Case: 1:12-cv-01347-ESH As of: 02/02/2019 04:17 PM EST 1 of 6
CLOSED,TYPE−D
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:12−cv−01347−ESH

BERKE v. FEDERAL BUREAU OF PRISONS et al Assigned to: Judge Ellen S. Huvelle Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 08/14/2012 Date Terminated: 09/27/2012 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

LARRY BERKE

represented by Constantinos G. Panagopoulos BALLARD SPAHR LLP 1909 K Street, NW 12th Floor Washington, DC 20006 (202) 661−2202 Fax: (202) 661−2299 Email: cgp@ballardspahr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Deborah Maxine Golden HUMAN RIGHTS DEFENSE CENTER 316 F St. NE, #107 Washington Washington, DC 20002 United Sta (202) 630−0332 Email: deb.golden@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Elaine Gardner WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS & URBAN AFFAIRS 11 Dupont Circle, NW Suite 400 Washington, DC 20036 (202) 319−1000 ext. 131 Fax: (202) 319−1010 Email: elaine_gardner@washlaw.org TERMINATED: 01/18/2013

Ivy Ann Finkenstadt LEGAL AID JUSTICE CENTER 6066 Leesburg Pike Suite 520 Falls Church, VA 22041 (703) 778−3450 Fax: (703) 778−3454 Email: ivy@justice4all.org TERMINATED: 01/25/2013

Philip J. Fornaci WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS & URBAN AFFAIRS 11 Dupont Circle, NW Suite 400 Washington, DC 20036

Case: 1:12-cv-01347-ESH As of: 02/02/2019 04:17 PM EST 2 of 6
(202) 319−1000 x133 Fax: (202) 319−1010 Email: phil_fornaci@washlaw.org TERMINATED: 03/05/2013

V. Defendant FEDERAL BUREAU OF PRISONS
Defendant CHARLES E. SAMUELS, JR. in his official capacity as Director of the United States Bureau of Prisons

represented by Javier M. Guzman DEMOCRACY FORWARD FOUNDATION P.O. Box 34553 Washington, DC 20043 (202) 448−9090 Email: jguzman@democracyforward.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tricia Dianne Francis U.S. ATTORNEY'S OFFICE Civil Division 555 Fourth Street, NW Washington, DC 20530 (202) 616−2257 Fax: (202) 514−8780 Email: tricia.Francis@usdoj.gov TERMINATED: 03/13/2013
represented by Javier M. Guzman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tricia Dianne Francis (See above for address) TERMINATED: 03/13/2013

Date Filed 08/14/2012
08/14/2012 08/14/2012 08/16/2012 08/16/2012 08/16/2012 08/17/2012

# Docket Text
1 COMPLAINT against FEDERAL BUREAU OF PRISONS, CHARLES E. SAMUELS, JR ( Filing fee $ 350, receipt number 4616050662) filed by LARRY BERKE. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Civil Cover Sheet)(jf, ) (Entered: 08/15/2012)
SUMMONS (4) Issued as to FEDERAL BUREAU OF PRISONS, CHARLES E. SAMUELS, JR, U.S. Attorney and U.S. Attorney General (jf, ) (Entered: 08/15/2012)
2 MOTION for Temporary Restraining Order by LARRY BERKE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Text of Proposed Order)(jf, ) (Entered: 08/15/2012)
3 NOTICE of Appearance by Ivy Ann Finkenstadt on behalf of LARRY BERKE (Finkenstadt, Ivy) (Entered: 08/16/2012)
4 NOTICE of Appearance by Elizabeth Elaine Gardner on behalf of LARRY BERKE (Gardner, Elizabeth) (Entered: 08/16/2012)
Minute Entry for proceedings held before Judge Ellen S. Huvelle: Telephone Conference held in Chambers on 8/16/2012. (gdf) (Entered: 08/16/2012)
5 ORDER denying 2 plaintiff's Motion for a Temporary Restraining Order as moot, scheduling a conference call for August 23, 2012, at 10:00 a.m., and scheduling a hearing for September 25, 2012, at 9:30 a.m. in Courtroom 23A. See Order for details. Signed by Judge Ellen S. Huvelle on August 17, 2012. (lcesh1) (Entered: 08/17/2012)

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08/20/2012 08/24/2012 08/24/2012 08/25/2012 09/04/2012 09/13/2012
09/17/2012 09/17/2012
09/17/2012 09/17/2012
09/17/2012
09/17/2012 09/18/2012
09/18/2012 09/20/2012 09/21/2012 09/21/2012 09/24/2012

Set/Reset Hearings: Status Conference set for 9/25/2012 at 9:30 AM in Courtroom 23A before Judge Ellen S. Huvelle. Telephone Conference set for 8/23/2012 at 10:00 AM in Chambers before Judge Ellen S. Huvelle. (gdf) (Entered: 08/20/2012)
6 SCHEDULING ORDER: See Order for details. Signed by Judge Ellen S. Huvelle on August 24, 2012. (lcesh1) (Entered: 08/24/2012)
Minute Entry for proceedings held before Judge Ellen S. Huvelle: Telephone Conference held Chambers on 8/24/2012. (gdf) (Entered: 08/25/2012)
Set/Reset Deadlines: Joint Status Report due by 9/21/2012. (gdf) (Entered: 08/25/2012)
7 Memorandum in opposition to re 2 MOTION for Temporary Restraining Order filed by FEDERAL BUREAU OF PRISONS, CHARLES E. SAMUELS, JR. (Attachments: # 1 Exhibit)(Francis, Tricia) (Entered: 09/04/2012)
MINUTE ORDER: Pursuant to the conference call held this date, a hearing on the parties' discovery dispute is set for September 17, 2012, at 2:00 p.m., in Courtroom 23A. Signed by Judge Ellen S. Huvelle on September 13, 2012. (lcesh1) (Entered: 09/13/2012)
8 MOTION to Compel Discovery Responses by LARRY BERKE (Panagopoulos, Constantinos) (Entered: 09/17/2012)
VACATED PURSUANT MINUTE ORDER FILED ON 09/17/2012.....MINUTE ORDER: By consent of the parties, it is hereby ORDERED that the hearing on the parties' discovery dispute currently set for 2:00 p.m. on September 17, 2012, is continued until 10:00 a.m. on September 18, 2012, in Courtroom 23A. SO ORDERED. Signed by Judge Ellen S. Huvelle on September 17, 2012. (lcesh1) Modified on 9/18/2012 (zjf, ). (Entered: 09/17/2012)
VACATED PURSUANT TO MINUTE ORDER FILED ON 09/17/2012.....Set/Reset Hearings: Status Conference set for 9/18/2012 at 10:00 AM in Courtroom 23A before Judge Ellen S. Huvelle. (gdf) Modified on 9/18/2012 (zjf, ). (Entered: 09/17/2012)
9 MINUTE ORDER: Pursuant to the representations of the parties on the conference call held this date, it is hereby ORDERED that the hearing scheduled for 10:00 a.m. on September 18, 2012, is VACATED. Signed by Judge Ellen S. Huvelle on September 17, 2012. (lcesh1) (Entered: 09/17/2012)
10 RESPONSE re 2 MOTION for Temporary Restraining Order Reply Memorandum filed by LARRY BERKE. (Attachments: # 1 Exhibit A − September 12, 2012 E−mail, # 2 Exhibit B − Dennis Cokely Expert Report, # 3 Exhibit C − Richard Lorenzo Ray Expert Report)(Panagopoulos, Constantinos) (Entered: 09/17/2012)
Minute Entry for proceedings held before Judge Ellen S. Huvelle: Telephone Conference held in Chambers on 9/17/2012. (gdf) (Entered: 09/18/2012)
MINUTE ORDER: Pursuant to the representations of the parties on a conference call held this date, it is hereby ORDERED that counsel for defendants shall produce the material that she has agreed to produce to plaintiff by 12:00 p.m. on September 20, 2012. Signed by Judge Ellen S. Huvelle on September 18, 2012. (lcesh1) (Entered: 09/18/2012)
Minute Entry for proceedings held before Judge Ellen S. Huvelle: Telephone Conference held in Chambers on 9/18/2012. (gdf) (Entered: 09/19/2012)
Minute Entry for proceedings held before Judge Ellen S. Huvelle: Telephone Conference held in Chambers on 9/20/2012. (gdf) (Entered: 09/20/2012)
11 STATUS REPORT by LARRY BERKE. (Attachments: # 1 Exhibit Proposed Stipulation and Order)(Panagopoulos, Constantinos) (Entered: 09/21/2012)
12 STATUS REPORT by FEDERAL BUREAU OF PRISONS, CHARLES E. SAMUELS, JR. (Francis, Tricia) (Entered: 09/21/2012)
13 STATUS REPORT Defendants' Amended Status Report by FEDERAL BUREAU OF PRISONS, CHARLES E. SAMUELS, JR. (Francis, Tricia) (Entered: 09/24/2012)

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09/24/2012
09/25/2012
09/25/2012
09/25/2012 09/26/2012 09/27/2012 09/27/2012 09/27/2012 10/09/2012 10/26/2012 11/02/2012
11/02/2012 11/02/2012 11/02/2012 11/05/2012 11/06/2012 11/06/2012

14 MOTION for Leave to File Supplemental Declaration In Support of Defendants' Opposition to Plaintiff's Motion for a Temporary Restraining Order by FEDERAL BUREAU OF PRISONS, CHARLES E. SAMUELS, JR (Attachments: # 1 Text of Proposed Order, # 2 Declaration)(Francis, Tricia) (Entered: 09/24/2012)
MINUTE ORDER: It is hereby ORDERED that, for the reasons stated in open court, plaintiff's motion for a preliminary injunction 2 is granted in part and denied in part; plaintiff's motion to compel 8 is denied as moot; and defendants' motion for leave to file a supplemental declaration 14 is granted. The parties shall submit a stipulation of settlement for the Court's consideration by September 27, 2012, at 9 a.m. A written order shall issue thereafter. SO ORDERED. Signed by Judge Ellen S. Huvelle on September 25, 2012. (lcesh1) (Entered: 09/25/2012)
Minute Entry for proceedings held before Judge Ellen S. Huvelle: Preliminary Injunction Hearing held on 9/25/2012. Order to be entered. Witnesses: Richard Ray, Todd R. Craig. Interpreter(ASL): Mindy Lanie. (Court Reporter Vicki Eastvold) (gdf) (Entered: 09/26/2012)
15 SUPPLEMENTAL DECLARATION re 7 Memorandum in Opposition by FEDERAL BUREAU OF PRISONS, CHARLES E. SAMUELS, JR. (znmw, ) (Entered: 09/26/2012)
16 STIPULATION AND ORDER by LARRY BERKE. (Panagopoulos, Constantinos) (Entered: 09/26/2012)
17 NOTICE of Attorney Withdrawal by LARRY BERKE (Finkenstadt, Ivy) (Entered: 09/27/2012)
18 ORDER approving re 16 Stipulation filed by LARRY BERKE. Signed by Judge Ellen S. Huvelle on 9/27/12. (gdf) (Entered: 09/27/2012)
19 ORDER administratively closing this matter. See Order for details. Signed by Judge Ellen S. Huvelle on September 27, 2012. (lcesh1) (Entered: 09/27/2012)
20 MOTION for Attorney Fees by LARRY BERKE (Attachments: # 1 Text of Proposed Order Proposed Order, # 2 Memorandum in Support, # 3 Declaration, # 4 Declaration)(Panagopoulos, Constantinos) (Entered: 10/09/2012)
21 MOTION for Extension of Time to File a Response to Plaintiff's Motion for Attorney Fees by FEDERAL BUREAU OF PRISONS, CHARLES E. SAMUELS, JR (Attachments: # 1 Text of Proposed Order)(Francis, Tricia) (Entered: 10/26/2012)
MINUTE ORDER granting 21 Motion for Extension of Time to File a Response to 20 Plaintiff's Motion for Attorney's Fees. Plaintiff's motion will be held in abeyance to permit discussions to settle the motion. If settlement discussions fail, the defendant's response to 20 Plaintiff's Motion for Attorney's Fees will be due on January 2, 2012. Signed by Judge Ellen S. Huvelle on November 2, 2012. (lcesh2) (Entered: 11/02/2012)
22 ORDER REFERRING MOTION: 20 Plaintiff's Motion for Attorney Fees. Signed by Judge Ellen S. Huvelle on November 2, 2012. (lcesh2) (Entered: 11/02/2012)
Minute Entry for proceedings held before Judge Ellen S. Huvelle: Telephone Conference held in Chambers on 11/2/2012. (gdf) (Entered: 11/05/2012)
23 CASE DIRECTLY REFERRED to Magistrate Judge John M. Facciola for 20 MOTION for Attorney Fees by LARRY BERKE. (kb) (Entered: 11/05/2012)
Set/Reset Deadlines: Motion for Attorney's Fees due by 1/2/2013. (gdf) (Entered: 11/05/2012)
24 ORDER re referral to Judge Facciola for plaintiff's motion for attorney's fees. Signed by Magistrate Judge John M. Facciola on 11/6/12. (SP, ) (Entered: 11/06/2012)
25 TRANSCRIPT OF EVIDENTIARY HEARING before Judge Ellen S. Huvelle held on 9/25/2012; Page Numbers: 1−173. Date of Issuance:11/6/2012. Court Reporter Vicki Eastvold, Telephone number 202−354−3242, Court Reporter Email Address : vicki_eastvold@dcd.uscourts.gov.<P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from

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12/20/2012 12/21/2012
01/10/2013 01/11/2013
01/18/2013 01/24/2013 01/25/2013 01/26/2013 01/26/2013
01/29/2013

the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov.<P></P> Redaction Request due 11/27/2012. Redacted Transcript Deadline set for 12/7/2012. Release of Transcript Restriction set for 2/4/2013.(Eastvold, Vicki) (Entered: 11/06/2012)
26 Unopposed MOTION for Extension of Time to File Response/Reply as to 20 MOTION for Attorney Fees by FEDERAL BUREAU OF PRISONS, CHARLES E. SAMUELS, JR (Attachments: # 1 Text of Proposed Order)(Francis, Tricia) (Entered: 12/20/2012)
MINUTE ORDER granting 26 Consent Motion for Extension of Time to File Response re 20 MOTION for Attorney Fees: Upon consideration of the Defendants' Motion for An Enlargement of Time for Filing Their Response to Plaintiff's Motion for Attorney Fees, the merits thereof, and for good cause shown, it is HEREBY ORDERED that the motion is granted, and it is FURTHER ORDERED that the Defendants shall have until and up to Friday, January 11, 2013, to file their response to Plaintiff's Motion for Attorney Fees. Signed by Judge Ellen S. Huvelle on December 21, 2012. (AG) (Entered: 12/21/2012)
27 Unopposed MOTION for Extension of Time to File Response/Reply to Plaintiff's Motion for Attorney Fees by FEDERAL BUREAU OF PRISONS, CHARLES E. SAMUELS, JR (Attachments: # 1 Text of Proposed Order)(Francis, Tricia) (Entered: 01/10/2013)
MINUTE ORDER granting 27 Consent Motion for Extension of Time to File Response re 20 plaintiff's MOTION for Attorney Fees: Upon consideration of the Defendants' Motion for An Enlargement of Time for Filing Defendants' Response to Plaintiff's Motion for Attorney Fees, the merits thereof, and for good cause shown, it is hereby ORDERED that the motion is granted; and it is FURTHER ORDERED that the Defendants shall have until and up to Friday, January 25, 2013, to file their response to Plaintiff's Motion for Attorney Fees. Signed by Judge Ellen S. Huvelle on January 11, 2013. (AG) (Entered: 01/11/2013)
28 NOTICE OF WITHDRAWAL OF APPEARANCE as to LARRY BERKE. Attorney Elizabeth Elaine Gardner terminated. (Gardner, Elizabeth) (Entered: 01/18/2013)
29 MOTION for Extension of Time to File Response/Reply to Plaintiff's Motion for Attorney Fees by FEDERAL BUREAU OF PRISONS, CHARLES E. SAMUELS, JR (Attachments: # 1 Text of Proposed Order)(Francis, Tricia) (Entered: 01/24/2013)
30 RESPONSE re 29 MOTION for Extension of Time to File Response/Reply to Plaintiff's Motion for Attorney Fees filed by LARRY BERKE. (Panagopoulos, Constantinos) (Entered: 01/25/2013)
VACATED PURSUANT TO MINUTE ORDER FILED ON 01/26/2013.....MINUTE ORDER granting 29 Motion for Extension of Time to File Response/Reply. Signed by Magistrate Judge John M. Facciola on 1/26/13. (SP, ) Modified on 1/28/2013 (jf, ). (Entered: 01/26/2013)
MINUTE ORDER re Magistrate Judge Facciola's Minute Order on Defendants' Motion for Extension of Time to File Response to Plaintiff's Motion for Attorneys' Fees: it is hereby ORDERED that the Minute Order issued by Magistrate Judge Facciola granting defendants' motion for extension of time is VACATED; it is further ORDERED that defendant's motion for extension of time (ECF No. 29 )is GRANTED IN PART AND DENIED IN PART; and it is further ORDERED that defendants shall have until January 31, 2013, to respond to plaintiff's motion for attorneys' fees. Signed by Judge Ellen S. Huvelle on January 26, 2013. (AG) (Entered: 01/26/2013)
Set/Reset Deadlines: Response to Motion for Attorneys' Fees due by 1/31/2013 (gdf) (Entered: 01/29/2013)

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01/31/2013
02/07/2013 03/05/2013 03/12/2013 04/08/2013 04/29/2013 04/29/2013 05/30/2013

31 RESPONSE re 20 MOTION for Attorney Fees Defendants' Opposition to Plaintiff's Motion for Attorney Fees and Costs filed by FEDERAL BUREAU OF PRISONS, CHARLES E. SAMUELS, JR. (Attachments: # 1 Exhibit)(Francis, Tricia) (Entered: 01/31/2013)
32 REPLY to opposition to motion re 20 MOTION for Attorney Fees filed by LARRY BERKE. (Attachments: # 1 Exhibit A)(Panagopoulos, Constantinos) (Entered: 02/07/2013)
33 NOTICE OF WithdrawAL as Attorney by LARRY BERKE (Fornaci, Philip) Modified on 3/5/2013 (jf, ). (Entered: 03/05/2013)
34 NOTICE OF SUBSTITUTION OF COUNSEL by Javier M. Guzman on behalf of All Defendants Substituting for attorney Tricia D. Francis (Guzman, Javier) (Entered: 03/12/2013)
35 NOTICE of Appearance by Deborah Maxine Golden on behalf of LARRY BERKE (Golden, Deborah) (Entered: 04/08/2013)
36 MEMORANDUM OPINION granting in part and denying in part 20 plaintiff's Motion for an Award of Attorney's Fees and Costs. Signed by Judge Ellen S. Huvelle on April 29, 2013. (lcesh2) (Entered: 04/29/2013)
37 ORDER granting in part and denying in part 20 Motion for Attorney's Fees and Costs for the reasons stated in 36 Memorandum Opinion. Signed by Judge Ellen S. Huvelle on April 29, 2013. (lcesh2) (Entered: 04/29/2013)
38 NOTICE of Compliance by FEDERAL BUREAU OF PRISONS, CHARLES E. SAMUELS, JR (Guzman, Javier) (Entered: 05/30/2013)

 
 Case 1:12-cv-01347-ESH Document 1 Filed 08/14/12 Page 1 of 24

UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA

LARRY BERKE

)

2602 West Languid Lane

)

Phoenix, AZ 85086,

)

)

Plaintiff,

)

v.

)

)

FEDERAL BUREAU OF PRISONS,

)

320 First St., NW

)

Washington, DC 20534

)

)

Serve:

)

Ronald C. Machen, Jr.

)

United States Attorney's Office

)

555 4th Street, NW

)

Washington, DC 20530

)

)

Eric H. Holder, Jr.

)

U.S. Attorney General

)

Department of Justice

)

950 Pennsylvania Avenue, Room B-103 )

Washington, DC 20530-0001

)

)

and

)

)

CHARLES E. SAMUELS, JR.,

)

in his official capacity as Director of the

)

United States Bureau of Prisons

)

320 First St., NW

)

Washington, DC 20534

)

)

Defendants.

)

)

Case No. COMPLAINT

1. Plaintiff Larry Berke ("Mr. Berke"), by his undersigned counsel, respectfully complains as follows against Defendants the Federal Bureau of Prisons ("BOP"), and Charles E. Samuels, Jr. ("Defendants").

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NATURE OF THE ACTION 2. This lawsuit concerns impending discrimination by Defendants against Mr. Berke - a deaf individual awaiting his BOP surrender date for his criminal conviction -that will violate federal law and the United States Constitution. It seeks to preempt the deprivation of qualified American Sign Language ("ASL") interpreters and other auxiliary aids necessary to allow Mr. Berke to effectively communicate, that will inevitably occur upon his upcoming placement into the BOP's custody. Defendants' illegal and discriminatory conduct will preclude Mr. Berke's ability to participate in institution proceedings, to effectively take part in any rehabilitative, educational, or religious programs, and to communicate effectively with others within and outside the institution. 3. As of this filing, Mr. Berke is not a prisoner. Pursuant to his Third Order Amending Judgment of Conviction, Mr. Berke was "committed to the custody of the United States Bureau of Prisons to be imprisoned for a term of24 months" on December 19,2011, but does not have to "surrender himself for service" "at the institution designated by the Bureau of Prisons ... [until] August 23,2012 at 12:00 p.m." Third Order Amending Judgment of Conviction, attached as Exhibit 1. 4. Mr. Berke's sentencing judge recommended that prior to his incarceration the BOP "be made aware of the defendant's hearing impaired medical condition and where he can be accommodated, ... that the defendant be designated to a facility, which will abide by the American's with Disability Act [sic],"1 and "that the defendant be designated to a facility
Notwithstanding the sentencing judge's recommendation, the BOP is subject to The Rehabilitation Act of
1973, 29 U.S.C. §§ 794 et seq., not the Americans with Disabilities Act. The two laws have virtually identical
requirements as to provision of auxiliary aids and services to deaf individuals, but the Americans with Disabilities Act does not apply to the federal govermnent.
2

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geographically near his family members." Mr. Berke's Judgment of December 19,2011, attached as Exhibit 2.
5. The BOP will incarcerate Mr. Berke at United States Penitentiary (USP) Florence ADMAX Satellite Camp ("ADX Camp" or "Camp") located in Florence, Colorado. The ADX Camp has virtually no auxiliary aids to allow effective communication with deaf prisoners. The ADX Camp has no telephone equipment (i.e. videophones) for deaf inmates, no visual safety alarms (beyond fire), or any means to facilitate communication for deaf prisoners such as visual pagers.
JURISDICTION AND VENUE 6. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.§ 1331 because this action arises under the Constitution and laws of the United States. 7. Venue is proper in this jurisdiction pursuant to 28 U.S.C. § 1391(e) because the Defendant Samuels resides in this district, and a substantial part of the policy decisions giving rise to Mr. Berke's claims occurred at BOP headquarters, which is located in this district.
THE PARTIES A. Plaintiff 8. Larry Berke must "surrender himself for service" of his criminal sentence on August 23, 2012. The BOP intends to incarcerate Mr. Berke at the ADX Camp on this date. 9. Mr. Berke has been deaf since birth. He is considered "Profoundly Deaf," and while he can hear some sounds, he is unable to understand speech, and cannot hear or understand speech on a telephone. 10. Mr. Berke is the son of deaf parents, has one deaf brother, many deaf cousins and extended family members, is married to a deaf woman, and has two grown children who are
3

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deaf. His three youngest children (ages 10, 8, and 4) are hearing, but fluent in American Sign Language. Mr. Berke's two youngest children are not yet able to read or write fluently, and therefore their only effective form of communication with their father is sign language.
11. Mr. Berke's native language is American Sign Language, a complex language that employs signs made with hands, facial expressions, and body language. ASL is not a mere translation of ASL signs to English words; it is a distinct language with distinct vocabulary, syntax, and grammar. Mr. Berke requires a qualified ASL interpreter to communicate effectively with persons who do not know and use ASL.
12. Mr. Berke does not read lips. In general, lip reading is a very difficult and unreliable form of communication. It is extremely challenging to lip-read English because only a small fraction of the sounds used in speaking are clearly visible on the mouth and many sounds appear identical on the lips. In addition to the difficulties in lip-reading, the ability to accurately lip-read is greatly affected by the speaker's accent, facial bone structure, facial musculature, facial hair, lighting, distance from the lip reader, and other external factors.
13. Mr. Berke uses videophones to communicate with friends and family around the country, including his deaf adult children, brother, and several cousins. He uses video relay serviCe with hearing friends and acquaintances.2 None of his friends or family own older telecommunication equipment, such as the generally outmoded telecommunication devices for the deaf (TTY's); all use videophones.
B. Defendants 14. The BOP is the federal executive agency responsible for the management and regulation of all federal penal and correctional institutions. 18 U.S.C. § 303(a)(l). The BOP is

2

The Video Relay Service ("VRS"), is a toll-free service for deaf users that uses a videophone between an

ASL user and a hearing, non-ASL user through a relay operator who is a qualified ASL interpreter.

4

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headquartered in Washington, D.C. The ADX Camp, where Mr. Berke will serve his sentence, is a correctional facility controlled and operated by the BOP.
15. Charles E. Samuels, Jr. ("Director Samuels") is the Director of the Federal Bureau of Prisons. Director Samuels is responsible for the oversight and management of the BOP's 115 institutions and for the safety and security of the more than 200,000 inmates and detainees under the agency's jurisdiction. He is responsible for the BOP's policies and practices regarding the treatment of and services provided to disabled inmates. Director Samuels is aware of the BOP's and the ADX Camp's policies and practices regarding disabled individuals and, more specifically, the BOP's inability or unwillingness to provide Mr. Berke with effective communication in the form of qualified interpreters and other auxiliary aids. He is sued in his official capacity.
16. At all times relevant to this action, Director Samuels acted pursuant to his authority as an official, agent, or employee ofthe United States.
STATEMENT OF FACTS 17. Upon information and belief, the BOP has not prepared for Mr. Berke's needs and the ADX Camp has virtually no auxiliary aids to allow effective communication for deaf prisoners, including telephones useable by deaf inmates, visual alarms, or regular ASL interpreters. 18. Defendants are on notice of the needs and entitlements of deaf individuals in their care. Defendants Samuels and the BOP have been sued on at least two recent occasions for failure to provide interpreter services, videophones, and visual notifications to other prisoners and federal
5

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detainees.3 Decisions on installing technology, such as a dedicated DSL line for videophones, would be made at the Director level.
19. 28 C.P.R. 551.90 establishes that Bureau staff shall not discriminate against inmates on the basis of ... disability.... This includes the making of administrative decisions and providing access to work, housing and programs. This regulation was published in 63Ped. Reg. 200 (Oct. 16, 1998) with remarks that, "The revised regulations make more clear the Bureau's intent that all staffare responsible for ensuring that their actions are in compliance."(emphasis added)
20. Mr. Berke has made his needs known to the BOP through video relay telephone calls to the ADX Camp, where he spoke with a Ms. Grisenti and a Ms. Barker in Camp Records. In addition, the court referenced his disability in the Judgment requesting the BOP to address his needs in the housing designation.
21. Defendants have not met their burden under 28 C.P.R. 39.160, to provide in writing why the request from Mr. Berke or his sentencing judge to "furnish appropriate auxiliary aids where necessary to afford a handicapped person an equal opportunity to participate in, and enjoy the benefits of, a program or activity conducted by the agency," would "fundamentally alter the program or activity or would result in undue financial and administrative burdens." Under the CPR provision,
[t]he agency has the burden of proving that compliance with§ 39.160 would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the Attorney General or his or her designee after considering all agency resources available for use in the funding and operation of the conducted program or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action required to comply with this section would result in such an alteration or such burdens, the agency shall take any other action that would not
Bryant v. U.S. Bureau ofPrisons, CV CAS 11-254 (C.D.Cal. Filed Jan), 2011); Heyer et alv. U.S. Bureau ofPrisons, C.A. No. 5: ll-cv-318(E.D.N.C. Filed June 20, 20 11).
6

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result in such an alteration or such burdens but would nevertheless ensure that, to the maximum extent possible, handicapped persons receive the benefits and services of the program or activity. 28 C.P.R.§ 39.160 A. Medical Treatment and Rehabilitation 22. Mr. Berke relies on sign language interpreters for effective communication for medical and health care services. 23. As a deaf individual reliant on American Sign Language for communication, Mr. Berke's arm and hand mobility is especially important to him. Mr. Berke has rotator cuff injuries in both shoulders, and has undergone rotator cuff surgery. He is currently undergoing physical therapy following surgery, which will need to continue into his incarceration. He also has Lateral Epicondylitis in both arms. He takes 800 milligrams of ibuprofen three times per day and uses a compression device on each forearm for the pain associated with the condition. Mr. Berke has been told by BOP employees that he will not be able to bring his compression devices or his own medications to the facility; rather, he will have to request to have these items issued or prescribed when he arrives. 24. In addition, Mr. Berke has other medical concerns, for which he will or may require medical attention during incarceration. Mr. Berke had surgery for prostate cancer in April 2012, and requires annual wellness check-ups. Mr. Berke also has a history of atypical seizures, for which he takes occasional medication. Mr. Berke wears glasses, which are exceptionally important to him as a deaf person so that he can rely upon visual cues and be observant of his surroundings.
25. Mr. Berke may need psychological counseling upon his arrival in the BOP. Mr. Berke's
mother, his only remaining parent, passed away in May, 2012. In addition to the sense ofloss he is feeling about her, Mr. Berke anticipates that the isolation of not being able to communicate or
7

Case 1:12-cv-01347-ESH Document 1 Filed 08/14/12 Page 8 of 24
interact with others during incarceration will require him to seek some psychological services in the BOP.
26. Defendants do not provide qualified ASL interpreters to effectively communication with deaf prisoners in their custody during medical appointments, including the initial medical intake, psychiatric, ophthalmology, and other health related appointments. The ADX Camp has established no means to provide effective communication for Mr. Berke at these appointments.
B. Interpretive Services for Ordinary Prison Proceedings Orientation
27. Deaf prisoners are not provided interpreters for the registration and orientation programs upon their arrival to the BOP's custody, nor are they provided interpreters for periodic "Town Hall" or other meetings which cover rules and additional matters. As a result, Mr. Berke is at a significant disadvantage to understand and thus know how to follow the rules and regulations at the ADX Camp.
28. All prisoners entering a new facility of the BOP are provided with an "Admissions & Orientation" ("A&O") handbook outlining the rules of the facility. While Mr. Berke is able to read the handbook, because of his inability to communicate questions about the meaning of rules, many of them are rendered meaningless. For example, the disciplinary policy of the BOP lists a 307 level violation of refusing an order of any staff member carrying sanctions as severe as disciplinary segregation and loss of good time. Further clarification of these facility rules, like many others, requires the ability to communicate effectively with a facility authority.
29. Defendants are aware that the A&O handbook, on its own, is insufficient to orient incoming prisoners to the rules and procedures of ADX Camp. The handbook is just one part of
8

Case 1:12-cv-01347-ESH Document 1 Filed 08/14/12 Page 9 of 24
a larger Admissions and Orientation program that conveys complementary information. Without interpretive services for this orientation, Mr. Berke is at a significant disadvantage compared with hearing prisoners. Defendants' failure to provide interpretive services during orientation will set up Mr. Berke to unknowingly violate facility rules for the simple reason that there is no mechanism for him to learn them in the first place. Violation of facility rules often leads to disciplinary proceedings.
Disciplinary Proceedings 30. Deaf prisoners are not provided with interpretive services at disciplinary proceedings in
most facilities ofthe BOP. Without interpretive services, Mr. Berke will not be able to effectively respond to questioning from the disciplinary board or otherwise communicate his defense to charges. As a result of disciplinary proceedings, prisoners' privileges, including telephone, commissary, and recreation privileges may be taken away for periods of time. As a result of disciplinary proceedings, prisoners are often placed in disciplinary segregation. Unit Team Meetings
31. Deafprisoners are not provided interpreters for Unit Team meetings at facilities of the BOP. Defendants' failure to provide interpreter services for unit team meetings at the ADX Camp will make meaningful participation in those meetings impossible for Mr. Berke. Team meetings are held within the first thirty days of incarceration in the facility, and thereafter every six months. Upon information and belief, the Unit Team meetings are used to discuss the prisoner's release preparation, inmate job, education, and similar issues. Religious Programs
9

Case 1:12-cv-01347-ESH Document 1 Filed 08/14/12 Page 10 of 24
32. Deaf prisoners are not provided interpreters for religious programs at facilities of the BOP. Mr. Berke is a practicing Catholic. He attends religious services, on average, once per month when interpreters are available at his community parish. Defendants' failure to provide interpreter services for religious services at the ADX Camp will make meaningful participation in those services impossible for Mr. Berke. Employment
33. Deaf prisoners are not provided interpreters for employment programs at facilities of the BOP. Defendants' failure to provide interpreter services for employment at the ADX Camp will negatively impact Mr. Berke's ability to successfully participate in his work by limiting his ability to communicate with his supervisors and co-workers. Upon information and belief, all prisoners at the Camp are assigned an inmate job. Education
34. Deaf prisoners are not provided interpreters for educational programs at facilities of the BOP. Defendants' failure to provide interpreter services for educational courses at the ADX Camp will make meaningful participation in those courses impossible for Mr. Berke. His participation will be limited because he will not be able to ask the course assistant any questions, to hear questions of the other students, to hear answers ofthe instructor, or to hear or participate in any classroom discussion.
C. Communication With Those Outside The ADX Camp 35. Prisoners in BOP facilities are permitted access to telephones, per BOP Policy 5264.08. 36. Like other inmates, Mr. Berke wants to communicate by telephone with his attorneys, family, and friends while in the custody of the BOP. The BOP, however, either substantially
10

Case 1:12-cv-01347-ESH Document 1 Filed 08/14/12 Page 11 of 24
restricts or completely denies access to appropriate telecommunications devices for deaf prisoners in its facilities, including at the ADX Camp.
37. Mr. Berke cannot use a telephone in the same way as a hearing person. He requires a videophone to ensure effective communication.
38. A videophone is a telephone with a camera and screen for visual communication. It allows ASL speakers to sign with each other between camera screens and have real-time conversations. Communication can also be accomplished by videophone between an ASL user and a hearing, non-ASL user through a relay operator who is a qualified ASL interpreter. This process, called Video Relay Service ("VRS"), is toll free for deaf users.
39. A videophone is the most effective telecommunications auxiliary aid for deaf individuals like Mr. Berke who use ASL as a primary means of communication. It is far superior to communication through older technology such as TTYs4, both because it depends upon ASL skills instead of written skills for communication, and because without a videophone there is no way to contact most deaf individuals outside the institution who no longer own the older technology, including most of the members of Mr. Berke's family. In particular, Mr. Berke would not be able to communicate with his younger children without a videophone as they are not able to write to him. Moreover, one cannot place a call to a videophone (his family's exclusive telephone system) through a TTY.
4 A TTY is a sixty-year-old technology that allows people to send written messages back and forth to each other by telephone. When both users have this equipment, they can communicate directly over telephone lines. When a hearing person does not have a TTY, a Telecommunications Relay Service ("TRS") operator reads aloud the written messages from the TTY user and transcribes the non-TTY user's verbal response. The TTY ultimately is a much more time-intensive and less effective communication tool than the telephone. As a result, this old technology has been for the most part supplanted by the videophone. Most deaf individuals no longer have TTYs, and communicate on telephone solely by videophone. A TTY cannot be used to communicate with a deaf person who does not have a TTY. Most members of Mr. Berke's family, many of whom are deaf, no longer own TTY's.
11

