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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

MARY ANN MCBRIDE; BRIAN STANLEY WITTMAN; and RALPH WILLIAMS, on behalf of themselves and all others similarly situated,
PIa intiffs ,
v.
MICHIGAN DEPARTMENT OF CORRECTIONS; DANIEL H. HEYNS, in his official capacity as Director of the Michigan Department of Corrections; THOMAS FINCO, in his official capacity as Deputy Director of the Correctional Facilities Administration; RANDALL TREACHER, in his official capacity as Chief Deputy Director of the Michigan Department of Corrections; ANTHONY STEWART, in his official capacity as Warden of the Women's Huron Valley Correctional Facility; JEFFREY WOODS, in his official capacity as Warden of the Chippewa Correctional Facility; and CATHLEEN STODDARD, in her official capacity as Warden of the Carson City Correctional Facility,
Defendants.

Case No. --------

Hon.

_

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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Chris E. Davis (P52159) Mark A. Cody (P42695 MICHIGAN PROTECTION AND ADVOCACY SERVICE, INC. 4095 Legacy Parkway, Suite 500 Lansing, Michigan 48911-4263 Phone: (517) 487-1755 E-Mail: cdavis@mpas.org E-Mail: mcody@mpas.org Attorneys for Plaintiff

Abraham Singer (P23601) KITCH DRUTCHAS WAGNER VALITUTTI & SHERBROOK One Woodward Avenue, Suite 2400 Detroit, Michigan 48226-5485 Phone: (313) 965-7900 E-Mail: abraham.singer@kitch.com Attorneys for Plaintiff

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiffs, through their counsel, state as follows: 1. Plaintiffs Mary Ann McBride, Brian Stanley Wittman, and Ralph Williams (collectively, "Plaintiffs") are deaf or hard of hearing inmates in the custody of the Michigan Department of Corrections (the "Department" or "MDOC"). While in MDOC custody, Plaintiffs have been denied the assistance and accommodation that they require to effectively communicate and to participate in MDOC programs, services, and activities, in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq.; the Rehabilitation Act, 29 U.S.C. § 794 et seq.; the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc et seq.; and the First and Fourteenth Amendments of the Constitution of the United States.

