directly to the Governor's office to complain about this discrimination. He received a letter back ii'om the Commissioner of the DOC that is attached as Exhibit 2 and states that in order to have access to the TTY telephone "you will have to submit a written request to either your Case Manager or the housing unit OIC [officer in chargel 24 hours in advance of the phone call." The letter also notes that "[t]hc Sergeant assigned to the housing
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unit can gIve you access to the TTY machine at the time of the rcquest as long as it IS operationally fcasible." 43. However, thc difficulty In obtaining access to the TTY telephonc, and the lack of comparablc treatment, remains. 44. Requiring that Robert David have this comparable access to a TTY telephone represents a reasonable accommodation of his disability that will not impose a fundamental alteration in the nature ofthc services provided by the DOC. 45. The lack of access to the phone and the difliculty In contacting family membcrs 1S causing him a great deal of distress and anxiety. 46. At all times defendant has acted undcr color of state law. 47. Plaintiff is being caused irreparable ham1 f(w which there is no adequate remedy at law. Claim for relief 48. Defendant's failure to allow plaintiff access to the only telephone that he can usc that is comparable to the telephone access enjoyed by hearing prisoners violates both the ADA, 42 u.s.c. § 12132, and the Rehabilitation Act, 29 U.S.C. § 794. Request for relief
WHEREFORE, plaintiff requcsts that this Court: a. Accept jurisdiction of this case and sct the matter for hearing. b. Declare that the actions and inactions of the defendant have violated federal law for the reasons noted abovc. c. Award plaintiff a pcnnanent Injunction rcqu111ng that the Commissioner provide telephone access to plaintiff so that he has comparable access to telephone services as enjoyed by hearing prisoners. d. Award plaintiff his reasonable attomcy's fees and costs pursuant to 42 U.S.c. § 1988 and 42 U.S.c. § 12205.
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e.

Award all other proper rehef

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ACLU of Indiana 1031 E. Washington St. Indianapolis, IN 46202 317/635-4059 ext. 104 fax: 317/635-4105 kfalk@aclu-in.org
Attomey for Plaintiff

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 Case: 1:12-cv-1 As of: 03/09/2015 09:36 AM EDT 1 of 2
U.S. District Court Southern District of Indiana (Indianapolis) CIVIL DOCKET FOR CASE #: 1:12−cv−00001−JMS−MJD

CLOSED

DAVID v. COMMISSIONER, INDIANA DEPARTMENT OF CORRECTION Assigned to: Judge Jane Magnus−Stinson Referred to: Magistrate Judge Mark J. Dinsmore Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 01/03/2012 Date Terminated: 03/05/2012 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

ROBERT DAVID

represented by Kenneth J. Falk ACLU OF INDIANA 1031 East Washington Street Indianapolis, IN 46202−3952 (317) 635−4059 x104 Fax: (317) 635−4105 Email: kfalk@aclu−in.org ATTORNEY TO BE NOTICED

V.
Defendant
COMMISSIONER, INDIANA DEPARTMENT OF CORRECTION in his official capacity

represented by Kenneth Lawson Joel INDIANA ATTORNEY GENERAL 302 West Washington Street, Indiana Government Center South Fifth Floor Indianapolis, IN 46204 317−233−8296 Fax: 317−232−7979 Email: kenneth.joel@atg.in.gov ATTORNEY TO BE NOTICED
Laura Lee Bowker INDIANA ATTORNEY GENERAL 302 West Washington Street, Indiana Government Center South Fifth Floor Indianapolis, IN 46204 (317) 232−4836 Fax: (317) 232−7979 Email: laurabowker@hotmail.com ATTORNEY TO BE NOTICED

Date Filed 01/03/2012
01/03/2012 01/03/2012 01/03/2012

# Docket Text
1 COMPLAINT against COMMISSIONER, INDIANA DEPARTMENT OF CORRECTION, filed by ROBERT DAVID. (Attachments: # 1 Exhibit 1−Offender Grievance, # 2 Exhibit 2−Letter dated November 1, 2011, # 3 Civil Cover Sheet, # 4 Receipt IP027760 Filing Fee of $350.00)(MSD) (Entered: 01/04/2012)
2 Summons Issued as to COMMISSIONER, INDIANA DEPARTMENT OF CORRECTION. (MSD) (Entered: 01/04/2012)
3 NOTICE of Appearance by Kenneth J. Falk on behalf of Plaintiff ROBERT DAVID. (MSD) (Entered: 01/04/2012)
4 MAGISTRATE JUDGE's NOTICE of Availability to Exercise Jurisdiction issued. (MSD) (Entered: 01/04/2012)

Case: 1:12-cv-1 As of: 03/09/2015 09:36 AM EDT 2 of 2

01/10/2012 01/26/2012 01/26/2012 01/30/2012 02/16/2012 02/23/2012
02/24/2012 03/02/2012 03/05/2012

5 RETURN of Service by CMRRR, filed by ROBERT DAVID. COMMISSIONER, INDIANA DEPARTMENT OF CORRECTION served on 1/6/2012. (Falk, Kenneth) (Entered: 01/10/2012)
6 NOTICE of Appearance by Laura Lee Bowker on behalf of Defendant COMMISSIONER, INDIANA DEPARTMENT OF CORRECTION. (Bowker, Laura) (Entered: 01/26/2012)
7 NOTICE of Parties' First Extension of Time, filed by Defendant COMMISSIONER, INDIANA DEPARTMENT OF CORRECTION. (Bowker, Laura) (Entered: 01/26/2012)
8 AMENDED NOTICE of Appearance by Laura Lee Bowker on behalf of Defendant COMMISSIONER, INDIANA DEPARTMENT OF CORRECTION. (Bowker, Laura) Modified on 1/31/2012 (JKS). (Entered: 01/30/2012)
9 NOTICE of Appearance by Kenneth Lawson Joel on behalf of Defendant COMMISSIONER, INDIANA DEPARTMENT OF CORRECTION. (Joel, Kenneth) (Entered: 02/16/2012)
10 Unopposed MOTION for Extension of Time to March 25, 2012 to File a Response to Complaint, filed by Defendant COMMISSIONER, INDIANA DEPARTMENT OF CORRECTION. (Attachments: # 1 Text of Proposed Order)(Joel, Kenneth) (Entered: 02/23/2012)
11 ORDER granting Deft's 10 Motion for Extension of Time to File response to complaint to 3/25/2012. Signed by Magistrate Judge Mark J. Dinsmore on 2/24/2012. (SWM) (Entered: 02/24/2012)
12 NOTICE of Voluntary Dismissal, filed by Plaintiff ROBERT DAVID. (Falk, Kenneth) (Entered: 03/02/2012)
13 CLOSED DISMISSED − The Plaintiff's 12 Notice of Voluntary Dismissal is acknowleged. (Marginal Notation). Signed by Judge Jane Magnus−Stinson on 3/5/2012.(JKS) (Entered: 03/05/2012)

Case #: 1:12−cv−00001−JMS−MJD