Case 1:12-cv-01347-ESH Document 1 Filed 08/14/12 Page 12 of 24
40. Regular access to a videophone with relay capability would allow Mr. Berke to remain in contact with his deaf and hearing family, friends, and attorneys outside the institution.
D. Other Necessary Auxiliary Aids to Allow Effective Communication 41. Upon information and belief, the ADX Camp does not provide visual safety alarms (beyond fire), or any means to facilitate communication for deaf prisoners such as visual pagers, or other auxiliary aids such as vibrating alarm clocks, pagers, vibrating bed devices or message boards to accommodate the deaf. Mr. Berke would not hear a safety alarm or other announcement. He was informed by the BOP that he will not be permitted to bring his own vibrating alarm clock to the Camp. 42. Upon information and belief, ADX Camp has no mechanism to alert Mr. Berke to announcements made over the public address speaker system, such as meal announcements, count calls, or meetings. A vibrating pager and/or visual paging system would allow Mr. Berke to receive these messages. 43. Additionally, vibrating watches and vibrating bed devices would provide non-aural alarm notifications and permit Mr. Berke to timely attend scheduled activities at the ADX Camp. The Defendants do not provide these devices to those in their custody.
CLAIMS FOR RELIEF COUNT I: DISCRIMINATION ON THE BASIS OF A DISABILITY IN VIOLATION OF THE REHABILITATION ACT AGAINST MR.
BERKE (29 U.S.C. §§ 794 ET SEQ. AND 5 U.S.C. § 703) 44. Mr. Berke realleges and incorporates by reference each and every allegation above as if fully set forth herein. 45. The Rehabilitation Act of 1973, 29 U.S.C. §§ 794 et seq. (hereinafter "Rehabilitation Act"), provides that "[n]o otherwise qualified individual with a disability in the United States, as
12

Case 1:12-cv-01347-ESH Document 1 Filed 08/14/12 Page 13 of 24
defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service."
46. Mr. Berke is deaf and, as such, is a qualified individual with a disability within the meaning of the Rehabilitation Act, 29 U.S. C. § 705(20).
47. Mr. Berke is otherwise qualified to receive informed medical treatment and communicate
with medical providers on an equal basis with other prisoners in the BOP, and is eligible to participate in commensurate educational, religious, rehabilitation, vocational, telephone, and all other programs and services provided to others at that facility.
48. The BOP is an executive agency within the meaning of29 U.S.C. § 794(a). 49. The operations of the BOP, including the departments, agencies, programs and instrumentalities at the ADX Camp such as Health Services, Psychology Services, the Education Department and its associated programs, Vocational and Occupational Training programs, Inmate Skills Development Initiative, and work programs such as Federal Prison Industries, are "program[s] or activit[ies] conducted by an Executive Agency" within the meaning of29 U.S.C. §§ 794(a). 50. At all times relevant to this action, the Rehabilitation Act was and remains in full force and effect in the United States, and Mr. Berke has a right to not be subjected to discrimination on the basis of his disability by Defendants. 29 U.S.C. § 794(a). 51. The purpose of the Rehabilitation Act is to ensure that no "qualified individual with a disability . . . 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
13

Case 1:12-cv-01347-ESH Document 1 Filed 08/14/12 Page 14 of 24
receiving Federal financial assistance or under any program or activity conducted by any Executive agency...." 29 U.S.C. § 794(a).
52. The Department of Justice's regulations implementing the Rehabilitation Act recognize that activities of its agencies are programs or activities conducted by an Executive Agency of the United States government, and that "the agency shall furnish appropriate auxiliary aids where necessary to afford a handicapped person an equal opportunity to participate in, and enjoy the benefits of, a program or activity conducted by the agency." 28 C.F.R. § 39.160(a)(l) (emphasis added).
53. Auxiliary aids include but are not limited to interpreters and telecommunication devices for deaf persons. 28 C.F.R. § 39.103.
54. The Department of Justice's regulations implementing the Rehabilitation Act additionally mandate that "[i]n determining what type of auxiliary aid is necessary, the agency shall give primary consideration to the requests of the handicapped person." 28 C.F.R. § 39.160(a)(l)(i).
55. Defendants' placement of Mr. Berke at the ADX Camp will discriminatorily impair his ability to communicate effectively with: medical staff and healthcare providers, including physicians; educational and vocational instructors and his fellow students; work program managers, coordinators, and his fellow employees; correctional officers; and other members of the institution staff. Furthermore, this placement will exclude Mr. Berke from religious, educational and vocational programs, telephone services, and institution-wide alarms and announcements. Defendants have done this by maintaining institutions without appropriate auxiliary aids, in violation of the Rehabilitation Act.
56. Defendants' failure to maintain an institution with qualified interpreters and appropriate auxiliary aids - in effect to ensure the availability of an effective means of communication for
14

Case 1:12-cv-01347-ESH Document 1 Filed 08/14/12 Page 15 of 24
deaf prisoners so Mr. Berke can be placed there - will deny Mr. Berke, on the basis of his deafuess, the same access to Defendants' services, benefits, activities, programs, and privileges as is afforded to hearing individuals.
57. The failure to provide qualified interpreters and appropriate auxiliary aids and services to ensure an effective means of communication, and the failure to provide comparable access to services, benefits, activities, programs, and privileges, are policies, regular practices and/or customs of Defendants. These failures currently exist and will continue when Mr. Berke reports for his sentence without the relief requested herein.
58. Defendants failure to provide qualified ASL interpreters and other reasonable auxiliary aids for the deaf, will result in Mr. Berke being:
• unable to communicate effectively with healthcare providers, raise medical issues, understand the treatments and medications they prescribe, or discuss mental health problems;
• excluded from participating in the same religious, educational, vocational, and rehabilitation classes and work programs as hearing detainees;
• deprived of knowledge of institution-wide safety or emergency announcements; • deprived of knowledge of institution counts, meals and other important daily
activities; • unable to communicate effectively with correctional officers and staff members; • subject to disciplinary action stemming from Defendants' refusal to provide
auxiliary aids to allow effective communication; • deprived of meaningful participation in disciplinary proceedings; • prevented from obtaining consistent access to new hearing aid batteries; • prevented from obtaining consistent access to closed-captioned televisions; and • prevented from communicating equally and effectively with family, friends, and
their counsel by telephone.
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Case 1:12-cv-01347-ESH Document 1 Filed 08/14/12 Page 16 of 24
59. As a proximate result of Defendants' violations of the Rehabilitation Act, Mr. Berke will suffer discrimination, unequal treatment, exclusion (including exclusion from Defendants' services, benefits, activities, programs, and privileges), financial loss, loss of dignity, frustration, humiliation, emotional pain and suffering, anxiety, trauma, embarrassment, unnecessary loss of rights and privileges, including unnecessary disciplinary measures, and serious injury to his health and mental health, including the injuries specified herein.
60. Defendants' failure to comply with the Rehabilitation Act has created an atmosphere that will result in harm to Mr. Berke, as he will be in the custody or supervision of the BOP and will seek to use the services, benefits, activities, programs and privileges provided by Defendants and to which he is entitled. This harm will occur unless and until Defendants are ordered by this Court to modify their policies, practices and procedures as demanded by the Rehabilitation Act.
COUNT II: VIOLATION OF THE CONSTITUTION OF THE UNITED STATES- DUE PROCESS AGAINST MR. BERKE (FIFTH AMENDMENT- RIGHT TO QUALIFIED INTERPRETER
AT DISCIPLINARY HEARINGS) 61. Mr. Berke realleges and incorporates by reference each and every allegation above as if fully set forth herein. 62. Under the Fifth Amendment of the Constitution of the United States, "[n]o person ... shall ... be deprived of life, liberty, or property, without due process of law." 63. The Fifth Amendment guarantees Mr. Berke notice and a meaningful opportunity to be heard in connection with institution disciplinary proceedings. 64. In addition to failing to adequately inform deaf prisoners of the applicable rules when first entering the BOP's custody, in effect setting deaf prisoners up to break them, Defendants maintain an institution that does not provide deaf prisoners qualified sign language interpreters for disciplinary hearings stemming from their alleged violation of those rules. Defendants then
16

Case 1:12-cv-01347-ESH Document 1 Filed 08/14/12 Page 17 of 24
impose various punishments based on determinations that such rules were violated. Defendants' refusal to provide qualified interpreters at these hearings will deprive Mr. Berke notice and a meaningful opportunity to be heard in connection with his disciplinary proceedings, a particularly unfortunate deprivation considering the likelihood that violations of the rules are inadvertent and directly linked to Defendants' own failure to explain them.
65. Defendants' failure to comply with the Fifth Amendment will result in harm to Mr. Berke unless and until Defendants are ordered by this Court to modify their policies, practices and procedures pursuant to the Fifth Amendment.
COUNT III: VIOLATION OF THE CONSTITUTION OF THE UNITED STATES- CRUEL AND UNUSUAL PUNISHMENT AGAINST MR. BERKE (EIGHTH AMENDMENT- RIGHT TO
ADEQUATE MEDICAL TREATMENT) 66. Mr. Berke realleges and incorporates by reference each and every allegation above as if fully set forth herein. 67. Under the Eighth Amendment to the Constitution of the United States, "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." 68. The Eighth Amendment guarantees Mr. Berke a right to reasonably adequate medical care and treatment, including the right to be seen by a person competent to examine the patient, and make diagnoses, treatments, and referrals. 69. Competent medical diagnoses require that the practitioner amass information about the patient. Competent information gathering includes questioning, discussion, and communication between the patient or patient's representative and practitioner in a language comfortable to the parties. There are no adequate means to ensure effective communication for Mr. Berke with medical personnel at the ADX Camp.
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Case 1:12-cv-01347-ESH Document 1 Filed 08/14/12 Page 18 of 24
70. Treatment under certain mental health services- including group therapy and other talk therapies- are largely or entirely based on conversations between the patient and practitioner.
71. At the ADX Camp, Defendants maintain a facility that denies deaf prisoners an effective means of communication. Defendants have not established means to acquire the services of qualified ASL interpreters, which are necessary to allow Mr. Berke to understand and communicate with medical staff and healthcare providers. Without these auxiliary aids, Mr. Berke will be unable to participate in questioning regarding medical diagnoses or derive any benefit from certain mental health services to which he will be subjected by Defendants and their employees.
72. Defendants are aware of Mr. Berke's disability and need for interpretive services to converse with medical practitioners.
73. By maintaining the facility where Mr. Berke will be placed in such a way that will deprive him of a qualified interpreter during medical and mental health treatment, Defendants have acted with deliberate indifference to Mr. Berke's needs.
74. Defendants' failure to comply with the Eighth Amendment will result in harm to Mr. Berke unless and until Defendants are ordered by this Court to modify their policies, practices, and procedures pursuant to the Eighth Amendment.
COUNT IV: VIOLATION OF THE CONSTITUTION OF THE UNITED STATES- CRUEL AND UNUSUAL PUNISHMENT AGAINST MR. BERKE (EIGHTH AMENDMENT- INFORMED
CONSENT TO MEDICAL TREATMENT) 75. Mr. Berke realleges and incorporates by reference each and every allegation above as if fully set forth herein. 76. Under the Eighth Amendment to the Constitution of the United States, "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
18

Case 1:12-cv-01347-ESH Document 1 Filed 08/14/12 Page 19 of 24
77. Defendants are required to provide reasonably adequate medical treatment to those under their custody. Adequate medical treatment includes the Eighth Amendment guarantee of the right to be free from unwanted medical treatment, including the right to be treated only with one's informed consent.
78. At the ADX Camp, Defendants maintain a facility that denies deaf prisoners an effective means of communication. Defendants have not established means to acquire services of qualified ASL interpreters, which are necessary to allow Mr. Berke to understand and communicate with medical staff and healthcare providers. Without these auxiliary aids, Mr. Berke will be unable to understand, and thus give his informed consent to, any and all medical treatment to which he will be subjected by Defendants and their employees.
79. Defendants are aware of plaintiffs' disability and need for a qualified interpreter at medical treatments.
80. By maintaining the facility where Mr. Berke will be placed in such a way that will deprive him of a qualified interpreter ~uring medical treatment, Defendants have acted with deliberate indifference to Mr. Berke' sneeds.
81. Defendants' failure to comply with the Eighth Amendment will result in harm to Mr. Berke unless and until Defendants are ordered by this Court to modify their policies, practices and procedures pursuant to the Eighth Amendment.
COUNT V: VIOLATION OF THE CONSTITUTION OF THE UNITED STATES- CRUEL AND UNUSUAL PUNISHMENT AGAINST MR. BERKE (EIGHTH AMENDMENT- RIGHT TO
PRIVACY IN MEDICAL TREATMENT) 82. Mr. Berke realleges and incorporates by reference each and every allegation above as if fully set forth herein.
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Case 1:12-cv-01347-ESH Document 1 Filed 08/14/12 Page 20 of 24
83. Under the Eighth Amendment to the Constitution of the United States, "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
84. The Eighth Amendment guarantees Mr. Berke a constitutional right to privacy in medical treatment. Defendants' practice of using other prisoners or detainees as interpreters for deaf individuals under BOP custody during medical and mental health appointments violates the constitutional right to privacy in medical treatment. Such prisoner or detainee interpreters have no obligation to keep confidential any information communicated during medical or mental health appointments. Moreover, this breach of privacy rights is especially problematic in the institutional setting where a prisoner's or detainee's possession of confidential information about another prisoner or detainee can be used in threatening and dangerous ways.
85. Defendants are aware of Mr. Berke's disability and need for a qualified interpreter at medical treatments who will be obligated to keep this medical information confidential.
86. By maintaining the facility where Mr. Berke will be placed in such a way that will deprive him of a qualified interpreter during medical treatment, Defendants have acted with deliberate indifference to Mr. Berke's needs.
87. Defendants' failure to comply with the Eighth Amendment will result in harm to Mr. Berke unless and until Defendants are ordered by this Court to modify their policies, practices, and procedures pursuant to the Eighth Amendment.
COUNT VI: VIOLATION OF THE CONSTITUTION OF THE UNITED STATES CRUEL AND UNUSUAL PUNISHMENT
AGAINST MR. BERKE (EIGHTH AMENDMENT- RIGHT TO A REASONABLY SAFE ENVIRONMENT)
88. Mr. Berke realleges and incorporates by reference each and every allegation above as if fully set forth herein.
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Case 1:12-cv-01347-ESH Document 1 Filed 08/14/12 Page 21 of 24
89. Under the Eighth Amendment to the Constitution of the United States, "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
90. The Eighth Amendment guarantees Mr. Berke the right to a reasonably safe living environment.
91. Defendants have failed to equip BOP facilities, including the ADX Camp, with adequate visual alarms, pagers, or message boards that would alert Mr. Berke to an emergency, such as a fire or lockdown. This failure violates Mr. Berke's right to a reasonably safe living environment.
92. Defendants are aware of Mr. Berke's disability and need for a these emergency alerts. 93. By maintaining the facility where Mr. Berke will be placed in such a way that will deprive Mr. Berke of these emergency alerts, Defendants acted with deliberate indifference to his rights. 94. Defendants' failure to comply with the Eighth Amendment poses an unreasonable risk of future harm to Mr. Berke and will continue to do so throughout his term of imprisonment unless and until Defendants are ordered by this Court to modifY their policies, practices, and procedures pursuant to the Eighth Amendment.
COUNT VII: VIOLATION OF THE CONSTITUTION OF THE UNITED STATES FREEDOM OF SPEECH AGAINST MR. BERKE
(FIRST AMENDMENT) 95. Mr. Berke realleges and incorporates by reference each and every allegation above as if fully set forth herein. 96. At the ADX Camp, Defendants maintain an institution that will impermissibly deprive Mr. Berke of his First Amendment rights of freedom of speech by failing to provide him with telecommunication equipment necessary for him to communicate with family and friends outside of the ADX Camp.
. 21

Case 1:12-cv-01347-ESH Document 1 Filed 08/14/12 Page 22 of 24

97. Hearing inmates at the ADX Camp have telecommunication equipment that allows

communication with people outside of the ADX Camp.

98. Defendants' refusal to provide the necessary telecommunication equipment to ensure that

Mr. Berke has the same level of telephone access as hearing prisoners serves no legitimate or

compelling need and is not rationally related or narrowly tailored to any identified penological or

rehabilitative need.

99. Because Mr. Berke will be housed in an area far from his family and friends,

telecommunication equipment is critical to his exercise of his First Amendment right to

communicate with friends and family.

100.

Provision of appropriate telecommunication equipment to Mr. Berke will have

negligible effects, if any, on other inmates, detainees, and prison employees at FCI Butner.

101.

Defendants' failure to comply with the First Amendment of the United States

Constitution will result in harm to Mr. Berke, unless and until they are ordered by this Court to

modify their policies, practices and procedures.

PRAYER FOR RELIEF

WHEREFORE, Mr. Berke respectfully request:

A. The Court adjudge and decree that Defendants, by the organizations, systems,

policies, practices, and conditions described above, have violated and continue to violate Section

794 of the Rehabilitation Act and the Constitution of the United States;

B. The Court enter such injunctive and/or declaratory relief pursuant to 28 U.S.C. §§

2201 and 2202, and Rules 57 and 65 of the Federal Rules of Civil Procedure against Defendants

and in favor of Mr. Berke as it deems appropriate to remedy violations of the laws of the United

22

Case 1:12-cv-01347-ESH Document 1 Filed 08/14/12 Page 23 of 24
States and to prevent future violations of the same, including by ordering Defendants to make available at the ADX Camp in preparation for Mr. Berke's incarceration:
• qualified ASL interpreters to enable Mr. Berke to communicate effectively with medical and mental healthcare professionals, institution staff, educational and vocational instructors, religious clergy, work program managers and coordinators, and disciplinary officers;
• non-aural notification of emergencies or other important events and armouncements, e.g., a vibrating pager, visual alarms, vibrating watch, vibrating bed device, and/or message boards;
• equal and full access to appropriate and effective telecommunication devices for the deaf, including full and equal access to a videophone; and
C. Judgment be entered against Defendants in favor of Mr. Berke for the costs of litigation, including reasonable attorneys' fees and costs under 28 U.S.C. § 2412(d)(l)(A).
D. The Court retain jurisdiction of this matter until Defendants demonstrate that they have fully complied with the orders of this Court, and that there is a reasonable assurance that Defendants will continue to comply in the future absent continuing jurisdiction; and
E. The Court award Mr. Berke any further relief that the Court deems appropriate, including additional attorneys' fees and costs.
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Case 1:12-cv-01347-ESH Document 1 Filed 08/14/12 Page 24 of 24

Dated: August 14, 2012

Respectfully submitted,

tino rrr:t.,_,...,i([,o. 43093
Ballard Spahr LLP
1909 K Street, N.W., 11th Floor Washington, D.C. 20006 Telephone: (202) 661-2202 Facsimile: (202) 661-2299 cgp@ballardspahr.com
Ivy Finkenstadt DC Bar No. 488147 E. Elaine Gardner DC BarNo. 271262 Washington Lawyers' Committee for Civil Rights and Urban Affairs 11 Dupont Circle, N.W. Suite 400 Washington, D.C. 20036 T: 202-319-1000 F: 202-319-1010 elaine_gardner@washlaw.org ivy_finkenstadt@washlaw.org
Counsel for Plaintiff

24

 
 Case 1:12-cv-01347-ESH Document 18 Filed 09/27/12 Page 1 of 5

UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA

FILED

LARRY BERKE

)

SEP 2 7 2012

)

Plaintiff,

)

v.

)

Clerk, U.S. District & Bankruptcy Courts for the District of Columbia

)

FEDERAL BUREAU OF PRISONS, and )

CHARLES E. SAMUELS, JR.,

) Case No. 1:12-cv-1347-ESH

in his official capacity as Director of

)

the United States Bureau of Prisons

)

)

Defendants.

)

)

STIPULATION AND ORDER

The parties hereby stipulate and agree that the BOP is providing Mr. Berke with the

following accommodations:

I. Mr. Berke has been reassigned from the federal correctional complex in Florence,

CO ("FCC Florence") to the federal correctional complex in Tucson Arizona ("FCC Tucson").

Specifically, Mr. Berke will be assigned to the Satellite Prison Camp, Tucson ("SPC Tucson").

The reassignment allows Mr. Berke to be closer to his wife and minor children.

2. Tucson:

Mr. Berke will be provided the following specific accommodations at SPC

a.

Unit assignment: Staffwill coordinate and leave a bed space open for Mr.

Berke so that he does not have to be diverted to the FCI pre-trial unit.

b. Televisions: Staff will program all ofthe television units (oversized flat

screens) in the housing unit with the closed-caption feature. A universal remote will be provided

to ensure that the closed-caption feature remains fixed.

DMEAST #15726200 v1

Case 1:12-cv-01347-ESH Document 18 Filed 09/27/12 Page 2 of 5

c. Inmate Disability Helper: Staff will assign an inmate to be a helper to Mr.

Berke for unscheduled movements, programs, and activities.

d. TTY Phone: Staffwill provide Mr. Berke with access to a TTY phone

with which he can use to place telephone calls pursuant to FCC Tucson's policy for an inmate's

access to telephone service, which applies to all inmates. He will be advised, via an interpreter,

on how to use this phone system. Due to the fact that TTY calls take longer than traditional

calls, Mr. Berke will be provided a reasonable amount of additional time for his phone use. A

log book with the date and time of use, and tape of conversation, will be maintained. Mr. Berke

will schedule his TTY calls with Unit Team. FCC Tucson expects to provide Mr. Berke daily

access to a TTY machine, unless prevented by an institutional emergency. Currently, FCC

Tucson is allowing a deaf inmate to utilize a TTY machine without direct supervision from a

staff member once a call has been placed.

e. Interpreters:

1.

Live Interpreter: Mr. Berke will be provided access to an

interpreter during medical and disciplinary-related events/activities. Mr.

Berke will be provided with access to an interpreter for educational

activities/events if he requests an interpreter in advance, and provided that

the educational activity/event is not a computer-based learning

event/activity that does not require an interpreter. Also, Mr. Berke will be

provided with an interpreter for other programs/activities as needed.

Specifically, once the self-surrender date/time is confirmed, staff will have

an outside interpreter assist during the intake screening process with staff

(medical, receiving and discharge ["R&D"]), psychology, Special

OM EAST #15726200 v1

2

Case 1:12-cv-01347-ESH Document 18 Filed 09/27/12 Page 3 of 5

Investigative Service (["SIS"]) and his Unit Team). Staff, through the

interpreter, will inform Mr. Berke on daily living issues at the Satellite

Camp, use of TTY, Trust Fund Limited Inmate Computer System

("TRULINCS"), use ofthe visual alarms, etc. Staffwill determine when

an outside interpreter will be used for communication with Mr. Berke.

ii.

Video Remote Interpreter: Staff will establish a connection to the

Camp's medical office for the use of a video remote interpreter service.

Such a service may be used for medical appointments, disciplimiry

hearings, Unit Team meetings, and for other occasions where immediate

access to an interpreter is needed.

f.

Visual Alarms: In addition to fire alarms already installed in the Camp,

staff will install two emergency lights- one in the housing unit and one outside the door of the

housing unit - which will be visible in the Camp's outdoor recreation area. The visual alarms

will provide immediate notification of emergencies to Mr. Berke, which will require him to

return to the housing unit and/or to his cell.

g. TRULINCS: Access to inmate email will be provided through the

TRULINCS system, which will include access to public notices/messages from department

heads, Executive Staff and the BOP Director.

h. Dry erase board and pens: Staff will provide this to Mr. Berke upon his

arrival.

i.

Admission and Orientation ("A&O"): Staffwill schedule two interpreters

for A&O, first team meeting, and for a physical exam with a physician. During Mr. Berke's

medical appointment, medically necessary care and/or treatment will be evaluated on this date or

DMEAST #15726200 v1

3

Case 1:12-cv-01347-ESH Document 18 Filed 09/27/12 Page 4 of 5
shortly thereafter. The physician may recommend additional accommodations to include an
appointment with an audiologist. If a hearing aid (or aids) is medically indicated, and Mr. Berke
chooses to wear a hearing device, the equipment and batteries will be provided without cost to
him.
Respectfully submitted,
Is/ Constantinos G. Panagopoulos
Constantinos G. Panagopoulos DC Bar No. 430932 Ballard Spahr LLP I909 K Street, N.W., 12th Floor Washington, D.C. 20006 Telephone: (202) 661-2202 Facsimile: (202) 661-2299 cgp@ballardspahr .com
Ivy Finkenstadt DC BarNo. 488147 E. Elaine Gardner DC Bar No. 27I262 Washington Lawyers' Committee for Civil Rights and Urban Affairs II Dupont Circle, N.W. Suite 400 Washington, D.C. 20036 T: 202-319-1000 F: 202-319-1010 elaine_gardner@washlaw .org ivy_finkenstadt@washlaw .org
Counsel for Plaintiff

OMEAST #15726200 v1

4

Case 1:12-cv-01347-ESH Document 18 Filed 09/27/12 Page 5 of 5

- --~-

- - .)

RONALD C. MACHEN JR. UNITED STATES ATTORNEY D.C. Bar No. 447889
DANIEL F. VAN HORN CHIEF, CIVIL DIVISION D.C. Bar No. 924092

By: Is/ Tricia Francis
TRICIA D. FRANCIS Assistant United States Attorney Civil Division D.C. Bar No. 457800 U.S. Attorney's Office, District of Columbia 555 Fourth Street, N.W., Washington, D.C. 20530 (202) 616-2257 l'ricia.D.Francis o u~dnj.f.!.ov

Date: September 26, 2012

Counsel for Defendants

a1 It is this

day of~~!~ereby SO ORDERED.

= Ellen S. Huvelle, District Judge

DMEAST #15726200 v1

5

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LARRY BERKE,

Plaintiff,

v.

Civil Action No. 12-1347 (ESH)

FEDERAL BUREAU OF PRISONS, et al.,

Defendants.

MEMORANDUM OPINION Plaintiff Larry Berke, a deaf individual, filed suit against the Federal Bureau of Prisons (“BOP”) and Charles Samuels, Jr., in his official capacity as the Director of the BOP (“Defendants”), alleging that defendants discriminated against him in violation of the Rehabilitation Act, 29 U.S.C. § 790 et seq., by failing to adequately accommodate his deafness. On September 25, 2012, this Court granted in part plaintiff’s motion for a preliminary injunction, ordering defendants to determine whether the videophone system requested by plaintiff could be installed without resulting in “undue financial and administrative burdens,” as required by 28 C.F.R. § 39.160(d). Plaintiff now seeks to recover attorney’s fees and costs pursuant to 29 U.S.C. § 794a(b) and Federal Rule of Civil Procedure 54(d). (Plaintiff’s Motion for Award of Attorney’s Fees and Costs, Oct. 9, 2012 [ECF No. 20] (“Mot.”).) Upon consideration of plaintiff’s motion, defendants’ opposition thereto (Defendants’ Opposition to Plaintiff’s Motion for Attorney Fees and Costs, Jan. 31, 2013 [ECF No. 31] (“Opp’n”)), and plaintiff’s reply (Reply in Further Support of Plaintiff’s Motion for Award of Attorney’s Fees and Costs, Feb. 7, 2013 [ECF No. 32] (“Reply”)), and for the reasons explained below, the Court will grant in part and deny in part plaintiff’s motion.
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BACKGROUND In December 2011, plaintiff pled guilty to conspiracy to commit mail fraud under 18 U.S.C. § 1349. (See Complaint Ex. 1, Aug. 14, 2012 [ECF No. 1-1] at 2.) The indictment asserted that Mr. Berke, along with his wife, son, and other individuals,1 submitted fraudulent claims to the United States government for reimbursement for providing telephone services for hearing-impaired individuals. He was sentenced to 24 months in prison, followed by three years of supervised release. (See id. at 3-4.) On August 14, 2012, plaintiff filed a complaint alleging that defendants violated the Rehabilitation Act by planning to incarcerate him at U.S. Penitentiary Florence ADMAX Satellite Camp, a facility that he alleged did not have adequate accommodations for deaf inmates. (Mot. at 1-2.) Plaintiff initially moved for a temporary restraining order, which was later converted into a motion for a preliminary injunction. After plaintiff filed his complaint, but before this Court ruled on the preliminary injunction, defendants reassigned plaintiff to the ADMAX Satellite Camp in Tucson, Arizona (“SPC Tucson”). (Mot. at 2 n.1; Opp’n at 3 & n.1.) They also agreed to provide Mr. Berke with various accommodations at that facility, including closed-captioning on prison telephones, the assignment of an inmate disability helper, access to a TTY phone, access to a live interpreter for certain events, visual alarms, access to inmate email, dry erase boards and pens, and appropriate medical attention. (See Mot. at 4.) Those accommodations were reduced to writing in a declaration by Scott Pennington, a Unit Manager at SPC Tucson. (See Declaration of Scott R. Pennington, Sept. 24, 2012 [ECF No. 14-2].) Plaintiff nevertheless chose to proceed with this litigation to determine whether defendants were in violation of Section 504 of the Rehabilitation
1 Mr. Berke’s wife, his son, and other co-conspirators are also hearing-impaired. 2

Act by failing to provide him with access to videophone technology, as opposed to a TTY phone. (See Preliminary Injunction Hearing Transcript [ECF No. 25] (“Tr.”) at 5 (“[W]e’re here on one issue and one issue only still . . . which has to do with whether they’re required to provide an accommodation to the plaintiff regarding the videophone system.”).)2
On September 25, 2012, this Court held a hearing on the preliminary injunction motion. Consistent with their written motions, defendants argued that the installation of a videophone “would result in undue financial and administrative burdens,” especially given the difficulty in monitoring videophone communications, and thus they were not required to offer that accommodation in light of 28 C.F.R. § 39.160(d). (See Tr. at 165-66.) However, as the Court pointed out, an agency’s determination that the requested accommodation would result in such burdens must be “accompanied by a written statement of the reasons for reaching that conclusion.” 28 C.F.R. § 39.160(d). Because defendants had not done any analysis to determine whether it could reasonably comply with plaintiff’s request, the Court ruled that defendants had not met their burden of proving that the installation of a videophone system would result in undue financial and administrative burdens. (See Tr. at 167-69.) The Court therefore granted plaintiff’s motion for a preliminary injunction in part and ordered the defendants to “undertake an investigation or examination to determine whether or not [the videophone system] could be installed consistent with their security requirements.” (Id. at 167.) However, the Court denied plaintiff’s motion insofar as it sought an order requiring the installation of the videophone system. (Id. at 167-68.) The Court also signed off on the stipulation agreed to by the parties
2 Using the TTY phone system, a deaf individual types a sentence into the system in English, and the system then transmits a signal through a phone land line to another TTY machine, which transcribes it into a typed English message on the other end. (See Tr. at 26-27.) The videophone system, on the other hand, allows deaf individuals to see each other on a screen so that they can use their native language—American Sign Language—to communicate. (See id. at 14.)
3

reflecting their agreement that the BOP would provide Mr. Berke with the above-mentioned accommodations. (Stipulation and Order, Sept. 27, 2012 [ECF No. 18] (“Stip.”).)
ANALYSIS The Rehabilitation Act provides that “[i]n any action or proceeding to enforce or charge a violation of a provision of this subchapter, the court, in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee as part of the costs.” 29 U.S.C. § 794a(b). The Court must first determine whether, in light of the partial relief granted by this Court, plaintiff is properly considered a “prevailing party” under the Act. Then, assuming plaintiff is in fact entitled to recover costs, the Court must determine whether plaintiff’s requested costs and attendant attorney’s fees are reasonable under the law. I. PREVAILING PARTY A prevailing party is “one who has been awarded some relief by a court.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 603 (2001). The Supreme Court has long held that the “touchstone” of the prevailing party inquiry is “the material alteration of the legal relationship of the parties.” Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93 (1989). Thus, in Buckhannon, the Supreme Court rejected the application of the “catalyst theory,” which allows an award of attorney’s fees if the plaintiff’s lawsuit brings about a voluntary change in the defendant’s conduct.3 532 U.S. at 605. Instead, “for a litigant to be a ‘prevailing party,’ there must have been a ‘judicially sanctioned change in the legal relationship of the parties.’” Edmonds v. F.B.I., 417 F.3d 1319, 1322 (D.C.
3 Although Buckhannon involved the Americans with Disabilities Act and the Fair Housing Amendments Act, the Supreme Court confirmed in that case that they “have interpreted these fee-shifting provisions consistently.” 532 U.S. at 603 n.4; see also Hensley v. Eckerhart, 461 U.S. 424, 433 n.7 (1983) (noting that the standards for interpreting the meaning of “prevailing party” are consistent across “all cases in which Congress has authorized an award of fees to a ‘prevailing party’”).
4

Cir. 2005) (quoting Buckhannon, 532 U.S. at 605). Such changes are brought about by “enforceable judgments on the merits and court-ordered consent decrees.” Buckhannon, 532 U.S. at 604. Following Buckhannon, this Circuit articulated a three-part test for determining prevailing-party status: “(1) there must be a ‘court-ordered change in the legal relationship’ of the parties; (2) the judgment must be in favor of the party seeking the fees; and (3) the judicial pronouncement must be accompanied by judicial relief.” Dist. of Columbia v. Straus, 590 F.3d 898, 901 (D.C. Cir. 2010) (quoting Thomas v. Nat’l Sci. Found., 330 F.3d 486, 492-93 (D.C. Cir. 2003)).
Plaintiff argues that he is a “prevailing party” based on two factors: (1) that “Defendants agreed [by way of a stipulation] to provide him numerous necessary accommodations,” and (2) that “the Court granted his preliminary injunction in part.” (Mot. at 5.)
A. Transfer to SPC Tucson and Other Accommodations Plaintiff claims that he is a prevailing party because he “secured the BOP’s agreement to provide numerous accommodations requested by Mr. Berke.” (Reply at 3.) He notes that “[i]t was not until after the lawsuit was filed that Defendants agreed to provide any accommodations.” (Id. (emphasis omitted).) However, that type of “voluntary change in conduct” is precisely what is contemplated by the now-rejected “catalyst theory,” see Buckhannon, 532 U.S. at 605, and thus, those accommodations are insufficient to render plaintiff a prevailing party. Plaintiff does not—and cannot—claim that either his transfer to SPC Tucson or the accommodations the BOP agreed to provide him at that facility were the result of an “enforceable judgment[] on the merits” or a “court-ordered consent decree[].” Buckhannon, 532 U.S. at 604. The parties provided the Court with a stipulation listing the accommodations that the BOP had already agreed to provide Mr. Berke, and the Court signed off on that agreement to
5

acknowledge the resolution of all issues besides the one that remained for the preliminary injunction hearing—namely, the request for a videophone. (See Stip.) However, that order did not “entail the judicial approval and oversight involved in [a] consent decree[],” Buckhannon, 532 U.S. at 604 n.7, through which the Court would retain jurisdiction to ensure compliance with the terms of the stipulation. Cf. Oil, Chem. & Atomic Workers Int’l Union, AFL-CIO v. Dep’t of Energy, 288 F.3d 452, 457 (D.C. Cir. 2002), superseded by statute on other grounds, 5 U.S.C. § 552(a)(4)(E) (holding that the Court’s entering of a “Stipulation and Order” approving the parties’ terms of dismissal did not amount to a “court-ordered consent decree” that would render the plaintiff the prevailing party). Thus, the Court does not find that plaintiff was a “prevailing party” because of the accommodations the BOP agreed to provide him at SPC Tucson. However, plaintiff is nevertheless entitled to recover attorney’s fees based on his partial success at the preliminary injunction hearing.
B. Partial Grant of Preliminary Injunction Motion While the Court declined to order the BOP to install videophones for plaintiff’s use, (Tr. at 168), it did order, at the preliminary injunction hearing, the BOP “to comply with the regulations” by investigating by a date certain whether videophones could be installed without resulting in undue financial or administrative burdens. (Id. at 167.) Although plaintiff did not obtain the exact relief that he sought, this order was nevertheless sufficient to render him a “prevailing party” for purposes of recovering attorney’s fees. Defendants insist that because the Court did not order the installation of the videophone system, “Plaintiff did not get the relief he originally sought.” (Opp’n at 11.) While it is true that he did not obtain the installation of a videophone system (as opposed to use of the TTY system), it is well established that a plaintiff need not obtain complete relief to be considered a prevailing
6

party; “a civil rights plaintiff must obtain at least some relief on the merits of his claim” that “materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.” Farrar v. Hobby, 506 U.S. 103, 111-12 (1992) (emphasis added). Prior to the Court’s ruling, defendants had not determined whether videophones could reasonably be installed for plaintiff’s use, but as a result of the ruling, they will be forced to make that determination. That is undeniably a change in the legal relationship between the parties that directly benefits the plaintiff, since defendants are now legally obligated to undertake steps that at a minimum will reassure plaintiff that the BOP has adequately considered his request for accommodation, and could possibly result in the implementation of such a videophone system. The fact that plaintiff may not have obtained all the relief he sought is relevant to determining the amount of attorney’s fees that plaintiff can reasonably recover, but does not alter his status as a “prevailing party.” See infra Section II.C. II. REASONABLE FEES
Having determined that plaintiff is a prevailing party and is therefore entitled to recover a “reasonable attorney’s fee” under 29 U.S.C. § 794a(b), the Court must now decide whether plaintiff’s requested attorney’s fees are, in fact, reasonable. “The initial estimate of a reasonable attorney’s fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.” Blum v. Stenson, 465 U.S. 886, 888 (1984) (citing Hensley v. Eckerhart, 461 U.S. 424 (1983)). There is a strong presumption that this amount— known as the “lodestar”—represents a reasonable fee. See Bd. of Tr. of Hotel & Rest. Emp. Local 25 v. JPR, Inc., 136 F.3d 794, 801 (D.C. Cir. 1998) (citing Pennsylvania. v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565 (1986)).
7

A. Reasonable Hourly Rate The determination of a “reasonable hourly rate” requires an analysis of at least three elements: “the attorneys’ billing practices; the attorneys’ skill, experience, and reputation; and the prevailing market rates in the relevant community.” Covington v. Dist. of Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995). The prevailing market rates can be established either by the rates at which prior fee awards have been made or based on published surveys of prevailing rates in the community, such as the U.S. Attorney’s Office’s Laffey matrix. Id. at 1109. Plaintiff in this case was represented by attorneys from the Washington Lawyers’ Committee for Civil Rights and Urban Affairs (the “WLCCR”) working together with attorneys from the law firm of Ballard Spahr LLP.4
1. WLCCR The WLCCR does not charge its clients a regular fee for its services, so it suggests that the Court should derive the reasonable hourly rate from what is known as the “updated Laffey matrix.”5 (Mot. at 8-9.) Defendants respond that the “USAO Laffey matrix”6 is the appropriate starting point for determining the prevailing market rates in this jurisdiction. (Opp’n at 14-15.) The Court agrees with defendants. Although plaintiff is correct that courts in this jurisdiction have, at times, approved the use of the updated Laffey matrix, the USAO Laffey matrix is far more widely accepted. See, e.g., Heller v. Dist. of Columbia, 832 F. Supp. 2d 32, 48 (D.D.C. 2011) (“The Court finds the frequency with which the USAO Laffey Matrix rates are applied to be strong evidence of both
4 According to the billing records, nine attorneys worked on this case, including four from the WLCCR. This hardly seems like an efficient use of resources. 5 The updated Laffey matrix is available at http://laffeymatrix.com/see.html. 6 A copy of the USAO Laffey matrix is attached to defendants’ Opposition as Attachment A.
8

their prevalence and their reasonableness.”); Miller v. Holzmann, 575 F. Supp. 2d 18 n.29

(D.D.C. 2008) (noting the “widespread acceptance” of the USAO Laffey matrix); Am. Lands

Alliance v. Norton, 525 F. Supp. 2d 135, 150 (D.D.C. 2007) (referring to the USAO Laffey

matrix as the “standard matrix” in this jurisdiction). One reason for this preference is that the

updated Laffey matrix “reflects national inflation trends,” while the USAO matrix “relies on data

specific to the Washington, D.C. metropolitan area.” Miller, 575 F. Supp. 2d at 17. Thus, courts

in this jurisdiction have frequently referred to the USAO Laffey matrix as “the benchmark for

reasonable fees in this Court.” See, e.g., id. at 18 n.29 (quoting Pleasants v. Ridge, 424 F. Supp.