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Plaintiffs bring this action on behalf of themselves and all deaf or hard of hearing persons who are or will be confined in Michigan's prisons.
2. As a result of the above-captioned Defendants' ("Defendants") failure to provide the assistance required by prisoners who are deaf or hard of hearing to effectively communicate, Plaintiffs have been excluded from a variety of programs and activities offered by the Department, have been punished as a result of their disabilities, and have otherwise suffered harm.
3. Among the injuries suffered by Plaintiffs as a result of Defendants' failure to provide for effective communication, and to provide other necessary accommodations and assistance, Plaintiffs are unable to adequately maintain contact with loved ones; have access to educational opportunities (including academic classes, vocational training, and other programs) offered to prisoners; access necessary medical care; participate in religious services; or access telephone and television services. Because Defendants have failed to provide them adequate assistance, Plaintiffs are forced to serve their time largely isolated from, and unable to effectively communicate with, other individuals.
4. For example, Defendants do not allow Plaintiffs to use videophones, a standard method of telecommunication for speakers of American Sign Language ("ASL"). At some MDOC correctional facilities, Defendants provide telecommunications devices for the deaf ("TDDs"), also known as teletypewriters
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("TTY s"), which are electronic devices for text communication via a telephone line that attempt to enable people with hearing and speech disabilities to communicate by telephone. But TDDs and TTY s are archaic devices based on fifty-year-old technology, cannot connect to videophones, and are not a viable means to communicate for many ASL speakers for whom written English is a second language. Without access to a videophone, Plaintiff McBride, for example, is unable to communicate with her deaf friends and relatives outside of prison, including her two brothers.
5. Defendants have been denied access to interpreters for critical services. For example, Plaintiff Wittman's requests for an interpreter during medical visits have been repeatedly denied, and he IS, therefore, unable to communicate effectively with medical professionals.
6. Defendants' failure to accommodate Plaintiffs' disabilities has resulted in improper disciple being inflicted on Plaintiffs. For example, Plaintiffs have been disciplined for not following orders that they could not hear. Plaintiffs also have been unable to defend themselves in hearings or proceedings stemming from disciplinary charges brought against them, because they could not effectively communicate with hearing officers and investigators. Some prison officers even single out deaf and hard of hearing inmates for unequal, abusive, and demeaning treatment due to their disability.
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7. On one occasion, Plaintiff Williams was not allowed use of his hearing aid during a misconduct hearing. As a result of this proceeding during which he was unable to hear or communicate, Mr. Williams was forced to serve 40 days in solitary confinement, also without being permitted access to his hearing aid.
8. Defendants' failure to accommodate Plaintiffs' disabilities properly has jeopardized Plaintiffs' safety. For example, Defendants have not ensured that visual safety alerts, such as fire alarms and alarms signaling emergency lockdowns, are accessible to Plaintiffs. Defendants' failure to provide Plaintiffs the assistance they need means that Plaintiffs are forced to rely on other prisoners on a daily basis, placing them in constant danger of exploitation and physical and verbal abuse by those prisoners.
9. Defendants' systematic failure to provide deaf or hard of hearing prisoners the assistance they require improperly infringes upon the rights of all deaf or hard of hearing prisoners in MDOC custody. Plaintiffs, therefore, seek class-wide declaratory and injunctive relief requiring Defendants to provide the assistance necessary for prisoners who are deaf or hard of hearing to adequately participate in programs and services and to enjoy equal rights as hearing prisoners while incarcerated, and enjoining Defendants from denying equal rights to deaf or
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hard of hearing pnsoners as a result of their disabilities, or punishing them because of their disabilities.
JURISDICTION AND VENUE 10. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 because this action arises under the Constitution and laws of the United States, and pursuant to 28 U.S.C. § 1343(a)(3) because this action seeks to redress the deprivation, under color of state law, of Plaintiffs' civil rights. 11. This Court has jurisdiction to grant declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202 and Fed. R. Civ. P. 57. 12. This Court has jurisdiction to grant injunctive relief pursuant to Fed. R. Civ. P. 65. 13. This Court has personal jurisdiction over each of the Defendants. MDOC is a Michigan state agency, and the other Defendants all reside and/or work in Michigan. 14. Venue of this action lies in this judicial district pursuant to 28 U.S.C. § 1391(b) because some of the Defendants live in the district, a substantial part of the events giving rise to claims herein occurred within the district, and all Defendants are residents of Michigan.
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PARTIES A. Plaintiffs 15. Named Plaintiffs Mary Ann McBride, Brian Stanley Wittman, and Ralph Williams are individuals with a hearing disability currently incarcerated at facilities under MDOC's custody and control. 16. Mary Ann McBride is a 51-year-old woman currently incarcerated at the Women's Huron Valley Correctional Facility ("WHY"), an MDOC correctional facility located at 3201 Bemis Road, Ypsilanti, Michigan 481970911. Ms. McBride has been at WHY for the past five years. She has been completely deaf since birth. She communicates primarily through ASL. She also can read and write in English.
17. Brian Stanley Wittman is a 45-year-old male currently incarcerated at the Carson City Correctional Facility ("DRF"), an MDOC correctional facility located at 10274 Boyer Road, Carson City, Michigan 48811. Mr. Wittman has been at DRF for four years. He became deaf at age 22 as a result of a surgery he underwent in the United States Marines Corps. He suffered a bilateral, profound loss of hearing, which has grown progressively worse over time. Mr. Wittman has a cochlear implant. His ability to hear with the implant varies depending upon environmental factors, such as the weather and ambient noise, and sound frequency. Mr. Wittman has a difficult time hearing women's voices. Mr.
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Wittman is best able to understand oral communication when he is speaking with someone face-to-face. Under these conditions, Mr. Wittman can sometimes comprehend speech by supplementing his compromised hearing abilities with lip reading. He has also learned basic ASL. During time periods in which his implant is broken, Mr. Wittman's ability to communicate is minimal.
18. Ralph Williams is a 59-year-old male currently serving a life sentence at the Chippewa Correctional Facility ("URF"), an MDOC correctional facility located at 4269 W. M-80, Kincheloe, Michigan 49784. Mr. Williams has been at URF for approximately two years. He lost most of his hearing in his left ear in 1977 due to an injury he suffered in the United States Army. He currently wears a hearing aid on his left ear. More recently, Mr. Williams also has developed substantial hearing loss in his right ear. Mr. Williams is learning basic ASL from other inmates.
B. Defendants 1. State Agency Defendant
19. Defendant MDOC is the Michigan state agency responsible for the supervision and custody of approximately 43,000 incarcerated individuals. MDOC operates 33 correctional facilities throughout Michigan that house individuals under MDOC's supervision and custody. MDOC, through the Correctional Facilities Administration ("CF A"), is responsible for the operations
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of Michigan's prison system and oversight of the State's 33 correctional facilities, including, inter alia, managing and coordinating educational and work programming at MDOC facilities, and coordinating and monitoring healthcare services for inmates of MDOC facilities. MDOC's administrative offices are located at 206 East Michigan Avenue, Grandview Plaza, Lansing, Michigan 48933.
2. Defendants Sued in Their Official Capacities 20. Defendant Daniel H. Heyns is the Director of MDOC. Defendant Heyns is responsible for directing the administration of Michigan's correctional system, which includes MDOC. On information and belief, Defendant Heyns is aware of MDOC' s treatment of deaf and hard of hearing individuals. 21. Defendant Thomas Finco is MDOC's Deputy Director of CFA. As the head of CFA, Defendant Finco is responsible for the operation and oversight of MDOC correctional facilities, including the management and coordination of the facilities' educational and work programming, the coordination and monitoring of healthcare services for inmates, and promulgating and administering MDOC's policies. On information and belief, Defendant Finco is aware of MDOC' s treatment of deaf and hard of hearing individuals. 22. Defendant Randall Treacher is the Chief Deputy Director of MDOC. Defendant Treacher is responsible for MDOC's day-to-day operations, including,
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inter alia, the direct supervision of Defendant Finco, and the operation and oversight of MDOC's Bureau of Health Care Services, which coordinates, manages, and delivers healthcare services to individuals in MDOC's custody, and responds to healthcare-related grievances filed by such individuals. On information and belief, Defendant Treacher is aware ofMDOC's treatment of deaf and hard of hearing individuals.
23. Defendant Anthony Stewart is the warden of WHY. As Warden, Defendant Stewart is the legal custodian of all individuals incarcerated at WHY, and is responsible for their safe, secure, and humane treatment. On information and belief, Defendant Stewart is aware of WHY's treatment of deaf and hard of hearing individuals at WHY, and he is aware of specific written grievances by deaf and hard of hearing individuals at WHY regarding the violation of their rights.
24. Defendant Jeffrey Woods is the warden of URF. As Warden, Defendant Woods is the legal custodian of all individuals incarcerated at URF, and is responsible for their safe, secure, and humane treatment. On information and belief, Defendant Woods is aware of URF's treatment of deaf and hard of hearing individuals at URF, and he is aware of specific written grievances by deaf and hard of hearing individuals at URF regarding the violation of their rights.
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25. Defendant Cathleen Stoddard is the warden of DRF. As Warden, Defendant Stoddard is the legal custodian of all individuals incarcerated at DRF, and is responsible for their safe, secure, and humane treatment. On information and belief, Defendant Stoddard is aware of DRF's treatment of deaf and hard of hearing individuals at DRF, and she is aware of specific written grievances by deaf and hard of hearing individuals at DRF regarding the violation of their rights.
26. At all relevant times, Defendants were acting under color of state law, pursuant to their authority as officials, agents, contractors, or employees of the State of Michigan; within the scope of their employment as representatives of public entities, as defined in 42 U.S.C. § 12131(1); and as representatives of a "department, agency, special purpose district, or other instrumentality of a State" under 29 U.S.C. § 794(b).
STATEMENT OF FACTS 27. For years, MDOC has failed to provide the deaf and hard of hearing inmates housed at its facilities the accommodations that are required by Title II of the Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act of 1973 ("Section 504"). 28. Defendants are aware of their obligations under federal laws. Nevertheless, Defendants have not remedied their past pattern and practice of discrimination and continue to discriminate against deaf and hard of hearing
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individuals. On information and belief, Defendants have not implemented any detailed policies or procedures specific to deaf and/or hard of hearing inmates and the accommodations they require at all MDOC facilities, nor have they issued any manuals or other guidance documents on the subject within at least the last five years.
29. On information and belief, Defendants have identified certain facilities that are not appropriate for deaf and hard of hearing inmates, but have nonetheless housed some deaf and hard of hearing inmates at those facilities. For example, Mr. Williams resides at URF even though, on information and belief, Defendants themselves have not identified URF as appropriate to house deaf or hard of hearing inmates.
30. Defendants engage in disability-based discrimination in at least five different areas: (i) inadequate access to telecommunications; (ii) inadequate access to auxiliary aids and services; (iii) inadequate visual notification of prison alerts and announcements; (iv) ineffective communication during disciplinary proceedings; and (v) unequal treatment of deaf and hard of hearing inmates by prison officers.
A. Inadequate Access to Telecommunications 31. The telecommunication services that MDOC provides deaf and hard of hearing individuals in its custody in order for them to communicate with
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family, friends, and other individuals outside of pnson IS inferior to the telecommunication services provided to hearing inmates.
32. Telecommunications are very important to individuals in MDOC's custody because they foster the family and community ties that are fundamental to motivate inmates to improve themselves and to prepare them to make a positive transition back to civilian life once their sentence is complete.
33. The Federal Communications Commission ("FCC") has recognized that inmate access to telephone services at fair, just, and reasonable rates "benefits society by making it easier for inmates to stay connected to their families and friends." 79 Fed. Reg. 69682 (Nov. 21, 2014). According to the FCC, "family contact during incarceration is associated with lower recidivism rates," and "[l]ower recidivism means fewer crimes, decreases the need for additional correctional facilities, and reduces the overall costs to society." Id. Inmate access to telephone services "also helps families and the estimated 2.7 million children of incarcerated parents in our nation, an especially vulnerable part of our society. In addition to coping with the anxiety associated with a parent who is not present on a daily basis, these young people are often suffering severe economic and personal hardships and are often doing poorly in school, all of which are exacerbated by the inability to maintain contact with their incarcerated parent." Id.
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34. Most deaf and hard of hearing MDOC inmates cannot use traditional telephones to communicate with individuals outside of prison.
1. Telecommunications Devices for the Deaf 35. The only telecommunications methods for deaf inmates available at MDOC, which are provided on a limited basis and only by some MDOC facilities, are telecommunications devices for the deaf ("TDDs"). TDDs are electronic devices for text communication via a telephone line to enable people with hearing and speech disabilities to communicate by telephone. TDDs are also called teletypewriters ("TTY s"). Based on fifty-year-old technology, the TDD is basically a telephone equipped with a keyboard and a screen that displays text. For two parties to have a direct TDD conversation, each party must have a TDD. TDDs cannot connect to a videophone. 36. The TDD is inferior, outdated technology that does not allow effective communication for most deaf people, and most people in the deaf community do not use or own one. Deaf individuals in the United States who use ASL have abandoned TDD technology, and now primarily utilize videophones. 37. Some deaf and hard of hearing inmates who do not know ASL still require provision of TDDs in order to achieve access to telecommunication services. Not every facility has TDD services, and the ones that do are wholly inadequate for named Plaintiffs and class members to communicate effectively.
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38. For example, the TDD at WHY functions poorly. Ms. McBride has never been able to place an outgoing phone call through the use of the device. But even if the TDD functioned properly, Ms. McBride could not use it to communicate with her deaf friends and relatives, including her two brothers. The TDD direct-messaging system works only if both the caller and recipient have access to a TDD device. Ms. McBride's friends and family, like most deaf and hard of hearing persons, rely on the use of videophones instead of TDDs. On information and belief, communicating with friends and family outside WHY is also difficult and frustrating for hard of hearing inmates who are unable to hear voices over the telephone.
39. Likewise, the TDD service at DRF is inadequate. The service is cost prohibitive. On information and belief, use of the TDD costs an inmate approximately five times the rate of a traditional telephone call, or roughly $23 for a ten-minute call. Furthermore, it takes approximately twice as long to communicate using a TDD than it does to communicate orally in a traditional telephone call. Thus, it is approximately ten times as expensive for an inmate at DRF to communicate via TDD rather than through a traditional telephone call. TDD access is at DRF's discretion.
40. It is very difficult for Mr. Wittman, for example, to communicate through a traditional telephone. Mr. Wittman must ask the other caller to repeat
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himself frequently; the process is "tedious." Further, Mr. Wittman does not use DRF's TDD as a result of its high cost. As a result, Mr. Wittman essentially cannot communicate with family members through oral communication, and is instead confined to written correspondence.
41. Mr. Williams, for example, cannot use a traditional telephone to communicate with friends and family because he cannot hear the person on the other end of the telephone line. On information and belief, URF currently has no TDD device, no videophone, and no telephone amplifier.
2. Videophones 42. Videophones and free or low-cost internet-based video links (collectively, "videophones") are replacing TDDs in the deaf and hard of hearing community because they allow deaf and hard of hearing individuals to communicate with one another directly in ASL, without having to communicate through written English, a language in which it is difficult for some of them to communicate. When using a videophone, callers can see each other, usually over an internet connection. As a result, many deaf households no longer own a TDD and have no way to accept a TDD call, as they rely exclusively on videophones for telecommunication. 43. Deaf individuals usmg videophones can also call a Video Relay Service ("VRS") to place calls to people who do not understand ASL or do not
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have a videophone. The mechanics of VRS are very similar to those of traditional TDD relay service-the caller is routed to an interpreter, the caller gives the interpreter the number of the party he is trying to reach, and the interpreter then interprets the conversation into spoken English.
44. Videophones and VRS permit deaf people to use ASL instead of having to carry out every telephone call in written English through a TDD. Due to the fact that TDDs rely on written communications, they are by nature an unsatisfactory and ineffective means of communication for many deaf individuals. Writing usually does not provide effective communication for a deaf individual. English is generally considered a second language for most deaf persons who became deaf before acquiring language-ASL is their native language. Additionally, many deaf people acquire English as their second language much later in life. Therefore, the English reading and writing skill level of many deaf individuals, including those incarcerated at MDOC institutions, is generally much lower than that of hearing people.
45. Provision of videophones would also ensure that deaf inmates could place telephone calls to deaf family and friends, the vast majority of whom no longer have TDD devices.
46. Deaf individuals in Defendants' custody have repeatedly requested videophone access, but have been denied this access.
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47. On information and belief, Defendants do not provide access to videophones at any of the MDOC facilities throughout Michigan.
48. Videophone technology would enable Ms. McBride, Mr. Wittman, Mr. Williams, and other class members to communicate with family, friends, and other parties outside of the MDOC facilities in which they are housed.
3. Other Telecommunication Issues 49. Some inmates housed in Michigan prisons are hard of hearing but not profoundly deaf. Certain of these hard of hearing inmates can use a traditional telephone provided the telephone has either an internal or external amplification speaker. 50. For example, a telephone amplifier would allow Mr. Wittman to communicate with his family by phone. He has requested access to such an amplifier, but DRF denied the request, claiming that the technology was incompatible with existing telephone handsets. B. Inadequate Access to Auxiliary Aids and Services 51. Individuals in the custody of MDOC are wholly dependent on MDOC and prison staff for all of their basic daily needs, including food, exercise, and safety. Such individuals rely on MDOC for medical, dental, educational, mental health, employment, and religious services, among other services. Deaf and hard of hearing individuals in the custody of MDOC are also dependent on
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MDOC to provide hearing devices, interpreter services, and other auxiliary aids and services to be able to hear prison alerts, participate in all aspects of prison life, and avoid exploitation from other inmates.
1. Hearing Devices 52. MDOC has consistently failed to provide deaf and hard of hearing individuals in its custody with individual hearing devices that would enable them to hear prison alerts or participate in other aspects of prison life. 53. On information and belief, MDOC has refused to provide individual hearing aids to deaf and hard of hearing inmates that would benefit from them at its facilities throughout Michigan. For example, even though Mr. Williams has developed substantial hearing loss in his right ear, URF has denied his requests to have an audiologist examine his right ear, as well as his requests for a hearing aid for that ear. 54. MDOC also sometimes prevents individuals in its custody from having access to hearing aids that they own. For example, on one occasion Mr. Williams was made to serve 40 days in solitary confinement without being permitted access to his hearing aid. During this time Mr. Williams's ability to hear and communicate was minimal. 55. Further, MDOC has prevented individuals in its custody from taking steps necessary to fix broken hearing devices promptly. For example, on one
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occasion when the battery in Mr. Williams's hearing aid failed, it took two weeks for Mr. Williams to receive a new battery.
56. More egregiously, in 2012, an inmate assaulted Mr. Wittman and broke his cochlear implant, and it took approximately four months to get it fixed. Mr. Wittman's cochlear implant broke again in December 2013, and it took approximately three months to get it fixed. Both times Mr. Wittman received resistance from DRF staff when he requested that staff ship the implant out to be fixed by its manufacturer, Cochlear Americas. Initially, DRF took the position that the implant was a personal device, not a medical one, and that DRF had no responsibility to facilitate its repair. On information and belief, the U.S. Department of Veterans Affairs ("VA"), not DRF, has covered all costs for the repair of Mr. Wittman's implant.
57. In another instance, in July 2014, Mr. Wittman sent out the FM transmitter/receiver used with his cochlear implant for repairs by the VA. Even after this medical equipment was repaired by the VA and returned to MDOC's custody, Mr. Wittman did not receive the equipment for 53 days, despite making repeated requests to MDOC officials for their help in locating it. Mr. Wittman was told that prison officials were waiting for the equipment to be cleared by superiors in MDOC.
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58. Mr. Wittman has made repeated requests to have the transmitter/receiver for his cochlear implant listed along with his other property on his property card to avoid similar situations in the future, but these requests have been ignored. Mr. Wittman also wrote a letter to Defendant Finco requesting that a policy be put in place to cover the repair and return of medical equipment like his cochlear implant and its transmitter/receiver. Mr. Wittman received a response stating that MDOC was not interested in enacting such a policy because Mr. Wittman's case was a rare instance.
59. During time periods in which his implant and/or its related equipment are broken, Mr. Wittman's ability to communicate is minimal. He has to observe other inmates closely, and follow them to ensure he is in the right place at the right time. This increases the danger that Mr. Wittman faces of exploitation and verbal and physical abuse from other inmates. In fact, on one occasion, Mr. Wittman was "jumped" from behind by another inmate due to his inability to hear the approach of his assaulter.
2. Sign Language Interpreter Services 60. For deaf or hard of hearing individuals who rely on ASL as their primary form of communication, use of a qualified ASL interpreter is necessary to ensure effective communication between a deaf or hard of hearing individual and an individual who does not use ASL to communicate.
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61. A qualified sign language interpreter is necessary because ASL is a complete, complex language that employs signs made with the hands and other movements, including facial expressions and postures of the body. It is a language distinct from English-it is not simply English in hand signals. It has its own vocabulary, and its own rules for grammar and syntax.
62. As noted above, writing usually does not provide effective communication for a deaf individual. English is generally considered a second language for most deaf persons who became deaf before acquiring languageASL is their native language. Also, several deaf people acquire English as their second language later in life-past the critical period of language acquisition. Therefore, the English reading and writing skill level of many deaf individuals, including those incarcerated at MDOC, is generally much lower than that of hearing people.
63. Lip-reading usually does not provide effective communication for a deaf individual and is generally far less effective than written communication. It is extremely difficult to lip-read English because only a small fraction of the sounds used in the language are clearly visible on the mouth, and many sounds that are visible look identical on the lips. In addition to these difficulties in lipreading, the ability to accurately lip-read is affected by the speaker's facial bone structure, facial musculature, facial hair, lighting, and other external factors.
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Moreover, even if an ASL user were able to understand the sounds appearing on a speaker's lips, for the reasons discussed above, he would not necessarily understand the English language or the vocabulary the speaker was using.
64. Thus, provision of qualified sign language interpreter services IS necessary to allow deaf individuals who use ASL in MDOC's custody and under MDOC's supervision to communicate effectively with MDOC officials, MDOC employees, and medical personnel.
65. Defendants fail to provide adequate access to SIgn language interpreters for deaf individuals m MDOC's custody and control and under MDOC's supervision.
66. On information and belief, Defendants do not provide adequate access to sign language interpreters at MDOC facilities throughout Michigan.
a) Interpretersfor Access to Medical Services 67. Defendants are responsible for the medical care of all individuals incarcerated by MDOC. 68. Deaf individuals who rely on ASL require sign language interpreters to communicate effectively with medical staff. 69. Deaf and hard of hearing inmates at WHY purportedly share access to an ASL interpreter for two hours each Wednesday and Friday, but this is an inadequate amount of time. Further, on information and belief, weeks can go by
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when there are no ASL interpreters at all. In addition, this limited schedule of ASL services does nothing in cases of medical emergencies. For example, for one medical emergency, Ms. McBride had to communicate with medical staff by pointing at a diagram of the human body and scrawling out messages.
70. DRF provides no ASL interpreters in at least the unit of the facility where Mr. Wittman is housed, the (security) Level I unit. Mr. Wittman has specifically requested an interpreter for meetings with prison staff and medical visits, but DRF has denied the requests. For example, no interpreter was present at a recent medical visit by Mr. Wittman, and Mr. Wittman therefore had to communicate about his health by passing notes back and forth. Likewise, DRF denied Mr. Wittman's requests for access to an interpreter when his cochlear implant was broken, and his ability to communicate was therefore minimal.
71. On information and belief, other MDOC facilities throughout Michigan also do not provide adequate access to interpreters for inmates' medical appointments.
b) Interpretersfor Access to Prison Programs 72. Defendants provide educational, mental health, and counseling programs for individuals in MDOC's custody. 73. WHY frequently fails to provide an interpreter for inmate programming, such as career workshops, unit meetings, and educational and
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business courses. For example, pnson staff have instructed Ms. McBride to request an interpreter for these programs, but the programs are often announced only days ahead of time. This leaves Ms. McBride insufficient time to request and obtain approval for an interpreter. Even when Ms. McBride requests an interpreter for an event, these requests often are not granted. In the rare case that a request is granted, Ms. McBride often is not made aware that the interpreter will be at the event prior to its start, and thus may not know to attend.
74. On information and belief, other MDOC facilities throughout Michigan also do not provide adequate access to interpreters for educational and business courses, and other inmate programming.
c) Interpretersfor Religious Services 75. WHY does not provide an interpreter for religious services which, for example, Ms. McBride would like to attend but cannot understand without an interpreter. There are volunteer interpreters at religious services for some (but not all) faiths. For example, there are sometimes volunteer interpreters at Jehovah's Witnesses services held at WHY. However, there are typically no volunteer interpreters at Protestant services held at WHV, which Ms. McBride would like to attend but does not because she cannot understand them.
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76. DRF also does not provide interpreters for religious services, which Mr. Wittman, for example, would like to attend but has difficulty understanding without an interpreter.
77. On information and belief, other MDOC facilities throughout Michigan also do not provide adequate access to interpreters for religious services.
3. Other Auxiliary Aids 78. Other auxiliary aids and services are also necessary to ensure the effective participation of deaf and hard of hearing inmates in all aspects of prison life. 79. For example, television programming available to inmates at MDOC facilities can be made accessible to those with hearing impairments through captioning. Captioning can be either open (viewable by all viewers) or closed (viewable only by those who opt to activate the caption chip within every television). 80. On information and belief, officers at MDOC facilities frequently refuse to tum on captioning for deaf or hard of hearing inmates that request it. For example, officers at DRF regularly refuse to turn on closed captioning for Mr. Wittman when he requests it because they believe, mistakenly, that Mr. Wittman can hear everything with his cochlear implant. At WHY closed captioning is left on for some televisions, but not the television in the facility's fitness area.
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Officers at WHY have told Ms. McBride that it is not their job to ensure that there is closed captioning.
c. Access to Visual Notification of Alerts and Announcements
81. MDOC institutions do not have effective systems for public address or audio alerts and announcements for deaf and hard of hearing inmates, thereby creating serious safety risks and other harms.
82. MDOC facilities lack effective visual systems for notifying deaf and hard of hearing inmates about alarms and announcements, and the systems they do have function poorly or are used only sporadically.
83. For example, WHY lacks an effective system of notification lights or signs for notifying Ms. McBride and other deaf and hard of hearing inmates. WHY has a single, red notification light outside the officer's station m the facility's Gladwin Housing Unit B. This light is sometimes used to announce inmate "count time"-officers sometimes tum the light on when count starts and off when count is over. The light is not used for any other purpose. In addition, officers sometimes use signs to instruct inmates to form lines for medicine or food, or to notify inmates of an emergency or lockdown. But they use these visual cues only occasionally, and the signs are only visible in certain parts of the facility. Ms. McBride cannot see the signs or the single, red notification light in her cell or in the television room, for example.
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84. On information and belief, WHY has issued pagers to approximately six deaf and hard of hearing inmates, including Ms. McBride, to help the facility notify these inmates of alarms and announcements. WHY uses the pagers only sporadically, however. Although officers are supposed to send pages during emergencies, Ms. McBride has not received pages for emergencies or alarms such as fire drills. For example, there were at least two fire drills held in December 2014, and Ms. McBride did not receive any page for either fire drill. On information and belief, other inmates have similarly not been sent pages for alarms or mobilizations. In addition, pages have often arrived too late to be of benefit. On information and belief, this is because the officers sending them fail to account for the time lapse between the moment they send the page and the moment the page arrives at the inmate's pager.
85. Because WHY has not instituted an effective system of visual notification for alarms or announcements, Ms. McBride, for example, must try to rely on other inmates to show her where to go and when, or observe other inmates and follow them around the facility in an attempt to comply with instructions she cannot hear.
86. Problems suffered by Mr. Wittman relating to his cochlear implant provide another example. When Mr. Wittman's cochlear implant is working properly, he can hear alarms and announcements at DRF. But the noisy
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environments common within DRF interfere frequently with the implant's functioning-a fact the officers do not understand or acknowledge.
87. Mr. Wittman could not hear alarms or announcements at DRF when his implant was broken in 2012 (for approximately four months) and 2013 (for approximately three months). Furthermore, Mr. Wittman removes the implant when he goes to sleep, which makes him unable to hear. Because the unit of DRF in which Mr. Wittman resides does not have any system of visual notification to notify him of an alarm or announcement, he must try to rely upon his bunkmate to inform him of emergencies and announcements when he is in his bunk and his implant is removed and/or broken, which is clearly inadequate.
88. Mr. Williams' hearing disability, for example, severely impairs his ability to communicate within URF. He removes his hearing aid when he goes to sleep, which makes him unable to hear. URF does not have any system of visual notification to alert deaf or hard of hearing inmates of alarms or announcements. Mr. Williams must therefore try to rely upon his bunkmates to inform him of instructions from officers or messages broadcast over the prison's speaker system, which is clearly inadequate.
89. In the two-week period that Mr. Williams' hearing aid did not have a functioning battery, Mr. Williams had to rely on other inmates to alert him to where he was supposed to be and when, exposing him to an increased risk of
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exploitation and verbal and physical abuse from other inmates. URF has no system of signage, posters, or monitors to provide visual displays of warnings or other announcements.
D. Failure to Provide Effective Communication at Parole and Disciplinary Proceedings
90. Deaf and hard of hearing inmates are subjected to disciplinary proceedings and parole hearings without effective communication.
91. For example, on information and belief, at least one hard of hearing inmate was not provided an interpreter for her recent parole hearing. The hearing was held by an examiner via teleconference. This inmate agreed to proceed with the hearing despite not being able to communicate effectively without an interpreter. Although this inmate believes that the hearing examiner may have been willing to postpone her hearing if she demanded it, such a postponement could have delayed her release date from prison because parole hearings can take a long time to schedule.
92. When inmates violate the rules and regulations of MDOC facilities, they undergo disciplinary proceedings conducted by hearing officers. Inmates have an opportunity to defend themselves, to learn the allegations against them, and to understand the parameters of their punishment.
93. During these proceedings, deaf and hard of hearing inmates may be punished even when they do not understand the charges against them or the
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parameters of their punishment, as a result of their disability. Moreover, inmates are denied the ability to defend themselves when they cannot hear what is happening during the hearings.
94. When they are denied interpreters and/or assistive listening devices or other auxiliary aids or services, deaf and hard of hearing inmates are unable to hear the officer conducting the proceeding, the allegations against them, or any of the results of the proceeding. They are disciplined without complete knowledge of the claims against them or the length of their punishment.
95. On one occasion, for example, officers at URF took Mr. Williams from his cell at night, and placed him in solitary confinement. Mr. Williams requested his hearing aid, which he was not wearing at the time officers removed him from his cell. The officers did not honor his request, and Mr. Williams was forced to appear at a misconduct hearing without the hearing aid. As a result of the proceeding-during which Mr. Williams was completely unable to hear or communicate-URF ordered that Mr. Williams serve 40 days in solitary confinement.
96. Furthermore, DRF did not allow Mr. Wittman access to an interpreter when he appeared in front of a hearing officer to contest a ticket issued to him for a disciplinary infraction.
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E. Unequal and Improper Treatment by Officers 97. Officers at MDOC facilities throughout Michigan often do not recognize the difficulty that deaf and hard of hearing inmates have communicating, and refuse to interact with such inmates in a way that makes it possible to communicate. Some officers even single out deaf and hard of hearing inmates for abusive treatment due to their disability. 98. On information and belief, MDOC facilities throughout Michigan typically do not train officers on how to interact with deaf and hard of hearing individuals, nor do they adequately notify new officers of which inmates suffer from such impairments. 99. Officers at WHY are often insensitive to Ms. McBride's disability, and some are cruel. In the past they have mocked her inability to hear, and attempted to humiliate her in front of other inmates. Others do not realize or acknowledge Ms. McBride's deafness. Officers occasionally yell at her or cite her for misconduct when she fails to respond to instructions that she did not hear. 100. Communication within WHY is extremely difficult for Ms. McBride. None of the officers know ASL. To communicate with them, Ms. McBride attempts to write messages on a notepad. Many of the officers refuse to write back, however. They insist that Ms. McBride read their lips, which is often impossible.
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101. On information and belief, officers at WHY also will sometimes scream at deaf and hard of hearing inmates in an attempt to communicate with them because they do not understand the limitations on their hearing abilities.
CLASS ACTION ALLEGATIONS 102. Plaintiffs McBride, Wittman, and Williams bring this Complaint on their own behalves and on behalf of a class of persons similarly situated (the "Class"), pursuant to the provisions of Fed. R. Civ. P. 23(b)(2). 103. Plaintiffs seek to certify a class of all deaf or hard of hearing inmates who currently are or will in the future be within the custody or supervision of MDOC, and who primarily rely on ASL and/or require hearing devices, auxiliary aids, or other services for in-person communication, and/or to hear or understand telephone communications or loudspeaker system announcements or alarms. 104. The Class is so numerous, and membership so fluid, that joinder of all members is impracticable. On information and belief, there are currently over 110 deaf and hard of hearing inmates in the Class. Further, the Class is readily identifiable from information and records in the possession of Defendants. 105. Numerous common questions of law and fact exist as to all members of the Class. These common questions include, but are not limited to: whether Defendants systematically fail to provide adequate access to telecommunications services, individual hearing devices, sign language interpreters, and other