2d 67, 71 n.2 (D.D.C. 2006)). This Court agrees that the USAO matrix more accurately reflects

the prevailing market rates in the Washington, D.C. legal market. This is particularly true here,

where the hourly rates sought by the WLCCR attorneys under the updated Laffey matrix far exceed even the rates sought by the private attorneys at Ballard Spahr.7

The Court therefore finds that a “reasonable hourly rate” for the work performed by the

WLCCR attorneys is the rate set out in the USAO Laffey matrix, as shown here:

Attorney Gardner Fornaci Golden Finkenstadt

USAO Laffey Matrix Hourly Rate $505 $505 $445 $355

7 For example, WLCCR attorneys Elaine Gardner and Philip Fornaci would each receive an hourly rate of $753 under the updated Laffey matrix based on their roughly 30 and 20 years of litigation experience, respectively. (See Declaration of Elizabeth Elaine Gardner, Oct. 9, 2012 [ECF No. 20-3] (“Gardner Decl.”) ¶¶ 4, 6, 13.) The lead attorney on the case from Ballard Spahr, Constantinos Panagopoulos, with over 20 years of litigation experience, seeks only $550/hour. (See Declaration of Constantinos Panagopoulos, Oct. 9, 2012 [ECF No. 20-4] (“Paganopoulos Decl.”) at 7.)
9

2. Ballard Spahr With respect to the attorneys from Ballard Spahr, the Court finds that their regular billing rates are reasonable. In this Circuit, “an attorney’s usual bill rate is presumptively the reasonable rate, provided that this rate is ‘in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.’” Kattan by Thomas v. Dist. of Columbia, 995 F.2d 274, 278 (D.C. Cir. 1993) (quoting Blum, 465 U.S. at 895-96 n.11). As explained above, the USAO Laffey matrix is relevant evidence of the “prevailing” rates in the Washington, D.C. area. The rates charged by the five Ballard Spahr attorneys who worked on this case, though not identical to the Laffey rates, are very much “in line” with them. (Compare Paganopoulos Decl. Ex. A at 7 (showing hourly rates for each attorney) with Opp’n at 17 (showing USAO Laffey matrix rates for each attorney).) For example, although attorney Panagopolous charges an hourly rate of $550 compared to the USAO Laffey rate of $505, Jonathan Lippert charged only $350, far lower than the $445 allowed for in the USAO Laffey matrix. Altogether, two of the five Ballard Spahr attorneys charged higher rates than provided for by the USAO Laffey matrix, two charged lower rates, and one charged exactly the same rate. The Court therefore concludes that Ballard Spahr’s standard billing rates are reasonable. B. Reasonable Hours Expended on the Litigation To determine the lodestar, the Court must multiply the reasonable hourly rates by “the number of hours reasonably expended on the litigation.” Blum, 465 U.S. at 888. Both WLCCR and Ballard Spahr appear to have made a good-faith effort to eliminate hours billed for arguably duplicative or unnecessary work. Ballard Spahr claims to have excluded 101.1 billable hours from their total, resulting in 188.1 hours billed. (See Mot. at 10; Paganopoulos Decl. Ex. A at 7.) WLCCR has excluded 22.7 billable hours, for a total of 74.9. (See Mot. at 10; Gardner Decl. at
10

10.) Thus, the two entities eliminated roughly 35% and 23% of their hours worked, respectively. The Court therefore finds that the hours submitted by both entities are adequately documented and are “not excessive, redundant or otherwise unnecessary.” Okla. Aerotronics, Inc. v. United States, 943 F.2d 1344, 1347 (D.C. Cir. 1991).
C. Reduction Based on Limited Extent of Plaintiff’s Success However, the inquiry does not end with the determination of the lodestar. To the contrary, that is simply the “starting point.” Pleasants, 424 F. Supp. 2d at 73. The district court must still consider whether to adjust the award of attorney’s fees in light of “the overall relief obtained by the plaintiff.” Hensley, 461 U.S. at 435. “If the prevailing party achieved less than complete success, [the court] must reduce that base to reflect the degree of success achieved.” F.J. Vollmer Co. v. Magaw, 102 F.3d 591, 599 (D.C. Cir. 1996). The degree of success is determined by considering two questions: “(1) whether the party failed to prevail on claims that were unrelated to the claims on which he succeeded, and (2) whether the party achieved a level of success that makes the hours expended a satisfactory basis for making the fee award.” Pleasants, 424 F. Supp. 2d at 73. The first of those inquiries is not at issue here, because all of plaintiff’s claims were “based on the same factual scenario” and “the same legal theory.” Goos v. Nat’l Ass’n of Realtors, 68 F.3d 1380, 1384 (D.C. Cir. 1995); see also Bolden v. J & R Inc., 135 F. Supp. 2d 177, 181 (D.D.C. 2001) (“The fact that Plaintiffs did not prevail on a number of other counts is of no significance because the underlying factual context . . . was the same for all claims.”). Thus, the mere fact that plaintiff was not a “prevailing party” under the law with respect to the accommodations that defendants have agreed to provide him at SPC Tucson does not justify reducing the award of attorney’s fees.
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However, the Court concludes that the limited nature of the relief obtained by plaintiff at the preliminary injunction hearing does support a reduction in attorney’s fees. The Supreme Court has noted that, where a plaintiff’s legal claims are all based upon the same factual scenario or legal theory, the court should determine fees by considering “the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.” Hensley, 461 U.S. at 435. The “most critical factor is the degree of success obtained.” Id. at 436. Thus, “if the district court determines and explains why the total hours expended were not reasonable in relation to the results obtained—regardless of the number of claims raised—the court has discretion to reduce fees.” Goos, 68 F.3d at 1387.
Here, the majority of the work undertaken by plaintiff’s counsel related to the briefing and hearing on the preliminary injunction. At the hearing, the only issue was whether defendants were in violation of the Rehabilitation Act by failing to provide plaintiff access to a videophone system. (Tr. at 5.) Although the Court found that defendants had not complied with the Act’s requirement that they provide a written explanation for their assertion that such an accommodation would result in undue financial or administrative burden, the Court did not order defendants to install the videophone system. To the contrary, the Court concluded that, in light of the well-established rule that “it is not the Court’s obligation to tell the Bureau of Prisons what or what not to do,” the Court “cannot . . . order them to install [the videophone] upon his arrival.” (Id. at 166-67.) Instead, the Court simply ordered defendants to investigate whether such a system could reasonably be installed. (Id. at 167.) The outcome of that investigation remains to be seen and was in no way predetermined by this Court’s ruling. Even within that limited relief, the Court declined to force the government to move at plaintiff’s desired pace; the Court noted that although plaintiff requested immediate action, because plaintiff himself had “sat on his
12

rights” for eight months, the BOP would have eight months in which to conduct the videophone study. (Id. at 167-68.) Thus, no videophone had been installed as of plaintiff’s surrender date of September 27, 2012, and he has now served roughly seven months of his 24-month sentence without either the videophone system or a response from the BOP about its position as to installing such a system.
In recognition that this result can in no way be considered “full” relief, it is appropriate to significantly reduce the amount of attorney’s fees that plaintiff may recover. “There is no precise rule or formula for making these determinations. The district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success.” Hensley, 461 U.S. at 436. Here, the Court cannot parse the attorneys’ billing records to identify particular hours to exclude, since all hours were spent in pursuit of the videophone and other accommodations. However, in light of the uncertainty as to whether plaintiff will ever gain access to his requested accommodation, and the at least eight-month window with no possibility of such an accommodation, the Court concludes that a 40% reduction in attorney’s fees is appropriate. Such an award is well within this Court’s discretion. See Hensley, 461 U.S. at 439 n. 14 (finding that district court in Brown v. Bathke, 588 F.2d 634 (8th Cir. 1978), was well within its discretion to award payment for only 57.75 of the attorneys’ 174 hours spent on the case where plaintiff had sought reinstatement, lost wages, damages, and expungement of derogatory material from her employment record, but had been awarded only lost wages and expungement); Fisher v. Friendship Public Charter Sch., 880 F. Supp. 2d 149, 153-54 (D.D.C. 2012) (reducing fees by 50% because plaintiff did not succeed on three of his four claims); Roseboro v. Billington, 618 F. Supp. 2d 85, 88-89 (D.D.C. 2009) (finding that a one-third reduction in fees is appropriate in light of the fact that plaintiff sought extensive
13

damages, reinstatement, and other relief, but was awarded only expungement of certain charges from his personnel record).
Using the USAO Laffey matrix rates for the WLCCR’s attorneys, and Ballard Spahr’s standard billing rates, but reducing the hours by 40%, the Court concludes that plaintiff is entitled to recover $20,975.70 in attorney’s fees for the WLCCR’s work, and $48,315.90 in attorney’s fees for Ballard Spahr’s work. III. REASONABLE COSTS
As a prevailing party, plaintiff is also entitled to recover reasonable costs. See Fed. R. Civ. P. 54(d). 28 U.S.C. § 1920 specifically enumerates several categories of costs that plaintiffs are entitled to receive, including: (1) fees of the clerk and marshal; (2) fees for printed or electronically recorded transcripts; (3) fees and disbursements for printing and witnesses; (4) fees for exemplification and the costs of making copies of any materials; (5) docket fees under § 1923; and (6) compensation of court appointed experts and compensation of interpreters.
Plaintiff seeks to recover $11,974.49 in costs, broken down as follows: (1) $122.70 for delivery service; (2) $1,028.53 for deposition transcripts; (3) $18.40 for duplicating; (4) $6,367.24 for expert witnesses; (5) $350.00 for filing fees; (6) $336.61 for Lexis research; (7) $11.60 for postage; (8) $3,267.50 for professional services, of which $1267.50 covers interpreters’ fees and $2,000 is for costs incurred to produce a demonstrative video for the hearing; (9) $415.00 for service of subpoenas; (10) $28.41 for teleconferencing services; (11) $21.00 for travel expenses; and (12) $7.50 for Westlaw research. (Paganopoulos Decl. Ex. A at 8.)8
8 These numbers do not line up exactly with Mr. Paganopoulos’ breakdown on page 8 of his declaration. The Court has shifted the totals for each category based on a close examination of the receipts plaintiff submitted with his Reply Brief. For example, one of the bills included
14

Certain of plaintiff’s costs are undisputedly recoverable. First, filing fees are plainly recoverable under 28 U.S.C. § 1920(1) and (5). Second, the costs of deposition transcripts and “duplicating,” which apparently refers to photocopying, are recoverable under § 1920(2) and (4). Third, the costs of the American Sign Language interpreters used with plaintiff’s expert are recoverable under § 1920(6).
The rest of plaintiff’s requested costs, however, do not fall within any of the specifically enumerated categories of § 1920. Although it is true that Rule 54(d) allows judges some limited discretion to award costs not expressly authorized by § 1920, the statutory list “is not to be routinely expanded.” Zdunek v. Wash. Metro. Area Transit Auth., 100 F.R.D. 689, 692 (D.D.C. 1983). Indeed, the Supreme Court itself has declared that “the discretion given district judges to tax costs should be sparingly exercised with reference to expenses not specifically allowed by statute.” Farmer v. Arabian Oil Co., 379 U.S. 227, 235 (1964). Moreover, Rule 54(d) itself makes clear that “costs against the United States, its officers, and its agencies may be imposed only to the extent allowed by law.”
Thus, this Court has declined to award costs for many of the categories of expenses for which plaintiff now seeks reimbursement, such as: (1) the use of professional process servers, Zdunek, 100 F.R.D. at 692 (noting that § 1920(1) only “authorizes taxation of the service fees charged by the United States Marshals Service”); (2) postage, id.; El-Fadl v. Cent. Bank of Jordan, 163 F.R.D. 389, 390 (D.D.C. 1995); (3) telephone services, Zdunek, 100 F.R.D. at 692; El-Fadl, 163 F.R.D. at 390; (4) delivery fees, Johnson v. Holway, 522 F. Supp. 2d 12, 19 (D.D.C. 2007) (“Administrative fees, like delivery costs, are . . . considered ordinary business
under the subheading “professional services” was from Dennis Cokley, whom plaintiff identifies as one of his expert witnesses. (See Reply Ex. A at 34.) The Court therefore shifted the $1,550.00 of that bill from the “professional services” category to the “expert witnesses” category.
15

expenses that cannot be recovered as costs.”) (internal quotation marks omitted); El-Fadl, 163 F.R.D. at 390; (5) travel expenses, Mass. Fair Share v. Law Enforcement Assistance Admin., 776 F.2d 1066, 1069-70 (D.C. Cir. 1985); Conservation Force v. Salazar, 2013 WL 66210, at *13 (D.D.C. Jan. 7, 2013); and (6) electronic legal research fees, El-Fadl, 163 F.R.D. at 391 (declining to tax as costs fees paid to online legal research services because it is more properly considered part of an attorney’s fee). The Court concludes that the same result is appropriate with respect to the professional services plaintiff used to prepare a demonstrative video for trial, as that expense is not specifically covered by § 1920.
Additionally, it is well-established that expert witness fees are not included in “costs.” The Supreme Court recently explained that § 1920 “does not authorize an award of any additional expert fees” beyond the standard travel reimbursement and per diem authorized for all witnesses under 28 U.S.C. § 1821. Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 297-98 (2006); see also Zdunek, 100 F.R.D. at 693 (same). The Court therefore finds that plaintiff is entitled to recover the $40 per diem for expert Richard Ray’s appearance at the preliminary injunction hearing and the $40 per diem for expert Dennis Cokley’s appearance at his deposition, but not any additional costs for their time.9
Plaintiff insists that he may recover costs beyond those specifically enumerated in § 1920 because the Rehabilitation Act incorporates the remedies available under the Civil Rights Act of 1964, which permits recovery of expert fees and other reasonable litigation expenses. (Mot. at 5.) Although plaintiff is correct that the Rehabilitation Act incorporates those remedies in some instances, it does not do so in this case. Specifically, 29 U.S.C. § 794a incorporates Title VI
9 Although a prevailing party can ordinarily recover travel expenses for his witnesses, those costs are only available upon production of “[a] receipt or other evidence of actual costs,” see, e.g., 28 U.S.C. §§ 1821(c)(1), (3), which plaintiff has not provided.
16

remedies for all employment discrimination cases brought under § 791 of the Rehabilitation Act, see § 794a(a)(1), but only for certain claims brought under § 794. Section 794 prohibits discrimination under (1) “any program or activity receiving Federal financial assistance” or (2) “any program or activity conducted by any Executive agency or by the United States Postal Service.” However, § 794a(a)(2) only incorporates Title VI remedies for the first category of claims—those that are brought against a “recipient of Federal assistance or Federal provider of such assistance.” It does not incorporate those remedies for claims brought against federal agencies conducting programs or activities. Indeed, the Supreme Court itself noted this distinction in a different context, where it observed that although § 794a(a)(1) plainly waives sovereign immunity for any complaint brought under § 791, § 794a(a)(2) is not so “farreaching,” and only covers “‘Federal provider[s]’ of financial assistance.” See Lane v. Pena, 518 U.S. 187, 192-93 (1996). Thus, plaintiff cannot rely on the Civil Rights Act’s remedies to recover expert fees or any other costs that are not expressly provided for in 28 U.S.C. § 1920.10
Accordingly, the Court awards plaintiff costs for expenses related to filing fees, photocopying, deposition transcripts, interpreter services, and the per diem rates for his expert witnesses. Plaintiff’s receipts for those expenses total $2,744.43. However, the Court will reduce those costs by 40%, in line with the reduction made to attorney’s fees. See A.S. v. Dist. of Columbia, 842 F. Supp. 2d 40, 49 (D.D.C. 2012) (reducing both attorney’s fees and costs by 50% “based on plaintiffs’ level of success”); Dickens v. Friendship-Edison P.C.S., 724 F. Supp. 2d 113, 122 (D.D.C. 2010) (same). Thus, the Court awards plaintiff $1,646.66 in costs.
10 Plaintiff also seeks to recover expert witness fees under 42 U.S.C. § 1988. (Mot. at 15.) However, that provision authorizes an award of expert fees “in any action or proceeding to enforce a provision of section 1981 or 1981a.” § 1988(c). Because plaintiff’s Rehabilitation Act claims “do not fall under either section,” the Court may not rely on that section to award plaintiff expert fees. See Mason v. Me. Dep’t of Corr., 387 F. Supp. 2d 57, 64-65 (D. Me. 2005).
17

CONCLUSION For the foregoing reasons, plaintiff’s Motion for Award of Attorney’s Fees and Costs is granted in part and denied in part. A separate Order accompanies this Memorandum Opinion.

Date: April 29, 2013

/s/ ELLEN SEGAL HUVELLE United States District Judge

18

 
 Case 1:12-cv-01347-ESH Document 25 Filed 11/06/12 Page 1 of 173

1

1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

2

3

Larry Berke,

)

) File No: CA-12-1347

4

Plaintiff,

)

) Date: Tuesday,

5

vs.

)

September 25, 2012

) Time: 9:47 a.m.

6

Federal Bureau of Prisons, )

)

EVIDENTIARY HEARING

7

Defendant.

)

8

____________________________________________________________

9

TRANSCRIPT OF EVIDENTIARY HEARING

10

HELD BEFORE

THE HONORABLE ELLEN SEGAL HUVELLE

11

UNITED STATES DISTRICT JUDGE

12

____________________________________________________________

13 APPEARANCES:
14

15 For the Plaintiff:
16
17
18 For the Defendant:
19
20
21

Mr. Constantinos Panagopoulos Ms. Alli Mollenhauer Ballard Spahr 1909 K Street, NW, 12th Floor Washington, DC 20006
Ms. Tricia D. Francis United State's Attorneys Office Civil Division 555 4th Street, NW Washington, DC 20530

22

Also Present:

23

Ms. Elizabeth E. Gardner, Disability Project

Ms. Deborah Golden, DC Prisoners' Project

24

Mr. Richard Hansford, US DOJ, Federal Bureau of Prisons

25

9/25/12

Case 1:12-cv-01347-ESH Document 25 Filed 11/06/12 Page 2 of 173

2

1 INDEX
2

3

Page

4

RICHARD RAY

5

Direct Examination by Mr. Panagopoulos............. 9

Cross-Examination by Ms. Francis................... 39

6

Redirect Examination by Mr. Panagopoulos........... 55

7

TODD CRAIG

Direct Examination by Mr. Panagopoulos............. 66

8

Cross-Examination by Ms. Francis................... 107

Redirect Examination by Mr. Panagopoulos........... 130

9

Record Made............................................ 140

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

9/25/12

Case 1:12-cv-01347-ESH Document 25 Filed 11/06/12 Page 3 of 173

3

1

THE DEPUTY CLERK: This is Civil Action 12-1347,

2

Larry Berke versus the Federal Bureau of Prisoners.

3

I'm going to ask that counsel come forward,

4

identify themselves for the record. And while they're doing

5

so, we have an interpreter, Mindy Lanie, and she has been

6

sworn, for the record.

7

MR. PANAGOPOULOS: Good morning, Your Honor. Dino

8

Panagopoulos for Mr. Berke. And with me are Alli

9

Mollenhauer, Elaine Gardner and Deborah Golden.

10

THE COURT: Good morning.

11

MS. FRANCIS: Good morning, Your Honor. Tricia

12

Francis here on behalf of the Bureau of Prisons. Along with

13

me is agency counsel Richard Hansford.

14

THE COURT: Okay. Great.

15

Now, how do you want to proceed, just for purposes

16

of organizing us?

17

MR. PANAGOPOULOS: Well, Your Honor, first, I'd

18

like to thank you for agreeing to take this case in this

19

matter and for handling it up to here so quickly. I believe

20

that they're -- based on a declaration that was filed by the

21

Government last night, that there's agreement as to some of

22

the accommodations that are to be provided. We don't

23

consent to the declaration itself, but we can stipulate that

24

that takes care of many of the issues that -- that we were

25

concerned about.

9/25/12

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4

1

THE COURT: Is there some reason not to allow the

2

declaration to be filed?

3

MR. PANAGOPOULOS: Well, Your Honor, the only

4

objection we have to it is that there's a contention in the

5

declaration that it allows the Government to comply with its

6

obligations. We, of course, dispute that. I believe it's

7

paragraph 6 in the declaration. But other than that, we're

8

fine with the declaration itself.

9

There's also just a tiny bit of, you know,

10

wordsmithing that I believe Ms. Francis and I talked about

11

and agreed to last night. And that's that in the paragraph

12

that talks about when interpreters are to be provided, it

13

lists medical, educational and disciplinary. And then

14

there's a phrase that says "and other circumstances as

15

needed." We just wanted to make sure that the "as needed"

16

applied to the other circumstances that interpreters are to

17

be provided in those other -- the first items listed.

18

THE COURT: That's what it says. But they're

19

entitled to file this, if you have substantive objections.

20

But the motion to file is granted.

21

MR. PANAGOPOULOS: Well, Your Honor, the only

22

objection we have is that the declarant is not here and

23

subject to cross-examination, so we can't cross-examine him

24

on that one paragraph.

25

THE COURT: What one paragraph?

9/25/12

Case 1:12-cv-01347-ESH Document 25 Filed 11/06/12 Page 5 of 173

5

1

MR. PANAGOPOULOS: The paragraph number 6, I

2

believe it is.

3

THE COURT: There's nothing to cross-examine. The

4

motion's granted.

5

Okay. Gwen, this is 14-2.

6

Okay. The -- I mean, we're here on one issue and

7

one issue only still.

8

MR. PANAGOPOULOS: We are. And the issue --

9

THE COURT: So it's -- whether he's here or not is

10

not relevant to me.

11

Okay. So how would you like to proceed on that

12

issue, which has to do with whether they're required to

13

provide an accommodation to the plaintiff regarding the

14

videophone system versus whether -- it's ITT?

15

MR. PANAGOPOULOS: TTY.

16

THE COURT: TTY.

17

MR. PANAGOPOULOS: Right.

18

THE COURT: Okay.

19

MR. PANAGOPOULOS: Your Honor, the way we'd like

20

to proceed with that is we have -- we have provided the

21

Court with the deposition of Dr. Cokely. I don't know if

22

Your Honor's had the opportunity to review that yet. But we

23

also have --

24

THE COURT: Did you get a written hard copy of

25

that? Can I see it, please? I read his report. And I have

9/25/12

Case 1:12-cv-01347-ESH Document 25 Filed 11/06/12 Page 6 of 173

6

1

not read his deposition, but my law clerk has.

2

Go ahead.

3

MR. PANAGOPOULOS: We would also call Craig Todd,

4

one of the Government's witnesses, to talk about what the

5

Bureau of Prison has and has not done and the alleged burden

6

in this circumstance.

7

We would then call Richard Ray, our other witness,

8

who will talk about the two technologies, and that involves

9

a short demonstration of the technologies and a very short

10

two-minute video clip that shows the differences between the

11

two technologies. And --

12

THE COURT: I think it would be better for --

13

frankly, for my point of view -- to understand the

14

technologies and then hear from the Bureau of Prisons.

15

MR. PANAGOPOULOS: Okay. We can --

16

THE COURT: Just because -- I read Mr. Ray's

17

report. But the page that's really critical is not entirely

18

understandable without the video, I think.

19

MR. PANAGOPOULOS: We're happy to do it that way

20

if that --

21

THE COURT: Is that all right with you? I'd just

22

like to understand what they're talking about about

23

monitoring and things.

24

Gwen, do you have a stapler?

25

MS. FRANCIS: Yes, Your Honor. Just for the

9/25/12

Case 1:12-cv-01347-ESH Document 25 Filed 11/06/12 Page 7 of 173

7

1

record, I just wanted to lodge an objection as to the use of

2

the video. Mr. Panagopoulos did provide me with a copy of

3

the video last night. I understand that the video depicts a

4

-- it's a two party -- it's a conversation between two

5

parties: One is with the TTY, one is with the videophone.

6

However, I was told that it's actually Mr. Berke himself and

7

his wife.

8

And I do know that one of the issues, at least

9

from the BOP's perspective, is -- I understand it's whether

10

or not the communication will be effective. However, you

11

know, it's up for debate. There were some discussion about

12

whether or not the wife knows how to use the TTY; whether or

13

not, you know, conversation among parties on the TTY is

14

either slow or cumbersome or halting.

15

And, you know, Your Honor, it's our position that

16

this is in a way indirect testimony by Mr. Berke himself,

17

and he's not even here. And so, therefore, we would rather,

18

if there was testimony from this witness, that the witness

19

would be more than able to explain to the Court the

20

different technologies, how they are used, without the use

21

of this specific video.

22

THE COURT: I'll take it for whatever it's worth.

23

I understand what you're saying.

24

Okay. We'll -- the witness can testify? He's

25

going to authenticate the --

9/25/12

Case 1:12-cv-01347-ESH Document 25 Filed 11/06/12 Page 8 of 173

8

1

MS. FRANCIS: And, Your Honor, since I'm

2

accustomed to --

3

THE COURT: Do you have a stapler?

4

Huh?

5

MS. FRANCIS: Since I'm accustomed to dealing with

6

the Court in a criminal context, is there a rule on

7

witnesses that needs to be invoked at this time?

8

THE COURT: If you want to. But who -- well, but

9

not for the experts.

10

MR. PANAGOPOULOS: Not for the experts.

11

THE COURT: You know, experts can sit in --

12

MR. PANAGOPOULOS: It's only Craig Todd.

13

MS. FRANCIS: His name is Todd Craig.

14

MR. PANAGOPOULOS: Todd Craig.

15

THE COURT: He can stay, right? You don't have

16

any objection to --

17

MR. PANAGOPOULOS: I don't have any objection.

18

THE COURT: No, I think that's fine.

19

(Court and Deputy Clerk confer.)

20

(The oath administered to the interpreter.)

21

THE COURT: Right up here.

22

RICHARD RAY,

23

after having been first duly

24

sworn upon oath, was examined

25

and testified as follows:

9/25/12

Case 1:12-cv-01347-ESH Document 25 Filed 11/06/12 Page 9 of 173

9

1

DIRECT EXAMINATION

2

BY MR. PANAGOPOULOS:

3

Q. Good morning, Mr. Ray.

4

A. Good morning.

5

Q. Would you please state your full name for the record.

6

A. Richard Ray.

7

Q. And your address, please, sir?

8

THE COURT: We don't think he needs to put -- his

9

business address, please.

10

BY MR. PANAGOPOULOS:

11

Q. Your business address, please.

12

THE INTERPRETER: Your Honor, may the interpreter

13

ask for a repetition?

14

THE COURT: Sure.

15

THE WITNESS: 201 North Figueroa Street, Suite

16

100, Los Angeles, California 90012.

17

BY MR. PANAGOPOULOS:

18

Q. And, Mr. Ray, could you briefly describe for the Court

19

your educational background?

20

THE COURT: He can put into evidence, unless the

21

Government objects, his report and his curriculum vitae.

22

MS. FRANCIS: No objection.

23

BY MR. PANAGOPOULOS:

24

Q. All right. Mr. Ray, I'm going to hand you and put into

25

evidence your report and curriculum vitae.

9/25/12

Case 1:12-cv-01347-ESH Document 25 Filed 11/06/12 Page 10 of 173

10

1

Does your curriculum vitae correctly describe your

2

professional experience and educational experience?

3

A. Yes, it does.

4

MR. PANAGOPOULOS: Your Honor, I'm happy to go

5

through it in more detail, unless the Court would be willing

6

to rely on the CV.

7

THE COURT: No, not necessary. What's the exhibit

8

number?

9

MR. PANAGOPOULOS: Exhibit No. 1. Plaintiff's

10

Exhibit No. 1.

11

THE COURT: You have no objection, Ms. Francis?

12

MS. FRANCIS: No objection.

13

THE COURT: 1 is admitted for the plaintiff.

14

MR. PANAGOPOULOS: Thank you, Your Honor.

15

(Plaintiff's Exhibit 1 received in evidence.)

16

BY MR. PANAGOPOULOS:

17

Q. Could you please tell us what your current job is?

18

A. I am an Americans With Disabilities Act compliance

19

coordinator for the City of Los Angeles, the Department of

20

Americans With Disabilities -- excuse me -- the Department

21

of -- on Disability.

22

Q. Okay. And what are your duties and responsibilities in

23

that position, sir?

24

A. I work with all departments in the City of Los Angeles

25

to ensure that their programs and services are fully

9/25/12

Case 1:12-cv-01347-ESH Document 25 Filed 11/06/12 Page 11 of 173

11

1

accessible, and I specifically work with programs and

2

people, individuals, who are deaf, deaf-blind or hard of

3

hearing.

4

Q. Do you deal with issues under the Rehabilitation Act in

5

addition to the ADA?

6

A. Yes, I do.

7

Q. Do you hold any other positions or responsibilities?

8

THE INTERPRETER: Your Honor, the interpreter

9

would ask for a repetition of the name that was just

10

finger-spelled.

11

THE COURT: Sure.

12

THE WITNESS: Outside of my work, I was also

13

appointed by the Federal Communications Commission as -- by

14

Director Genachowski. And codirector for Emergency Access

15

Advisory council.

16

THE INTERPRETER: The interpreter needs to

17

correct. Not "council" but "Committee."

18

THE WITNESS: And also for the record, for the

19

National Advisory Committee for NENA, the National Emergency

20

Number Association. And I am the accessibility director for

21

NENA.

22

I'm also involved with the National Preparedness

23

Emergency Response and Research Center with UC Berkeley,

24

University of California in Berkeley. And that was funded

25

by the National Center for Disease Control.

9/25/12

Case 1:12-cv-01347-ESH Document 25 Filed 11/06/12 Page 12 of 173

12

1

BY MR. PANAGOPOULOS:

2

Q. And in your -- whether in your position or some of these

3

other responsibilities that you have described, have you had

4

the opportunity to evaluate telecommunications equipment for

5

people who are deaf or hard of hearing?

6

A. Yes, I have.

7

Q. Approximately how much of your job involves analyzing

8

those issues, sir?

9

A. Ninety percent of my job focuses on communications

10

technology and emergency technology.

11

Q. And have you ever been asked to render on expert opinion

12

as to those issues before this case, sir?