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auxiliary aids and services to individuals who are deaf or hard of hearing; whether Defendants' conduct has resulted in harm, and may result in serious future harm, to deaf or hard of hearing individuals by denying them effective communication with medical personnel; whether Defendants have caused harm, and may cause serious future harm, to deaf or hard of hearing individuals by failing to provide notification to them of prison warnings and announcements in a manner comparable to that provided to hearing individuals in MDOC's custody; whether Defendants systematically fail to provide individuals who are deaf or hard of hearing with access to services, programs, or privileges comparable to access provided to hearing individuals in MDOC's custody; whether MDOC and named Defendants Heyns, Finco, Treacher, Stewart, Woods, and Stoddard impose a substantial burden on individuals' religious exercise who are deaf or hard of hearing; and whether MDOC and named Defendants Heyns, Finco, Treacher, Stewart, Woods, and Stoddard fail to provide adequate means for deaf or hard of hearing individuals to communicate with individuals outside of MDOC facilities.
106. Plaintiffs' claims are typical of the claims of the members of the Class. The policies and practices described in this Complaint, or lack thereof, apply equally to the named Plaintiffs and to all the other members of the Class, and the injuries suffered by the named Plaintiffs stem from the same policies and practices that affect all members of the Class.
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107. Plaintiffs and Plaintiffs' counsel will fairly and adequately protect and represent the interests of the Class. Plaintiffs' interests are consistent with, and are not antagonistic to, the interests of the Class as a whole. Plaintiffs' counsel are experienced in the protection and enforcement of the statutory and constitutional rights of incarcerated individuals, including deaf individuals.
108. Class action treatment is a fair and efficient method to adjudicate the controversy. Among other things, class treatment will permit a large number of similarly situated persons to prosecute their common claims in a single forum simultaneously, efficiently, and without the duplication of evidence, effort, and expense that multiple individual actions would engender.
109. Defendants have acted and refused to act on grounds generally applicable to the Class, thereby making appropriate final injunctive and declaratory relief with respect to the Class as a whole.
CLAIMS FOR RELIEF COUNT I
Discrimination on the Basis of a Disability in Violation of the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.)
(Against all Defendants by the Plaintiffs on behalf of themselves and a class of similarly situated individuals)
110. Plaintiffs hereby incorporate each preceding and succeeding paragraph as though fully set forth herein.
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Ill. The purpose of the Americans with Disabilities Act ("ADA") is "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12IOI(b)(1). Title II of the ADA states that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132.
112. The claims under the ADA are brought against Defendant MDOC as a department, agency, or instrumentality of the State of Michigan, as well as against Defendants Heyns, Finco, Treacher, Stewart, Woods, and Stoddard in their official capacities as employees of MDOC.
113. Defendant MDOC is a "public entity" within the meaning of 42 U.S.C. § 1213 1( 1)(B).
114. Plaintiffs are each a "qualified individual with a disability" within the meaning of Title II of the ADA, 42 U.S.C. § 12131(2).
115. By the actions of the Defendants described above, Plaintiffs have, by reason of such disability, been "excluded from participation in or be[ en] denied the benefits of the services, programs, or activities of' public entities and have been subjected to discrimination by public entities, in violation of Title II of the ADA, 42 U.S.C. § 12132.
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116. At all times relevant to this action, the ADA was in full force and effect in the United States and Plaintiffs had a right not to be subjected to discrimination on the basis of their disability by Defendants. 42 U.S.C. § 12132.
117. The U.S. Department of Justice ("DOJ") regulation implementing Title II of the ADA clearly requires the provision of effective communication as part of its nondiscrimination mandate. 28 C.F.R. § 35.160. This regulation states: "A public entity shall take appropriate steps to ensure that communications with applicants, participants, and members of the public, and companions with disabilities are as effective as communications with others." 28 C.F.R. § 35.160(a).
118. In order to ensure effective communication, the ADA requires that "a public entity" furnish "appropriate auxiliary aids and services where necessary to afford individuals with disabilities ... an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity." 28 C.F.R. § 35.160(b)(l).
119. Auxiliary aids and services include, but are not limited to, "qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments," 42 U.S.C. § 12103, such as computer-aided transcription services, assistive listening systems, closed caption
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decoders, open and closed captioning, telecommunications devices for deaf persons (TDDs), videophones, and videotext displays. 28 C.F.R. § 35.104.
120. In determining what type of auxiliary aid and service is necessary, "a public entity shall give primary consideration to the requests of individuals with disabilities." 28 C.F.R. § 35.160(b)(2).
121. Defendants' failure to provide effective communication for individuals with hearing disabilities denied and continues to deny, on the basis of their disability, Plaintiffs the same access to Defendants' services, benefits, activities, programs, or privileges as the access provided to hearing individuals.
122. Defendants subjected Plaintiffs to discrimination solely on the basis of their disability by not ensuring that adequate access to qualified sign language interpreter services, individual hearing devices, and other auxiliary aids and services are made available to individuals with hearing impairments in MDOC's custody or under MDOC supervision.
123. Plaintiffs have been unable to communicate effectively by telephone with individuals outside of prison, unable to participate in educational, mental health, employment, disciplinary, and other MDOC services, and unable to learn of daily life and safety alerts and other notifications as effectively as hearing individuals in MDOC's custody.
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124. Defendants have failed to give consideration to Plaintiffs' requests, denying them their requests for videophone services, for visual alert and notification systems, for interpreter services, for individual hearing devices, and for other auxiliary aids and services.
125. On information and belief, Defendants have failed to provide effective communication or to provide comparable access to services, benefits, activities, programs, or privileges, policies, regular practices, and/or customs. These failures are ongoing and continue to this date.
126. Defendants' failure to provide appropriate auxiliary aids and services has subjected Plaintiffs to discrimination on the basis of their disability in violation of their rights under the ADA, in ways that include, but are not limited to, the following:
a. inadequate access to sign language interpreters, individual hearing devices, and other appropriate auxiliary aids and services to enable them to participate in and benefit from Defendants' programs;
b. inadequate access to prison audio alerts and notifications; and c. inadequate access to telecommunications devices. 127. As a proximate result of Defendants' violations of Plaintiffs' rights under the ADA, Plaintiffs have suffered and continue to suffer from discrimination, unequal treatment, exclusion (including exclusion from Defendants' services, benefits, activities, programs, and privileges), violations of
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their rights under the laws of the United States, financial loss, loss of dignity, frustration, humiliation, emotional pain and suffering, anxiety, trauma, embarrassment, and unnecessary loss of rights and privileges, including unnecessary disciplinary measures.
128. Defendants' failure to comply with the ADA has resulted, and will continue to result, in harm to Plaintiffs, as Plaintiffs will continue to be in the custody or under the supervision of MDOC, and will continue to attempt to use or avail themselves of the services, benefits, activities, programs, and privileges of the Defendants. This harm will continue unless and until Defendants are ordered by this Court to make modifications to the policies, practices, and procedures of MDOC pursuant to the ADA.
COUNT II Discrimination on the Basis of a Disability in Violation of the
Rehabilitation Act (29 U.S.C. § 794 et seq.) (Against all Defendants by the Plaintiffs on behalf of themselves and a class of similarly situated individuals) 129. Plaintiffs hereby incorporate each preceding and succeeding paragraph as though fully set forth herein. 130. The purpose of the Rehabilitation Act is to ensure that no "qualified individual with a disability in the United States ... shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or
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be subjected to discrimination under any program or activity receiving Federal financial assistance .... " 29 U.S.C. § 794(a).
131. The claims under the Rehabilitation Act are brought against Defendant MDOC as a department, agency, or instrumentality of the State of Michigan, as well as against Defendants Heyns, Finco, Treacher, Stewart, Woods, and Stoddard in their official capacities as employees of MDOC.
132. Defendants receive Federal financial assistance within the meaning of 29 U.S.C. § 794(a).
133. The operations of Defendants are programs or activities within the
meaning of29 U.S.C. § 794(b). 134. Plaintiffs are each an "individual with a disability" within the
meaning of the Rehabilitation Act, 29 U.S.C. § 705(20). 135. The DOl regulation implementing the Rehabilitation Act clarifies the
requirements for Federal financial recipients, including correctional facilities, stating: "A recipient that employs fifteen or more persons shall provide appropriate auxiliary aids to qualified handicapped persons with impaired sensory, manual, or speaking skills where a refusal to make such provision would discriminatorily impair or exclude the persons in the program receiving federal financial assistance." 28 C.F.R. § 42.503(t).
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136. Appropriate auxiliary aids include, but are not limited to, "qualified interpreters ... and telephonic devices." 28 C.F.R. § 42.503(f).
137. Defendants discriminatorily impaired Plaintiffs' ability to communicate effectively with medical personnel, prison staff, and individuals outside of prison and/or excluded Plaintiffs from educational, vocational, and prison-wide announcements. They have done this by failing to provide appropriate auxiliary aids in violation of the Rehabilitation Act.
138. Defendants' failure to provide appropriate auxiliary aids and services for individuals with hearing disabilities denied and continues to deny, on the basis of their disabilities, Plaintiffs the same access to Defendants' services, benefits, activities, programs, or privileges as the access provided to hearing individuals.
139. On information and belief, the failure to provide appropriate auxiliary aids and services, and the failure to provide comparable access to services, benefits, activities, programs or privileges are policies, regular practices, and/or customs of Defendants. These failures are ongoing and continue to this date.
140. Defendants' failure to provide appropriate auxiliary aids and services has subjected Plaintiffs to discrimination on the basis of their disability in violation of their rights under the Rehabilitation Act, in ways that include, but are not limited to, the following:
a. inadequate access to sign language interpreters, individual hearing devices, and other appropriate auxiliary aids and
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services to enable them to participate m and benefit from Defendants' programs; b. inadequate access to prison audio alerts and notifications; and c. inadequate access to telecommunications devices. 141. Defendants have also violated the Rehabilitation Act by excluding inmates who are deaf or hard of hearing from Defendants' employment and vocational benefits and opportunities. 28 C.F.R. 42.503. 142. As a proximate result of Defendants' violations of Plaintiffs' rights under the Rehabilitation Act, Plaintiffs have suffered, and continue to suffer, from discrimination, unequal treatment, exclusion (including exclusion from Defendants' services, benefits, activities, programs, and requirements), financial loss, loss of dignity, frustration, humiliation, emotional pain and suffering, anxiety, trauma, embarrassment, unnecessary loss of rights and privileges, including unnecessary disciplinary measures, and injury to their health. 143. Defendants' failure to comply with the Rehabilitation Act has resulted in harm to Plaintiffs, and Defendants are liable to Plaintiffs for harms suffered. Defendants' failure to comply with the Rehabilitation Act will continue to result in harm to Plaintiffs, as Plaintiffs will continue to be in the custody or under the supervision of MDOC and will continue to attempt to use or avail themselves of the services, benefits, activities, programs, and privileges of Defendants. This harm will continue unless and until Defendants are ordered by this Court to make
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modifications to their policies, practices and procedures pursuant to the Rehabilitation Act.
COUNT III Violation of the Religious Land Use and Institutionalized Persons Act of 2000
"Substantial Burden on Religion Exercise" (42 U.S.C. § 2000cc et seq.)
(Against all Defendants by the Plaintiffs on behalf of themselves and a class of similarly situated individuals)
144. Plaintiffs hereby incorporate each preceding and succeeding paragraph as though fully set forth herein.
145. Under the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), Governments may not impose substantial burdens on the religious exercise of institutionalized persons "even if the burden results from a rule of general applicability." 42 U.S.C. § 2000cc-l(a).
146. The claims under RLUIP A are brought against Defendant MDOC as a department, agency, or instrumentality of the State of Michigan, as well as against Defendants Heyns, Finco, Treacher, Stewart, Woods, and Stoddard in their official capacities as employees ofMDOC.
147. As a department, agency, or instrumentality of the State of Michigan, or officials of such entities, Defendants are each a "government" within the meaning ofRLUIPA. 42 U.S.C. § 2000cc-5(4)
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148. Plaintiffs are "institutionalized persons" within the meanmg of RLUIPA. 42 U.S.C. § 2000cc-l.
149. Defendants have deprived and continue to deprive Plaintiffs of their right to the free exercise of religion, as secured by RLUIPA, by unlawfully imposing a substantial burden on Plaintiffs' religious exercise. They have done so by failing to provide interpreters or other means for enabling Plaintiffs to effectively communicate at weekly worship services. The substantial burden Defendants have imposed on Plaintiffs' religious exercise affects programs or activities that receive Federal financial assistance.
150. Defendants' failure to comply with RLUIPA has resulted in harm to Plaintiffs, and will continue to result in harm to Plaintiffs, as Plaintiffs will continue to be in MDOC's custody and continue to attempt to participate in weekly worship services unless and until Defendants are ordered by this Court to make modifications to MDOC policies, practices, and procedures pursuant to RLUIPA.
COUNT IV Violation of Free Exercise Rights under First and Fourteenth Amendments of
the United States Constitution (42 U.S.C. § 1983)
(Against Defendants Heyns, Finco, Treacher, Stewart, Woods, and Stoddard by the Plaintiffs on behalf of themselves and a class of similarly situated individuals) 151. Plaintiffs hereby incorporate each preceding and succeeding
paragraph as though fully set forth herein.
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152. Under the First Amendment of the United States Constitution, as made applicable to States through the Fourteenth Amendment, States "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. Const. Amend. I.
153. 42 U.S.C. § 1983 creates a cause of action when a "person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws."
154. Defendants Heyns, Finco, Treacher, Stewart, Woods, and Stoddard, acting under color of Michigan statutes and regulations, deprived and continue to deprive Plaintiffs of their free exercise of religion, as secured by the First Amendment to the United States Constitution and made applicable to the States by the Fourteenth Amendment, by discriminating against Plaintiffs because of their mode of speech and by substantially burdening their religious exercise.
155. Defendants Heyns, Finco, Treacher, Stewart, Woods, and Stoddard's failure to comply with the First and Fourteenth Amendments of the United States Constitution has resulted in harm to Plaintiffs, and will continue to result in harm to Plaintiffs, as Plaintiffs will remain in the custody of MDOC or under the
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supervision of MDOC and continue to attempt to participate in weekly worship services unless and until Defendants are ordered by this Court to make modifications to their policies, practices, and procedures pursuant to the First and Fourteenth Amendments of the United States Constitution.
COUNTV Violation of Free Speech Rights Under the First and Fourteenth Amendments
of the United States Constitution (42 U.S.C. § 1983)
(Against Defendants Heyns, Finco, Treacher, Stewart, Woods, and Stoddard by the Plaintiffs on behalf of themselves and a class of similarly situated individuals) 156. Plaintiffs hereby incorporate each preceding and succeeding
paragraph as though fully set forth herein. 157. Under the First Amendment of the United States Constitution, as
made applicable to States through the Fourteenth Amendment, States "shall make no law ... abridging the freedom of speech." U.S. Const. Amend. I.
158. 42 U.S.C. § 1983 creates a cause of action when a "person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws."
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159. Defendants Heyns, Finco, Treacher, Stewart, Woods, and Stoddard, acting under color of Michigan statutes and regulations, deprived and continue to deprive Plaintiffs of their freedom of speech, as secured by the First Amendment to the United States Constitution and made applicable to the States by the Fourteenth Amendment, by preventing Plaintiffs from communicating with people outside of the prison. Despite multiple complaints in writing to MDOC, MDOC-through the official actions of Defendants Heyns, Finco, Treacher, Stewart, Woods, and Stoddard-has denied and continues to deny Plaintiffs access to telecommunications devices that would give them the ability and opportunity to communicate with people outside of prison.
160. Defendants Heyns, Finco, Treacher, Stewart, Woods, and Stoddard's failure to comply with the First and Fourteenth Amendments of the United States Constitution has resulted in harm to Plaintiffs, and will continue to result in harm to Plaintiffs as Plaintiffs will remain in the custody of MDOC or under the supervision of MDOC and continue to attempt to communicate with people outside prison, unless and until all Defendants are ordered by this Court to make modifications to their policies, practices, and procedures pursuant to the First and Fourteenth Amendments of the United States Constitution.
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PRAYER FOR RELIEF WHEREFORE, Plaintiffs prays that the Court:
a. Certify this case as a Plaintiff class action pursuant to Fed. R. Civ. P. 23 (b)(2), certify that named Plaintiffs Mary Ann McBride, Brian Stanley Wittman, and Ralph Williams are proper representatives of the class, and appoint the undersigned as class counsel;
b. Adjudge and decree that Defendants, by the organizations, systems, policies, practices, and conditions described above, have violated and continue to violate Title II of the ADA, Section 504 of the Rehabilitation Act, the Religious Land Use and Institutionalized Persons Act, and the Constitution of the United States;
c. Enjoin the Defendants from refusing to provide the proper interpretative services, TOO, videophones, and other hearing devices that are required for deaf and hard of hearing inmates to fully participate in and benefit from the programs offered by these public entities, and required to ensure their physical safety;
d. Enjoin the Defendants from depriving Plaintiffs and Plaintiff Class members of the protections of the First and Fourteenth
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Amendments of the United States Constitution pursuant to 42

U.S.C. § 1983; e. Award reasonable attorneys' fees and costs; and

f. Award Plaintiffs such other and further relief as the Court deems

just and proper. Dated: March 31, 2015

Respectfully submitted,

lsi Chris E. Davis MICHIGAN PROTECTION & ADVOCACY SERVICE, INC. 4905 Legacy Parkway, Suite 500 Lansing, MI 48911-4264 (517) 487-1755 (Tel.) cdavis@mpas.org P52159
lsi Abraham Singer KITCH DRUTCHAS WAGNER VALITUTTI & SHERBROOK One Woodward Avenue, Suite 2400 Detroit, MI 48226-5485 (313) 965-7900 (Tel.) abraham. singer@kitch.com P23601
Andrew D. Lazerow (of counsel) Stephen C. Bartenstein (of counsel) Matthew J. Hegreness (of counsel) COVINGTON & BURLING LLP One CityCenter 850 Tenth Street, NW Washington, DC 20001-4956 (202) 662-6000 (Tel.) (202) 778-6000 (Fax)
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alazerow@cov.com sbartenstein@cov.com mhegreness@cov.com Deborah M. Golden (of counsel) Elliot M. Mincberg (of counsel) WASHINGTON LA WYERS' COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS 11 Dupont Circle, NW Suite 400 Washington, DC 20036 (202) 319-1000 (Tel.) (202) 319-1010 (Fax) deborah _golden@washlaw.org elliot_ mincberg@washlaw.org
Attorneys for Plaintiffs
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 2:15-cv-11222-SFC-DRG Doc # 28 Filed 10/30/15 Pg 1 of 28 Pg ID 349

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MARY ANN McBRIDE, et al.,

Plaintiffs, v.

Civil Action No. 15-11222 Honorable Sean F. Cox Magistrate Judge David R. Grand

MICHIGAN DEPARTMENT OF CORRECTIONS, et al.,

Defendants. __________________________________/

REPORT AND RECOMMENDATION TO DENY DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT [15]

Before the Court is the motion for partial summary judgment filed on May 1, 2015, by

the Michigan Department of Corrections (“MDOC”) and six of its employees: MDOC Director

Daniel Heyns, Deputy Director Thomas Finco, Chief Deputy Director Randall Treacher,

Women’s Huron Correctional Facility Warden Anthony Stewart, Chippewa Correctional Facility

Warden Jeffrey Woods and Carson City Correctional Facility Warden Cathleen Stoddard (collectively “defendants”).1 [15]. Plaintiffs Mary Ann McBride (“McBride”), Brian Wittman

(“Wittman”), and Ralph Williams (“Williams”) (collectively “plaintiffs”), all of whom are

currently incarcerated, submitted a response to this motion on May 22, 2015. [23]. Defendants

did not file a reply. The matter has been referred to the undersigned for all pretrial matters

1 Although defendants denominate the instant motion as one for summary judgment, they make a passing reference to “bring[ing] this motion under Fed. R. Civ. P. 12(b)(6) and 56(a).” [15 at 2]. Since defendants submitted documents concerning “matters outside the pleadings,” Fed. R. Civ. P. 12(d), the Court will solely consider the motion pursuant to the summary judgment standard.

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pursuant to 28 U.S.C. § 636(b). [17]. The Court conducted a hearing with respect to the motion on September 17, 2015. I. RECOMMENDATION
For the reasons set forth below, IT IS RECOMMENDED that defendants’ motion for partial summary judgment [15] be DENIED. II. REPORT
A. Background McBride, Wittman, and Williams are State of Michigan prisoners who, at all relevant times, were confined at the Women’s Huron Valley Correctional Facility (“WVH”) located in Ypsilanti, Michigan, the Carson City Correctional Facility (“DRF”) located in Carson City, Michigan, and the Chippewa Correctional Facility (“URF”) located in Kincheloe, Michigan, respectively. [1]. In general, plaintiffs assert that defendants have discriminated against them and/or violated their rights because they are either deaf or significantly hearing impaired. More specifically, plaintiffs allege violations of: (1) Title II of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”) and its implementing regulations; (2) the Rehabilitation Act, 29 U.S.C. § 794, et seq. (“RA”) and its implementing regulations; (3) the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc, et seq. (“RLUIPA”); (4) the Free Exercise Clause of the First Amendment to the United States Constitution (42 U.S.C. § 1983 – solely against the individual defendants in their official capacities); and (5) the Free Speech Clause of the First Amendment to the United States Constitution (42 U.S.C. § 1983 – solely against the individual defendants in their official capacities). Plaintiffs seek injunctive relief, and will eventually seek class certification status on behalf of approximately 110 similarly situated inmates. [Id. at ¶ 103].
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B. Relevant Facts 1. Plaintiffs’ Allegations
The complaint’s factual allegations center around five different areas: (1) inadequate access to telecommunications; (2) inadequate access to auxiliary aids and services; (3) inadequate visual notification of prison alerts and announcements; (4) ineffective communication during parole and disciplinary proceedings; (5) unequal treatment of deaf and hearing impaired inmates by prison officers. [Id. at ¶ 30].
Regarding access to telecommunications, plaintiffs maintain that MDOC telecommunication devices for the deaf (“TDDs”) do not adequately assist them in remotely communicating with relatives because “[t]he TDD direct-messaging system works only if both the caller and recipient have access to a TDD device.” [Id. at ¶ 38]. Plaintiffs also allege that MDOC charges them significantly higher rates for using TDDs than for traditional telephone calls. [Id.]. Also, some MDOC facilities, such as URF, do not have any TDDs, videophones, or telephone amplifiers. [Id. at ¶ 41].
Access to hearing aids, interpreter services and other assistive devices are supposedly limited as well. According to Williams, MDOC officials at URF have denied his requests for an auditory evaluation of his right ear so that he could receive a hearing aid. [Id. at ¶ 53]. On other occasions, Williams asserts that MDOC officials placed him in solitary confinement without the use of his hearing aid. [Id. at ¶ 54]. Plaintiffs complain of significant delays in sending assistive devices out for repairs and obtaining necessary replacement parts. [Id. at ¶ 55-57]. Without the use of these devices, plaintiffs claim they are exposed to a heightened risk of danger from other inmates. [Id. at ¶ 59]. Plaintiffs also report that the availability of sign language interpreters is significantly restricted, and in some MDOC facilities, requests for these interpreters are routinely
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denied or they are not provided at all. [Id. at ¶¶ 69-70]. Without these accommodations, plaintiffs’ allege that their ability to obtain proper medical care, and utilize rehabilitative programs and religious services, is significantly diminished. [Id. at ¶¶ 67-77].
Plaintiffs also contend that MDOC facilities lack adequate visual notification systems for hearing impaired inmates and that the systems already in place “function poorly or are used only sporadically.” [Id. at ¶ 82]. For instance, Wittman and Williams assert that housing units at DRF and URF do not have visual displays for posting announcements or warnings in case of emergencies. [Id. at ¶¶ 87-89]. McBride alleges that, although MDOC officials at WHV issued her a pager, she “has not received pages for emergencies or alarms such as fire drills” or the pages are received “too late to be of benefit.” [Id. at ¶ 84]. Plaintiffs are then forced to rely on other inmates to receive emergency bulletins and announcements.
Plaintiffs also assert that inmates are required to appear at disciplinary proceedings without their hearing devices or sign language interpreters. Plaintiffs reference an occasion where MDOC officials at URF allegedly denied Williams’s request to use his hearing aid during a misconduct hearing, thereby rendering him unable to understand the charges against him or mount a competent defense. The hearing resulted in his placement in solitary confinement for 40 days. [Id. at ¶ 95]. Similarly, MDOC officials at DRF allegedly denied Wittman’s request for a sign language interpreter to appear with him during a disciplinary hearing. [Id. at ¶ 96].
Finally, plaintiffs maintain that they suffer unequal and improper treatment from MDOC officers because they are not properly trained to handle hearing impaired inmates. For instance, they allege that officers have yelled at McBride and cited her for misconduct “when she fail[ed] to respond to instructions that she did not hear.” [Id. at ¶ 99]. They have also allegedly mocked
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her in front of other inmates and ignored her attempts to communicate with them by writing messages on notepads. [Id. at ¶ 100].
2. Defendants’ Motion for Partial Summary Judgment In their motion for partial summary judgment,2 defendants maintain that: (1) most of plaintiffs’ claims should be dismissed because they failed to exhaust their administrative remedies prior to commencing the instant action; (2) MDOC has sovereign immunity against the Title II ADA claim under the Eleventh Amendment to the United States Constitution; (3) the RLUIPA claim is not cognizable because defendants have not imposed a “substantial burden” on plaintiffs’ religious exercise; and (4) their failure to provide sign interpreters for religious services does not violate the Free Exercise Clause of the First Amendment to the United States Constitution. C. Legal Standard Pursuant to Federal Rule of Civil Procedure 56, the Court will grant summary judgment if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Pittman v. Cuyahoga County Dep’t of Children & Family Servs., 640 F.3d 716, 723 (6th Cir. 2011). A fact is material if it might affect the outcome of the case under governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, the Court assumes the truth of the non-moving party’s evidence and construes all reasonable
2 Because defendants are not seeking dismissal of the Rehabilitation Act and free speech claims, they are, in actuality, moving for partial summary judgment. [23 at 1, n.2.]. This Report and Recommendation is captioned accordingly.
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inferences from that evidence in the light most favorable to the non-moving party. See Ciminillo v. Streicher, 434 F.3d 461, 464 (6th Cir. 2006).
The party seeking summary judgment bears the initial burden of informing the Court of the basis for its motion, and must identify particular portions of the record that demonstrate the absence of a genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009). “Once the moving party satisfies its burden, ‘the burden shifts to the nonmoving party to set forth specific facts showing a triable issue.’” Wrench LLC v. Taco Bell Corp., 256 F.3d 446, 453 (6th Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In response to a summary judgment motion, the opposing party may not rest on its pleadings, nor “‘rely on the hope that the trier of fact will disbelieve the movant’s denial of a disputed fact’ but must make an affirmative showing with proper evidence in order to defeat the motion.” Alexander, 576 F.3d at 558 (internal quotations omitted).
D. Analysis 1. Exhaustion
Defendants contend that most of the claims in this case are procedurally barred under the Prison Litigation Reform Act (“PLRA”) because plaintiffs failed to exhaust their administrative remedies prior to commencing the instant proceeding. [15 at 5].
The PLRA requires prisoners challenging the conditions of their confinement under 42 U.S.C. § 1983 to first properly exhaust their available administrative remedies. 42 U.S.C. § 1997e(a) (“[n]o action shall be brought with respect to prison conditions under §1983 . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”); see Jones v. Bock, 549 U.S. 199, 220 (2007); Porter
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v. Nussle, 534 U.S. 516, 532 (2002). The Jones Court held that “exhaustion is an affirmative defense, and prisoners are not required to specifically plead or demonstrate exhaustion in their complaints.” Jones, 549 U.S. at 216. The burden is on the defendant to show that the plaintiff failed to properly exhaust his administrative remedies before filing the action. Id.; see also Kramer v. Wilkinson, 226 F. App’x 461, 462 (6th Cir. 2007) (the “affirmative defense [of exhaustion] may serve as a basis for dismissal only if raised and proven by the defendants.”).
In order to exhaust their administrative remedies, prisoners must complete the administrative review process in accordance with the deadlines and other applicable procedural rules established by state law. Id. at 218-19. This requirement is a stringent one. In Woodford v. Ngo, 548 U.S. 81, 93 (2006), the Supreme Court held that the PLRA exhaustion requirement “requires proper exhaustion.” “Proper exhaustion demands compliance with an agency’s deadlines and other critical procedural rules.” Id. at 90; see Scott v. Ambani, 577 F.3d 642, 647 (6th Cir. 2009); Vandiver v. Corr. Med. Servs., 326 F. App’x 885, 888 (6th Cir. 2009).
Defendants specifically assert that plaintiffs failed to comply with MDOC Policy Directive (“P.D.”) 03.02.130 (effective Jul. 9, 2007) entitled “Prisoner/ Parolee Grievances” by failing to include required information in the early stages of the grievance process (and in one instance, by filing suit before the grievance had received a ruling at the final Step III stage). [15 at 7]. Insofar as it is relevant to this case, P.D. 03.02.130 provides the following guidelines for filing prisoner grievances:
“E. Grievances may be submitted regarding alleged violations of policy or procedure or unsatisfactory conditions of confinement which directly affect the grievant, including alleged violations of this policy and related procedures. . . .
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P. Prior to submitting a written grievance, the grievant shall attempt to resolve the issue with the staff member involved within two business days after becoming aware of a grievable issue, unless prevented by circumstances beyond his/her control or if the issue falls within the jurisdiction of the Internal Affairs Division in Operations Support Administration. If the complaint is not resolved, the grievant may file a Step I grievance. The Step I grievance must be filed within five business days after the grievant attempted to resolve the issue with staff.
* * *
R. A grievant shall use the Prisoner/Parolee Grievance form (CSJ-247A) to file a Step I grievance; a Prisoner/Parolee Grievance Appeal form (CSJ247B) shall be used to file a Step II or Step III grievance. The forms may be completed by hand or by typewriter however, handwriting must be legible. The issues shall be stated briefly but concisely. Information provided shall be limited to the facts involving the issue being grieved (i.e., who, what, when, where, why, how). Dates, times, places and names of all those involved in the issue being grieved are to be included.
***
V. Within five business days after attempting to resolve grievable issues with staff, a grievant may send a completed Prisoner/Parolee form (CSJ247A) to the Step I Grievance Coordinator designated for the facility, field office or other office being grieved . . .”
[Id. at 8-9] (emphasis added). The Court will evaluate defendants’ exhaustion arguments as they
relate to each of the Step III grievances filed by plaintiffs.3
a. McBride
McBride filed the following three relevant Step III grievances while incarcerated at WHV
[Id. at 9]:
3 In support of their exhaustion defense, defendants have attached the Step III grievance reports which list the grievances appealed to Step III by each plaintiff. [15, Exs. A-C].
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Grievance # 1) WHV-11-11-4707-06c (“06-c”) 2) WHV-13-03-1391-03f (“03-f”)
3) WHV-14-06-2356-06e (“06-e”)