13

A. Yes.

14

Q. Approximately how many times?

15

A. Two times.

16

Q. And have you testified as an expert in those cases?

17

A. Yes, I have.

18

Q. Okay. Have you asked -- have you been asked to render

19

an expert opinion in this case relating to Mr. Berke?

20

A. Yes.

21

MR. PANAGOPOULOS: Your Honor, before proceeding

22

with this part of his testimony, we'd like to offer

23

Mr. Berke as an expert on telecommunication devices for

24

individuals who are deaf and hard of hearing.

25

THE COURT: Any objection?

9/25/12

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13

1

MS. FRANCIS: No objection. I just want to note

2

for the record counsel referred to it as "Mr. Berke."

3

MR. PANAGOPOULOS: I'm sorry. Mr. Ray. My

4

apologies.

5

THE COURT: Okay. He'll be accepted.

6

MR. PANAGOPOULOS: Thank you, Your Honor.

7

BY MR. PANAGOPOULOS:

8

Q. What documents have you reviewed in rendering your

9

opinion in this case, sir?

10

A. I reviewed Mr. Berke's complaint and I developed a

11

report based on Mr. Berke's complaint.

12

Q. Okay. Did you also review the various types of

13

technologies that are available?

14

A. Yes.

15

Q. And do you have an opinion as to the telecommunications

16

equipment that should be provided to Mr. Berke to allow him

17

to communicate effectively while in Bureau of Prisons'

18

custody?

19

A. Yes, I do.

20

Q. Could you please tell the Court what telecommunications

21

equipment you believe Mr. Berke should be provided.

22

A. Videophone technology, VRI, VRS, a visual paging system,

23

and a visual alarm.

24

Q. Mr. Ray, we're going to focus on the first three items

25

you mentioned, the videophone, the VRI and the VRS, because

9/25/12

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14

1

the visual paging and visual alarm are issues that have been

2

resolved in this case.

3

Could you please describe to the Court what a

4

videophone is and how it works.

5

A. A videophone is a piece of technology that allows deaf

6

or hard of hearing people to see each other on a screen.

7

That equipment allows us to see each other, and we use

8

American Sign Language as our primary mode of communication.

9

And I actually do have that equipment with me.

10

Q. Okay. Could you please show that equipment to the

11

Court.

12

A. This is actually the video camera. That would sit on

13

top of a television monitor. And this is the special unit

14

box that has -- it has an ethernet cable connected to the

15

unit box and another cable --

16

THE INTERPRETER: Your Honor, the interpreter

17

would like to ask for repetition. He was signing while I

18

was putting on my microphone.

19

THE WITNESS: On one side there's the ethernet

20

cable, and on the other side of the unit there is a cable

21

that is an adapter for electrical power. And on the back of

22

the unit there are also audio and visual out jacks. Those

23

can be connected to a DVD player for downloading purposes or

24

for recording purposes.

25

BY MR. PANAGOPOULOS:

9/25/12

Case 1:12-cv-01347-ESH Document 25 Filed 11/06/12 Page 15 of 173

15

1

Q. Okay. You also mentioned a VRI. What is a VRI, sir?

2

A. VRI is video remote interpreting services. So suppose

3

that I as a deaf person were in a room with a hearing person

4

and there was no interpreter physically in the room with us

5

or available, we could connect to a video remote

6

interpreting service, and it would be using the same

7

equipment that I've just explained to the Court, to have an

8

interpreter who is in another area, remotely, on the screen,

9

and that person would facilitate communication between

10

myself and the hearing person in the room. So I would be

11

using sign language, the interpreter would interpret that

12

into spoken language, and vice versa.

13

Q. And you also mentioned VRS. What is VRS?

14

A. VRS is video relay service. That would be -- suppose

15

that I wanted to contact someone who didn't have the

16

equipment that I described for the Court, a hearing person

17

who didn't have this equipment. I would contact a video

18

relay interpreting center, and on my screen I would see an

19

interpreter. I would let the interpreter know whom I wanted

20

to call, and the interpreter would connect to the hearing

21

person and then they would interpret the conversation.

22

Q. Okay. And --

23

THE INTERPRETER: The interpreter -- Your Honor,

24

the interpreter needs to finish the interpretation.

25

THE WITNESS: That person may be at home or at

9/25/12

Case 1:12-cv-01347-ESH Document 25 Filed 11/06/12 Page 16 of 173

16

1

work. The person could be anywhere outside of the building.

2

THE COURT: Which person? The interpreter or --

3

THE INTERPRETER: The hearing person would be

4

outside of the building. It would not be two people in the

5

same room.

6

BY MR. PANAGOPOULOS:

7

Q. And, Mr. Ray, I believe you've already said this, but do

8

all three technologies use the exact same equipment?

9

A. Yes, they do.

10

Q. So if the Government has already agreed to provide a VRI

11

system for communication, that same system could be used to

12

provide videophone services?

13

MS. FRANCIS: Objection. It calls for

14

speculation.

15

THE COURT: No. Is it not factually accurate?

16

MS. FRANCIS: Yes and no.

17

THE COURT: Well, what do you disagree with with

18

respect to his premise? Has the Government agreed to

19

provide the VRI system?

20

MS. FRANCIS: Yes, we have.

21

THE COURT: All right. So he wants to know

22

whether the same equipment could be used.

23

MS. FRANCIS: Fair enough.

24

THE WITNESS: Yes, that equipment can be used for

25

both VRS and VRI.

9/25/12

Case 1:12-cv-01347-ESH Document 25 Filed 11/06/12 Page 17 of 173

17

1

THE COURT: And what equipment are we talking

2

about?

3

THE WITNESS: Your Honor, the equipment that I

4

have here with me, this particular device is called a

5

Sorenson notch (sic).

6

THE COURT: It's called the what?

7

THE INTERPRETER: Sorenson notch (sic).

8

THE WITNESS: And it can be used for VRS, for VRI,

9

and for point-to-point communication.

10

THE COURT: And they are both connected to the

11

internet?

12

THE WITNESS: Yes.

13

BY MR. PANAGOPOULOS:

14

Q. Now, Mr. Ray, when you say they're both connected to the

15

internet, does that simply mean that they use a DSL line in

16

order to transmit their communication?

17

A. This actually uses a connection to DSL. And -- so this

18

unit is connected directly to DSL but is not connected to

19

the general internet. It is -- the equipment is specific to

20

that usage of VRS, VRI. It is not connected to the general

21

internet.

22

Q. So, for example, would a prisoner using that system as a

23

videophone be allowed to access the internet through that

24

equipment?

25

A. You cannot do that. You cannot use this equipment to

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18

1

access or navigate websites. It is not intended for that

2

purpose. It's not built for that purpose. It is a

3

standalone unit that is specifically made and transmits only

4

for the purposes of the video, VRS or VRI, and

5

point-to-point.

6

Q. And do you know what the approximate cost of that unit

7

is, sir?

8

A. It's about $99. However, if you sign up for service

9

through the provider, Sorenson, then it's free. The unit is

10

free.

11

THE COURT: Well, what is -- how does Sorenson get

12

paid? What do they get paid for?

13

THE WITNESS: They actually receive funding from

14

the Federal Communications Commission, the FCC. There is a

15

fund called NECA, the National Exchange Carrier Association,

16

and that particular fund is what provides payment to -- to

17

companies that are providing services. They get paid based

18

on the minutes of service provided.

19

THE COURT: So you pay Sorenson for the minutes

20

used?

21

THE WITNESS: No. The service is free to whoever

22

is using the unit.

23

THE COURT: So somebody could talk on that service

24

for an hour and it wouldn't cost anybody anything?

25

THE WITNESS: That's correct, Your Honor. They

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19

1

would not be charged for that.

2

BY MR. PANAGOPOULOS:

3

Q. Is the Sorenson the only model of videophone that's

4

available out there?

5

A. No.

6

Q. What other solutions are there other than a hard unit

7

like that?

8

A. There's a Sorenson VP200, a ZVRS150, a Z20, Z340. And

9

there are also apps. There's Purple 3, Z4. And there are

10

actually several providers and several different pieces of

11

equipment that can be used.

12

Q. Okay. I'd like to hand you what was previously

13

marked --

14

MR. PANAGOPOULOS: Well, Your Honor, actually I'd

15

like to submit into evidence the videophone equipment

16

that -- that's there.

17

THE COURT: Any objection?

18

MS. FRANCIS: No objection, Your Honor.

19

THE COURT: Okay. Exhibit 2 is admitted.

20

(Plaintiff's Exhibit 2 received in evidence.)

21

MS. FRANCIS: If I could see what counsel is

22

handing the witness.

23

MR. PANAGOPOULOS: I will give you your copy, yes.

24

You've seen it before in the deposition.

25

(NOTE: Mr. Panagopoulos handing document to

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20

1

Ms. Francis.)

2

BY MR. PANAGOPOULOS:

3

Q. Mr. Ray, I've handed you what's been marked as Exhibit

4

No. 3. Could you identify that document for the record,

5

please?

6

A. It's entitled "Use Your Z4 App."

7

Q. Okay. And is this an application that can be downloaded

8

onto any computer system to allow for videophone service?

9

A. Yes.

10

Q. You explained to the Court one of the ways that

11

Exhibit 2 could be recorded. Can the Z4 also be recorded?

12

A. Yes.

13

Q. Okay. I'd like to turn your attention to pages 15

14

through 18 of the manual. Does that describe how the Z4 can

15

be recorded as well?

16

A. Yes.

17

MR. PANAGOPOULOS: Your Honor, I'd like to move

18

for the admission of Exhibit 3.

19

MS. FRANCIS: No objection.

20

THE COURT: Okay. So it is recording the images

21

of the people.

22

(Plaintiff's Exhibit 3 admitted into evidence.)

23

MR. PANAGOPOULOS: It is, Your Honor.

24

THE COURT: And where -- where is the recording

25

being stored?

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1

THE WITNESS: There are several ways to store that

2

information. There are four columns when you look at the

3

app. The application. Phone number, date, time. And when

4

you are finished with the conversation, you can export that

5

to be copied onto a DVD. Or it can be put onto a thumb

6

drive and can be transferred to another location as you

7

desire. And with the thumb drive, if that information is

8

exported to another location, it can be stored on their

9

system.

10

BY MR. PANAGOPOULOS:

11

Q. And approximately how much does an application like the

12

Z4 cost?

13

A. It's free.

14

Q. How much do calls on the Z4 cost?

15

A. They're free.

16

Q. Okay. Is any call made through a videophone, a VRI or

17

VRS essentially free?

18

A. VRI is actually a service that you would pay for. And I

19

believe that it is in the vicinity of $3.95 per minute.

20

However, point-to-point and VRS are both free.

21

Q. Okay. So --

22

THE COURT: And -- I have a question. If it is

23

being recorded, who has access to deleting the recording?

24

THE WITNESS: I imagine DOP (sic) staff.

25

THE COURT: Well, how does the equipment -- can

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1

the person who's using it delete the call? Or delete the

2

recording of the call?

3

THE WITNESS: They could. However, if there was a

4

person from DOP (sic), a DOP staff person there monitoring

5

the call, then they could ensure that the call was not

6

deleted.

7

BY MR. PANAGOPOULOS:

8

Q. Could the computer also be set up with administrative

9

rights to require a password before a call is deleted?

10

A. Yes.

11

Q. So there are protections that could be put in place to

12

prohibit deletion?

13

A. Yes.

14

Q. So the only service that costs any money is the VRI,

15

which the Government has agreed to provide. The other two

16

services do not cost anything.

17

THE COURT: Other two? What's two?

18

MR. PANAGOPOULOS: Videophone and the video relay

19

service, Your Honor.

20

THE COURT: Well, when you draw a distinction, the

21

videophone and video relay --

22

MR. PANAGOPOULOS: The distinction, Your Honor, is

23

the videophone is point-to-point communication, two people

24

seeing each other on the screen and communicating. Video

25

relay is what happens when you have one person on the

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1

computer screen and the other person on a traditional

2

telephone. So, for example, if I called in Mr. Ray, we

3

would do the call through a video relay service. The

4

interpreter would sign to Mr. Ray in ASL, and he would in

5

turn sign to me, and the interpreter would tell me what he

6

said.

7

THE COURT: And do these phones require land

8

lines?

9

THE WITNESS: You could use a land line, but you

10

can also connect via modem. So a modem can be connected to

11

that line.

12

THE COURT: But what if it's video relay and the

13

other person's on a phone or on a computer?

14

THE INTERPRETER: Your Honor, the interpreter

15

needs clarification. When you say "the other person," do

16

you mean the hearing person or the deaf person?

17

THE COURT: Yeah, the hearing person. The one

18

just described by counsel.

19

THE INTERPRETER: Your Honor, I apologize. I'm

20

not sure that I clearly understand your question.

21

MR. PANAGOPOULOS: Your Honor, if I could clarify,

22

and perhaps Mr. Ray could tell me if I'm -- if I'm wrong.

23

With the video relay service, any person can use

24

any telephone to pick up and call an interpreter. And --

25

and then that interpreter is on a computer screen or

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1

videophone screen with the person who is deaf or hard of

2

hearing and they are signing. Consider it, you know, the

3

videophone that has been described with one of the people on

4

the telephone as well telling someone who's hearing what's

5

happening. So it would be like our interpreter here

6

translating to me on a phone, if I'm in another room.

7

That's the only difference.

8

THE COURT: And the point-to-point requires both

9

people on both ends to have the same equipment.

10

THE WITNESS: Similar equipment. I could use the

11

Sorenson notch (sic), and the other person could be using

12

the Z4 or the Z150, depending on what it is that they want.

13

But the communication would still be completely available

14

regardless of the fact that we have different providers.

15

THE COURT: And so his family in Arizona live

16

where again?

17

MR. PANAGOPOULOS: His family is in the Phoenix

18

area, Your Honor.

19

THE COURT: And they have what equipment?

20

MR. PANAGOPOULOS: Your Honor, they have a

21

videophone.

22

THE COURT: And that's what portion of the family?

23

That's the wife and who else?

24

MR. PANAGOPOULOS: That is the wife and the

25

daughter, but there are also other family members in other

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1

parts of the country who -- there's a brother in Washington,

2

D.C., who is also deaf. And they communicate -- Mr. Berke

3

and his brother communicate on a weekly basis. They have a

4

real estate business together in the Washington, D.C. area.

5

He -- his ex-wife is ill and dying of cancer in

6

California. One of his other sons is there taking care of

7

her.

8

THE COURT: How many are under court supervision?

9

MR. PANAGOPOULOS: Your Honor, I believe that it's

10

only -- only the wife is under court supervision.

11

THE COURT: Not the son?

12

MR. PANAGOPOULOS: I don't believe so.

13

THE COURT: And the distance between their home in

14

Phoenix and the Tucson facility?

15

MR. PANAGOPOULOS: I believe it's approximately

16

two hours.

17

BY MR. PANAGOPOULOS:

18

Q. Mr. Ray, could you describe for the Court what the BOP

19

would have to do to set up a videophone or -- or VRI?

20

A. My understanding is that they would have to install a

21

DSL line and then connect the video equipment to that DSL

22

line. And then they would just use that equipment for

23

point-to-point or VRS or even VRI.

24

Q. Okay. Mr. Ray, the BOP has agreed to provide Mr. Berke

25

with a TTY. Are you familiar with the TTY?

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1

A. Yes, I am.

2

Q. Is there a TTY on the stand there in front of you?

3

A. Yes.

4

Q. Could you please show that piece of equipment to the

5

Court.

6

A. (Witness complying.)

7

MR. PANAGOPOULOS: Your Honor, I move for the

8

admission of TTY as Exhibit --

9

THE COURT: This is Exhibit what? 3 or 4?

10

MR. PANAGOPOULOS: -- No. 4.

11

THE COURT: 4? Any objection?

12

MS. FRANCIS: No objection.

13

THE COURT: Okay. When was that made? Exhibit 4

14

is admitted.

15

(Plaintiff's Exhibit 4 received in evidence.)

16

BY MR. PANAGOPOULOS:

17

Q. Could you describe for the Court how the TTY works?

18

A. Yes. Do you want me to put it up on -- yes?

19

(Pause.)

20

A. This device is approximately 60 years old. And it's

21

very rare to have that used at this point in time by deaf

22

and hard of hearing people.

23

Basically, you would take the phone receiver, the

24

handset, and put it on the coupling here (indicating). And

25

all of the signals that you're hearing will be transmitted

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1

to another TTY, and that is through a phone land line. So

2

the other person is required to also have a TTY in order for

3

communication to happen between two people.

4

So the chirping noises that you're hearing, that's

5

called a baud, and that is the transmission through the

6

phone line of the information. And with this device you can

7

type 33 to 40 words per minute. It's definitely not a fast

8

way of communication. And it's based on the limitations of

9

the technology.

10

Q. So is it fair then that no matter how fast you type, the

11

TTY will transmit at that slower speed?

12

A. That's correct.

13

Q. So if you typed on that device right now, would we then

14

be able to hear the chirping as it sends whatever you're

15

typing?

16

A. Yes.

17

Q. Would you do just a brief demonstration? Type a

18

sentence or two.

19

A. (Witness complying.)

20

Q. So the device continues to transmit long after you're

21

done typing.

22

A. Yes.

23

Q. Thank you. You can turn that off if you like.

24

THE COURT: Where's the -- do you see a written

25

product somewhere?

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1

THE WITNESS: Yes, Your Honor.

2

THE COURT: Okay. So we'll mark this as

3

Exhibit 5. This is what he typed. This is Richard Ray and

4

him doing a demonstration on -- I don't know what the last

5

two words are, but -- okay.

6

Here, Gwen, if you don't mind, if you'd show this

7

to counsel.

8

Okay. That's Exhibit 6?

9

THE DEPUTY CLERK: 5.

10

THE COURT: 5? Oh, yeah. 5. Okay.

11

(NOTE: Mr. Panagopoulos showing exhibit to

12

Ms. Francis.)

13

BY MR. PANAGOPOULOS:

14

Q. Other than the speed, are there any problems with using

15

TTY as a communication device, sir?

16

A. So there is a limitation on like the number of

17

characters, and the text that is outgoing is capitalized and

18

the text that is coming in is lower case. And you don't see

19

emotion. It's very flat, and people typically because of

20

that will keep the conversation short and to the point, and

21

not have extended communication or communication that would

22

require anything other than, you know, the time to meet or

23

-- you know, and then when people are face to face, then

24

they will sign to each other.

25

THE COURT: What's the difference between this and

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1

just doing email? Assuming the person can read English and

2

type it.

3

THE WITNESS: Well, email is quicker. And you can

4

text -- email or text, so that's much quicker. With a TTY

5

there's no opportunity for overlapping or interrupting.

6

With an IM, an instant message, you can interrupt and the

7

conversation is much more fluid because of that. With a

8

TTY, though, you cannot interrupt. If the person tries to

9

interrupt while a message is coming in, then everything

10

becomes garbled and jumbled. And that's part of the reason

11

why we don't use TTYs very much anymore, other than just

12

very basic communication, say, setting a time of a meeting.

13

THE COURT: So you can use a computer and AOL or

14

Gmail -- you can use email on a computer to accomplish the

15

same thing, as far as I understand. Only better.

16

THE WITNESS: Well, most people do prefer to use

17

the videophones for conversations and communications.

18

THE COURT: I understand that. That's not my

19

question. I'm saying that you can use Gmail or AOL better

20

than the TTY.

21

THE WITNESS: Well, I don't know that the BOP uses

22

email. That might be prevented in their system. I don't

23

know. For Gmail, AOL, IMs, I'm not sure. I believe that

24

they're -- what they have is very limited.

25

MR. PANAGOPOULOS: Your Honor, I will proffer that

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1

you will hear through Mr. Craig that email is sequestered

2

and quarantined, so that there could be -- it wouldn't be

3

uncommon to have a 48-hour lag between the time one email is

4

sent, quarantined, reviewed by the BOP, sent to the

5

prisoner, and then the same 24-hour lag outgoing. So -- and

6

that will come in through -- I'm just giving the Court a

7

brief proffer since you've asked that question.

8

THE COURT: Okay.

9

BY MR. PANAGOPOULOS:

10

Q. Mr. Ray, we've set up a very brief video demonstration

11

to compare communication with the TTY with communication by

12

a videophone. The screen in front of you should show that

13

video shortly.

14

Could you please walk us through the video and

15

explain what we are seeing as it's going?

16

A. Yes.

17

(NOTE: Video recording being played.)

18

A. This shows someone calling in. And the woman is

19

explaining to the little girl. The mom's asking questions

20

to the girl. And she's explaining what the TTY is saying.

21

She's saying: "Who."

22

And you'll notice that a lot of time is spent

23

trying to communicate with the little girl, talking about

24

what the person on the phone is saying. So a lot of time is

25

spent on that explanation. The woman is saying: "What do

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1

you want me to tell him?" So the woman here is facilitating

2

communication between the adult on the other line and the

3

little girl.

4

Q. Okay. And is that typical of how a TTY conversation

5

would go?

6

A. Yes.

7

Q. Are the conversations in your experience typically so

8

short and stilted?

9

A. Yes. Very short. Very short and to the point.

10

Q. The next clip shows the use of a videophone. I'd like

11

you to walk us through that next.

12

A. Sure.

13

(NOTE: Video recording being played.)

14

A. You'll notice that the little girl is using the remote.

15

MR. PANAGOPOULOS: That's the voice of the

16

interpreter, Your Honor.

17

A. You'll notice that the little girl is able to

18

communicate with the man on the screen, and the mother, the

19

woman, doesn't have to sign to facilitate communication.

20

The little girl and the man on the screen are able to have

21

direct communication.

22

Q. What type of videophone solution was being used in this

23

case, do you know?

24

A. That was the Sorenson notch (sic).

25

THE INTERPRETER: Your Honor, the interpreter

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32

1

would like to ask for clarification on the unit name.

2

The interpreter needs to make a correction for the

3

record. It's the N, as in the letter N, and then the word

4

"touch." The ntouch, which is a Sorenson unit.

5

MR. PANAGOPOULOS: Thank you.

6

BY MR. PANAGOPOULOS:

7

Q. And --

8

THE COURT: Did you mark the video?

9

MR. PANAGOPOULOS: Yes, Your Honor. We'd like to

10

mark the video as I believe it's Exhibit 6.

11

THE COURT: Gwen, 6 or 7? What number are we on?

12

THE DEPUTY CLERK: 6.

13

THE COURT: Any objection?

14

MS. FRANCIS: No objection, Your Honor.

15

THE COURT: Okay.

16

(Plaintiff's Exhibit 6 admitted into evidence.)

17

BY MR. PANAGOPOULOS:

18

Q. Now, you've I believe described for the Court a couple

19

of the ways that these videophone conversations can be

20

recorded. Are there other ways that -- that these

21

conversations could be recorded, as well?

22

A. Yes. There are several ways, actually, to be able to

23

record them. Like how we just saw on the video. That could

24

be -- that's one way that could be done. It could be

25

recorded in that way.

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33

1

And there are three more basic ways. With the

2

videophone unit that we have here, there are video and audio

3

outputs that could be connected to a DVD player and recorded

4

to a DVD, which could be, you know, kept as storage and

5

could be played at some later point.

6

And as I mentioned earlier, with the Z4 app, it

7

could be recorded through the actual application, as I

8

mentioned earlier. And as I said, there are several ways

9

that that could happen.

10

Q. In your view, how effective is videophone communication

11

as -- for people who are deaf as compared to a telephone for

12

people who are not deaf?

13

A. Can you repeat the question?

14

Q. Certainly. How effective for communication purposes is

15

a videophone for people who are deaf compared to how

16

effective a telephone is for people who are not deaf?

17

A. I would say that they are the same. Because with a

18

videophone you can see the person's signs, you can see their

19

facial expression and their body language. Because that's

20

what we depend on. That's the tone of voice. The

21

equivalent of that is the facial expression. We can -- the

22

speed is the same, so it would be the same as a hearing

23

person talking on the phone and hearing the other person on

24

the line's tone of voice.

25

Q. Earlier when you talked about the TTY, you said you

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34

1

can't hear emotion, that it's flat. Is that what you mean,

2

that you can't hear tone of voice and it impedes

3

communication?

4

A. Yes, that is correct.

5

THE COURT: Arguably it's better, because if

6

you're on a phone you don't see the person. I mean, it's

7

not the same as phone communication. It's like video

8

conferencing.

9

MR. PANAGOPOULOS: Your Honor, I guess our

10

position is that because signing is part of the language and

11

part of the --

12

THE COURT: I understand.

13

MR. PANAGOPOULOS: -- tone of voice, for someone

14

who is deaf it is the same.

15

BY MR. PANAGOPOULOS:

16

Q. Mr. Ray, what about TTY? Is TTY as effective a method

17

of communication for people who are deaf as a telephone is

18

for people who are not deaf?

19

A. No. The -- the disparity is quite marked. The speed of

20

spoken language is three to four times faster than what a

21

TTY can handle, so most definitely not effective. And

22

communication is very, very slow.

23

And as I said, there are no markers for emotion,

24

so you cannot tell what the emotion of the person is just

25

from seeing that on the TTY. So those two technologies are

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35

1

very, very different.

2

Q. What about the language itself? Is ASL equivalent to

3

the English language?

4

MS. FRANCIS: Objection, Your Honor.

5

THE COURT: Why?

6

MS. FRANCIS: Well, based on the advanced

7

knowledge -- the basis of -- this witness has been offered

8

as an expert on the issue of technology. Whether or not

9

this witness can testify whether a person can communicate in

10

ASL -- I'm hoping I'm not misunderstanding counsel's

11

question -- and English, the effectiveness of both

12

languages, that would be --

13

THE COURT: I don't think that's the question.

14

Let's hear the answer. I think the question has to do with

15

whether this is the language.

16

Go ahead.

17

THE WITNESS: Well, American Sign Language is my

18

natural language and it's the language that I've been using

19

ever since I started learning language. It is a visual

20

language. There's structure and grammar. So it would not

21

be necessarily the same as English.

22

So there are some things that there are no sign

23

equivalents for, no sign-to-English word equivalents. This

24

particular phrase that I've just signed in ASL uses the

25

signs for "train go very fast." Those are the actual signs

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36

1

that are used. But it means that I lost my train of

2

thought. But the sign that's are used are "train go very

3

fast." So there are some things that there's no equivalent

4

for between the two languages.

5

So it's not just the grammar. But we also rely on

6

visual cues, such as this particular sign for "want." If I

7

raise my eyebrows with that sign, the implication is a

8

question. If I furrow my brow when I use that particular

9

sign and I flip the sign from palms facing up to palms

10

facing down, the implication is you don't want. That is the

11

meaning of that is that you don't want. So the brow up and

12

the brow down have two different meanings.

13

So when I give training for our 911 operators for

14

how to read sentences from the TTY -- because the people who

15

are calling in using the TTY, they're using -- their natural

16

language is ASL, but they're calling in through the TTY

17

system. So they might say -- "Blood, blood, blood" might be

18

what the 911 operator sees on the TTY. What they mean is

19

that someone is bleeding. Because the sign itself is the

20

sign for "blood," and repeatedly. So the sign for "blood"

21

signed repeatedly two or three times is the English

22

equivalent of the word "bleeding."

23

THE COURT: I thought on the TTY the person was

24

typing in words.

25

THE WITNESS: That's correct. So when a person is

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1

typing, depending on their language and their skills with

2

language, what a person -- what the operator sees on the TTY

3

may not be equivalent to English.

4

MR. PANAGOPOULOS: Your Honor, in other words,

5

someone who is fluent in the English language using a TTY

6

would type in: "I am bleeding."

7

THE COURT: Right.

8

MR. PANAGOPOULOS: Someone who is not fluent would

9

type: "Blood, blood, blood," and the 911 operator would

10

have to be able to interpret it, and that's one of the

11

things that Mr. Ray trains people on is interpreting what

12

people mean because of the gap in communication.

13

THE COURT: But do we -- do we know how fluent the

14

plaintiff is in English?

15

MR. PANAGOPOULOS: Your Honor, I know that the

16

plaintiff speaks English, but I also know that his primary

17

language is American Sign Language. His daughter, the

18

four-year-old that we saw on the video, her primary language

19

is American Sign Language. It's the same with the rest of

20

his children and with others that he would communicate with.

21

So it's not simply, you know, his use of the

22

language that is important here; it's -- it's the people

23

that he would be communicating with, as well. And they're

24

at all different levels, and using a TTY would obviously

25

impede that communication.

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1

THE COURT: And so that's his granddaughter and

2

his daughter?

3

MR. PANAGOPOULOS: That was his daughter and his

4

wife on the -- on the screen.

5

THE COURT: The little child is his daughter?

6

MR. PANAGOPOULOS: The little child is his

7

four-year-old daughter.

8

THE COURT: And that's his wife?

9

MR. PANAGOPOULOS: And that's his wife.

10

THE COURT: And -- but she can speak.

11

MR. PANAGOPOULOS: I believe that she's -- she

12

can't. She's also deaf and ASL is her primary language.

13

The voice you heard in the video was the voice of an

14

interpreter who was there.

15

THE COURT: Okay.

16

MR. PANAGOPOULOS: Your Honor, I believe with

17

that, that I am finished with the direct examination of

18

Mr. Ray, unless the Court has any other questions.

19

THE COURT: How old's the plaintiff?

20

MR. PANAGOPOULOS: The plaintiff is -- I believe

21

he's -- in his 50s? I believe he's in his 50s, Your Honor.

22

47? 47.

23

MS. FRANCIS: Your Honor, in the presentence

24

report I put him as late 40s, early 50s.

25

THE COURT: Well -- okay. There should be a date

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1

of birth.

2

Do you have the PSI?

3

MS. FRANCIS: Unfortunately, Your Honor, I don't

4

have the PSI with me. It's 83 pages long.

5

THE COURT: Any questions, Ms. Francis?

6

CROSS-EXAMINATION

7

BY MS. FRANCIS:

8

Q. Good morning, Mr. Ray.

9

A. Good morning.

10

Q. I'm going to ask a few questions about some points you

11

raised in your testimony.

12

Mr. Ray, is it fair to say that at this time TTY

13

technology is still available, correct?

14

A. Yes. It is still available but it's diminishing.

15

Q. Okay. But at the very least, it is still available.

16

A. Yes.

17

Q. And from your experience -- if you can please remind me.

18

You work for the City of Los Angeles?

19

A. Yes.

20

Q. Okay. And you're familiar that there are government

21

entities that still make the TTY system available to the

22

public?

23

A. Yes.

24

Q. Okay. So the use of the videophone technology is not

25

the only technologies that are available to those who are

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1

deaf or hearing impaired.

2

A. Well, most individuals do use the videophone technology.

3

The use of the TTY, as I said, is diminishing greatly.

4

Perhaps people who are deaf and blind are still relying on

5

that -- on the TTY technology as an accommodation. But

6

generally speaking, most people are using the videophone.

7

Q. Okay. But just to be clear, but there are those who can

8

still use the TTY technology.

9

MR. PANAGOPOULOS: Your Honor, objection as to the

10

relevance. The issue isn't whether or not TTY is still

11

available. We showed a 60-year-old machine up there, so

12

it's still available. The issue is effectiveness.

13

THE COURT: I don't think, frankly -- and I wish

14

everybody would focus on it -- that's not the issue either.

15

The issue is whether or not the Bureau of Prisons has any

16

legitimate penologically -- penological issues that would

17

preclude the use of this.

18

MS. FRANCIS: And, Your Honor, I will be getting

19

to that.

20

THE COURT: Yes.

21

MS. FRANCIS: But just -- just to put on the

22

record, the basis of these questions is to show that the

23

existence of this technology --

24

THE COURT: It's undisputed.

25

MS. FRANCIS: -- is it's still -- it's not totally

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1

ineffective.

2

THE COURT: Well, that's -- it exists. It's

3

available. It was used. I don't know whether you call it

4

totally ineffective or not. But I -- I don't think you can

5

quibble with the fact that the other technology is better in

6

some fashion. The question is, is it -- should be put into

7

the system in Tucson.

8

Okay. Let's go ahead.

9

MS. FRANCIS: Thank you, Your Honor.

10

BY MS. FRANCIS:

11

Q. Mr. Ray, have you any experience with the -- well, let

12

me start back.

13

So just to be clear, you're stating that the

14

videophone -- the TTY system is not as effective as the

15

videophone system, correct?

16

A. That's correct. The TTY system is not as effective as

17

the videophone system.

18

Q. And the reason you're saying this is because it's slow?

19

MR. PANAGOPOULOS: Objection. Mischaracterizes

20

his testimony.

21

THE COURT: No, it doesn't. Overruled. I think

22

he's testified to this, but --

23

THE WITNESS: It is slow.

24

BY MS. FRANCIS:

25

Q. Okay. And it doesn't reflect each person's tone of

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1

voice as they're using it?

2

A. That's correct.

3

Q. And that it causes conversation to be short and to the

4

point?

5

A. Yes.

6

Q. And are you -- and are you aware that within -- in the

7

BOP correctional facility that inmates' calls are limited in

8

the time duration?

9

A. Yes.

10

Q. Okay. And so a conversation that is short and to the

11

point would be in line with that BOP policy, correct?

12

THE COURT: What's the policy in this facility?

13

THE WITNESS: No.

14

THE COURT: I'm sorry. Did he answer?

15

THE INTERPRETER: He did.

16

THE COURT: What did he --

17

THE INTERPRETER: He said, "No."

18

BY MS. FRANCIS:

19

Q. Are you familiar with -- are you aware of any cases

20

where a TTY phone system was found to be ineffective?

21

THE COURT: Like what? Who? A court?

22

MS. FRANCIS: By a court.

23

MR. PANAGOPOULOS: Objection, Your Honor. Legal

24

research is not his area of expertise.

25

THE COURT: Right. I don't know if he can

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1

answer -- I don't know that the word I'm looking for is

2

"effective" or "ineffective," but --

3

MS. FRANCIS: Should the witness answer,

4

Your Honor, or --

5

THE COURT: Yeah, he can answer.

6

THE WITNESS: Can you repeat the question, please?

7

BY MS. FRANCIS:

8

Q. All right. I'll withdraw --

9

THE COURT: The question is whether or not -- are

10

there any court cases that you're aware of where a TTY

11

system has been rejected under the Rehab or ADA?

12

THE WITNESS: I -- I don't know.

13

THE COURT: Huh?

14

THE WITNESS: I don't know.

15

THE COURT: Okay.

16

BY MS. FRANCIS:

17

Q. Okay. Let me talk with you for a moment about the

18

videophone technology. If a person wants to -- if a person

19

is using videophone and communicating with another party,

20

can the person on one end have a simultaneous conversation

21

with another party by way of videophone?

22

THE INTERPRETER: Your Honor, the interpreter

23

needs clarification.

24

BY MS. FRANCIS:

25

Q. Can a person -- can a caller on a videophone have

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1

conversation with more than one person at the same time?

2

MR. PANAGOPOULOS: I'm going to object as to

3

relevance, Your Honor.

4

THE COURT: Overruled.

5

THE WITNESS: It depends on your setup.

6

Generally, you have two people on either end of the

7

conversation that can communicate simultaneously. There are

8

ways that you can have three- or four-way communication, but

9

generally speaking, you're limited to two-way communication

10

with two people.

11

BY MS. FRANCIS:

12

Q. Okay. And you had testified earlier that it's possible

13

for a person to delete a -- to delete a recording of a call

14

once the call is finished?

15

A. Yes. It depends on the equipment that is being used.

16

Q. Okay. And if the call is to be recorded, in addition to

17

getting the videophone equipment, a person would also have

18

to get software to record any videophone conversation; is

19

that correct?

20

A. No, you can use a DVD player to record and the

21

conversation can be saved onto a disk, so it doesn't

22

actually require a software program to be able to do that.

23

Q. And are you familiar with the Bureau of Prisons'

24

computer network?

25

A. Yes.

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1

Q. Have you ever tested the software on the Bureau of

2

Prisons' computer network?

3

THE COURT: What software? He just said --

4

MS. FRANCIS: I'm sorry. This equipment, rather.

5

MR. PANAGOPOULOS: Objection, Your Honor. The DSL

6

is not on the network, neither is the phone system that this

7

equipment is on. So the network itself is irrelevant.

8

MS. FRANCIS: It isn't irrelevant, Your Honor.

9

THE COURT: Well, you can't argue with him. That

10

doesn't help. He's not testifying.

11

BY MS. FRANCIS:

12

Q. Are you -- are you familiar with the implementation of

13

this videophone system in a -- in a high security

14

correctional complex?

15

MR. PANAGOPOULOS: Again, relevance. Mr. Berke is

16

in a minimum security camp, Your Honor.

17

THE COURT: Right. Can you explain how this

18

system would be installed at a place such as Tucson? FCC

19

Tucson?

20

THE WITNESS: Sure. We do not connect to BOP's

21

network system. It's on a separate system. It's a

22

standalone network that is through the telephone line and

23

through a high speed DSL modem.

24

THE COURT: Does it have to be installed?

25

THE WITNESS: And that cable uses an ethernet

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1

connection.

2

Yes. And that's a connection between the modem

3

and the unit, not from the current internet system of the

4

BOP. It's not on their network -- on the BOP's network

5

system.

6

THE COURT: As far as you know, this connection

7

doesn't exist now. Correct?

8

MR. PANAGOPOULOS: Your Honor, that's not the

9

case. There is a DSL --

10

THE COURT: Wait, wait. No, you can't -- he's

11

here. If he's wrong, we'll figure it out, but --

12

THE INTERPRETER: Your Honor, the interpreter

13

would request a repetition of your question.

14

THE COURT: Yeah. Does this connection that he's

15

describing exist at the Tucson facility now? As far as he

16

knows.

17

THE WITNESS: Yes, they do have that for VRI.

18

THE COURT: And they have VRI now as we speak?

19

THE WITNESS: From my understanding is that they

20

are working on that. That's my understanding, at least.

21

THE COURT: If people visit by video conferencing,

22

whether it be family members or lawyers -- I mean, we have

23

it here -- is that using a similar connection? Or is that

24

using the internet?

25

THE WITNESS: No, they would use videophone

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1

equipment.

2

THE COURT: Okay. So if I communicate with an

3

inmate anywhere in the country at a facility, I'm going

4

through this connection?

5

THE WITNESS: For using that videophone equipment,

6

if it were approved by the BOP.

7

THE COURT: Well, no, no. What I'm asking,

8

though, is that a lot of visits or even court proceedings

9

can be arranged with various BOP facilities all over the

10

country, and you can see the inmate.

11

Is this the same kind of equipment we're talking

12

about or is this something different? This has no,

13

obviously, either interpreter or sign language aspect. But

14

many people -- I can call a facility anywhere in the

15

country, and they can put a prisoner in most cases on the

16

phone and I can see him.

17

THE WITNESS: No, that is not the same equipment,

18

Your Honor.

19

THE COURT: Okay.

20

THE WITNESS: There's different equipment for

21

video conferencing calls among several different parties.

22

There's different equipment that you would use for that.

23

THE COURT: And that's not the DSL modem

24

connection? That's something else?

25

THE WITNESS: They do use something else.

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1

THE COURT: Okay.

2

THE WITNESS: They don't use the DSL.

3

THE COURT: But what you're describing would

4

require the DSL modem?

5

THE WITNESS: Yes, for videophone technology, that

6

is correct.

7

THE COURT: Okay.

8

THE WITNESS: And for point-to-point for VRI and

9

for VRS.

10

MS. FRANCIS: May I -- I'm sorry, Your Honor. I

11

didn't want to interrupt the Court.

12

THE COURT: Okay. Go ahead.

13

BY MS. FRANCIS:

14

Q. This DSL connection at the BOP's facility in Tucson, are

15

you aware that it is unsecured and unmonitored?

16

A. Yes, I'm aware of that.

17

Q. And are you aware that the BOP's system for recording

18

calls is on a secured and monitored computer network?

19

A. I'm not aware of that.

20

Q. Okay. Have you ever addressed with any person at the

21

BOP the security risks that are involved with recording a

22

call from a line that is unsecured and placing it onto a

23

secured network?

24

THE COURT: I don't know what it means to take it

25

from an unsecured line and placing it on a secured network.

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1

MR. PANAGOPOULOS: I also object to the question,

2

Your Honor, because he testified that's not how -- what

3

happens. It would be recorded on a DVD.

4

THE COURT: Well, she's talking about a secure

5

line, though. I don't know what that means.

6

MS. FRANCIS: I'll have the witness -- a BOP

7

witness explain that, Your Honor.

8

BY MS. FRANCIS:

9

Q. Are you -- okay. Mr. Ray, you just demonstrated for the

10

Court how a TTY machine is used, correct?

11

A. Yes.

12

Q. Okay. And that was both from your demonstration in

13

court and on the video, correct?

14

A. For clarification, you mean from here in this room,

15

correct?

16

Q. Yes.

17

A. Yes.

18

Q. And you were able to demonstrate how one could type a

19

message in English on that equipment, correct?

20

A. Well, I've been signing American Sign Language and the

21

interpreter's been actually interpreting that into English.

22

Q. Do you recall when you were standing there before Judge

23

Huvelle and you were typing on the TTY machine?

24

A. And, yes, I was using English for that, yes.

25

Q. Okay. And do you recall showing -- well, let me -- let

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1

me rephrase that.

2

Do you recall after you typed your message that a

3

transcript in written English came up, correct?

4

A. Yes.

5

Q. Okay. And you also, through the video, showed -- or

6

described that two people on a telephone call using a TTY

7

will be able to type messages back and forth, correct?

8

A. Yes.

9

Q. Okay. Although it was a little slower than the

10

videophone, correct?

11

A. Yes.

12

Q. Okay. And through the use of the TTY, is it fair to say

13

that you can express thoughts, correct?

14

A. Not effectively.

15

Q. Well, you can make statements. You can type a statement

16

into the TTY machine and the other party will get it,

17

correct?

18

A. Yes. They can read that.

19

Q. Okay. And the other party can do the same in return,

20

correct?

21

A. Yes.

22

Q. Okay. And that is -- and it is still used as a form of

23

communication between two people, correct?

24

MR. PANAGOPOULOS: Objection. Asked and answered.

25

THE COURT: Overruled.

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1

THE WITNESS: Can you repeat your question?

2

BY MS. FRANCIS:

3

Q. The use of the TTY machine can be, as we just described

4

where parties were typing messages back and forth, can be --

5

therefore, can be used as a tool of communication. Correct?

6

A. It can be, yes.

7

Q. Also, with the videophone, you had testified earlier

8

that a person can possibly disconnect -- I'm sorry -- delete

9

a phone call that the machine had previously recorded; isn't

10

that correct?

11

A. It depends on the equipment. If you're using this

12

particular device that I have here in front of me, you

13

actually have to make an effort to delete that from the DVD.

14

If you're using an app, you can delete it. You do have to

15

go through steps, but you can delete it from an app. But

16

there are steps involved within the application.

17

Q. Okay. But it is possible, is what I'm asking.

18

A. Yes.

19

Q. And you --

20

THE COURT: What I understand him to say, it's

21

possible to block that, too, by use of some secret password.

22

Is that right?

23

THE WITNESS: Yes, that is correct.

24

BY MS. FRANCIS:

25

Q. And what I was also going to ask, Mr. Ray, is you had

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1

also testified that another way to prevent a person from

2

manipulating that system is to have someone --

3

A. Go ahead. Manipulating the system?

4

Q. Delete the call is what I'm referring to. Is to have

5

someone present and watching the inmate as they're using

6

that system.

7

A. Yes, that's correct. To have someone monitoring to

8

ensure that the person is not deleting and that they are

9

maintaining a record of the conversation.

10

Q. And -- I'll withdraw that.

11

MS. FRANCIS: Your Honor, may I have a moment to

12

confer with agency counsel? Thank you.

13

(Pause.)

14

MS. FRANCIS: Your Honor, I have a couple more

15

questions to ask. I'm going to try to ask them as carefully

16

as I possibly can.

17

BY MS. FRANCIS:

18

Q. Mr. Ray, if a videophone is used in a prison facility,

19

is it fair -- well -- is it fair to say that the two parties

20

on the call can see each other, correct?

21

A. With using a videophone, yes.

22

Q. Okay. And with the person who was not at the prison

23

facility, it's fair to say that there's no way to control

24

how that person is going to behave on the other end of that

25

video call, correct?

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1

A. I'm not following your question.

2

Q. Okay.

3

A. Sorry. Can you repeat that?

4

Q. Yes, I can. On a videophone call between two people,

5

while there may be a person sitting with an inmate observing

6

this call, is it fair to say that the person on the other

7

end of that call who is outside of the prison facility,

8

their behavior on that phone call cannot be controlled?

9

Isn't it fair to say that?

10

I can give an example if it will help.

11

MR. PANAGOPOULOS: Objection on relevance,

12

Your Honor. The same is true of a phone.

13

THE COURT: Not exactly, but it may -- same may be

14

true with visitors.

15

MS. FRANCIS: Well, Your Honor, I'm asking this

16

question to show that there are some interests, security

17

interests, that the BOP --

18

THE COURT: Well, what kind of visitation do they

19

have there? Low security. I don't --

20

MS. FRANCIS: Well, for example -- if I can ask

21

Mr. Ray.

22

BY MS. FRANCIS:

23

Q. There's no way to control whether or not the caller on

24

the other end may be in the privacy of his or her home, may

25

decide to strip naked in front of the camera.

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1

MR. PANAGOPOULOS: Same objection, Your Honor.

2

There's no control over whether a person on a telephone says

3

things that are sexual in nature.

4

THE COURT: I don't know if there are -- they

5

don't monitor simultaneously calls.

6

MS. FRANCIS: They can.

7

THE COURT: They can but they don't.

8

MS. FRANCIS: At times they do, Your Honor.

9

THE COURT: Well, what do you mean "at times they

10

do"?

11

MS. FRANCIS: I can have the -- Mr. Craig talk

12

about that, but there are times -- there are certain

13

circumstances where calls are live monitored and --

14

THE COURT: Live monitored by having somebody

15

listening in at the time or --

16

MS. FRANCIS: Yes.

17

THE COURT: Well, then there could be

18

circumstances here where they can have live monitoring, too.

19

Most calls, at least that I'm aware of, are not

20

simultaneously monitored. It depends on whether this is

21

being monitored, I suppose, that somebody could do

22

something. But --

23

MS. FRANCIS: Well, let me ask --

24

THE COURT: You better tell me about your visiting

25

policy. Visiting policies in low security aren't that

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1

monitored either, for that matter. I think we're getting

2

kind of beyond the --

3

MS. FRANCIS: If I can just have a moment,

4

Your Honor, to make sure I don't have any further questions

5

to ask.

6

THE COURT: Does the IT -- the TTY use a secured

7

and monitored line?

8

MS. FRANCIS: From -- Your Honor, would you -- the

9

witness that we have can testify to that much better than I

10

can.

11

THE COURT: Okay. Fine. Any more questions for

12

this witness?

13

MS. FRANCIS: I can check with agency counsel.

14

One moment, Your Honor.

15

(Pause.)

16

MS. FRANCIS: Nothing further, Your Honor.

17

THE COURT: Any redirect?

18

MR. PANAGOPOULOS: Just a little bit, Your Honor.

19

REDIRECT EXAMINATION

20

BY MR. PANAGOPOULOS:

21

Q. You were asked a question as to whether you're aware of

22

any cases rejecting the use of a TTY as ineffective.

23

Let me ask you a related question. Are you aware

24

of any prison systems that have adopted videophone

25

technology for use by deaf prisoners?

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1

A. I actually know of three prison systems.

2

THE COURT: Where?

3

THE WITNESS: Virginia.

4

THE COURT: State, we're talking? Or federal?

5

THE WITNESS: Yes. The federal prison.

6

THE COURT: Which -- which one?

7

THE WITNESS: The federal prison in Virginia.

8

Department of Corrections in Virginia, I believe. Is that

9

state?

10

THE COURT: What?

11

THE WITNESS: That a state?

12

MR. PANAGOPOULOS: "The Department of Corrections

13

in Virginia" is what he said. I believe that's the state

14

prison system in Virginia.

15

THE COURT: Okay.

16

THE WITNESS: Minnesota, also. And there is a

17

county jail in Texas, as well.

18

THE COURT: Have you ever visited any of these

19

places where they have such a system?

20

THE WITNESS: No, I haven't.

21

BY MR. PANAGOPOULOS:

22

Q. You were asked a question as to whether you knew whether

23

or not the DSL line that's being put in place at Tucson is

24

unsecured and unmonitored.

25

I'd like to ask you a related question. Is it

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1

possible to monitor the equipment that's put on that line

2

eventually, sir?

3

THE COURT: Are you drawing a distinction between

4

the equipment and the line?

5

MR. PANAGOPOULOS: There -- there is a

6

distinction, Your Honor. The -- the line itself is just

7

simply a line that connects the two pieces of equipment. It

8

doesn't do anything. It's like this piece of (indicating)

9

-- it's like this piece of cord. What's important is the

10

communication that takes place; and that can be monitored.

11

THE COURT: Let's have him testify.

12

MR. PANAGOPOULOS: Okay.

13

THE WITNESS: Can you repeat your question,

14

please?

15

BY MR. PANAGOPOULOS:

16

Q. Sure. Describe to the Court what is a DSL line. Just

17

the line itself.

18

A. It's a telephone line. It would be connected -- plugged

19

into a telephone port. And then also connected to the modem

20

on the other side.

21

Q. Okay.

22

A. And we have an ethernet from the modem, ethernet cable

23

from the modem. You can see the port on the back of the

24

equipment there.

25

Q. All right. So without a piece of equipment actually

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1

attached to that line, can you communicate using the line

2

alone?

3

A. No.

4

Q. Okay. So something has to be attached to that line for

5

communication to occur.

6

A. That's correct.

7

Q. And we've talked about attaching videophones like the

8

Sorenson ntouch, right?

9

A. Yes.

10

Q. And that Sorenson ntouch can be monitored.

11

THE COURT: I don't know what --

12

THE WITNESS: Yes.

13

THE COURT: -- the word "monitor" means. Do you

14

mean that you can watch the video or do you mean that you

15

can take a DVD? That you make a disk or some kind of thumb

16

drive?

17

THE WITNESS: Both. For this particular unit?

18

THE COURT: Yeah.

19

THE WITNESS: You can use it to record onto a DVD.

20

THE COURT: So when you say "monitor," what you're

21

saying is that to have simultaneous monitoring you would

22

have to be present and watch. To obtain the transcript of

23

what happened would be subsequent to the call. You'd have

24

to have it translated.

25

MR. PANAGOPOULOS: Just like any other foreign

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1

language call, Your Honor, yes. We'll get to that with

2

Mr. Craig.

3

THE COURT: But that's what you mean by

4

"monitoring." You can either stand there and watch what's

5

happening, but you wouldn't understand it if it's two people

6

communicating with sign.

7

MR. PANAGOPOULOS: Unless you had someone who

8

understood sign language, right.

9

THE COURT: But -- or, alternatively, you get the

10

-- some kind of disk or DVD.

11

MR. PANAGOPOULOS: Right, which is --

12

THE COURT: And you translate it.

13

MR. PANAGOPOULOS: Which would be exactly the same

14

thing if I were communicating with a prisoner in Greek.

15

THE COURT: He should be -- you're not the

16

witness.

17

Okay. All right. If we're finished with this

18

witness, we should take a break. One second.

19

(Off-the-record discussion with the law clerk.)

20

THE COURT: I just have one further question. Is

21

it -- can you have the video transmitted to a different room

22

if somebody wanted to watch it, the way you watch the front

23

door of a courthouse on video?

24

THE WITNESS: I think that there are several

25

possible ways to do that. If you don't mind giving me a

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1

moment to think about that. It really depends on the

2

equipment that you're using. And I believe that it can be

3

done.

4

MR. PANAGOPOULOS: Can I ask a follow-up question

5

as to that, Your Honor?

6

THE COURT: Go ahead.

7

BY MR. PANAGOPOULOS:

8

Q. We showed a video here, played on a laptop, that was

9

then transmitted to -- one, two, three, four, five -- six or

10

so different monitors in the courtroom.

11

Couldn't a simple video splitter be used to

12

monitor via another video what was happening on the

13

telephone?

14

A. Absolutely.

15

THE COURT: But the most likely use of this is --

16

in this particular case for this particular plaintiff is to

17

have it between two people who are using ASL.

18

They can't monitor the lawyer's calls. So you're

19

not part of the mix.

20

THE WITNESS: Your Honor?

21

THE COURT: Huh?

22

THE WITNESS: I actually do have that setup at

23

home. I have this piece of equipment and then I have two TV

24

monitors. And I have my laptop connected to all of them.

25

So --

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1

THE COURT: My point, though --

2

THE WITNESS: -- I would switch to a monitor video

3

from the laptop, so --

4

THE COURT: Right. But my point is that the most

5

frequent use of this for somebody at Tucson would be to

6

communicate with somebody who's doing sign, so the

7

simultaneous monitoring, unless you happen to have somebody

8

who speaks the language, isn't going to work.

9

MR. PANAGOPOULOS: Well --

10

THE COURT: I understand you're going to say the

11

same thing --

12

MR. PANAGOPOULOS: Right.

13

THE COURT: -- for a Spanish speaker or whatever.

14

MR. PANAGOPOULOS: Well, the other issue is the

15

concern about inappropriate conduct that Ms. Francis raised.

16

It probably keep someone from taking off their clothes if

17

they knew they were monitored.

18

THE COURT: Anything further for this witness?

19

MR. PANAGOPOULOS: Nothing further from me,

20

Your Honor.

21

THE COURT: All right. We're going to take a

22

short break. I'm supposed to actually participate in a

23

training program by video at 12.

24

So what's our next -- who's testifying next?

25

We're not going to finish before then.

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MR. PANAGOPOULOS: Your Honor, our next --

2

THE COURT: Thank you, sir. You may step down.

3

(Witness excused.)

4

MR. PANAGOPOULOS: Our next witness is --

5

THE COURT: You don't have anything else, right?

6

MS. FRANCIS: No, Your Honor.

7

MR. PANAGOPOULOS: Our next witness is Todd Craig

8

from -- from BOP. We -- we have, also, the -- you have the

9

expert report of Mr. Cokely.

10

THE COURT: Yes.

11

MR. PANAGOPOULOS: Or, Dr. Cokely, rather. I

12

would move that into evidence so that it's officially in the

13

record.

14

MS. FRANCIS: No objection, Your Honor.

15

THE COURT: Okay. And the deposition itself is

16

coming in?

17

MR. PANAGOPOULOS: The deposition also.

18

THE COURT: Here's the deposition. This will be

19

going in as -- what's the two numbers?

20

MR. PANAGOPOULOS: I believe No. 7 is the report

21

and No. 8 is the deposition, Your Honor.

22

THE COURT: Okay.

23

(Plaintiff's Exhibits 7 and 8 received in evidence.)

24

MR. PANAGOPOULOS: Yeah. I will also note that

25

there's an agreement of the parties that some of the

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1

information relied upon by Mr. Cokely for his report -- you

2

know, for example, you know, where the brother is and what

3

equipment he uses, so on and so forth -- has been stipulated

4

to by the parties so that there was no need to bring

5

Mr. Berke here to testify as to those issues.

6

THE COURT: And so if he's -- somebody -- an

7

ex-wife in LA, right, who's sick, and then there's family

8

members in Texas -- I mean, in Phoenix --

9

MR. PANAGOPOULOS: In the District of Columbia --

10

THE COURT: Oh, yeah.

11

MS. FRANCIS: If I could just --

12

THE COURT: The business that he got in trouble

13

for has nothing to do with the business in the District of

14

Columbia?

15

MR. PANAGOPOULOS: Nothing to do with that,

16

Your Honor.

17

THE COURT: Is there any stay-away orders in that?

18

Coming out of the New Jersey proceedings?

19

MR. PANAGOPOULOS: Your Honor, I believe that

20

there are some restrictions with respect to financial

21

transactions, if I recall correctly, on the extension order

22

that we got that extended his report date. But I believe

23

that's the only limitation that I recall. I'd have to

24

review the order to confirm that, but that's all I recall.

25

THE COURT: I probably have the judgment. Just a

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1

minute. I'd like to see the PSI.

2

MS. FRANCIS: If Your Honor wants, I can bring a

3

copy -- I don't know if counsel has a copy of the PSI

4

available.

5

MR. PANAGOPOULOS: Do not.

6

MS. FRANCIS: I -- I have a copy of the PSI. I

7

could download it off my -- I have to print it off my

8

computer.

9

THE COURT: Well, it may be on ECF. The PSI may

10

-- have you ever seen it? It's not available to you on ECF.

11

You've never seen it?

12

MR. PANAGOPOULOS: Never seen it. I don't believe

13

it's available on PACER.

14

THE COURT: Does your client have any objection to

15

us making it available? I mean, not make it available.

16

They probably have access to it. I must have access to it

17

on ECF.

18

You don't know?

19

THE LAW CLERK: I don't know.

20

MS. FRANCIS: If I could step away for a moment.

21

THE INTERPRETER: Your Honor, can the interpreter

22

step back?

23

THE COURT: Go as you wish. You mean --

24

(Off-the-record discussion with the law clerk.)

25

THE COURT: Well, then, Ms. Francis, if you bring

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1

it back after lunch, I'd like to see it.

2

MS. FRANCIS: I can, Your Honor.

3

THE COURT: Okay. I'm looking at the conditions

4

of supervised release.

5

MS. FRANCIS: I just have -- when the Court is

6

through, I just have one quick representation to piggyback

7

off what Mr. Panagopoulos just stated.

8

THE COURT: Okay, go ahead.

9

MS. FRANCIS: With respect to the stipulation,

10

yes, the parties are willing to stipulate to the statements

11

made by Dr. Cokely about what current technology Mr. Berke

12

and his family members -- Mr. Berke's household, his mother,

13

his sons, his brother -- what they have, whether they access

14

to -- I think it was a DSL line versus a land line. And I

15

just want to get on the record before we actually take that

16

next step and enter it, is to just confirm that the

17

demonstration that took place on this video -- I don't

18

recall which exhibit it was -- with Mr. Berke and his wife,

19

whether or not that was done at Mr. Berke's home.

20

MR. PANAGOPOULOS: It was not done at Mr. Berke's

21

home.

22

MS. FRANCIS: Okay. Then that's fine, Your Honor.

23

We do stipulate.

24

THE COURT: Okay. All right. I don't see

25

anything here about who he can communicate with other than

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1

not communicating with felons.

2

MR. PANAGOPOULOS: Your Honor, I don't know how

3

long Ms. Francis has with Mr. Craig, but --

4

THE COURT: Who's calling Mr. Craig? You?

5

MR. PANAGOPOULOS: I am. But I was thinking of

6

the cross-examination. I think I -- I think I could easily

7

be done with him by -- by noon.

8

THE COURT: Well, let's see. Go ahead. We can

9

start.

10

He was forfeited -- he was ordered to forfeit

11

$2.5 million. Did he have $2.5 million?

12

MR. PANAGOPOULOS: We don't -- we don't know, no.

13

If he does, I might need a different retainer.

14

TODD R. CRAIG,

15

after having been first duly

16

sworn upon oath, was examined

17

and testified as follows:

18

DIRECT EXAMINATION

19

BY MR. PANAGOPOULOS:

20

Q. Good morning, Mr. Craig.

21

A. Good morning.

22

Q. Would you please state your full name for the record?

23

A. Yes. Todd Roderick Craig.

24

Q. And what is your business address?

25

A. 320 First Street, Northwest, Washington, D.C. 20534.

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1

Q. And what is your job title, sir?

2

A. I'm the acting chief of the Office of Security

3

Technology for the Federal Bureau of Prisons.

4

Q. Okay. And what are your job responsibilities?

5

A. Our branch is charged with the technical evaluation of a

6

myriad number of technologies to enhance the security of our

7

117 institutions, to increase the safety of 37,000 staff,

8

and to provide safeguards for approximately 200,000 inmates

9

in our care and custody and control.

10

THE COURT: Does that include all levels of

11

security? 200,000, that sounds very low to me. That's why

12

I ask.

13

THE WITNESS: Yes, Your Honor, with the exception

14

there are about approximately 20,000 criminal aliens that

15

are housed in private prisons.

16

THE COURT: And that doesn't include halfway

17

houses.

18

THE WITNESS: No, ma'am.

19

BY MR. PANAGOPOULOS:

20

Q. Mr. Craig, are you aware that Larry Berke has requested

21

access to a videophone?

22

A. Yes, I am.

23

Q. Okay. And are you aware that the Bureau of Prisons has

24

denied that request?

25

A. Yes, I am.

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1

Q. Has the Bureau of Prisons reached a conclusion that

2

providing the videophone would fundamentally alter or burden

3

the Bureau of Prisons?

4

A. No. I believe -- may I answer?

5

THE COURT: Yeah.

6

BY MR. PANAGOPOULOS:

7

Q. Go ahead.

8

A. Okay. As we discussed in the deposition, our office --

9

if I would have been tasked with formally evaluating the

10

videophone as an assistive technology to meet our security,

11

both our prison security and our IT computer network

12

security protocols, then a formal evaluation process of six

13

months to a year would take place, as with the approximately

14

40 to 45 other technologies that my branch is reviewing at

15

this time.

16

Q. This is an accommodation request, and is this the first

17

accommodation request that has been made for a videophone to

18

the Bureau of Prisons?

19

A. To my knowledge.

20

Q. What about Mr. Bryant? Are you aware of the Bryant

21

case?

22

A. Just peripherally, yes.

23

Q. And that individual asked for a videophone as well, did

24

he not?

25

A. That is my understanding.

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1

Q. Okay. And that happened much earlier than Mr. Berke's

2

request, didn't it?

3

A. I became aware of it this summer.

4

Q. Okay. You became aware of it this summer. And since

5

that time the Bureau of Prisons, as far as you're aware, has

6

done nothing to evaluate whether or not it would be

7

appropriate to grant that accommodation to Mr. Bryant.

8

A. My office has not been tasked with a formal evaluation

9

request for a videophone.

10

Q. Okay. So the answer to my question is, no, you haven't

11

evaluated it?

12

A. No.

13

Q. All right. And the same is true with respect to

14

Mr. Berke's request, no, you haven't evaluated it, right?

15

A. That would be accurate.

16

Q. Okay. So there's no written document that explains what

17

the burden allegedly is for implementing videophone.

18

A. Other than my deposition that listed a number of

19

security concerns, you're correct, Counsel.

20

Q. Okay. Now, if I under- -- you've provided a declaration

21

in this case, and in that declaration you note that the

22

Bureau of Prisons is concerned that a videophone would

23

provide, quote: Unsecured and unmonitored access to a

24

secured network. Is that correct?

25

A. That's correct.

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1

THE COURT: It would provide -- say it again? I'm

2

sorry. I just lost this.

3

MR. PANAGOPOULOS: Certainly, Your Honor. The

4

concern is that the videophone would provide "unsecured and

5

unmonitored access to a secured network."

6

THE COURT: Let's go back to what I didn't note

7

before just now. Someone in the ordinary course, if they

8

decided that they wanted eval- -- to buy new equipment for a

9

reason, whatever reason it may be, you would do a -- you

10

would get a request and you would do an analysis to find out

11

what's out there and what issues there are, right?

12

THE WITNESS: Yes, Your Honor.

13

THE COURT: You would evaluate the technology, or

14

technologies, that were available to accomplish this.

15

THE WITNESS: Yes, Your Honor.

16

THE COURT: And that evaluation -- and is there

17

some protocol that you follow to do that evaluation?

18

THE WITNESS: Yes, Your Honor. Our office is

19

typically scanning the environment for any new

20

security-related technologies. We may initiate that formal

21

evaluation or our agency executive staff may task us with

22

such a formal evaluation of a technology that provides a

23

solution to a security issue.

24

THE COURT: You could also evaluate -- it's not

25

just technology where there's -- that's a security

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1

technology. You can evaluate -- what do you do? Get some

2

subcontractor or you contract out to have somebody study,

3

say, that equipment that was shown to us a minute ago?

4

THE WITNESS: We do the evaluation, Your Honor.

5

THE COURT: You do it in-house.

6

THE WITNESS: Yes. And as -- you are correct,

7

Your Honor. It's a wide-ranging portfolio from not only

8

less lethal munitions and delivery systems or cell phone

9

forensics. But, basically, with any technology used by

10

staff in any correctional program, will that meet our

11

security requirements?

12

THE COURT: Okay. And so you don't know anything

13

about this other case, Bryant. That's in administrative

14

posture at the moment?

15

MR. PANAGOPOULOS: It is.

16

THE COURT: Okay. And so -- okay. And --

17

MR. PANAGOPOULOS: It's also in district court at

18

the same time, Your Honor.

19

THE COURT: Well, they stayed it to allow the

20

administrative proceeding to --

21

MS. GOLDEN: I'm sorry, Your Honor. I'm counsel

22

in the Bryant matter.

23

THE COURT: Your name?

24

MS. GOLDEN: Deborah Golden from the Washington

25

Lawyers' Committee.

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1

THE COURT: Okay.

2

MS. GOLDEN: The proceeding has -- the district

3

court hearing has been ordered to mediation at the end of

4

October while the administrative proceeding continues.

5

THE COURT: You mean it's going to go

6

simultaneously to mediation and --

7

MS. GOLDEN: Yes.

8

THE COURT: And -- but nobody has gotten to the

9

stage for asking for this kind of analysis.

10

MS. GOLDEN: I -- we haven't had discovery in that

11

case, so I don't know what's happened in the BOP side. But

12

Mr. Bryant has been asking for a videophone through counsel

13

for six years now.

14

THE COURT: Oh, he's been there for six years?

15

MS. GOLDEN: Yes.

16

THE COURT: And that's how long the litigation has

17

been pending? Six years?

18

MS. GOLDEN: There were -- the exhaustion of

19

administrative remedies took several years. And then the

20

litigation has been pending for a few more.

21

THE COURT: And why does it take six months to a

22

year to do this? Just because you're backed up and

23

understaffed and the federal government is losing all its

24

money?

25

THE WITNESS: Yes, Your Honor.

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1

THE COURT: All right. I do think I need to break

2

actually in order -- I'm supposed to get online ten minutes

3

before 12. And we're not going to finish with this witness

4

anyways.

5

I need to know -- when we come back I want to see

6

the PSI, first of all. And maybe we can't get access to it.

7

So if you would bring a copy.

8

And second of all, I want to know how they monitor

9

visits there at this -- you got a low -- medium -- no, it's

10

low security. Or is it a camp?

11

MS. FRANCIS: This is a camp, Your Honor.

12

THE COURT: Camp. So it's the lowest.

13

MS. FRANCIS: Lowest.

14

THE COURT: Yeah, so I want to know their

15

telephone policies, I want to know how they monitor

16

visitors.

17

And then we'll continue with the testimony at

18

2:00, please.

19

THE WITNESS: Yes, Your Honor.

20

THE COURT: All right. Thank you.

21

MS. FRANCIS: Your Honor, if I were to get this

22

information from a staff member at Tucson, I know they're

23

three hours behind us. Does the Court want the

24

representation from me?

25

THE COURT: Well, I'll take whatever -- you'd

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1

think that they -- I told you before that I wanted to know

2

their policies on phone use.

3

MS. FRANCIS: Because I do have their telephone

4

policies.

5

THE COURT: Okay. Can you give a copy to the

6

other side and to my law clerk, please, for that? And

7

whatever you can learn about the others, obviously we'll

8

have to take your representation unless they can just send

9

you by email a written policy. I mean, camps run -- you

10

know, I was only a lawyer at camps, but they're run a little

11

differently than other institutions. Okay.

12

MS. FRANCIS: Okay.

13

THE COURT: Thank you. We'll resume at 2.

14

(Break in the proceedings at 11:45 a.m.)

15

16

(Upon resuming at 2:10 p.m.)

17

THE COURT: Good afternoon. Now, just to make the

18

record complete, over the lunch hour chambers was provided

19

the phone policy for Tucson Bureau of Prisons in the

20

correctional facility in Tucson, Arizona. The visitation

21

policy for -- of the same institution. We also were given

22

the Bureau of Prisons' policy for visitation and phone

23

usage. And the final thing was the PSI.

24

So I think we ought to mark -- do you have extra

25

copies, by chance?

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1

MS. FRANCIS: I have a copy -- an extra copy here.

2

I don't know if the Court -- I'll move to the microphone.

3

THE COURT: Yes, please.

4

MS. FRANCIS: I don't know if the Court -- I can

5

share with the Court. I had checked with my office -- I

6

don't know if this is where the Court is going -- but I've

7

talked to other colleagues within the office. I know that

8

the sharing of a presentence report --

9

THE COURT: Yeah, I can't put it on the public

10

record.

11

MS. FRANCIS: Can't put it on the public record.

12

I had also been cautioned about giving it over to counsel in

13

this case. And I even asked, Well, it seems

14

counterintuitive since it's about his client. And I got a

15

variety of reasons, and some of them were just articulated

16

by my agency counsel, it is not our document to share. I

17

had even asked if maybe Mr. Berke had a copy that he could

18

have provided to his counsel. But -- and I'm told that he

19

has not. But I was told that I really should not be sharing

20

it, period.

21

THE COURT: So he didn't get that. Okay. Well,

22

then I won't rely on it. But the other four documents, can

23

you provide and we'll mark them as exhibits?

24

MS. FRANCIS: I'm going to see if I have an extra

25

copy of the program statement for --

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1

MR. PANAGOPOULOS: Four or three documents,

2

Your Honor?

3

MS. FRANCIS: I'm going to look and see if I have

4

a fourth.

5

THE COURT: Four.

6

MS. FRANCIS: Because I know I provided, like the

7

Court said, the visiting and the telephone policies for

8

Tucson specifically. And then I provided the Court with a

9

program statement for the telephone as well as program

10

statement for Tucson.

11

MR. PANAGOPOULOS: Right.

12

THE COURT: Can I see --

13

MS. FRANCIS: I don't think I have a copy of the

14

program statement for --

15

THE COURT: I don't think the court reporter can

16

hear you when you talk over there, unless you -- either turn

17

on the mic or come forward.

18

MS. FRANCIS: I apologize. Can you hear me now?

19

I'm going to see if I have extra --

20

(Court and the Deputy Clerk conferring.)

21

THE COURT: We have copies -- an extra copy of --

22

MS. FRANCIS: Okay.

23

THE COURT: -- Bureau of Prison policies.

24

MS. FRANCIS: Okay. Thank you, Your Honor.

25

THE COURT: But not the Tucson policies.

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MS. FRANCIS: I gave counsel a copy of the Tucson

2

policy, so he has those.