Subject Matter
Failure to provide interpreter for religious services
Failure to accommodate hearing disability with sign language interpreters and updated technology Supporting documents not submitted4

Defendants argue that McBride did not exhaust these grievances for the following reasons:
 Grievance 06c: McBride solely named MDOC in this grievance without mentioning the remaining individual defendants in violation of P.D. 03.02.130 ¶ R. Defendants propose that all of the claims stemming from this grievance should be dismissed in their entirety. [Id. at 9].
 Grievance 03f: Of the named defendants in this action, McBride solely named Heyns in this grievance, in violation of P.D. 03.02.130 ¶ R. Defendants propose that all of the claims related to this grievance should be dismissed except as to Heyns. [Id. at 10].
 Grievance 06e: This grievance was still pending at the time plaintiffs filed the complaint. Defendants propose that all claims related to this grievance should be dismissed in their entirety. [Id.].
As for Grievance 03f, the Court finds that McBride satisfied the requirements of P.D.
03.02.130 ¶ R because she identified all of the relevant parties whom she reasonably could have
known about at the time she filed this grievance. [15-2 at 14 (“This grievance is submitted
against Warden Millicent Warren, MDOC Director Daniel Heyns, Regional Prison Administrator
Bruce Curtis, Deputy Warden Osterhoust, Chaplin Mardini, DeAngel D. Johnson, G. Griffy, T.

4 Although defendants attached supporting documentation for grievance WHV-12-10-5015-06e, which relates to MDOC’s failure to evaluate McBride’s hearing and provide her with hearing aids, they do not challenge this particular grievance on exhaustion grounds or for any other reason. [See 15-2 at 17-21; 23 at 10]. Defendants did not provide supporting documentation for grievance 06-e, though they describe it as relating to an alleged “Failure to provide hearing aids.” [15 at 9].
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Beard, T. Snipes, Luna, Health Unit Manager Jackson.”)]. In their response brief, plaintiffs correctly note that:
[t]he grievance does not identify Defendant Anthony Stewart, WHV’s current warden, for the obvious reason that Defendant Stewart was not WHV’s warden when the grievance was filed, and therefore was not involved in the issues grieved. Nor does it identify Defendants Jeffrey Woods and Cathleen Stoddard because they are wardens of different prisons . . . and also were not involved in the issues grieved. [23 at 8]. As to Stewart the analysis is fairly straightforward. At the time of the alleged wrongful conduct, Millicent Warren (named in the grievance) was the warden at WHV. However, at the time this action was filed, Stewart was the warden at that facility. The fact that this personnel change occurred between the alleged wrongful conduct and the filing of the complaint cannot be used to preclude McBride from bringing her related claims. A similar issue was recently addressed in Argue v. Burnett, No. 08-186, 2011 U.S. Dist. LEXIS 27139 (W.D. Mich. Jan. 18, 2011) adopted by 2011 U.S. Dist. LEXIS 27141 (W.D. Mich. Mar. 16, 2011). There, the court confronted the more common situation where an inmate filed a Step I grievance against an MDOC official who later retired and was then, unbeknownst to the inmate, replaced by another individual prior to the filing of the complaint. The MDOC official argued that he should be dismissed from the action because he was no longer “the proper party against whom the requested relief can be obtained. Id. at *16 But rather than dismiss the complaint, the magistrate judge recommended substituting the current officeholder in place of his retired predecessor, noting “[t]hat Plaintiff misidentified the name of the individual who then held that position is, in the Court’s opinion, of no consequence.” Id. at *19. Ultimately, the district judge adopted this recommendation and did not bar the inmate from suing the current officeholder despite the fact
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that he was not involved in the events underlying the Step I grievance and, thus, not named in the grievance or original complaint. Argue is analogous to the instant case. Because McBride properly identified Millicent Warren as the warden at WHV when she filed Grievance 03f, the Court sees no reason to preclude her claims against that facility’s new warden on exhaustion grounds.
Defendants’ arguments as to Stoddard and Woods are different, but equally lacking in merit. Stoddard is being sued by Wittman exclusively for wrongful conduct that occurred at DRF, while Woods is being sued by Williams for wrongful conduct that exclusively occurred at URF. Defendants are essentially asking the Court to find that McBride’s claim, which has nothing to do with Stoddard or Woods, must be dismissed because her underlying grievance does not name either of those defendants. Since Stoddard and Woods both had no connection to the issues that McBride grieved at WHV, she obviously had no reason to mention them in Grievance 03f and, thus, fully complied with P.D. 03.02.130 ¶ R. As a result, the PLRA does not require McBride to exhaust her claims against Stoddard and Woods on account of the allegations in the complaint that solely pertain to her co-plaintiffs or other putative class members.5
Moreover, even assuming these purported errors would otherwise render Grievances 06c and 03f unexhausted, they are still ripe for judicial review because MDOC officials addressed the grievances on the merits. See Reed-Bey v. Pramstaller, 603 F.3d 322, 324 (6th Cir. 2010)
5 Defendants’ contrary view is untenable because it would require a plaintiff, in order to exhaust her own claim to: (1) correctly predict the identity of each future co-plaintiff and/or putative class member; (2) identify which MDOC officials were involved in each of the relevant Step I grievances filed by each such person; and then (3) name those MDOC officials in each of her own relevant Step I grievances (although many of these officials would have no connection to the issues being grieved). Defendants cite no law requiring prisoner plaintiffs to possess such prescient powers.
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(holding that the PLRA exhaustion requirement had been met when MDOC addressed an

inmate’s grievance on the merits although he did not name “all those involved in the issue being

grieved.”); see also Maxwell v. Corr. Med. Servs., 538 F. App’x 682, 687-89 (6th Cir. 2013)

(applying Reed-Bey where prison officials addressed the merits of the subject grievance).

The Court also agrees with plaintiffs that a material issue of fact exists concerning

whether Grievance 06e remained pending at the time she commenced this lawsuit on March 31,

2015. [15 at 7]. At this point, the only evidence before the Court regarding this particular

grievance is that McBride filed her Step III appeal on September 9, 2014, and that as of April 21,

2015 (the date of the Step III Grievance Report provided to the Court), that grievance had been

“Denied” at Step III. [15-2 at 4]. The actual date of the Step III denial is not indicated on the

report, and thus, defendants have not shown that it had not been denied at the time plaintiffs filed

this action. Again, the Court notes that defendants did not append any documentation associated

with Grievance 6e to their motion. Therefore, defendants have not sufficiently established that

McBride failed to exhaust her administrative remedies as to Grievance 06-e before commencing

this action.

b. Wittman

Wittman filed two relevant Step III grievances while incarcerated at DRF. The grievance

numbers and the subject matter of each grievance are listed in the table below [15 at 11]:

Grievance # 1) DRF-14-01-0066-12i (“66-12i”)
2) DRF-13-07-1390-12i (“90-12i”)

Subject Matter Failure to send cochlear implant for repairs Failure to accommodate hearing disability with sign language interpreters and updated technology

Defendants maintain that Wittman failed to exhaust these grievances for the following reasons: 12