3

MR. PANAGOPOULOS: Your Honor, I have three

4

documents. I have a December 19th Inmate Visiting

5

Regulation Policy, a corrected copy February 2008 Telephone

6

Regulation Policy, and a 2010 Telephone Regulation Policy.

7

I don't have a fourth.

8

MS. FRANCIS: Right. They're going to give you an

9

extra copy, but the --

10

THE COURT: Wait, wait, you're doing just what we

11

talked about a minute ago.

12

MS. FRANCIS: I'm sorry. Can court reporter hear

13

me?

14

Yeah, the two -- the two copies, the one dated

15

June 17th of 2010 -- they're both dated June 17th of 2010.

16

Woops.

17

I apologize. Court's indulgence, please.

18

I'm going to check with agency counsel to see if

19

he has an extra copy of the visitation policy for Tucson.

20

THE COURT: We'll get it cleared up, so we can

21

have -- let us mark them --

22

Gwen, what's our last number?

23

THE DEPUTY CLERK: 9.

24

THE COURT: So 10 will be the Bureau of Prisons

25

Program Statement dated 5-11 of 2006 on visitation.

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1

Then 11 is the Bureau of Prisons telephone

2

privileges. It's these two. And that also is dated

3

January 24th, 2008. Program Statement, Department of

4

Justice, Bureau of Prisons, and it's the telephone

5

privileges.

6

But then specifically as to Tucson -- okay. 11

7

will be -- 10 and 11. I'm sorry. So 12 -- my mistake -- 12

8

will be the Telephone Regulations For Inmates at the Tucson,

9

Arizona FCI. That's 12.

10

And then 13 is Inmate Visitation Regulations for

11

the Tucson, Arizona FCI.

12

All right. And then --

13

(Pause.)

14

MR. PANAGOPOULOS: Your Honor, could the Court

15

repeat again the exhibit numbers and the dates of these

16

documents? Because I'm not sure I have them all.

17

THE COURT: Exhibit 11 is the Program Statement of

18

Telephone Privileges dated, I think, 1-24, 2008. Corrected

19

copy says 2-11, 2008, for telephone privileges at the BOP.

20

And there's also a BOP Policy for Visitation dated 5-11,

21

2006, is the one I have. It's a program statement covers

22

visitation.

23

Then we have the two policies. 12 is the one that

24

has to do with Tucson telephone. And 13 is Tucson's

25

visitation. Okay?

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MR. PANAGOPOULOS: Okay. Your Honor, agency

2

counsel has handed us two different dates for the visiting

3

regulations. One is December 2009, the other is July 2011.

4

I don't know which one the Court has.

5

THE COURT: For which? Tucson or --

6

MR. PANAGOPOULOS: For Tucson Inmate Visiting

7

Regulations.

8

THE COURT: Which one are we on, visitation or

9

telephone?

10

MR. PANAGOPOULOS: Visitation.

11

THE COURT: Well, what I have here is 2009. Is

12

there something --

13

MR. PANAGOPOULOS: There is. There's a July 7,

14

2011.

15

THE COURT: Oh. Okay. Well, do you have a copy

16

of that?

17

MR. HANSFORD: It's right here.

18

MR. PANAGOPOULOS: There's one copy.

19

THE COURT: That's 13. And we'll delete -- that

20

2011 will be Exhibit 13. If you can give it to my law

21

clerk, because this has now been superseded. So I don't

22

need to get hung up on --

23

MR. PANAGOPOULOS: Your Honor, and I don't have a

24

copy of Exhibit 10. Is that something I could look at when

25

the Court gets a moment? It doesn't have to be now.

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THE COURT: Yeah, I don't -- I'm not sure how

2

relevant it is. We'll take a look at it.

3

Do you have a copy of this, by the way? Did you

4

give him what you gave us over the lunch hour?

5

MS. FRANCIS: I -- I did. I gave it to him via

6

email. And I thought I had all of the copies here, but it

7

turns out that I may have just gotten -- my assistant gave

8

me multiple copies of the phone and not enough of the

9

visitation.

10

MR. PANAGOPOULOS: Yeah. We didn't go back to the

11

office.

12

THE COURT: Okay. One second here.

13

(Pause.)

14

THE COURT: Okay. Shall we proceed?

15

(Off-the-record discussion with the law clerk.)

16

THE COURT: All right. Do we want to continue

17

with the witness's testimony?

18

MR. PANAGOPOULOS: Yes, Your Honor. I'm prepared

19

to continue.

20

THE COURT: Okay. For the record, I would say

21

from the PSI that it's quite clear that the phone systems

22

we've been talking about were critical to his offense. Are

23

you aware of that?

24

MR. PANAGOPOULOS: I -- I am aware of that,

25

Your Honor. Although, obviously, the access that we're

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1

talking about here that he would be having would not affect

2

any of those issues. He wouldn't have any -- any type of

3

opportunity to deal with -- with those types of issues in

4

simply using that phone system.

5

THE COURT: I don't know enough about it. But

6

it's not irrelevant to the Court that the phone system we're

7

discussing was also used to perpetuate the fraud. Okay.

8

MR. PANAGOPOULOS: Yes. Your Honor, I guess what

9

I would suggest in that regard is that, you know, there are

10

many inmates who are in prison who perpetuated a fraud using

11

phones and telephone systems. That doesn't mean that they

12

can't use those phone systems in prison.

13

BY MR. PANAGOPOULOS:

14

Q. I believe where -- where we were before the -- the break

15

was that we had marked Exhibit 9. And that's in front of

16

you.

17

Would you please review that document, sir, and

18

let me know when you're ready to proceed?

19

(Pause.)

20

A. I'm ready.

21

Q. Okay. Do you recognize this document, sir?

22

A. Yes.

23

Q. What is it?

24

A. It is a waiver for the connection of a DSL line at

25

FCC Tucson.

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1

Q. Okay. And who provided the waiver?

2

A. Who provided the copy to me?

3

Q. Excuse me?

4

A. Who provided --

5

Q. No, the waiver itself. Who decided to provide a waiver

6

for the installation of the --

7

A. The chief information officer of the Department of

8

Justice.

9

Q. Okay. And that's Luke McCormack?

10

A. Correct.

11

Q. Had you been provided with a copy of this memorandum

12

before this case?

13

A. No.

14

Q. Okay. Were you aware that there was a waiver for the

15

Tucson facility to install a DSL line before your

16

deposition?

17

A. I was aware in talking to my former boss over the

18

summer, but I was not part or parcel of any of the decision

19

making.

20

Q. Okay. And this memorandum permits the installation of a

21

DSL line at the Tucson facility where Mr. Berke is going to

22

be housed for a VRIS system; is that correct?

23

A. I understand it will be used for that system. It will

24

be connected for discreet events, such as interaction with

25

the health services department or discipline hearing in the

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1

associate warden's complex, but then will be disconnected

2

after that discreet event is done.

3

In no circumstance, as the waiver clearly states,

4

will it be connected to the JUT system, which is the Justice

5

Unified Telecommunication Network which the BOP and the

6

Trust Fund networks are part and parcel of.

7

Q. Okay. The --

8

THE COURT: I'm sorry. Can you run that by me

9

again?

10

THE WITNESS: Yes, Your Honor. The Justice

11

Unified -- JUTNet, as we call it -- Justice Unified

12

Telecommunications Network -- is the overall DOJ information

13

system, and that has very strict security requirements. And

14

underneath that is the Bureau of Prisons' BOPNET, BOPWARE --

15

THE COURT: BOP what?

16

THE WITNESS: Bureau of Prisons net. I'm sorry

17

all these acronyms. BOPNET. And then the Trust Fund

18

network. And I don't know their acronym, per se. But they

19

are also under it. And the Trust Fund is the one who

20

administers the inmate telephone system in a secure manner.

21

But the security requirements for the main network

22

and all the subsidiary networks are very stringent, and we

23

do not have the option to opt out of those, including

24

encryption, monitoring transactional data, and monitoring

25

traffic across the network.

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1

BY MR. PANAGOPOULOS:

2

Q. Let's focus for a minute on the last system you

3

identified, and that's the telephone system that inmates

4

use. That's not on the Justice Department secure network,

5

is it?

6

A. It is.

7

Q. Okay.

8

THE COURT: The Trust Fund network is on the DOJ

9

network?

10

THE WITNESS: Yes. It is stand alone from the

11

Bureau of Prisons Network, BOPNET.

12

BY MR. PANAGOPOULOS:

13

Q. Okay. Do you remember testifying in your deposition

14

that the telephone system was on its own network?

15

A. It is.

16

Q. Okay. And is there any -- and is the DSL line also on

17

its own network, then?

18

A. As far as I know, it's a stand alone -- what's called a

19

stove pipe, one line.

20

Q. One line. Okay. And so that's separate and apart from

21

all these other networks that you were talking about?

22

A. That would be correct.

23

Q. Okay. Have you done anything to analyze -- well, let me

24

ask you this question. I asked you this in your deposition,

25

as well. The DSL line itself, until something is connected

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1

to it, can't really transmit any information, right?

2

A. No, but in a prison environment the availability of that

3

DSL line 24/7, if someone hooks a device, the inmate inside

4

to somebody outside, it can be used for nefarious purposes.

5

Q. Well, this -- this jack where the DSL line is located,

6

is it located in an area where any prisoner can walk up and

7

plug something into it, sir?

8

A. They're usually located in the secure staff areas.

9

Q. Okay. So this DSL line is located in a secure area,

10

right?

11

A. Yes.

12

Q. Okay. And back to my question, which I asked and I

13

don't believe you answered, until someone connects something

14

to that DSL line, it can't transmit any information, right?

15

A. You're correct.

16

Q. Okay. So if someone connects a videophone to that DSL

17

line, that's what would be used to use the VRIS system,

18

correct?

19

MS. FRANCIS: Objection, Your Honor, leading.

20

MR. PANAGOPOULOS: Well, he's a hostile witness.

21

THE COURT: Overruled. Go ahead.

22

THE WITNESS: A device would facilitate that.

23

BY MR. PANAGOPOULOS:

24

Q. Right. And it would be a videophone, right? Or

25

something compatible with --

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1

A. Something compatible with that technology, yes.

2

Q. Okay. And you heard Mr. Ray testify as to how that

3

videophone can be recorded, right?

4

A. Yes.

5

Q. And you reviewed his expert report.

6

A. I read it.

7

Q. Okay. And you also reviewed Dr. Cokely's expert report,

8

right?

9

A. That's correct.

10

Q. Okay. You didn't disagree with anything you saw in

11

Mr. Ray's expert report, right?

12

A. Not on its face, no.

13

Q. Okay. And you didn't disagree with anything you saw in

14

Dr. Cokely's report either, right?

15

A. No, because both reports were their considered opinion

16

of the technology, and neither one gave any specified

17

application to a correctional environment.

18

Q. Okay. Well, the specified application for the

19

correctional environment, as we discussed in your

20

deposition, is that the phone call -- you have to be able to

21

monitor the phone call, correct? That's the primary

22

concern?

23

A. Monitor it and record it.

24

Q. Okay.

25

THE COURT: What?

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1

MR. PANAGOPOULOS: Monitor it and record it.

2

BY MR. PANAGOPOULOS:

3

Q. What do you mean by monitoring it?

4

A. The Trust Fund system in the secure network has a very

5

sophisticated intelligence system. It allows for both live

6

monitoring and recorded monitoring of any call that an

7

inmate places on the inmate telephone system.

8

Q. How is a phone call live monitored?

9

A. There is an interface screen that comes up. The staff

10

member can click on that particular call if it's in

11

progress. For example, the inmate's not on a work

12

assignment and he's using his phone privilege, and they can

13

listen in on the conversation.

14

Q. Okay. What happens in the case of a foreign language

15

conversation other than Spanish, which I understand you have

16

bilingual -- bilingual personnel at your facility. So a

17

foreign language conversation, you know, what happens there

18

with respect to live monitoring?

19

A. If the SIS, which is the Special Investigative Section,

20

had reason to believe there was actual intelligence in that

21

phone call, it would be sent out for translation --

22

Q. Okay.

23

A. -- via a contract.

24

Q. All right. And if it just happened to be a random

25

monitor of a -- of a conversation that was in a foreign

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1

language, what would happen then?

2

A. If the staff member was not bilingual in that language

3

or fluent, they would probably move on to the next call.

4

Q. Okay. So the call would continue then, unmonitored

5

live?

6

A. But it would be recorded and could be analyzed future.

7

Q. Of course. Okay. Which takes to us the second piece

8

here: Recording. When these phone calls are recorded, what

9

happens to them?

10

A. In terms of?

11

Q. The recordings.

12

A. They're stored in a secure database on the Trust Fund

13

network.

14

Q. Okay. And when they need to be reviewed, when the

15

transcripts need to be reviewed, how does that occur?

16

A. They're downloaded.

17

Q. They're downloaded where?

18

A. By the Special Investigative Section, downloaded -- for

19

example, there's two processes. One is internal or

20

administrative to maintain security, gather intelligence for

21

the inmate discipline process that's codified in Code of

22

Federal Regulations. And also, secondly, if there's a

23

possible -- if there's actionable language that is part of

24

an ongoing criminal case on the street, we would receive a

25

subpoena from the U.S. Attorney's Office and the court for

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1

those recorded -- recorded phone calls.

2

Q. Okay. So someone then translates those calls, whether

3

it's done locally or whether it's done somewhere else,

4

because you've been subpoenaed, correct?

5

A. Correct.

6

Q. All right. Now, you heard Mr. Ray talk about how it is

7

possible to hook up multiple monitors in order to monitor

8

video of calls. Do you recall that testimony?

9

A. I recall it.

10

Q. Okay. Doesn't that provide, then, the BOP with the

11

ability to live monitor those calls?

12

A. It would for live monitoring. It would absolutely not

13

suit our purpose for recorded information that's suitable

14

for evidence.

15

Q. All right. Well, let's talk about recording. I don't

16

know if you saw the video of the -- of the call, but you'd

17

see that the screen has the pictures of both individuals and

18

they sign to each other. And that can be recorded,

19

according to Mr. -- Mr. Ray. So why doesn't that fulfill

20

the BOP's requirements that a call be recorded?

21

A. Well, let's go back to the waiver you handed me,

22

Counselor. It's a stand alone line in this application. My

23

understanding is it would be unmonitored, it will not be

24

recorded -- let me finish -- for any device on the network.

25

The storage and protection of data is governed by those same

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1

stringent DOJ IT security safeguards.

2

For example, I'm exploring an audio surveillance

3

system that for the last several years has not had an

4

internal serving -- server solution. It would have to be

5

hosted on a third party. DOJ IT security policy

6

specifically prohibits that. So if --

7

THE COURT: Prohibits what?

8

THE WITNESS: Prohibits storing evidence outside

9

the secure DOJ network.

10

THE COURT: Well, I don't -- I just don't

11

understand what that means, outside the network. How do you

12

store evidence -- how do you store evidence in the network?

13

THE WITNESS: Like this Trust Fund system,

14

Your Honor, it's within our secure network; therefore, we

15

maintain control of the data, the protection of the data.

16

THE COURT: Well, so the recording is where that

17

wouldn't be if you had this system? I don't understand.

18

THE WITNESS: The DSL line?

19

THE COURT: Yeah, if you had the --

20

THE WITNESS: Videophone?

21

THE COURT: Yeah, videophone.

22

THE WITNESS: I don't know where it would be

23

because we -- we're not configured to record that device

24

within our secure network.

25

THE COURT: So now if a prisoner is talking on the

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1

phone, what is that -- how is that call recorded?

2

THE WITNESS: It's recorded in the Trust Fund

3

database called Truphone.

4

THE COURT: So it's being simultaneously recorded

5

and it's not being -- and it's just there? So if I ask the

6

Bureau of Prisons to get me a telephone call from such and

7

such a date, it's sort of like the way we record what's

8

going on in the courtroom, it's in our system?

9

THE WITNESS: Absolutely.

10

THE COURT: Okay. But this other one wouldn't be

11

because it's on a disk or it's on a VCR. Is that what

12

you're saying?

13

THE WITNESS: What I'm saying is, Your Honor, the

14

DSL stand alone line, there's no provision to monitor it.

15

There's no provision to record it within that secure inmate

16

telephone system.

17

THE COURT: Right. It's obvious it wouldn't be in

18

the same system. But the witness before testified there's a

19

way to record and preserve it. He'd have to --

20

THE WITNESS: Yeah, but that recording solution

21

would have to meet those DOJ security requirements, and then

22

be placed on our secure network.

23

THE COURT: I don't understand what that means.

24

THE WITNESS: Just because a device records it, we

25

can't testify or verify as to the veracity of the data. For

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1

example, like cell phone forensics data which we set up,

2

there's a forensic hash that runs through that digital

3

evidence that, you know, is used to -- to validate the

4

evidence authenticity. But if you're recording outside the

5

secure network, there's no real validation other than it was

6

recorded on that device.

7

BY MR. PANAGOPOULOS:

8

Q. Let's go back to my question which relates to recording.

9

They can be recorded, right?

10

A. Your expert testified the device can record.

11

Q. Now, if you have a DVD that records someone's face here

12

signing in the BOP, are you telling me that there's a

13

dispute at that point as to who it is who's signing?

14

A. I'm telling you the storage of the evidence, Counselor,

15

doesn't meet the DOJ standards.

16

THE COURT: Where do the DOJ standards exist?

17

THE WITNESS: The federal -- they're called FIPS,

18

Your Honor. The Federal Information Processing Standard.

19

140-2, 197. They have to do with encryption of data.

20

THE COURT: What was that? Encouragement of data?

21

THE WITNESS: Encryption of data. Yeah. Because

22

everything over that secure line, whether it's an inmate

23

making a call, a staff member on the other system, the

24

BOPNET sending an email, all of that is encrypted for

25

security purposes.

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1

THE COURT: So besides storing things securely, is

2

your system such that it can't be hacked from the outside?

3

THE WITNESS: That's correct.

4

THE COURT: So when we set up lines here to

5

communicate with Guantanamo, there's secure lines that no

6

one else can get into other than in the courtroom where

7

they're at. Is that what you're saying that the inmates are

8

using for phone calls?

9

THE WITNESS: I'm saying that that data is

10

encrypted, yes.

11

THE COURT: So even if they're talking to their

12

mother, you're saying that somebody can't hack into that.

13

THE WITNESS: Never say never, but it's very

14

protected.

15

THE COURT: But is not the same thing true if you

16

have a DSL line? Or is that sort of more available to

17

hackers?

18

THE WITNESS: My understanding, Your Honor, is

19

that that DSL line doesn't necessarily meet those same FIPS

20

standards. And the device, because we've not done a formal

21

analysis, I don't know if the videophone would meet that

22

device -- those -- those same DOJ standards or not.

23

BY MR. PANAGOPOULOS:

24

Q. So then you don't know whether a recording would meet

25

DOJ standards because you haven't analyzed it.

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1

A. I can't say that it would.

2

Q. Okay. And you can't say that it wouldn't.

3

A. Correct.

4

Q. And you haven't taken any steps since 2005 when

5

Mr. Bryant was incarcerated to analyze whether that system

6

would?

7

A. Let me put this in context, Counselor. I found out this

8

summer about it. I have not been tasked with a formal

9

evaluation of the videophone, as I've previously testified.

10

Q. I understand that. But Mr. Bryant was incarcerated in

11

2005. And what you're telling us is over the last several

12

years since 2005, you haven't even been told that you --

13

THE COURT: Well, I don't understand -- without

14

knowing more about this case, I don't understand why anybody

15

didn't -- has there been a court order telling the

16

defendants to do anything?

17

MR. PANAGOPOULOS: No, Your Honor. But the

18

regulations require that if a prisoner asks for an

19

accommodation, that the prisoner's preference for

20

accommodation is to be given priority. And unless the BOP

21

can demonstrate that it is an undue burden -- and it has to

22

do so in writing -- that the prisoner should be provided

23

that accommodation.

24

THE COURT: Well, but in a PI you've got the

25

burden. So I'm a little confused.

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1

MR. PANAGOPOULOS: Well, we have the burden of

2

showing what we need to show, but the Government bears the

3

burden of showing that there is an undue burden, and that's

4

why they're not providing this information -- or they're not

5

providing this accommodation, rather. And the Government

6

has done nothing to do that. And that's one of the reasons

7

that they're in violation of the Rehabilitation Act.

8

MS. FRANCIS: Your Honor, I would ask if counsel

9

-- which regulation is counsel referring to?

10

MR. PANAGOPOULOS: 39.160. I'm sorry. It's

11

29 C.F.R. 39.160.

12

THE COURT: Yes. Do you know what's the subpart?

13

MR. PANAGOPOULOS: Subsection (d) --

14

THE COURT: (d).

15

MR. PANAGOPOULOS: States that -- in relevant part

16

-- "In those circumstances where agency personnel believe

17

the proposed action would fundamentally alter the program or

18

activity, or would result in undue financial and

19

administrative burdens, the Agency has the burden of proving

20

that compliance would result in such alteration or burdens"

21

-- I'm sorry -- "would result in such alteration or burdens.

22

The decision that compliance would result must be made by

23

the Attorney General or his or her designee after

24

considering all regency -- agency resources available."

25

(Sic)

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MS. FRANCIS: And, Your Honor, I don't know if the

2

Court is accepting a -- another representation at this time

3

or if the Court wants me to wait until afterwards, but I

4

have another regulation that shows -- that counters that to

5

an extent in terms of BOP's obligations to follow an inmate

6

-- a complaint. I have here 28 C.F.R. 39.170, I believe

7

it's subsection (d)(2).

8

THE COURT: What's that say?

9

MS. FRANCIS: And it says: Before filing a

10

complaint -- well, from talking with agency counsel and from

11

looking at this, it shows that in order for a complaint to

12

be filed it would need to be filed by an inmate.

13

Mr. Berke at this time is not in BOP custody. And

14

before filing a complaint, he would have had to have gone

15

through BOP's administrative remedies and exhaust those

16

before taking it to the Department of Justice.

17

THE COURT: He did not -- you haven't argued that

18

to me now. What -- you're not saying that he can't invoke

19

-- or are you -- 29 C.F.R. 39.160?

20

MS. FRANCIS: What we're saying, Your Honor, is

21

that before he can even seek relief, the type of relief that

22

he's seeking -- and before he can even claim that the BOP is

23

in violation, there is a set of steps that he would need to

24

take. He would need to be in -- if I'm understanding my

25

agency counsel correct on the regulations, he would need to

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1

be in BOP custody. He would need to make -- he would need

2

to exhaust the administrative remedies that are afforded to

3

him as an inmate.

4

THE COURT: He didn't ask me, as far as I recall

5

to, to throw this out on the grounds that I don't have

6

jurisdiction.

7

MS. FRANCIS: Well, Your Honor, that would have

8

been part of a dispositive motion, which I did point out to

9

the Court in a phone call recently that we would like to

10

have been able to file before now but unable to do so, but

11

we still have time to do so.

12

THE COURT: Well, you have time to do so, but if

13

nobody raises this jurisdictional issue, I'm supposed to be

14

ruling on a PI. I can't rule on a PI if I don't have

15

jurisdiction.

16

MR. PANAGOPOULOS: Your Honor, it's pretty clear

17

that you do have jurisdiction because he's not in custody

18

and he doesn't have to go through the administrative

19

process.

20

THE COURT: Well, no. She's saying that -- I

21

don't know whether he can take -- invoke 29 C.F.R.

22

39.160(d).

23

MR. PANAGOPOULOS: Your Honor, that regulation

24

doesn't state that it is only invoked when someone is in

25

custody. It talks about what the Agency is required to do

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1

with respect to --

2

THE COURT: It talks about an inmate, though. Can

3

I see the reg? It talks about an inmate.

4

MR. PANAGOPOULOS: Well, it talks about

5

applicants, participants, personnel of other federal

6

entities and members of the public. So it's not limited

7

only to inmates.

8

MS. FRANCIS: And, Your Honor, I can show the

9

Court --

10

THE COURT: Wait a minute.

11

MS. FRANCIS: I'm sorry, Your Honor.

12

THE COURT: You know, the Government -- you can't

13

put -- I can't decide anything without jurisdiction. But if

14

no one tells me, makes the argument, it's not exactly --

15

although I have a sua sponte obligation to determine it --

16

Can you put on the buzzer, please? Have a seat.

17

(Off-the-record discussion with the law clerk.)

18

THE COURT: Sorry. Can we turn off the buzzer?

19

All right. I don't know what the Government's

20

argument is, per se. I mean, they're relying on a

21

regulation that would talk in general about people that are

22

participating in government programs. So -- and he isn't in

23

there yet. And you don't have any authority to tell me I

24

don't have jurisdiction, as far as I can tell. You might

25

argue that once he gets in there. But that's why they filed

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1

ahead of time.

2

But I think he can invoke 39.160 of the C.F.R. It

3

isn't limited to inmates; it's just limited to people who

4

participate in federal programs.

5

MR. PANAGOPOULOS: And I believe, Your Honor, that

6

under the PLRA, the Prison Litigation Reform Act, only an

7

inmate would be required to go through that administrative

8

process.

9

THE COURT: Right. But that's the way Bryant

10

went, so I just don't know what I can make out of Bryant in

11

a sense. I just don't have any idea what the administrative

12

process that he has to go. So whether or not he's been

13

tasked or not tasked, this case was filed a couple weeks

14

ago.

15

MR. PANAGOPOULOS: Right. However --

16

THE COURT: What is the imminency here, Counsel,

17

by the way?

18

MR. PANAGOPOULOS: Well, the imminency --

19

THE COURT: He has to check himself in, but he has

20

means of communication.

21

MR. PANAGOPOULOS: Your Honor, the imminency was

22

that when we -- when we first filed this action, Mr. Berke

23

had requested numerous accommodations. And those were not

24

being provided at any facility. And we filed this lawsuit.

25

And after we filed the lawsuit, the Government -- and after

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1

we had the initial phone call with the Court, the Government

2

decided to move Mr. Berke to the Tucson facility where they

3

could provide him with some of the accommodations that have

4

been requested.

5

And, you know, we will say that the Government has

6

done that. That's part of the declaration that was filed.

7

But they haven't provided him with everything that we

8

believe is necessary and appropriate. And, you know, this

9

is the last piece that we believe is -- is necessary and

10

appropriate for him to have communication.

11

THE COURT: Right. But my point is if he got it

12

five months from now or three months, that's nice, but it's

13

not -- the PI implies a certain urgency.

14

MR. PANAGOPOULOS: I will agree with the Court

15

that the level of urgency is a little bit different now that

16

he has gotten several different accommodations that he

17

had -- he's -- that he had asked for. It's not -- you know,

18

honestly, it's not at the exact same level. However, you

19

know, you have someone who's going to be in there for -- for

20

two years or less. We've had the Bryant case --

21

THE COURT: 24 hours (sic).

22

MR. PANAGOPOULOS: 24 months. We've had the

23

Bryant case that has been going on for a very long time, and

24

the Government hasn't done what it's required to do. It

25

hasn't analyzed. He's requested this phone.

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1

THE COURT: Who?

2

MR. PANAGOPOULOS: Mr. Berke. We allege in our

3

complaint that he called the prison, he requested this

4

phone, and it was denied.

5

Mr. Craig testified that the BOP has denied the

6

request for the videophone. Yet --

7

THE COURT: You did?

8

THE WITNESS: I -- I said I had not completed an

9

evaluation, Your Honor.

10

THE COURT: Yeah, I didn't think he said that.

11

MR. PANAGOPOULOS: Well, I asked him if he was

12

aware that the BOP had denied that request, and he said yes.

13

THE COURT: They have denied it formally?

14

MS. FRANCIS: Well, Your Honor, and I -- this is

15

-- this has been our question in terms of has there been a

16

formal request by Mr. Berke for such a phone. The first

17

time that anyone from the BOP became aware that Mr. Berke

18

wanted such a videophone was when he filed his complaint,

19

but there was no other, I guess, communication between

20

Mr. Berke and the BOP where BOP would have been able to look

21

back at him and say, No, we're not going to give this to

22

you. The first time that anyone from BOP is even learning

23

about Mr. Berke's, quote/unquote, request is when he filed

24

his complaint back in August.

25

MR. PANAGOPOULOS: No, there were several phone

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1

calls Mr. Berke made and that we also made on his behalf to

2

the facility where he is to be located.

3

THE COURT: All right. Let's finish up. Finish

4

up with the witness.

5

MR. PANAGOPOULOS: All right.

6

BY MR. PANAGOPOULOS:

7

Q. Okay. The recording of -- of calls. You -- I believe

8

that when calls are recorded in a foreign language, those

9

have to be sent off to a contractor to -- to translate; is

10

that correct?

11

A. Unless we have a staff member who is bilingual in that

12

specific language.

13

Q. All right. So unless you have a staff member who's

14

bilingual in a specific language, the phone call has to be

15

sent off site somewhere to be translated.

16

A. That's correct.

17

Q. Okay. And when it's sent off site somewhere, it's no

18

longer within the DOJ's secure system, right?

19

A. No. But when those calls are sent off site for

20

translation, it's through the government contractual

21

process. The company is vetted, as well as individual

22

contractors working on it have a security clearance.

23

Q. Okay. And you haven't done anything to investigate

24

whether or not you can have an ASL translate -- whether any

25

of those companies perhaps even have ASL translators, right?

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1

A. I have not been tasked with that, Counselor.

2

Q. And you have no idea whether or not the current phone

3

system you use might be able to store and translate those

4

calls.

5

A. I have not been tasked with that, Counselor.

6

Q. Now, if you were able to record and monitor the calls,

7

that would address your monitoring concerns, correct?

8

A. You're asking me a hypothetical. What I would say is,

9

whatever the device is, if it was able to be hosted on the

10

secure network and follow the same stringent DOJ IT security

11

protocols, the answer to your hypothetical would be yes.

12

Q. Okay. Do you remember in your deposition I asked you

13

about the Z4 system? That's one of the same systems that

14

Mr. Ray testified about today.

15

A. I believe you showed me a handout of it.

16

Q. Okay. And you -- you looked at the fact that it could,

17

in fact, record telephone calls. Correct?

18

A. The literature stated that, yes.

19

Q. And I asked you, So if you could record those

20

conversations, does that alleviate the burden? Do you

21

remember that question?

22

A. I do.

23

Q. And do you remember that you answered, It addresses the

24

burden?

25

A. Yes.

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1

Q. Okay. And if you could record those conversations and

2

send them off for translation, then you'd be treating those

3

phone calls essentially the same way you treat those foreign

4

language calls for which you don't have in-house

5

translators, correct?

6

A. If we could do it within the same secure computer

7

network.

8

Q. Right. And again, let's assume that, because you

9

haven't done anything to determine whether you can or not,

10

right?

11

A. I have not completed a formal analysis.

12

Q. All right. So, again, assuming that you can, if you are

13

able to send those to translations just like foreign calls,

14

you'd be treating them the same way, right?

15

A. Possibly.

16

Q. "Possibly." Well, do you recall again in your

17

deposition when I asked you if it made the burden the same

18

as the BOP recording foreign language calls.

19

A. Vaguely.

20

Q. Do you need me to show you your deposition, sir?

21

(NOTE: Document being provided to the witness.)

22

Q. I'd ask you to turn to page 55.

23

A. 51?

24

Q. 55.

25

A. 55. Okay, I'm there.

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Q. Okay. And -- well, actually -- actually it does start

2

at the bottom of 54.

3

I asked you: "It addresses the burden, so it is

4

no longer burdensome at that point."

5

And you responded: "I would say it reduces the

6

burden."

7

And I asked you: "Does it reduce the burden to

8

the same burden the BOP has with recording other telephone

9

calls?"

10

And your answer was: "Potentially."

11

And then I asked you: "Same as foreign language

12

calls, right?"

13

And what was your answer?

14

A. "They are comparable."

15

Q. "They are comparable." Okay. So it's the same burden,

16

right?

17

A. That's my testimony.

18

Q. Okay.

19

THE COURT: Do you know how many hearing-impaired

20

people there are in the Bureau of Prison system?

21

THE WITNESS: I do not, Your Honor.

22

THE COURT: And do you know how many people there

23

are who don't speak either Spanish or English?

24

THE WITNESS: I know from my 25 years of

25

experience, a high percentage.

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1

THE COURT: That don't speak either?

2

THE WITNESS: I'm sorry, I didn't hear the

3

question.

4

THE COURT: I asked you if you knew how many

5

people in the Bureau of Prisons system don't speak either

6

English or Spanish.

7

THE WITNESS: No, I do not, Your Honor.

8

BY MR. PANAGOPOULOS:

9

Q. Does the Bureau of Prison have an English-only rule for

10

those people who do speak English? Do you require them to

11

speak English on the phone?

12

MS. FRANCIS: Objection, Your Honor, as to

13

relevance.

14

THE COURT: No. If he knows.

15

THE WITNESS: I'm not sure I understand what

16

you're asking, Counselor.

17

MR. PANAGOPOULOS: Sure.

18

THE COURT: Are people supposed to use English if

19

they have more than one language --

20

THE WITNESS: That's the expectation. There's not

21

a written English-only rule.

22

BY MR. PANAGOPOULOS:

23

Q. Okay. So people could use --

24

A. To my knowledge.

25

Q. People could use any language they were comfortable with

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1

on the phone.

2

A. If they could effectively communicate with a staff

3

member, yes.

4

Q. Well, I'm talking about a telephone call with someone

5

outside the system.

6

A. Yes.

7

Q. Any language they want?

8

A. There is no restriction.

9

Q. Okay.

10

MR. PANAGOPOULOS: Your Honor, I don't believe I

11

have any further questions for Mr. Craig. If you'd give me

12

just one moment to check with co-counsel.

13

(Pause.)

14

MS. FRANCIS: May I, Your Honor?

15

THE COURT: Yes.

16

CROSS-EXAMINATION

17

BY MS. FRANCIS:

18

Q. Good afternoon, Mr. Craig.

19

A. Good afternoon.

20

Q. You testified earlier that your office -- you were not

21

tasked with doing a formal evaluation of this videophone

22

technology. Do you remember that?

23

A. That is correct.

24

Q. Has -- has there been any form of evaluation of -- of

25

videophone technology as it relates to BOP's computer

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1

system?

2

A. Not to my knowledge.

3

Q. Have you conducted any -- any evaluation, informal or

4

otherwise, of the videophone technology?

5

A. All I've done is reviewed the literature and reviewed

6

the expert opinions for this case.

7

Q. And why did you do that?

8

A. In preparation for testimony.

9

Q. Okay.

10

THE COURT: What do you do to do an evaluation?

11

What's it all about for something like this?

12

THE WITNESS: Yes, Your Honor. It's typically a

13

six-month to year process. We field the -- we take the

14

device or technology into the field for evaluation. Does it

15

meet its stated purpose from the manufacturer? For example,

16

if its a less lethal munition, does it have the effect

17

without harming human subjects that it says it does?

18

Then we do a review of the law, the policy. We

19

bring in subject matter experts from the different

20

disciplines that would be affected. And then we do a

21

recommendation to the agency executive staff, which is the

22

director, regional director, assistant director -- I believe

23

there are 17 in total -- as to adoption of that technology

24

for the agency.

25

We rely heavily on information from the military

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1

intelligence communities, and specifically their human

2

effects models, as to their safety in the example of less

3

lethal evaluation. But we do the evaluation, we field test

4

it, and then we make the recommendation to the agency

5

executive staff.

6

MS. FRANCIS: Can I go on, Your Honor?

7

(Off-the record with the law clerk.)

8

THE COURT: Okay. Go ahead.

9

MS. FRANCIS: May I proceed, Your Honor?

10

THE COURT: Yup.

11

BY MS. FRANCIS:

12

Q. Does your office have -- follow standards as to when a

13

formal evaluation should be done?

14

A. Yes. It's codified in our program statement.

15

Q. Okay. Do you know right now, basically, what triggers a

16

formal evaluation?

17

A. We can recommend that one be done from my office or it

18

can be assigned to us by the agency executive staff or the

19

chief information officer for whom we work.

20

Q. Okay. And did any -- did the chief information officer

21

task your office with doing a formal evaluation of the

22

application of videophone in a correctional facility?

23

A. No, she did not.

24

Q. Okay. And would your office recommend the

25

implementation of technology such as this videophone into a

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1

correctional facility without a formal evaluation being

2

done?

3

A. We would -- we would never recommend the adoption of any

4

technology without a complete evaluation being done.

5

Q. Why is that?

6

A. For legal reasons, safety reasons, and professional

7

standards. It's what we do.

8

Q. Okay. Now, with respect to an informal evaluation, did

9

your office reach any conclusion -- well, not reach any --

10

well, yeah, reach any conclusion as far as would they --

11

would BOP -- would a BOP facility be able to immediately

12

implement a videophone in its -- on its -- would such a

13

technology be able to be implemented in a BOP facility?

14

A. Based on the very limited informal review that I've done

15

for this case, I am not convinced it meets the IT security

16

requirements. We would have to do a complete formal

17

evaluation.

18

Q. Okay. And then -- okay. With respect to counsel's

19

questions about the fact that a videophone can record a

20

conversation, a video conversation between people, does that

21

address all of the -- all of your office's concerns

22

regarding recording and monitoring of the calls?

23

A. Just the mere fact it can be recorded?

24

Q. Yes.

25

A. No.

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1

Q. Why is that?

2

A. Again, I go back to the concerns I previously stated to

3

the opposing counsel. Secure storage of the call for

4

further administrative or prosecutorial action. Maintaining

5

security of the network. And then having the recorded call

6

we -- we would have to look for, as you mentioned earlier,

7

inappropriate conduct or if signals were flashed, or

8

whatever.

9

Q. Okay. Like, really, what are -- what are the concerns?

10

If you were to record something off of a videophone and then

11

try to store it on the current network that's being used in

12

BOP, would that pose a problem?

13

A. It's not configured to accept it, as far as I know.

14

Q. Okay. And when you say as far as you know, what do you

15

know about the current system?

16

A. I know the Trust Fund Truphone inmate telephone system

17

has years of development, millions of dollars of

18

infrastructure development to develop a secure database,

19

secure system for inmates to place their calls.

20

But more importantly, for staff to maintain the

21

security of the institution and the public safety. Because

22

within that database there's a true intel function that

23

allows staff to search recorded calls for buzz words, such

24

as attempted introduction of contraband into a facility,

25

drugs, weapons, contraband cell phones, what have you. It

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1

allows --

2

THE COURT: Well, you admit that you can't do that

3

if there's sign language. You can do that if they're using

4

the TTY, by the way?

5

THE WITNESS: Your Honor --

6

THE COURT: In other words, you can search that

7

for words, is that what you're saying?

8

THE WITNESS: Your Honor, that would be -- that

9

would be an individual review by the staff of the transcript

10

from the TTY machine.

11

THE COURT: So here what you'd have -- you have to

12

get a transcript made. There the transcript exists. So

13

you'd have to pay a contractor to do the transcript the way

14

you would with a non-English speaker.

15

THE WITNESS: For the ASL, correct.

16

THE COURT: But with the TTY, the transcripts

17

started coming out of the machine.

18

THE WITNESS: Yes, Your Honor.

19

THE COURT: How do they secure that, since it

20

looks a little bit -- the way the reporters used to do with

21

a little -- on their machine?

22

THE WITNESS: My understanding is there's a

23

logbook where the TTY call is logged, and then attached to

24

that log is the actual transcript. And, obviously, staff

25

would review it. If there's any immediate concerns, they

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1

would take the next steps.

2

BY MS. FRANCIS:

3

Q. Getting back to the use of the videophone, let's say

4

that a call is recorded -- from what you know so far, if you

5

can answer this question -- if the call is recorded from a

6

-- either recorded and put on a DVR or a flash drive, what,

7

if anything, would prevent BOP from taking that call, that

8

recording of that call, and putting it on their secured

9

network for storage?

10

A. You mean technically or policy-wise?

11

Q. Policy-wise. Let's start with that.

12

A. Well, the integrity of the data, the safeguards of the

13

data. I mean, physically could we somehow reconfigure the

14

system? I'm sure that's technically possible. But it's a

15

matter of capturing that information, maintaining the

16

authenticity of the data through the storage process that's

17

outside the secure network. And I -- I've never heard of

18

any other example of that being done.

19

Q. What are the -- are there any IT security concerns?

20

What are the specific IT security concerns that BOP would

21

have with doing such a thing, as far as you know?

22

A. With taking outside information and loading it into our

23

system?

24

Q. Yes.

25

A. There -- well, there are potentially -- if that was

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1

infected with a virus, infected with a Trojan Horse, not

2

only would it start with the Trust Fund network, but because

3

of the gateway to the BOP Network to review those calls, it

4

could infect that and then spread to the entire Justice

5

Telecommunications information system.

6

Q. So are you saying -- let's say a virus was introduced

7

into the secured network, would it -- just to be clear,

8

would that just affect BOP's internal network?

9

A. No, it's all part of the JUST network, JUTNet, and it

10

could affect the whole network.

11

Q. Okay. And would taking such information that was

12

obtained through that DSL line, when you plug in the

13

videophone and when you record that information, does it

14

meet the standards, the FIPS standards -- F-I-P-S, for the

15

court reporter's benefit -- standards that you had talked

16

about earlier with the Court?

17

A. To my knowledge, it does not. And the IT security staff

18

would not let us just blindly download it into any system.

19

Q. Okay. So is it fair to say, then, then this technology

20

would not be immediately implementable at a BOP facility?

21

A. My sense is that it would have to follow a parallel

22

development like the inmate telephone system where a system

23

is configured to store that data for future monitoring

24

purposes.

25

Q. Has your office ever received any information to show

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that the use of the TTY system within the Bureau of Prisons

2

is not allowed?

3

THE COURT: Say that again.

4

BY MS. FRANCIS:

5

Q. Has his office ever received any information, whether it

6

be from a court or any -- any information anywhere that a

7

TTY phone system can no longer be used?

8

A. Not only -- not during the four years I've been in my

9

office, nor the time I spent in the field as an associate

10

warden or warden was any such information received.

11

THE COURT: But the TTY, as far as you know, meets

12

FIPS?

13

THE WITNESS: It's -- well, the TTY line,

14

Your Honor, is actually used on a secure staff line which

15

configured, and it meets those same standards.

16

THE COURT: What same standards?

17

THE WITNESS: The FIPS standards.

18

BY MS. FRANCIS:

19

Q. And when you say "FIPS standards," what are you speaking

20

of specifically?

21

A. The encryption standards, 140-2 and 197.

22

Q. And --

23

MS. FRANCIS: Court's indulgence, please.

24

BY MS. FRANCIS:

25

Q. Other than the IT security concerns, what other

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1

concerns, if any, would your office have about implementing

2

the use of a videophone in a correctional facility?

3

A. Well, one concern I have as a former warden is that --

4

and obviously it's incumbent on staff to supervise the

5

device -- but an inmate who would have that special kind of

6

access. Because the inside prison world is not the same as

7

the free world. Inmates that view other inmates getting

8

special privileges, such as they would view this analogous

9

to face-timing with family members, even though the

10

individual is deaf, even though the individual has to use

11

ASL to communicate, it would be perceived as getting

12

preferential treatment. That's one concern I would have as

13

a 25-year veteran of the Agency.

14

Another one is, how do you control what happens on

15

end of the phone, the other videophone? And as was

16

previously testified today, with a splitting capability,

17

could you split it off to somebody else and perhaps codes or

18

even signs be flashed to continue criminal enterprise on the

19

street? I can't rule that out.

20

So there would be several concerns I would have as

21

a field administrator or in my current position as acting

22

chief of this office.

23

Q. And how would you compare the use of this videophone to,

24

say, the use of video conferencing within the Department of

25

Justice, specifically within a Bureau of Prisons facility?

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A. Apples and oranges.

2

Q. Why is that?

3

A. In fact, the video conferencing system in the Bureau of

4

Prisons, which we use on a regular basis for the director

5

and his executive staff to communicate with wardens or, as

6

the Court noted earlier, for the court to hold hearings with

7

inmates, is the Tandberg system. It's a very secure video

8

conferencing system, but it is set up within the secure

9

JUTNet computer network.

10

It is not a stand alone system. It is integrated.

11

It is part and parcel of our internal computer network and

12

meets all those same IT security requirements, such as the

13

data being encrypted. So nobody could hack in and hear the

14

court when they conducted a hearing or nobody could hack in

15

and hear the director give direction to his field wardens.

16

Q. Okay. So is it fair to say, then, just because the two

17

might use similar technology, that the security concerns are

18

different?

19

A. They're light years apart.

20

Q. Okay. With regards to --

21

MS. FRANCIS: Court's brief indulgence, please.

22

BY MS. FRANCIS:

23

Q. You had testified a moment ago about -- I believe you

24

testified about a moment ago about being able to monitor

25

what's going on on the other end of the call.

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Currently -- well, would the use of a videophone

2

system require placing a staff member to monitor the phone

3

call as it's taking place?

4

A. If I was the warden in that facility, I would have it

5

directly supervised, yes.

6

Q. Why is that?

7

A. For the concerns I -- I raised earlier, whether or not a

8

coded message is being passed. You know, if the individual

9

had a propensity for criminal conduct -- let me give you

10

analogy.

11

When an inmate uses the inmate telephone system,

12

some inmates have committed crimes via telephone. A public

13

safety factor can be approved by the warden to limit or even

14

prevent their telephone use because it is a privilege, not a

15

right, when you're incarcerated in the Bureau of Prisons.

16

So if similar conduct had been carried out through

17

a videophone by that particular inmate -- I'm not saying

18

that's the case in this case, but for example -- then I

19

would want that directly supervised to prevent the

20

occurrence of that happening again and protect the public.

21

Q. Okay. In your 25 years of experience within the Bureau

22

of Prisons, have you ever worked at a, for example,

23

satellite camp?

24

A. Yes. I built and was the first administrator of the

25

satellite work camp outside the U.S. penitentiary in Lompoc,

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California, from -- I'm sorry -- outside of the U.S.

2

penitentiary in Lompoc, L-O-M-P-O-C, California, in Santa

3

Barbara County from --

4

Q. If you could spell it for the court reporter.

5

A. Lompoc, L-O-M-P-O-C. It's Chumash Indian for stagnant

6

water.

7

Outside Lompoc, California, from 1991 to 1995.

8

Q. Okay. And generally speaking, do you know what the

9

staffing level is at such -- at a satellite camp facility?

10

A. Camp inmates, by virtue of their classification as

11

minimum security, do not present the same concerns for

12

immediate acts of violence, although the propensity is

13

there. The staffing pattern compared to a medium or high

14

security facility, of which I've both served as associate

15

warden and warden, is minimal.

16

For example, at that particular camp there were

17

300 inmates at that work camp. I had one officer a shift,

18

three shifts a day, 24/7, 365 a year. But in terms of

19

staff, other staff to help supervise and deter and -- detect

20

and deter criminal conduct or violation of institution rules

21

and regulations, I typically had three -- two- to three-unit

22

staff members, such as a unit manager, case worker and a

23

counselor.

24

Q. Okay. So if one of those people had to go and monitor a

25

phone call, if it was done by videophone, what would be the

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problem with that?

2

A. Well, if you just do the math, Counselor, you can tell

3

the fewer eyes you have watching the inmates, the more

4

opportunity they're going to have to circumvent the rules.

5

And criminals don't stop being criminals when they come to

6

prison, even in a minimum security environment.

7

Q. Okay. Getting back to the use of the -- you testified

8

earlier about the Truphone system. Are there any security

9

-- security mechanisms in place with that system?

10

A. It's heavily invested with security features. Such as

11

it's part of the true -- one software package for our

12

investigators ties the inmate phone numbers they call on

13

that system. Through link analysis you can see if any other

14

inmates are calling that for a potential drug drop on the

15

street, to try to introduce drugs or another dangerous

16

contraband item back into the secure environment. It has

17

the search feature for keywords in those conversations that

18

would trigger us to listen to it. It has a number of

19

built-in security features.

20

Q. Let me ask you this: How does an inmate place a phone

21

call on the -- on the Truphone system?

22

A. Well, first of all, they pay for the phone call through

23

their commissary account, which is also run by the Trust

24

Fund. They're assigned a unique identifier, a PAC number.

25

So they would have to enter their PAC number. And then they

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have up to 30 numbers approved by the unit team of

2

individuals, family, friends, et cetera, in the community.

3

Now, they can put their attorney on that list, but they're

4

advised it's subject to monitoring.

5

There's another procedure if they want to make an

6

unmonitored attorney phone call that has to be approved

7

through the unit team for compelling or exigent legal

8

circumstances. So they go up, if they dial one of the 30

9

approved numbers, they put their PAC number in first, then

10

they dial that number.

11

Q. When you say "PAC number," how do you spell "PAC," for

12

the court reporter?

13

A. P-A-C. It's analogous to a PIN number we would use for

14

a credit card.

15

Q. And why is that used?

16

A. That's to -- for identity -- positive ID. That if that

17

phone call has actionable language in it for either

18

administrative rule violation or possible criminal

19

prosecution, then the fact it was that inmate using his

20

account. And the policy specifically prohibits inmates from

21

giving that PAC number to other inmates. Do they try to do

22

that? Do we catch them? Do we discipline them?

23

Absolutely.

24

Q. Okay. So once they enter a number, the PAC number which

25

is their identifying number, they make the call. What

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1

happens to the call right after the call is complete?

2

A. Well, during the call it may be live monitored, but

3

after it's complete, Counselor, it is downloaded and stored

4

in our secure database.

5

Q. And that secure database is under -- what's the name of

6

that database?

7

A. Trust Fund.

8

Q. Okay. And from the Trust Fund, can anybody from an

9

outside network get access to those calls within that Trust

10

Fund network?

11

A. No, it's secure, it's encrypted.

12

Q. Why is that?

13

A. Several reasons. One, most importantly, is institution

14

security. Two, is privacy. And then, three, is protection

15

of the data for evidence or administrative hearings.

16

Q. Are there any other -- is there any other reason why

17

we're protecting this data for other than evidentiary

18

purposes?

19

A. Because the DOJ requires it.

20

Q. Okay. Is there any highly sensitive data in these data

21

-- in this -- that's being saved or could be saved through

22

these phone calls?

23

A. At certain locations there are national security cases,

24

yes.

25

Q. Okay. Any other types of data that's saved?

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A. There's transactional data: Who, what, when, where,

2

why, who made the call, what time was it, et cetera. As

3

well as -- or, metadata -- as well as the actual call.

4

Q. Okay. And with the use of a videophone, would we be

5

able to capture all of this information and then put it on

6

that secured network for storage without imposing a security

7

risk?

8

A. I'm not aware of a method.

9

Q. Okay. Earlier counsel had asked you about whether or

10

not you had read the information that was provided by both

11

experts, Mr. Ray and Mr. Cokely. Do you recall that?

12

A. Yes.

13

Q. Okay. And do you recall responding in your deposition

14

that you didn't disagree with what they -- with what they

15

had said. Not -- you said, "Not on its face." Do you

16

recall that?

17

A. Yes, I do.

18

Q. What did you mean by that?

19

A. I meant it was their expert opinion of the status of

20

videophone technology, which, again, I said I've just done

21

an informal review of, but it had no specific applications

22

or recommendations relative to the correctional environment,

23

particularly high security, that I would agree or disagree

24

with.

25

Q. Okay. Were there any other -- aside from that, are

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there any items that you have read in their reports that you

2

do disagree with?

3

A. Other than their recommendations to the BOP, no.

4

Q. Okay. With regards to comparing the recording of a call

5

on a videophone to, say, recording a call -- or not -- or

6

recording -- recording and translating a call that was

7

recorded on a videophone and comparing it to recording a

8

call on the current Truphone system, Trust Fund system, and

9

then having it interpreted, do you recall your testimony

10

during your deposition -- I think -- what did you say? That

11

they were comparable?

12

A. Yes.

13

Q. Are they identical? Are there identical issues

14

presented with those two types of calls?

15

A. Foreign language translation, ASL translation, I assume

16

would have their own unique set of characteristics.

17

Q. Okay. But are there any security concerns once again

18

between storing and collecting and recording a call that's

19

on the current phone system and taking a phone call from the

20

videophone system?

21

A. Every day across the United States calls are retrieved

22

from the secure encrypted inmate telephone system for

23

evidentiary purposes by the court system. Videophone we

24

have no experience with. There is no system, there is no

25

encryption, there is no secure apparatus.

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THE COURT: What happens when this VSI (sic) is

2

used? That's not on the secure system.

3

THE WITNESS: No, Your Honor. My understanding --

4

and I was not part of the Bryant case -- but my

5

understanding is that it's hooked up for certain events such

6

as when --

7

THE COURT: A medical appointment.

8

THE WITNESS: -- a medical appointment or a

9

discipline hearing, or what have you. And then it's

10

disconnected. So as it's directly supervised by staff, we

11

would --

12

THE COURT: So it's not recorded and monitored and

13

then retained.

14

THE WITNESS: No, Your Honor.

15

THE COURT: It's just a way of, like you can call

16

a phone AT&T, and they'll put an interpreter on for you for

17

a specific event and then hang up.

18

THE WITNESS: Yes, Your Honor.

19

MS. FRANCIS: Your Honor, let me -- may I just

20

step away and confer with agency counsel, Your Honor?

21

THE COURT: Uh-huh.

22

MS. FRANCIS: Thank you.

23

(Pause.)

24

BY MS. FRANCIS:

25

Q. Mr. Craig, with respect to the BOP's policies on email,

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are you aware of those inmate emails?

2

A. Yes, I am.

3

Q. Okay. And are you aware that emails -- emails --

4

inmates have access to email?

5

A. Yes. That was implemented several years ago. It's --

6

the system we used is TRULINCS, and it's administered by the

7

same organization, the Trust Fund.

8

Q. Okay. And in terms of --

9

THE COURT: Yeah, how does that work? There was

10

some discussion about it being days late.

11

THE WITNESS: Yeah. Right. That, Your Honor, I

12

would like to address that. That system was being

13

implemented as I was being moved from the field to the

14

central office in 2008. I was not there for its full

15

implementation.

16

When it was originally conceived, there was a

17

quarantine period -- well, let me start off, first of all,

18

the email system, TRULINCS, does not have a direct internet

19

connection to the free world. It is fire-walled off. It is

20

only for email. And it meets those same security

21

requirements we talked about today, Your Honor. The FIPS

22

standards.

23

That system, when it was first conceived, was set

24

up to ensure institution security, protection of the public,

25

that when inmates would send messages out -- because,

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remember, that's a new technology. And particularly in the

2

prison environment, we're very slow and cautious to adopt

3

new technology unless we can ensure institution security and

4

the public safety.

5

But when that system was implemented, the original

6

concept was a 24-hour quarantine period, as opposing counsel

7

testified, and that I testified to previously in my

8

deposition. 24 hours before the message would be sent out

9

to allow investigative staff to review it to see if there

10

were like any threats to the public. For example, a sex

11

offender. Or coming back in, if there was any coded

12

language for attempted escape plot, for example.

13

I now understand upon further research that that

14

is a two-hour window of quarantine. But the concept is the

15

same. It is not direct realtime communication. There is no

16

direct inmate access. And just like the inmate telephone

17

system, it's maintained on a secure encrypted network, and

18

the inmates pay for that service. I think it's five or ten

19

cents an email, whatever it is, and those funds, like the

20

funds from the telephone system, go back into the general

21

inmate benefit fund, if you will, for different equipment.

22

THE COURT: Wait. How are they charged now?

23

There was a lot of litigation on that. If you make a

24

telephone call, they're not calling collect anymore, are

25

they?

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THE WITNESS: No, Your Honor. They must pay for

2

the call -- they can make up to 300 minutes a month in

3

15-minute intervals. So they could go to their housing unit

4

after work, make a 15-minute call after they stood in line

5

and waited their turn, up to a maximum of 300, unless the

6

associate warden approves more.

7

THE COURT: And what does that cost a month that

8

comes out of the Trust Fund?

9

THE WITNESS: I don't have the current figure.

10

THE COURT: I mean, they are charged something per

11

minute.

12

THE WITNESS: Absolutely. And they pay for it out

13

of their commissary account either sent in by the outside or

14

from their institution earnings of a 12 to 40 cents an hour.

15

THE COURT: Is that true for this TTY?

16

THE WITNESS: No.

17

THE COURT: That's free?

18

THE WITNESS: That -- it's an accommodation we

19

provide.

20

THE COURT: And it would presumably be free for

21

the video. I don't know.

22

THE WITNESS: I don't know, but I would -- I

23

wouldn't think it would be the same kind of market as the

24

inmate telephone system.

25

BY MS. FRANCIS:

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Q. What about social visits? Are social visits available

2

to inmates?

3

A. Yes. Within the local implementing policy of our

4

national program statement, they can have social visits,

5

face-to-face contact in the visiting room.

6

Q. Okay. What about mail?

7

A. U.S. mail, yeah, absolutely. And there's also special

8

privileged mail, attorney mail, et cetera.

9

MS. FRANCIS: Okay. Court's brief indulgence,

10

please. Thank you.

11

(Pause.)

12

BY MS. FRANCIS:

13

Q. All right. Mr. Craig, before we wrap up, I just wanted

14

to ask, are you aware of the comparison between regulations

15

between -- for visiting privileges in the high security

16

facilities and the low security facilities at a -- at a BOP

17

correctional institution?

18

A. Yes. I've worked at both.

19

Q. Okay. And are they the same? Are they different?

20

A. The amount of manpower dedicated to a high security

21

visiting room operation, the number of surveillance cameras,

22

by definition is much higher. But the same institution

23

rules and regulations, the same prohibition against

24

interdiction of contraband, et cetera, exist in the camp

25

visiting room for social visits as exist in the

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1

penitentiary. That's why we have national program

2

statements.

3

MS. FRANCIS: Okay. I have no further questions,

4

Your Honor.

5

THE COURT: Thank you.

6

REDIRECT EXAMINATION

7

BY MR. PANAGOPOULOS:

8

Q. Mr. Craig, there's a TTY there in front of you. And I

9

don't know if you saw it earlier. There's a small tape,

10

paper, that comes out of it that's the transcription,

11

correct?

12

A. I saw the demonstration.

13

Q. All right. How is that tape placed into the BOP secure

14

network?

15

A. It is not, to my knowledge.

16

Q. It's not? Yet it's a recording that is maintained, and

17

it's maintained outside this secure system that you're

18

telling us about?

19

A. It's a paper copy. It's not digital.

20

Q. It's a paper copy. But it's okay to maintain that paper

21

copy outside the secured network?

22

A. That's the way I understand they do it at Tucson, yes.

23

Q. Okay. What is to prevent an inmate, after that inmate

24

types something into the TTY, to ripping that little piece

25

of paper off, chewing it up and swallowing it?

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A. Nothing, except staff supervision.

2

Q. Staff supervision. So does staff supervise TTY calls?

3

A. Yes. It's placed on a secure staff line, as I

4

previously testified.

5

Q. So the fact that you said as a warden you would also

6

have videophone supervised doesn't really change anything

7

with respect to communication of a deaf inmate; that either

8

way you're either supervising that deaf inmate making that

9

TTY call or supervising that inmate making that videophone

10

call, right?

11

A. They both have similar security concerns, yes.

12

Q. And so you'd have someone monitoring there. Cost burden

13

the same, right?

14

A. I would -- I would require direct supervision.

15

Q. Well, I know. I'm just saying that you require it

16

either way. So the cost and burden are the same. That was

17

my question. Right?

18

A. Yes, they would be.

19

Q. Okay. Thank you.

20

Do you know what -- what the IT requirements are

21

for the Virginia Department of Corrections system?

22

A. No, I don't.

23

Q. Do you know what they are for Harris County, Texas?

24

A. No, I don't.

25

Q. Do you know what they are for the Minnesota Department

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1

of Corrections?

2

A. No, I don't.

3

Q. So no investigation has been done with respect to any

4

other -- even any other prison systems that have implemented

5

videophone technology?

6

A. We have not completed a formal analysis or evaluation in

7

my office, Counselor.

8

Q. Okay. Now, counsel asked you a few questions about

9

telephone monitoring. You can't control what someone on the

10

other end of a telephone says to an inmate, can you?

11

A. No, but it's recorded.

12

Q. Okay. You also mentioned the concern that codes or

13

signs might be used on a videophone. Codes and signs can be

14

used on a telephone too, can't they?

15

A. Verbal or nonverbal, correct.

16

Q. They can tap on the receiver in Morse Code, for -- I

17

think was an example you gave me, right?

18

A. Right. But Bureau of Prisons staff have a skill set in

19

detecting that coded language, particularly in high security

20

facilities.

21

Q. And you have no idea whether or not a -- someone who can

22

translate ASL could pick up coded language, do you?

23

A. I can't testify to that, but I imagine that might be the

24

case.

25

Q. Okay. What about when someone sends mail in to a

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prison, is that reviewed and monitored?

2

A. In high security facilities, yes.

3

Q. Okay. What about in the facility where Mr. Berke will

4

be? At the camp.

5

A. At the camp? On a selected basis, random basis.

6

Q. Okay. And is mail ever used as evidence?

7

A. Absolutely.

8

Q. Well, how do you put that on your secure network?

9

A. It's paper versus digital.

10

Q. Paper. Okay. So you store that piece of paper where?

11

In a file cabinet somewhere on the facility?

12

A. In a fireproof safe that meets evidentiary standards.

13

Q. In a fireproof safe. And is that where you store the

14

little pieces of paper from the TTY too?

15

A. I can't speak for the warden at Tucson, but that would

16

be -- with any evidence in an institution -- let me finish

17

-- with any evidence in an institution that's not of that

18

digital media, it would be stored in a secure evidence safe

19

with chain of custody protocols and safeguards.

20

Q. Okay. So I take my DVD out of the computer after

21

recording my videophone conversation, put it in my case and

22

stick it in that fireproof safe. Why can't you do that?

23

A. Why would I want to store your DVD?

24

Q. Well, I think what we're -- okay. If you didn't

25

understand the question, let me rephrase it. I assumed you

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knew what we were talking about.

2

We talked about how videophone calls can be

3

recorded on a DVD using a DVR. Do you recall that

4

testimony?

5

A. Yes, I do.

6

Q. Okay. Thank you.

7

And so once it's recorded on a DVD, then you have

8

an actual DVD. Do you understand that?

9

A. I understand your question, Counselor.

10

Q. Okay. You were just having fun.

11

A. Let me address your question.

12

Q. So you take that DVD. Why can't you put it in a

13

fireproof safe?

14

A. We could, except for one very important consideration.

15

As it originates as digital media, the IT security

16

requirements are controlling, compelling. It's not

17

something the Bureau of Prisons can simply opt out of.

18

Q. What about closed-circuit cameras that record? What

19

happens to those recordings? That's digital, right?

20

A. Absolutely.

21

Q. Okay. Where do those digital recordings go?

22

A. They're on a secure DVR within the institution control

23

center. Again, within our network.

24

Q. Okay. So you could potentially record these videophone

25

calls on a secure DVR just like your security cameras.

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A. Technically, it's possible.

2

Q. Okay. And if you technically did that, because it's

3

technically possible, then you'd be in compliance?

4

MS. FRANCIS: Objection.

5

THE COURT: What?

6

MS. FRANCIS: Counsel needs to be more specific.

7

In compliance with what?

8

MR. PANAGOPOULOS: Well, in compliance just like

9

the closed-circuit camera recording would be in compliance,

10

which I believe is what he testified to.

11

THE WITNESS: Well, to be in compliance,

12

Counselor, would have to be almost within the institution

13

confines within the secured network. Because those cameras

14

are not out in the community like the other end of the

15

videophone would be.

16

BY MR. PANAGOPOULOS:

17

Q. I'm asking you that if you recorded it on a secured DVD

18

system, what's the difference?

19

A. Technically, they would be comparable, but we're not

20

configured for that.

21

Q. Okay. So they would be comparable --

22

A. And I testified to that previously. If there was a

23

system comparable to the ITS recording system with the IT

24

security requirements, encryption, all those things that

25

could be configured for the videophone, yes, they would be

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equivalent.

2

Q. Okay. And you have no idea whether that exists because

3

you haven't looked at them.

4

A. Correct.

5

Q. Great.

6

You talked about how the phone system can search

7

for certain words so that you can flag calls that might be

8

potentially security risks or criminal content; is that

9

correct?

10

A. That's correct.

11

Q. Okay. That cannot be done with the TTY, right?

12

A. That's correct. But it is done de facto by the direct

13

staff supervision.

14

Q. Okay. Which would be the case, de facto with --

15

A. The videophone.

16

Q. -- the video camera, right? The video recording?

17

A. We're going around the same questions, Counselor.

18

Q. Well, I mean, I didn't ask you a question. You just

19

chose to tell me that.

20

A. Yes.

21

Q. And the answer is the same, it could be done either way.

22

A. The answer is the same.

23

Q. Yeah, thank you.

24

You indicated that you were not aware of a method

25

by which a videophone could be monitored, recorded and

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stored. Do you recall that testimony when counsel asked you

2

that?

3

A. I think it was a little more specific, within the secure

4

network that we have.

5

Q. Right. And you indicated you were not aware of a

6

method.

7

A. For a videophone device, that is correct.

8

Q. But you're not aware of a method because you haven't

9

looked at a method.

10

A. I've not completed the formal analysis.

11

Q. Okay. Well, you've said that a couple of times, that

12

you haven't done a formal analysis. What analysis have you

13

done?

14

A. I think I previously testified, the review of the

15

literature and your expert reports.

16

Q. That's it. You've just reviewed our expert reports.

17

A. We've done no field evaluation. As you said, Counselor,

18

we've not looked at other systems, experience with it.

19

Q. All right. Yeah, I just wonder what you meant by an

20

"informal evaluation." There really hasn't been inform --

21

there really hasn't been any type of evaluation. You just

22

read expert reports.

23

A. And looked at the literature, correct.

24

Q. All right. Okay.

25

MR. PANAGOPOULOS: No further questions.

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THE COURT: Anything else?

2

MS. FRANCIS: No, Your Honor.

3

THE COURT: You may step down. All right. Any

4

more testimony?

5

THE WITNESS: Thank you.

6

(Witness excused.)

7

MR. PANAGOPOULOS: Your Honor, we have no other

8

witnesses.

9

THE COURT: Just a couple clarifications here,

10

first of all. He's to be -- he's to report on the 28th to

11

Tucson.

12

MR. PANAGOPOULOS: To Tucson, yes, Your Honor.

13

THE COURT: And I take it Tucson, no matter which

14

way you put it, is better than Florence would have been.

15

MR. PANAGOPOULOS: Tucson is better than Florence

16

would have been.

17

THE COURT: I mean for his purposes.

18

MR. PANAGOPOULOS: Right.

19

THE COURT: Okay. And he got 24 months.

20

MS. FRANCIS: That's correct, Your Honor.

21

THE COURT: So, effectively, that's -- 15 percent

22

less is what?

23

MR. PANAGOPOULOS: Three-and-a-half months,

24

roughly.

25

THE COURT: Three-and-a-half?

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MR. PANAGOPOULOS: It's 15 percent of 24 is

2

three-and-a-half, I think.

3

THE COURT: It's 21 months.

4

MR. PANAGOPOULOS: Right.

5

THE COURT: Okay. And his wife is out but she's

6

under home detention?

7

MR. PANAGOPOULOS: That's correct.

8

THE COURT: And we're here on a PI still. I mean,

9

that's our procedural posture. I think everybody agrees.

10

Correct?

11

MS. FRANCIS: Yes, Your Honor.

12

MR. PANAGOPOULOS: That is correct.

13

THE COURT: And maybe I could ask counsel. You

14

know, he was sentenced in December.

15

MR. PANAGOPOULOS: That's correct.

16

THE COURT: Where is -- I'm a little troubled by

17

the lag time here.

18

MR. PANAGOPOULOS: Your Honor, the lag time, as I

19

understand it, had nothing to do with this case at all other

20

than the last request, if I recall correctly.

21

THE COURT: No, no, no, no, I don't -- I know.

22

The judge gave him a report date way down the road, but no

23

one filed the lawsuit until August 14.

24

MR. PANAGOPOULOS: Right. Well, Your Honor, we

25

filed the lawsuit after calls had been made to the BOP to

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1

request the accommodations.

2

THE COURT: When was the first call made?

3

MR. PANAGOPOULOS: The first calls were made, that

4

I am aware of, I believe in late July. Mr. Lippert of my

5

office made some of those calls. And if I recall correctly,

6

that was in late July.

7

THE COURT: All right. So about seven months went

8

by where --

9

MR. PANAGOPOULOS: Well, we filed the lawsuit

10

in --

11

THE COURT: August 14.

12

MR. PANAGOPOULOS: -- August 14 -- on August 14.

13

THE COURT: All right. I will hear you briefly.

14

MR. PANAGOPOULOS: Okay. Your Honor, I think the

15

key here is the regulation that requires the Bureau of

16

Prisons to provide for effective communication and access

17

within its -- within its programs. And obviously, what --

18

you know, what is an effective communication and what is a

19

method of communication changes over time. You know, in 490

20

BC it may have been acceptable for someone to run 26 miles

21

to report a victory in a battle.

22

As Dr. Cokely testified in his deposition, Native

23

Americans used smoke signals to communicate some minor

24

information. I believe he said in his deposition where the

25

Buffalo were and whether they were coming, and where the

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1

soldiers were and whether they were coming. But technology

2

changes significantly. Years ago there were party lines on

3

telephones. Technology has changed.

4

And we have uncontroverted expert testimony that a

5

TTY system is no longer used by people who are deaf in the

6

American deaf community. We have uncontroverted expert

7

testimony that the current state of technology is

8

videophone, and it's been used for at least ten years. And

9

we have at least one circumstance that we know of, the

10

Bryant case, where a videophone was requested five years ago

11

and the BOP has not acted. And we --

12

THE COURT: You know, I have nothing before me

13

about that case. I don't know what's going on. It could be

14

lost in an administrative review hearing and out of the

15

courts. So to say that it was requested five years ago, I'm

16

focusing on Mr. Berke who wants a PI.

17

MR. PANAGOPOULOS: Right, but what we --

18

THE COURT: The relevance of Bryant is attenuated,

19

in my view.

20

MR. PANAGOPOULOS: Well, let me see if I can make

21

it a little less attenuated. We've heard testimony from the

22

person responsible for reviewing new technology that he

23

hasn't been asked to review it. And he's been in that

24

position for at least four years.

25

THE COURT: I agree.

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MR. PANAGOPOULOS: And the regulations do require

2

that once that the -- that the Agency has the burden of

3

proving that compliance would result in an altercation --

4

alteration of the program or burdens. And if -- if they

5

make that decision, they have to show us that decision in

6

writing. And that has not been done in our case. That has

7

not been done in any other case. So there's clearly a

8

violation of the regulations and of the Rehabilitation Act.