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 Grievance 66-12i: Wittman solely named “Head RN” in his grievance without mentioning any of the above-named defendants, in violation of P.D. 03.02.130 ¶ R. Defendants propose that all of the claims stemming from this grievance should be dismissed in their entirety. [Id. at 12].
 Grievance 90-12i: Wittman solely named defendant Heyns in this grievance without mentioning the remaining defendants in violation of P.D. 03.02.130 ¶ R. Defendants propose that all of the claims related to this grievance should be dismissed except as to Heyns. [Id.]. Here, the Court concludes that Wittman’s Grievance 66-12i is ripe for judicial review
under Reed-Bey since MDOC officials addressed the grievance on its merits. In addition, Grievance 90-12i satisfied the requirements of P.D 03.02.130 ¶ R because Wittman appropriately submitted this grievance “against Warden Willie Smith, MDOC Director Heyns, Regional Prison Administrator Bruce Curtis, ADA Coordinate Koenigsknecht, all unknown Deputy Wardens, and all unknown Shift Supervisors.” [15-3 at 41]. As with McBride, at the time of the alleged wrongful conduct, Willie Smith (named in the grievance) was the warden at DRF. However, at the time this action was filed, Stoddard was the warden at that facility. The fact that this personnel change occurred in the interim cannot be used to preclude Wittman from bringing his related claims. See Argue, supra.
Similarly, with respect to Stewart and Woods, Stewart is being sued by McBride exclusively for wrongful conduct that occurred at WHV while Woods is being sued by Williams for wrongful conduct that exclusively occurred at URF. Since Stewart and Woods both had no connection to the issues that Wittman grieved at DRF, he obviously had no reason to mention them in Grievance 90-12i and, thus, did not violate P.D. 03.02.130 ¶ R. See supra at 11. Therefore, summary judgment is not warranted because defendants have not demonstrated that Wittman’s claims are unexhausted.
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c. Williams While incarcerated at URF, Williams filed one relevant Step III grievance which was related to the lack of a text/telephone system at the facility. [15 at 12]. Although Williams’ grievance listed the “Date of Incident” as November 20, 2012 (the date he arrived at URF), the text of his initial grievance, which he submitted on October 28, 2013, made clear that his complaint related to an ongoing and then-present issue. [15-4 at 8]. The grievance stated, in relevant part:
I wear a hearing aid and would like to be transferred to a facility that has a text/telephone system test/telephone device. When I arrived November 20, 2012, I was lead to believe the system was soon to be installed which of to date [it] hasn’t. I would like to call my family with the same privileges as other inmates. [Id.]. Williams also specifically wrote that, “I talk [sic] to healthcare on 10/23/13 about this matter, they told [sic] they did not know I had a hearing aid . . . I also talk to my ARUM, he told me healthcare would take care of this.” [Id.]. Defendants assert that because Williams became “aware of a grievable issue” on November 20, 2012, when he first arrived at URF, his filing of the grievance on October 28, 2013, was untimely under P.D. 03.02.130 ¶ P. Consequently, defendants propose that all of the claims related to this grievance should be deemed unexhausted. This argument lacks merit. First, affording all reasonable inferences to Williams, his grievance could be construed as relating to the denial of a request he made on October 23, 2013. Such an interpretation would make his grievance, filed on October 28, 2013, timely under P.D. 03.02.130 ¶ P. This version of events at least raises a genuine issue of material fact as to when Williams actually became aware that URF would not be receiving a TDD system and whether his Step I grievance was timely. Moreover, at the hearing, Williams’ counsel confirmed that Williams is not seeking relief with
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respect to any conduct prior to October 23, 2013 – the date he claims he “talk[ed] to health care.” Finally, defendants’ argument is flawed as it essentially seeks to impose a permanent waiver of claims of an ongoing or repetitive nature that are not raised when the very first instance of alleged wrongdoing occurs. Defendants advance no support in the law for such a theory. In sum, based on the record before the Court, defendants have not shown that Williams failed to exhaust his claims in this action.
2. Sovereign Immunity Defendants maintain that MDOC has sovereign immunity against the plaintiffs’ Title II ADA claim pursuant to the Eleventh Amendment to the United States Constitution. [15 at 14]. The Eleventh Amendment provides: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. Unless an exception applies, MDOC, as a state agency, is immune from suit under the Eleventh Amendment. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, (1984); Harrison v. Michigan, 722 F.3d 768, 771 (6th Cir. 2013). The only exceptions to such immunity are where: (1) the state consents to the filing of such a lawsuit; or (2) Congress expressly abrogates Eleventh Amendment immunity. Id. (citing Alabama v. Pugh, 438 U.S. 781, 782 (1978) and Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984)). Since there is no dispute that the State of Michigan has not waived sovereign immunity against Title II ADA claims, the only question is whether Congress appropriately abrogated sovereign immunity in the Title II context. To make this determination, the Court must answer the following questions: (1) “whether Congress unequivocally expressed its intent to abrogate [sovereign] immunity;” and (2) “if it did,
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whether Congress acted pursuant to a valid grant of constitutional authority.” Lane v. Tennessee, 541 U.S. 509, 517 (2004). In answering the second question, the United States Supreme Court has held that “insofar as Title II creates a private cause of action for damages against the States for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity.” United States v. Georgia, 546 U.S. 151, 159 (2006).
To ascertain whether Title II of the ADA validly abrogates state sovereignty in any given Fourteenth Amendment case, the Supreme Court requires the following assessment be made on a “claim-by-claim basis” by determining: “(1) which aspects of the State’s alleged conduct violated Title II; (2) to what extent such misconduct also violated the Fourteenth Amendment;6 and (3) insofar as such misconduct violated Title II but did not violate the Fourteenth Amendment, whether Congress’s purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid.” Id. The Sixth Circuit holds that the above test is “required” when states raise sovereign immunity as a defense to a Title II ADA claim that also implicates Fourteenth Amendment rights. Mingus v. Butler, 591 F.3d 474, 483 (6th Cir. 2010) (citing Zibbell v. Mich. Dep’t of Human Servs., 313 F. App’x 843, 847 (6th Cir. 2009)).
a. Plaintiffs’ Allegations which Implicate a Violation of the Fourteenth Amendment’s Equal Protection Clause
Here, MDOC does not contest that Congress unequivocally expressed its intent to abrogate sovereign immunity as to ADA claims because the ADA specifically provides that: “[a] State shall not be immune under the Eleventh Amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this
6 Here, plaintiffs argue that the challenged conduct implicates both their equal protection and due process rights under the Fourteenth Amendment.
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chapter.” 42 U.S.C. § 12202. Rather, MDOC’s position is that “[b]ecause the disabled are not a suspect class for equal protection purposes,” plaintiffs cannot “establish[] that the alleged denial of services [in violation of Title II of the ADA] also constitutes [an actual] violation of the Fourteenth Amendment[’s] [equal protection clause],” i.e. the second prong of the Georgia test. [15 at 18 (emphasis added)]. As discussed below, this position is flawed.
MDOC relies principally on Popovich v. Cuyahoga Cnty. Court of Common Pleas, 276 F.3d 808 (6th Cir. 2002) (en banc) for its argument that a Title II ADA claim resounding in equal protection does not abrogate sovereign immunity. In Popovich, a hearing-impaired plaintiff sued an Ohio state court under Title II of the ADA “for allegedly failing to provide him with adequate hearing assistance in his child custody case.” Id. at 811. After a trial in the district court, the plaintiff obtained a jury award on the theory that the state court discriminated against him by failing to provide him with equal access to the courts and by unreasonably excluding him from the custody proceeding altogether. Id. The Sixth Circuit held that the Eleventh Amendment barred the equal access claim “in so far as the action relie[d] on congressional enforcement of the Equal Protection Clause,” but did not preclude the unreasonable exclusion claim “in so far as it relie[d] on congressional enforcement of the Due Process Clause.” Id. The Sixth Circuit reasoned that Congress did not have the constitutional authority under section 5 of the Fourteenth Amendment to abrogate sovereign immunity for the purpose of enforcing “equal protectiontype” claims under Title II of the ADA. Id. at 818. Importantly, however, the Popovich court based its conclusion on the following reasoning:
…under equal protection principles, disability—unlike race—is not a “suspect category” and does not deserve “heightened scrutiny.” Therefore, States may make reasonable employment decisions on the basis of disability. Title I of the Disabilities Act, which addresses discrimination in employment based on disability, may only trigger
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“minimum rational-basis review,” and Congress may not enforce the Equal Protection Clause by creating a higher standard of liability and enforcing it against the states in federal court. Sovereign immunity under the Eleventh Amendment forbids heightened state liability in federal courts in disability claims because such claims have never before received more constitutional protection than rational basis review. Id. at 812 (internal citations omitted).7
The problem with defendants’ reliance on Popovich is that the Sixth Circuit subsequently
clarified in Mingus that, as long as a plaintiff seeks only the level of review to which he would
otherwise be entitled (i.e., “rational basis” review in a disability case) – and not a heightened
level of review (i.e., “strict scrutiny”) – Eleventh Amendment immunity as to his ADA claim
would be abrogated because doing so would not “creat[e] a higher standard of liability” for the
defendant. In Mingus, 591 F.3d 474, the plaintiff inmate suffered from macular degeneration.
He filed a civil rights complaint against prison officials alleging violations of the Eighth and
Fourteenth Amendments, and the ADA, though his claims all essentially arose out of allegations
that Mingus’ requests for a single-occupancy room with key-operated locks were denied while
“other inmates, especially able-bodied ones, receiv[ed] single-occupancy rooms.” Mingus, 591
F.3d at 477. The district court, relying on the 2006 U.S. Supreme Court ruling in Georgia, found
7 Unlike the “equal protection-type” claims, the Sixth Circuit recognized that the same problem of congressional overreach is not implicated where Title II of the ADA is used to enforce “due process-type” claims. Id. at 817. The Popovich majority noted that “the ‘participation’ requirement of Title II serves to protect Popovich’s due process right to a meaningful hearing. In child custody cases involving hearing-impaired parents, Congress is well within its express authority under Section 5 to require states to accommodate parental disability and to refrain from retaliation, for Congress is ‘enforcing’ the due process right rather than ‘expanding’ it.” Id. at 815. Thus, defendants do not argue that they enjoy Eleventh Amendment immunity as to the portion of plaintiffs’ Title II claim which implicates their due process rights. [15 at 18]. Rather, they essentially argue that defendants’ due process claims fail as a matter of law because “there is no constitutionally protected due process right to an effective prison grievance procedure.” [Id.]. The Court addresses that argument below.
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that “Title II of the ADA abrogated state sovereign immunity in official capacity suits,” and thus
allowed Mingus’ ADA claim to proceed.
On appeal, the Sixth Circuit affirmed. Like the district court, the Sixth Circuit relied
heavily on Georgia, in particular, the Court’s conclusion that “insofar as Title II creates a private
cause of action for damages against the States for conduct that actually violates the Fourteenth
Amendment, Title II validly abrogates state sovereign immunity.” Id. (quoting Georgia, 546
U.S. at 159). Specifically, the Sixth Circuit held that MDOC’s sovereign immunity had been
abrogated as to the plaintiff’s Title II ADA claim because he did “not claim to deserve
heightened scrutiny as a member of a suspect class but instead challenge[d] the rational basis for
[defendant’s] actions.” The Court explained:
the district court found that there exists a genuine issue of material fact with respect to the rational basis for Butler’s actions … At this stage in the litigation, Mingus has alleged misconduct that actually violated the Fourteenth Amendment—namely, treatment unequal to that received by other disabled inmates.
… Mingus has alleged that the same misconduct by [defendants] violated the Fourteenth Amendment and the ADA independently. Regarding the former, he alleged that “there is no rational basis for the classification allowing able bodied prisoners, and those with medical problems less serious than Plaintiff’s, as qualifying for a single-occupancy room.” As to the ADA, he claimed that he was being “discriminated against as a result of [his] disability, where other prisoners with different disabilities, or no disabilities at all, are provided with single-occupancy rooms.” In both instances, the gravamen of his complaint is that he was treated differently than similarly situated prisoners or prisoners with fewer, or less serious, disabilities with no rational basis underlying the disparate treatment. Thus, Mingus has alleged misconduct that independently violated both Title II of the ADA and the Fourteenth Amendment.
Butler’s reliance upon Popovich is misplaced … In this case, [] Mingus does not claim to deserve heightened scrutiny as a member of a suspect class but instead challenges the rational basis for [defendant’s] actions.
Id., at 482-83.
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Analogizing to the Title II ADA claim asserted in Mingus, plaintiffs in this action allege that “Defendants’ failure to provide effective communication for individuals with hearing disabilities denied and continues to deny, on the basis of their disability, Plaintiffs the same access to Defendants’ services, benefits, activities, programs, or privileges as the access provided to hearing individuals.” [1 at ¶121]. Importantly, this does not equate to an assertion that plaintiffs are entitled to “strict scrutiny” review of this alleged unequal treatment. In fact, plaintiffs emphasize that they “do not claim to be members of suspect class.” [23 at 19]. In other words, plaintiffs make factual allegations which could both support an equal protection claim (albeit under “rational basis” scrutiny), and a claim under Title II of the ADA. Defendants’ assertion that “[b]ecause the disabled are not a suspect class for equal protection purposes,” plaintiffs cannot “establish[] that the alleged denial of services [in violation of Title II of the ADA] also constitutes [an actual] violation of the Fourteenth Amendment[’s] [equal protection clause],” is simply inaccurate. [15 at 18 (emphasis added)].
The plaintiffs thus satisfy the second prong of the Georgia test, and Eleventh Amendment immunity is abrogated as to their Title II ADA claim.8
b. Plaintiffs’ Allegations which Implicate a Violation of the Fourteenth Amendment’s Due Process Clause
MDOC also argues that it is entitled to Eleventh Amendment immunity on plaintiffs’ ADA claim to the extent that claim implicates the Fourteenth Amendment’s due process clause. MDOC concedes that the State’s sovereign immunity would be abrogated to the extent plaintiffs’
8 Because the Court has found that plaintiffs alleged misconduct that violates the Fourteenth Amendment, it need not consider the third prong of the Georgia test, which is implicated only where the alleged “misconduct violated Title II but did not violate the Fourteenth Amendment.”
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Title II ADA claim was aimed at remedying a cognizable due process violation. [15 at 18]. MDOC argues, however, that plaintiffs have not alleged such a violation. Yet the entirety of MDOC’s argument on this issue is its assertion that “the Sixth Circuit has previously held that there is no constitutionally protected due process right to an effective prison grievance procedure. Walker v. Mich. Dep’t Corr., 128 F. App’x 441, 445 (6th Cir. 2005)…[and] prisoners have no constitutional right to rehabilitation, education or jobs. Canterino v. Wilson, 869 F.2d 948, 952-54 (6th Cir. 1989).” [15 at 19 (emphasis added)]. This argument lacks merit because plaintiffs’ allegations implicate due process concerns not with respect to prison grievance procedures or obtaining education or a job while in prison, but rather with respect to the inability to meaningfully defend themselves at disciplinary and parole proceedings, impeding their freedom to communicate with relatives, and infringing upon their free exercise of religion by failing to provide sign interpreters at religious services. [Id. at 21-22]. MDOC’s failure to address the plaintiffs’ real claims alone merits denial of the relief it requests.
Even on the merits of plaintiffs’ actual claims, MDOC’s motion should be denied. Due process requires that prisoners in disciplinary proceedings be given: “1) written notice of the charges at least twenty-four hours in advance; 2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and 3) a written statement by the factfinders as to the evidence relied on and the reasons for the disciplinary action.” Davis v. Zuercher, No. 09-5398, 2009 U.S. App. LEXIS 29570, at *5-6 (6th Cir. Dec. 16, 2009) (citing Wolff v. McDonnell, 418 U.S. 539, 564-67 (1974)). In addition, “some evidence must exist to support the disciplinary conviction.” Id. at *6 (citing Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455-56 (1985)). Underlying these requirements is the principle that prisoners must be able to comprehend the nature and subject of
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these proceedings. In fact, as this Court has recently explained, “A prison inmate does retain ‘a ‘liberty’ interest, guarded by due process, with respect to state-imposed prison discipline that rises to the level of an ‘atypical and significant hardship on the inmate.’’” McGhee v. Warren, No. 14-12753, 2015 WL 5608346, at *3 (E.D. Mich. Sept. 9, 2015) (quoting Hardin-Bey v. Rutter, 524 F.3d 789, 791 (6th Cir. 2008)). See also e.g., Holmes v. Godinez, 11-2961, 2015 WL 5920750, at *50 (N.D. Ill. Oct. 8, 2015) (“the Seventh Circuit has held that in a criminal proceeding, due process is denied when a defendant is unable to comprehend the proceedings because of language barriers.” (citing United States v. Johnson, 248 F.3d 655, 663 (7th Cir. 2001)). Thus, it is clear that prison officials must provide at least some process before subjecting an inmate to an atypical and significant hardship.
Numerous district courts have extended this principle to inmates subject to disciplinary hearings who cannot understand the proceedings on account of a language barrier or hearingimpairment. See Holmes, 2015 WL 5920750, at *51 (“hearing impaired inmates who are not fluent in English may have a due process right to a qualified [sign language] interpreter at prison disciplinary hearings.”); Clarkson v. Coughlin, 898 F.Supp. 1019, 1049-50 (S.D.N.Y. 1995) (finding prison’s failure to provide hearing accommodations to deaf inmates disciplinary, grievance and parole hearings constituted denial of due process); Bonner v. Arizona Dept. of Corr., 714 F.Supp. 420, 425 (D.Ariz. 1989) (determining that deaf inmate had a due process liberty interest in a qualified sign language interpreter during disciplinary hearing proceedings); Sandoval v. Holinka, No. 09-033, 2009 U.S. Dist. LEXIS 15565, at *7-8 (W.D. Wis. Feb. 27, 2009) (noting that the due process rights of a Spanish-speaking inmate may have been violated “if [he] did not comprehend the proceedings or process he was subject to.”). Thus, at least at this stage of the litigation, MDOC has not shown that plaintiffs’ ADA claim allegations regarding
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their ability to meaningfully participate in disciplinary hearings could not also support a due process violation.
Nor have defendants shown that plaintiffs’ assertion, that the alleged ADA violations impede their freedom to communicate with relatives and infringe upon their free exercise of religion by failing to provide sign interpreters at religious services, fail to implicate due process concerns. See Brandenburg v. Hous. Auth. of Irvine, 253 F.3d 891, 900 (6th Cir. 2001) (noting “the well-established rule that ‘almost all § 1983 claims rely on the substantive component of the Due Process Clause because it is through that vehicle that fundamental rights are incorporated against the states.’”). Thus, plaintiffs have satisfied Georgia’s second prong as to this aspect of their ADA claim, and the Court need not reach the third prong. Supra, fn. 9.
In sum, whether under the Equal Protection Clause or the Due Process Clause, the Court concludes that the plaintiffs’ Title II ADA claim abrogates MDOC’s sovereign immunity under the standards articulated in Georgia.
3. RLUIPA Defendants argue that plaintiffs’ RLUIPA claim should be dismissed because the failure to provide plaintiffs with sign language interpreters at religious services does not impose a “substantial burden” on their religious exercise. RLUIPA provides that, “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . even if the burden results from a rule of general applicability,” unless the government demonstrates that such an imposition: (1) “is in furtherance of a compelling governmental interest;” and (2) is the “least restrictive means” of furthering that compelling governmental interest. 42 U.S.C. § 2000cc-1(a)(1)-(2). Citing Thomas v. Review Bd. Of Ind. Employment Sec. Div., 450 U.S. 707, 718 (1981) and Sherbert v. Verner, 374 U.S. 398, 404
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(1963) defendants assert that the “substantial burden” test requires proof that MDOC officials pressured plaintiffs to either violate their religious beliefs or abandon a precept of their religion.
On the other hand, plaintiffs urge the Court to adopt the version of the “substantial burden” test enunciated in Haight v. Thompson, 763 F.3d 554 (6th Cir. 2014). In that case, the Sixth Circuit Court of Appeals held that a “substantial burden” is imposed when prison officials either: (1) “place[ ] substantial pressure on an adherent to modify his behavior and to violate his beliefs;” or (2) “effectively bar his sincere faith-based conduct.” Id. at 565. Applying this standard, the Sixth Circuit reversed the district court’s award of summary judgment to the defendants and found that a genuine issue of material fact existed as to whether Kentucky prison officials placed a “substantial burden” on inmates’ religious exercise by denying them access to some of the traditional foods used at a religious ceremony. Id. at 561-65. Since Haight is the Sixth Circuit’s most recent and salient elucidation of the “substantial burden” test, the Court adheres to its holding.
Applying the appropriate legal standard, the Court finds that summary judgment should be denied. The factual record in this case is entirely undeveloped. Defendants do not proffer any evidence that would assist the Court in evaluating whether they placed a substantial burden on McBride’s religious exercise by failing to provide her with a sign language interpreter at religious services. Nor do defendants identify “a compelling governmental interest” that would justify their failure to provide an interpreter or sufficiently demonstrate that such an interest was served “in the least restrictive way.” Id. at 566. Consequently, defendants have failed to show the absence of a genuine dispute of material fact, and are not entitled to summary judgment on the RLUIPA claim. Celotex, 477 U.S. at 325; Alexander, 576 F.3d at 558.
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4. Free Exercise Clause Defendants similarly contend that the failure to provide sign interpreters for religious services does not violate the Free Exercise Clause because plaintiffs are not coerced in any way or penalized for the content of their religious beliefs. Defendants urge the Court to look to the U.S. Supreme Court in Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988), for the proper legal standard to apply to plaintiffs’ free exercise claim. There, the Court ruled that the construction of a road through a national forest for the purpose of timber harvesting did not violate the free exercise rights of local Native American tribes who used the same land for religious purposes. The Court found that the government had not “coerced” the tribes “into violating their religious beliefs” nor “penalize[d] religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens.” Id. at 449. Plaintiffs argue that “Defendants’ unlawful and unjustified discrimination against Plaintiffs violates Plaintiffs’ religious exercise” under the First Amendment.” [23 at 24]. While this may be true, plaintiffs’ cursory statement does not provide the Court with a substantive analysis of the relevant issue. Plaintiffs appear to be urging the Court to adopt the standard articulated in Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 531 (1993), where the Supreme Court held that “a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.” Citing to Employment Div. Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990), the Supreme Court noted that a provision that fails “to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest.” Id. at 531-32.
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The Court finds that neither Lyng nor Church of Lukumi provides the proper legal standard for the plaintiffs’ free exercise claim. In Flagner v. Wilkinson, 241 F.3d 475, 481 (2001), the Sixth Circuit clearly stated that “the proper standard to apply in prisoner cases challenging restrictions on the free exercise of religion is supplied by the Supreme Court’s decision in Turner [v. Safley, 482 U.S. 78, 89 (1987)].” Id. There, the Supreme Court held that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89. The Turner Court then went on to enumerate four factors that should be considered when analyzing the reasonableness of a challenged prison regulation. The Sixth Circuit has summarized these factors as follows:
First, there must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it. If not, the regulation is unconstitutional, and the other factors do not matter. Unlike the first factor, the remaining factors are considerations that must be balanced together: (2) whether there are alternative means of exercising the right that remain open to prison inmates; (3) the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally; and (4) whether there are ready alternatives available that fully accommodate the prisoner’s rights at de minimis cost to valid penological interests. Berryman v. Granholm, 343 F. App’x 1, 6 (6th Cir. 2009) (quoting Spies v. Voinovich, 173 F.3d 398, 403 (6th Cir. 1999)). But even under the framework set forth in Turner, plaintiffs highlight the same glaring omission that scuttled defendants’ challenge to the RLUIPA claim–the absence (at least at this early stage of the litigation) of any supporting evidence in the record. The Court agrees with plaintiffs that defendants “have not even attempted to identify specific, undisputed facts, bearing on whether [or not] Defendants have violated Plaintiffs’ religious exercise rights.” [23 at 24-25].
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And defendants’ motion lacks any meaningful analysis of the factors specified in Turner. Without more, defendants’ motion for summary judgment should be denied with respect to plaintiffs’ free exercise claim. III. CONCLUSION
For the foregoing reasons, IT IS RECOMMENDED that defendants’ motion for partial summary judgment [15] be DENIED.