9

And there's also a violation because they're --

10

they're basically declining to provide this videophone,

11

which is in this day and age the only effective means of

12

communication for a deaf person.

13

THE COURT: Well, you would agree, hypothetically,

14

if it weren't consistent with the need for security at an

15

institution, it wouldn't matter if it were more effective.

16

MR. PANAGOPOULOS: Well, Your Honor --

17

THE COURT: The Court's job is not to control,

18

regulate or run a Bureau of Prisons. I mean, the Supreme

19

Court's told us that. So that the mere fact that it is

20

better and would put him in a better position than the TTY

21

is certainly not dispositive.

22

MR. PANAGOPOULOS: Although it is the question

23

under the Rehabilitation Act. And if there is a security

24

issue or a security concern, then that is the Government's

25

burden and obligation to prove. And you've heard from their

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1

witness that they can't do it.

2

THE COURT: They can't do it today. But you just

3

filed for a TRO and a PI in August.

4

MR. PANAGOPOULOS: Well, they haven't done

5

anything since August. You know, there's a VRIS system

6

that's going into that particular facility. So someone has

7

looked at the DSL line. Someone has looked at the

8

videophone.

9

THE COURT: I don't think it's a technological

10

issue the way -- yeah, you can plug one in, but --

11

MR. PANAGOPOULOS: Well, but we also heard

12

testimony that with anything that goes on that system

13

they're going to have to look at their IT security

14

requirements.

15

THE COURT: Well, I don't know that if it were a

16

temporary call that was made to get an interpreter to be --

17

for medical, but --

18

So you would ask, for your relief at this stage,

19

is that they install this system.

20

MR. PANAGOPOULOS: The relief that we would ask

21

for at this stage is that they install this system. And if

22

the Court is not willing to grant that relief, we would at a

23

minimum ask the Court to order that they do what the

24

Rehabilitation Act requires and work with all deliberate

25

speed to -- to review and implement the system.

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1

THE COURT: Why didn't you sue with all deliberate

2

speed, if you -- if I may ask?

3

MR. PANAGOPOULOS: Well, Your Honor, we sued --

4

THE COURT: Because your client was on notice on

5

December 14th that he was going for at least 24 months to an

6

institution.

7

MR. PANAGOPOULOS: Well, the question is -- I

8

mean, simply because someone is sentenced to go to prison

9

doesn't necessarily mean that that person understands at

10

that sentencing what accommodations will or will not be

11

provided. And, you know, phone calls were made. We were

12

retained late in the summer. We made additional phone

13

calls. And we filed this -- this suit.

14

THE COURT: Now, but I have to tell you, it puts

15

you in a somewhat -- I understand everybody doesn't

16

understand their rights, but you're -- you're here under

17

extraordinary relief. You're not here in the ordinary

18

course asking for extraordinary relief. So it's not the

19

lawyer necessarily, I understand. But --

20

MR. PANAGOPOULOS: Well, Your Honor, even --

21

again, even with respect to Mr. Berke, there's --

22

THE COURT: What did he think? He was going to go

23

and all -- I mean, you've obtained for him enormous numbers

24

of accommodations in short order.

25

MR. PANAGOPOULOS: Right, Your Honor. But what

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1

we're seeking is complete compliance with the Act; and that

2

we, unfortunately, have not been able to secure yet. And we

3

hope that the Court can -- can help us with that. I mean,

4

obviously if he had been ordered to go in to prison

5

sooner --

6

THE COURT: Yeah, he would have been then stuck

7

under the prisoner litigation.

8

MR. PANAGOPOULOS: Well -- or he would have

9

called --

10

THE COURT: I don't know why the judge gave him a

11

six-month stay.

12

MR. PANAGOPOULOS: Well, Your Honor, I would

13

suggest that we would be in a very similar position.

14

Because if he called, you know, shortly before entering to

15

determine what accommodations were available and asked for

16

them, and then talked to us to -- you know, to represent him

17

on that issue, then, again, we'd be seeking the same relief

18

and we'd be in the same position.

19

THE COURT: No, you wouldn't, because you'd be

20

covered by the PSLA. Because if a judge had done what's

21

often done, is step him back, he'd be an inmate, and then he

22

would be on conditions. So he got an enormous break from

23

the judge to have a six-month -- I'm not sure why he got six

24

months stay of when he went in, but it is a significant

25

change from the normal. But -- all right.

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1

All right. Finish up, please.

2

MR. PANAGOPOULOS: Well, Your Honor, again, our

3

position is that the BOP cannot -- you know, cannot and has

4

not met its burden of showing that this system that we're

5

asking for poses any type of threat to the BOP; that it

6

would alter or affect the program in any way. We believe we

7

have shown that without this system Mr. Berke will not be

8

able to communicate effectively with his family.

9

THE COURT: Well, they can communicate. We admit

10

that. They can -- portions of them can visit. He can use

11

the TTY, he can use email, and he can use mail.

12

MR. PANAGOPOULOS: He can use email in the same

13

way that other prisoners can use email. He can visit the

14

same way that other prisoners can visit. What he cannot do

15

is communicate by phone the same way other prisoners can

16

communicate by phone.

17

The TTY is stilted. It takes twice as long to

18

communicate. It's not in his native language. You've seen

19

how small the screen is and how small the transcript is that

20

you get of these calls. It is not the same at all, and so,

21

therefore, he's not getting the same benefits and privileges

22

of the program as other prisoners are, because the other

23

prisoners are getting those telephone privileges, in

24

addition to the email, in addition to the visits. So it's

25

not the same.

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1

And so he's not getting the same benefits and the

2

same program. So the question is whether or not --

3

THE COURT: I have to tell you the problem -- just

4

to point out a few things -- people that get sentenced here

5

get sent all over the country. They don't ever see their

6

family ever, because of the Bureau of Prisons' policy that

7

we have no institution. You have to look at this in a

8

relative sense, I'm sorry to say, which is that people end

9

up leaving here and get sent to Ohio, to Texas, and they

10

never have visits ever.

11

So, you know, the Bureau of Prisons is not an easy

12

place to spend time. But I'd point out to you that having

13

his family two hours a way, at least some of his family

14

members, beats 90 percent of any District of Columbia

15

resident who gets -- the closest you can get -- well, the

16

closest low security is in Pennsylvania.

17

MR. PANAGOPOULOS: I certainly won't argue with

18

the Court about that. However, those prisoners who are sent

19

long distances do have telephone privileges and can

20

communicate with -- with their families via the telephone.

21

And, yes, his --

22

THE COURT: If they can afford it.

23

MR. PANAGOPOULOS: If they can afford it. His

24

wife and daughter may be able to communicate with him, but

25

what about his brother in DC? What about his sons at

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1

Gallaudet? You know, they don't have, you know, TTYs.

2

Your -- the BOP is placing a burden on them, as well, by

3

requiring this outdated system.

4

And we have seen from the expert reports that

5

there's no burden with respect to cost.

6

THE COURT: Well --

7

MR. PANAGOPOULOS: And the BOP isn't arguing that

8

there's a burden with respect to cost. Administratively --

9

again, there should be no burden there, either, Your Honor.

10

Because TTY's are monitored physically. They're telling us

11

they may monitor this videophone physically. It's the same.

12

TTYs, they take the transcript, they put it in a logbook,

13

stick it in a fireproof safe. They could record the

14

videophones in exactly the same way and put themselves in

15

the exact same position.

16

And that's the only evidence as to what the burden

17

is here. And we have testimony that it can be done, and we

18

have testimony that it's the exact same burden as with TTYs,

19

and we have testimony that it's the exact same burden with

20

respect to translating as you have when you have prisoners

21

who make a call in a foreign language.

22

THE COURT: I don't -- yeah, I don't know what the

23

relevant cost of that is. I don't know much about ASL

24

interpretation.

25

But, okay, let's hear from the Government, please.

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1

One second.

2

(Off-the-record discussion with the law clerk.)

3

THE COURT: Ms. Francis?

4

MS. FRANCIS: Yes, Your Honor. Thank you. Good

5

afternoon again.

6

Your Honor, we take an opposing view to counsel's

7

motion for PI. We believe that -- that the plaintiff has

8

not met any burden -- met his burden at all with respect to

9

the four-prong test that's laid out for seeking injunctive

10

relief.

11

THE COURT: What do you have to say about -- I

12

thought this really came down to likelihood of success on

13

the merits. Do you have something to say on the other

14

prongs?

15

MS. FRANCIS: Well, with respect to the other

16

prongs, Your Honor, it's clear -- and I'll get back to the

17

likelihood of success portion of the analysis. But with

18

respect to Mr. Berke suffering any irreparable injury or

19

harm, as the Court has already pointed out through her

20

colloquy with plaintiff's counsel, that not only will

21

Mr. Berke have access to a TTY machine, TTY technology,

22

which to date has not been declared ineffective or out of

23

use, completely out of use, it is still the technology that

24

is in circulation, machines are still available, people can

25

still use them. It provides an effective means of

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1

communication. Is it the fastest means of communication?

2

No. But even through the testimony and the evidence that

3

was presented to the Court today, it shows -- or it has not

4

been shown to be a completely ineffective means of

5

communication.

6

But in addition to that, Your Honor, Mr. Berke has

7

received many accommodations. And as the Court has pointed

8

out, many accommodations that many inmates going into BOP

9

custody do not have. He is going to be -- he was moved from

10

a facility that was -- where he was previously assigned in

11

Colorado to a facility that is two hours from his home. So

12

he will have access to his family through social visits

13

where they can communicate with each other through American

14

Sign Language.

15

He will have access to email. There is nothing in

16

the -- in the record to support a finding that Mr. Berke is

17

not able to -- to submit emails. And for the record, as I

18

was conferring with agency counsel, I will point the Court

19

and counsel, plaintiff's counsel, to the documents on PACER

20

for Mr. Berke's case that came out of New Jersey where not

21

only was there use of videophone technology, but there was

22

also use of email in connection with that case. So there's

23

nothing in the record to show that Mr. Berke is unable to

24

communicate with anyone, any of his loved ones by email.

25

He will have access to postal mail. He will have

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1

access to all of the other privileges that all of the other

2

inmates have in terms of communication. But -- and that's

3

going to be at his immediate disposal when he gets to the

4

Tucson facility.

5

He is going to -- plaintiff's counsel, although

6

they take a different view about whether or not the

7

provision of a videophone is going to injure BOP, Mr. Craig

8

through his testimony talked about the many security

9

concerns, IT security concerns, as well as other general

10

security concerns to the integrity of the BOP's network, in

11

terms of to inmate safety and security concerns, and staff

12

at BOP. There are concerns there of having access to

13

technology that may be incompatible with their system.

14

And to impose that burden on BOP, which is in the

15

best position, as the Court has noted, to determine what

16

would be the best -- what's in the best interest of

17

maintaining the safety and security of their facility, we

18

would ask the Court to continue to honor that and not order

19

BOP to immediately implement a videophone.

20

Mr. Craig has --

21

THE COURT: Do you know or does anyone know

22

why the judge ordered actually that he self-report on

23

January 30th? That's the judgment and commitment. Which

24

would have been about six weeks after the sentence, the

25

judgment was entered on the record. Do you have any idea

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how it then turned into -- when the case was filed with me,

2

he was to be reporting I think on August -- I'm sorry --

3

August 23rd, and then I called Judge Pisano and asked if he

4

would mind putting it off a little bit in order for us to

5

consider this matter.

6

MS. FRANCIS: Your Honor, I'm looking at some

7

emails that have been provided to me by agency counsel, and

8

they seem to be in line with what plaintiff's counsel here

9

is stating. It appears as though there was a -- he had an

10

86-year-old mother who was -- who had a health problem. I'm

11

just reading these emails for the first time, Your Honor.

12

But there seemed to be --

13

MR. PANAGOPOULOS: Your Honor, I believe his

14

mother was ill and died.

15

THE COURT: I see. Okay.

16

Okay. Can you address briefly the argument by

17

counsel that you haven't complied? Well, don't I have to

18

reach your own -- the regulations, Section 39.160(d)?

19

MS. FRANCIS: Well, with respect to that section,

20

Your Honor, once again, it's not been made very clear by

21

plaintiff's counsel how or when plaintiff had formally put

22

BOP on notice that he wanted a videophone, and where BOP

23

flat out said back to him, no. That there was like an

24

interactive process of some sort where there was a period of

25

time where they could have. Because under the

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1

Rehabilitation Act, at least in other contexts, there is at

2

least an interactive process.

3

Here we have --

4

THE COURT: I understand that counsel -- somebody

5

at his office contacted you, I think they said July. Does

6

anyone have any more specifics on that?

7

MS. FRANCIS: When you say "contacted,"

8

quote/unquote, "you," are you referring to --

9

THE COURT: BOP or somebody. I don't know.

10

MR. PANAGOPOULOS: Yes, Your Honor. Our office

11

specifically called.

12

THE COURT: Who?

13

MR. PANAGOPOULOS: Called a woman at BOP -- I

14

don't have her name -- who was at the facility where he was

15

going to be remanded to ask about those accommodations.

16

THE COURT: Florence?

17

MR. PANAGOPOULOS: It was originally Florence,

18

yes.

19

THE COURT: And that would have been sometime

20

when?

21

MR. PANAGOPOULOS: That would have been sometime

22

in -- in July. I'd have to look at Johnny's time sheets to

23

give you the exact date.

24

MS. FRANCIS: And I take it July of 2012?

25

MR. PANAGOPOULOS: Yes.

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MS. FRANCIS: Okay.

2

THE COURT: Yes, he wasn't sentenced until

3

December 2011.

4

MS. FRANCIS: Okay. Well, if the Court were to

5

look at that as notice, that BOP received notice, which

6

arguably we're not -- we don't -- we take a different

7

view -- to merely inquire about whether -- I don't know even

8

the content of that discussion. I don't know if it was --

9

you know, whether or not do you all carry videophones?

10

Would we be able -- would I be able to have one? I don't

11

know. And I don't know if that person would have been in a

12

position to answer for BOP, other than saying, Well, we have

13

TTY or access to TTY.

14

But assuming that the Court looks at that as

15

notice, as Mr. Craig has testified, in order to be able to

16

do a full, exhaustive, formal evaluation before getting a

17

written determination, before saying, Okay, after our

18

evaluation, we have concluded that we cannot use this

19

technology. And then having to go to -- I think it's the

20

Associate Attorney General's office to get that written

21

determination, sufficient time needs to have been given.

22

THE COURT: His complaint is nobody's done it. I

23

don't know why it wasn't done in the Bryant case, but we all

24

know it wasn't done here.

25

MS. FRANCIS: Right. And I can't speak to the

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Bryant case, Your Honor, other than I do understand that

2

that inmate went through a completely different channel.

3

That person was an inmate. That person went through the

4

administrative process.

5

THE COURT: Yeah, he had to.

6

MS. FRANCIS: I don't -- and maybe my agency

7

counsel, if I confer with him, can even confirm that there

8

may have even been a finding that a TTY phone was effective

9

communication, and that's where it ended.

10

THE COURT: Well, I -- I wouldn't speculate.

11

MS. FRANCIS: But I don't want to speculate. I

12

don't want the Court to speculate.

13

But all I can say, Your Honor, that even if BOP

14

has -- it's been considered that the Bureau of Prisons has

15

been officially put on notice as of July of 2012; well,

16

we're now in the month of September. And as Mr. Craig has

17

pointed out that there, first of all, are standards in terms

18

of how -- there's certain things that take place that

19

triggers a formal -- a formal evaluation. Which has not

20

taken place here; i.e., his office being tasked with that

21

responsibility to conduct a formal evaluation. And even if

22

one was to take place, it would take six months to a year.

23

It's not something that could be done in a two-month

24

turnaround.

25

And so what we would argue is that -- that until

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we have sufficient time to be able to conduct a formal

2

evaluation and an exhaustive evaluation, we are not out of

3

compliance. We have at least started the process by once

4

Mr. Craig's office was put on notice that this was a -- a

5

request that was coming in from an inmate, that at least

6

the -- we would argue at least they started with the

7

informal process. And then if they are tasked with the

8

formal process right afterwards, that they be allowed to go

9

through that evaluative process before -- and being able to

10

come to a conclusion, being able to get a written

11

determination, before anyone can cite the BOP for being out

12

of compliance.

13

We would argue that we are not out of compliance

14

because insufficient time has passed.

15

THE COURT: Well, yeah, but you haven't started.

16

So that's the problem. Would you agree to start this thing

17

forthwith?

18

MS. FRANCIS: I would have to confer with

19

Mr. Craig and see how his office would be able to start such

20

an undertaking. I can't speak for him on that.

21

THE COURT: Well, I'll give you a few moments to

22

confer.

23

MS. FRANCIS: Okay.

24

THE COURT: Thank you.

25

MS. FRANCIS: All right.

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THE COURT: Take a 15-minute recess.

2

(Break in the proceedings at 3:57 p.m.)

3

4

(Upon resuming at 4:20 p.m.)

5

THE COURT: We'll go back on the record, then.

6

MS. FRANCIS: Okay. Are we back on the record,

7

Your Honor?

8

THE COURT: Yes. You said there's one more point

9

about 39 --

10

MS. FRANCIS: Yeah, there were -- there were a

11

couple of points, Your Honor. I think I started to make

12

them before the Court had asked that final question.

13

Under 39.160(a), I believe 2, subsection (2), it

14

says: "Where the agency communicates" -- and the agency

15

speaking -- they're speaking of the Department of Justice --

16

"with applicants and beneficiaries by telephone,

17

telecommunication devices for deaf persons (TDDs) or equally

18

effective telecommunication systems shall be used."

19

That right there in the regs, Your Honor, shows

20

that that is -- that that is considered to be at least a

21

very acceptable and effective form of communication. It's a

22

form of communication that is still being used, and -- and

23

there has been no finding to the contrary.

24

Also, Mr. Bryant -- sorry to bring up Mr. Bryant's

25

case again, but I know some of the parties sitting at

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1

plaintiff's table are aware that Mr. Bryant had gone through

2

an administrative process. He went through the EEO process

3

pursuant to -- I think it was 2839.170. And pursuant to

4

that process, there was an investigation, there was a legal

5

analysis that had taken place. And although the EEO --

6

because there was -- even though he's a prison inmate, he

7

did have to go through the EEO process.

8

And in that finding -- and, unfortunately, Your

9

Honor, I don't have a copy that I was able to put my hands

10

on before Your Honor retook the bench. But even in that

11

finding -- and I do believe plaintiff's counsel should be

12

aware of this -- that in there it was found that the TTY

13

phone system was found to be at least an acceptable form of

14

communication. I don't want to use the wrong terminology,

15

but it was not found to be ineffective. And that is why

16

Mr. Bryant is still using the TTY phone system today.

17

THE COURT: Who made that finding?

18

MS. FRANCIS: That was the EEO, DOJ. If I can

19

have --

20

THE COURT: An internal administrative -- I don't

21

know. The counsel's here for Mr. Bryant. Maybe she has --

22

MS. GOLDEN: If I may interrupt.

23

THE COURT: Yes.

24

MS. GOLDEN: Your Honor, under that process, it

25

was the -- sorry, Your Honor -- the EEO counselor for the

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Bureau of Prisons was tasked with doing the internal

2

investigation. And then the -- Mr. Bryant appealed parts of

3

that finding, including that a videophone wasn't required.

4

And that administrative process continues. And then --

5

THE COURT: What institution is he at?

6

MS. GOLDEN: He is at USP Tucson. He's at the

7

high security.

8

MS. FRANCIS: The high security side.

9

THE COURT: Depending on -- you know, I don't

10

think we can whomp all prisoners, high security, low

11

security. Everything is different. A camp is different.

12

MS. GOLDEN: Yes. Yes.

13

THE COURT: So I don't find one way or another --

14

I think security concerns at camps are slightly different.

15

Okay. All right. The Court is prepared to rule

16

here. I think I've heard -- we have --

17

The Court is confronted by a motion for

18

preliminary injunction brought by Mr. Berke. Mr. Berke is a

19

resident of Arizona. He has been sentenced by a court in

20

New Jersey to 24 months, I believe for mail fraud. And that

21

sentence was -- the judgment was entered on December 19th,

22

2011. The surrender date was continued from January, then

23

it was continued later. He was to surrender on August 23rd.

24

He brought suit in this court on August 14th.

25

I called the judge in New Jersey and asked if

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there was any objection to a delay because we were,

2

basically, about two -- two days away from surrender,

3

because he has to travel to the site and get there in time

4

to self-surrender. So, graciously, Judge Pisano agreed, and

5

the surrender date is this Thursday.

6

As I said, we are here now on a PI instead of a

7

TRO. The bureau -- the charge here, the claim is that the

8

Bureau of Prisons has violated the Rehabilitation Act. And

9

the complaint as originally drafted included many issues of

10

auxiliary aids and other kinds of assisted devices, because

11

Mr. Berke as well as some of his family members are

12

profoundly deaf. And I don't think there's any question

13

that he has a disability.

14

In response to that, I must say that many changes

15

have been made. He was redesignated to Tucson to a low

16

security or camp in Tucson closer to his family members. At

17

least his wife and one or two sons live in Phoenix.

18

And if you look at Scott Pennington's declaration

19

filed on the 24th, you can see the number of accommodations

20

that have been made. That's relevant to where we are today.

21

And I don't need to repeat them, but they're documented in

22

what's document 14-2.

23

So what we are now confronted with is whether or

24

not he should only have the TTY system or whether the

25

Department of Corrections -- or Bureau of Prisons, I should

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say -- should be required not to have a more -- obviously

2

more modern and better system, which is videophone.

3

The TTY system has been demonstrated here today.

4

It uses -- basically, it's a little bit like email insofar

5

as there's a typed English version. It's not in Mr. Berke's

6

native language. It's not as -- it's certainly comparable

7

to using ASL, which is what he uses for communication

8

purposes, and all his family does. His family doesn't have

9

a TTY, although it's my understanding that the machinery

10

itself could be provided to them. But you do not get to see

11

the person on the other end.

12

So the question for the Court is whether or not

13

plaintiff has sustained his burden under the requirements

14

for preliminary injunction with respect to its request -- or

15

his request -- that the Bureau of Prisons install in Tucson

16

a system, a videophone system.

17

We all are well aware of the standards for a PI.

18

The plaintiff has to establish that he is likely to succeed

19

on the merits; that he is likely to suffer irreparable harm

20

in the absence of this relief; the balance of equities tip

21

in his favor; and an injunction is in the public interest.

22

Movant bears the burden of persuasion, and must demonstrate

23

by a clear showing that the requested relief is warranted.

24

Now, while the four factors that have been set out

25

by the Supreme Court in Winter, 555 U.S. 7, at page 20,

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typically they have been evaluated on a sliding scale, it is

2

particularly important for the movant to demonstrate a

3

substantial likelihood of success on the merits. And as the

4

DC Circuit recognized in Sherley, S-H-E-R-L-E-Y, versus

5

Sebelius, we read Winter at least to suggest, if not to

6

hold, that a likelihood of success is an independent,

7

freestanding requirement for a preliminary injunction. That

8

is Judge Kavanaugh's concurrence. Moreover, the movant must

9

demonstrate an actual likelihood of success, not merely the

10

existence of serious -- a question so serious, substantial,

11

difficult and doubtful as to make them fair ground for

12

litigation.

13

Now, as I noted, this case has been brought under

14

the Rehabilitation Act, Section 504, which prohibits

15

discrimination on the basis of disability in programs

16

conducted by federal agencies. To make a case under

17

Section 504, plaintiff must be an individual with a

18

disability -- that's not disputed here -- who is otherwise

19

qualified for participation in a program or activity of an

20

executive agency who has denied the benefits or subjected to

21

discrimination under that program of activity.

22

I am citing from the American Council of the Blind

23

versus John W. Snow, 311 F.Supp.2d 86, page 88, DC, it's a

24

district court case, 2004.

25

Also, key to the Court's analysis here are the DOJ

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regulations that provide the Bureau of Prisons must provide

2

inmates or program participants who are deaf with

3

appropriate auxiliary aids where necessary to afford a

4

handicapped person an equal opportunity to participate in,

5

and enjoy the benefits of, a program or activity conducted

6

by the agency. This is 28 C.F.R. Section 39.160(a)(i).

7

Nonetheless, assuming it follows the proper

8

procedures, the regulations provide the BOP is not required

9

to take any action that it can demonstrate would result in a

10

fundamental alteration in the nature of a program or

11

activity or in undue financial and administrative burdens.

12

That's Section (d) of the 28 C.F.R.

13

Now, in opposing Mr. Berke's motion for

14

preliminary injunction, it's the Government's position that,

15

basically, he will not succeed on the merits. There isn't

16

really much focus by anyone on the other factors, although I

17

find that plaintiff's showing as to the other factors are

18

not as strong as is often the case when emergency relief is

19

sought.

20

As I've pointed out, he will be able to

21

communicate with family while at the institution. He will

22

have at least his wife and other members less than two

23

hours' travel time away so that they can visit. And as I

24

said, there are many, many people from this jurisdiction

25

that do not see family members during their entire time of

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incarceration.

2

He does have email privileges. He'll have TTY.

3

And he will be able to correspond. So it is not -- he is

4

not in a situation of total lack of communication, unless

5

some kind of disciplinary proceeding were to be commenced

6

against him while he's there. It will certainly -- the

7

extent he can use these things are -- they're available to

8

him and he will be treated like all others with respect to

9

everything other than the phone is not going to be equal to

10

the videophone that he would have available to him and that

11

was shown to us here today.

12

Now, as I said, the defendants argue here that the

13

provision of the text telephone system and electronic mail

14

through the Bureau of Prisons' Trust Fund limited inmate

15

computer system will provide him with meaningful access to

16

BOP programs and activities.

17

The Court is not persuaded that I can agree with

18

this. It is clear from the record that a videophone is the

19

communications technology that would enable Mr. Berke's

20

participation in BOP programs or activities to be more

21

effective. And it would allow him to communicate with those

22

outside the prison on an equal, but I must also say perhaps

23

even a better, basis than those who are not profoundly deaf.

24

This regulation, as far as I can determine, that

25

counsel for the Government just pointed out, 39.160(a)(2)

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talking about TDDs is a fairly dated regulation. I don't

2

know that it's been updated since 1984. And this is an area

3

where the technology has changed, which is not surprising.

4

It's clear from the record before the Court that a

5

videophone is the communications technology that would

6

enable him to participate in programs or activities,

7

including those outside the prison, on an equal, as I said,

8

if not better, basis than those who are not profoundly deaf.

9

His primary language is clearly the American Sign

10

Language, or ASL. The same is true for his wife and at

11

least two of his children who are profoundly deaf. And I

12

guess he communicates with both deaf family members as well

13

as non-deaf family members through ASL, through the video

14

system; that they don't have the TTY. The TTY is slower.

15

There's no question. It doesn't have the ability to capture

16

the language, obviously, because people are writing in

17

English, which is not their native language. I do not know

18

what his level of English capabilities are or his family

19

members' ability. So I can't determine whether or not TTY

20

would be a particularly inappropriate system or not. But it

21

is available to him and it's available to other prisoners.

22

So what I have here, though, is that the defendant

23

has raised the defense, which they're entitled to raise

24

under the regulations. To quote the regulations, it says

25

that: "The agency is not required to take any action that

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1

it can demonstrate would result in a fundamental alteration

2

in the nature of a program or activity or in undue financial

3

and administrative burdens. In those circumstances where

4

agency personnel believe that the proposed action would

5

fundamentally alter the program or activity, or would

6

result in undue financial and administrative burdens, the

7

agency has the burden of proving that compliance with

8

Section 39.160 would result in such alteration or burdens."

9

And that decision has to be made ultimately by the

10

Attorney General or his or her designee after considering

11

all agency resources available for use in the funding and

12

operation of the conducted program or activity. It must be

13

accompanied by a written statement of the reasons for

14

reaching that conclusion.

15

And then it goes on to say that if they find -- if

16

they reach that conclusion, then they should take other

17

actions. Well, they've taken other actions here. But they

18

haven't raised -- they haven't done the analysis. Mr. Craig

19

has testified here that he does not know because he hasn't

20

analyzed whether or not they can install this system

21

consistent with FIPS, the requirements that govern their

22

security or their -- the security of their phone system.

23

The law is very, very clear starting with the

24

Supreme Court case of Turner versus Safley, S-A-F-L-E-Y,

25

482 U.S. 78, 987 (sic), that it is not the Court's

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1

obligation to tell the Bureau of Prisons what or what not to

2

do. I cannot, consistent with the law or the regulations,

3

order them to install this upon his arrival.

4

I do intend, though, to order -- to grant the

5

preliminary injunction in part only, and to tell the

6

government to comply with the regulations. They should have

7

done it. I think that this is what's required. We have to

8

know about the cost. We have to know about monitoring. We

9

have to know about security.

10

At that point in time, you know, they're entitled

11

to a lot of deference, clearly, because it's the Bureau of

12

Prisons and these are federal institutions. And the law is

13

very clear. But if they don't do it, I have no basis to

14

accord deference.

15

So the Court is going to order them, and grant

16

this motion in part, to undertake an investigation or

17

examination to determine whether or not this -- the proposed

18

system could be installed consistent with their security

19

requirements of the institution that he's going to. We're

20

talking about a low risk defendant who's going to a camp.

21

So I would suggest -- and I have to say, you know,

22

you asked for them to meet -- to move immediately. Well,

23

the plaintiff in this case didn't move immediately. I'm

24

going to give the department -- Bureau of Prisons the same

25

eight months that Mr. Berke has sat on his rights, frankly.

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I'm not terribly moved that he thinks this is such an

2

emergency. I think he -- I've read his PSI. He's a pretty

3

savvy guy and has been able to manage quite well, and he

4

could have invoked his rights long before now so we could

5

have gotten them going before.

6

So the Court will allow them eight months from

7

today. Would put us -- well, I think it's May 25th. Is

8

that right?

9

So the Court -- it's my view at this time, I think

10

out of fairness, I will retain jurisdiction. I'm going to

11

enter an order saying the motion's granted in part only. I

12

do not find that I can order it for a variety of reasons,

13

including the plaintiff's failure to make a strong showing

14

on all four criteria. I cannot and will not order the

15

installation of the phone.

16

I'm giving the department of -- or Bureau of

17

Prisons eight months to complete the analysis so that we can

18

find out whether or not this system can be installed or

19

whether it would fundamentally alter the program or activity

20

or would result in undue financial or administrative

21

burdens; and in the context of a prison, administrative

22

burdens implicate both security and safety.

23

At that point in time, the nature of the case

24

would change dramatically because it would be an

25

administrative review, and it would no longer be strictly a

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1

case of whether or not he's -- it wouldn't be in the same

2

posture it is now.

3

Are there -- are there any questions?

4

MR. PANAGOPOULOS: No, Your Honor. Thank you.

5

There is one item of clean-up, and that's with

6

respect to the accommodations that are listed in that --

7

THE COURT: Right.

8

MR. PANAGOPOULOS: -- in the declaration.

9

THE COURT: Yeah, they've agreed. These are

10

agreed to, is my understanding.

11

MR. PANAGOPOULOS: Right. And we just wanted to

12

make sure that that was part of a stipulation and also

13

something that the Court would retain jurisdiction of to

14

review and ensure that the department actually implements

15

those -- those accommodations.

16

THE COURT: Well, you can come up with an

17

agreement.

18

MR. PANAGOPOULOS: Thank you.

19

THE COURT: I'm not going to sign off on this.

20

The parties have settled the case up -- except for one

21

aspect.

22

MR. PANAGOPOULOS: Right.

23

THE COURT: I am prepared -- what I intend to do,

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if you want -- if you're agreeable, Ms. Francis, to a

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stipulation of what you've agreed to. And the Court is

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ordering the study to be done in eight months from today.

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Then the case is over from my point of view, be

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administratively closed. If you want to amend the complaint

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down the road when you get the report, I will consider

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keeping jurisdiction for that purpose.

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MR. PANAGOPOULOS: Thank you, Your Honor. I'll

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talk to Ms. Francis about finalizing the stipulation on the

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parts of the case we've agreed to, and we'll submit that --

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THE COURT: I want it by Thursday, first thing on

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Thursday morning.

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MR. PANAGOPOULOS: Will do. Absolutely.

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THE COURT: And I'll issue an order on this one

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issue. But this is a court order that it's going to be done

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eight months. I've given you enough time. Mr. Todd says

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six to twelve. He should have done it by now, so -- but he

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could have asked for it before now too.

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Okay. I will sign off on the stipulation and --

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MS. FRANCIS: And just so we can be clear on the

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record, Your Honor, because counsel and I had started to

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talk about the nature of the stipulation. It's largely

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going to mirror what the Court has in the form of Scott

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Pennington's declaration.

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I anticipate that there may be one minor issue

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that counsel and I will need to discuss. I've started to

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discuss it with him already. But I can just share for the

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Court that I believe that the -- what we are able to

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stipulate to is going to be largely what's already captured

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on the -- on the declaration.

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THE COURT: I don't understand what you're saying.

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What's the problem? I don't want to hear problems. No more

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telephone calls. It's paragraph 5.

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MS. FRANCIS: Yes, paragraph 5. There is a --

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THE COURT: That's it.

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MS. FRANCIS: I can state what the issue will be,

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and we can possibly try to flush it out now.

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THE COURT: There's no more issues to litigate.

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MS. FRANCIS: As far as I'm concerned --

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THE COURT: I've got paragraph 5, that's what he

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said, and I don't -- and I didn't litigate anything else.

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And if, in fact, it turns out this is the phone system he'll

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get in the interim, you've already provided for it here in

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the fourth bullet.

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You're getting more time. And with the TTY, and

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then at the end of the eight months, if you feel that

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there's further grounds to argue that their results

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shouldn't be deferred to by the Court, then so be it. But I

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think there's a pretty strong presumption the Court does not

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get into running Bureau of Prisons programs.

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So I'll see -- I'll be happy to sign off if you

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want the Court to sign off on -- you've agreed to these

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things and the Court's ordering the following. This takes

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care of the matter, at least until something changes. Okay?

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MR. PANAGOPOULOS: Thank you, Your Honor.

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THE COURT: Thank you. The presentation was very

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helpful. I learned a lot. And I appreciate it. It's not

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an easy issue.

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MR. PANAGOPOULOS: Your Honor, we can take the

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TTY?

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THE COURT: Oh, yeah, yeah. Keep your --

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everybody gets to keep their own exhibits, please. So you

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can keep this. And I guess the rest -- so everybody's

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responsible for retaining their exhibits.

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Anything else, Gwen?

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THE DEPUTY CLERK: No, Judge.

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THE COURT: Okay. We'll issue an order from

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chambers after we get the stipulation.

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MR. PANAGOPOULOS: Thank you again, Your Honor.

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MS. FRANCIS: Thank you, Your Honor.

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(Court adjourned at 4:47 p.m.)

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CERTIFICATE OF OFFICIAL COURT REPORTER

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I, VICKI EASTVOLD, do hereby certify that the

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above and foregoing, consisting of the preceding 173 pages,

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constitutes a true and accurate transcript of my

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stenographic notes and is a full, true and complete

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transcript of the proceedings to the best of my ability.

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Dated this 6th day of November, 2012.

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_______s/Vicki Eastvold________

Official Court Reporter

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United States Courthouse

Room 6722

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333 Constitution Avenue, NW

Washington, DC 20001

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