Dated: October 30, 2015 Ann Arbor, Michigan

s/David R. Grand DAVID R. GRAND United States Magistrate Judge

NOTICE TO THE PARTIES REGARDING OBJECTIONS Within 14 days after being served with a copy of this Report and Recommendation and Order, any party may serve and file specific written objections to the proposed findings and recommendations and the order set forth above. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2); E.D. Mich. LR 72.1(d)(1). Failure to timely file objections constitutes a waiver of any further right of appeal. See Thomas v. Arn, 474 U.S. 140, (1985); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005). Only specific objections to this Report and Recommendation will be preserved for the Court’s appellate review; raising some objections but not others will not preserve all objections a party may have. See Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987); see also Frontier Ins. Co. v. Blaty, 454 F.3d 590, 596-97 (6th Cir. 2006). Copies of any objections must be served upon the Magistrate Judge. See E.D. Mich. LR 72.1(d)(2).
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2:15-cv-11222-SFC-DRG Doc # 28 Filed 10/30/15 Pg 28 of 28 Pg ID 376 A party may respond to another party’s objections within 14 days after being served with
a copy. See Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1). Any such response should be concise, and should address specifically, and in the same order raised, each issue presented in the objections.
CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court’s ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on October 30, 2015.
s/Eddrey O. Butts EDDREY O. BUTTS Case Manager
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 2:15-cv-11222-SFC-DRG Doc # 94 Filed 06/30/17 Pg 1 of 17 Pg ID 4005

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MARY ANN McBRIDE, et al.,

Plaintiffs, v.

Civil Action No. 15-11222 Honorable Sean F. Cox Magistrate Judge David R. Grand

MICHIGAN DEPARTMENT OF CORRECTIONS, et al.,

Defendants. __________________________________/

REPORT AND RECOMMENDATION TO GRANT PLAINTIFF’S MOTION FOR CLASS CERTIFICATION [61]

The plaintiffs in this action – Mary Ann McBride (“McBride”), Brian Stanley Wittman

(“Wittman”), and Ralph Williams (“Williams”) (collectively, “Plaintiffs”) – are deaf and/or

hard-of-hearing individuals who, at all relevant times, were confined at various Michigan

Department of Corrections (“MDOC”) facilities. The defendants are the MDOC, and various

MDOC administrators and prison wardens (collectively, “Defendants”). Plaintiffs contend that

as a result of certain MDOC policies they have been denied the assistance and accommodation

that they require to effectively communicate and to participate in MDOC programs, services, and

activities, in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et

seq.; the Rehabilitation Act, 29 U.S.C. § 794 et seq.; the Religious Land Use and

Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq.; and the First and

Fourteenth Amendments of the United States Constitution.

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I. RECOMMENDATION Presently before the Court for a Report and Recommendation is Plaintiff’s motion for
class certification. (Docs. #17, #61). For the reasons stated below, the Court RECOMMENDS that Plaintiffs’ motion for class certification (Doc. #61) be GRANTED. II. PROCEDURAL AND FACTUAL BACKGROUND
A. Procedural Background Plaintiffs filed their complaint in this action on March 31, 2015. (Doc. #1). Discovery is now closed, and Plaintiffs1 have moved to certify a class comprised of “all deaf and hard of hearing individuals in the custody of MDOC (whether now or in the future), who require hearing-related accommodations, including but not limited to interpreters, hearing devices, or other auxiliary aids or services, to communicate effectively and/or to access or participate in programs, services, or activities available to individuals in the custody of MDOC.” (Doc. #61 at 3). The motion has been fully briefed (Docs. #70, #80), and the Court held oral argument on June 13, 2017. B. Factual Background As mentioned above, Plaintiffs are deaf or hard of hearing individuals currently or formerly incarcerated at MDOC facilities. (Doc. # 61 at 3). McBride has been incarcerated at Women’s Huron Valley Correctional Facility (“WHV”) for the last seven years. (Id., Ex. A Nos. 1-2). She has been completely deaf since birth and communicates primarily through American Sign Language (“ASL”). (Id., No. 4; Ex. B). Williams has been incarcerated at Chippewa Correctional Facility (“URF”) for the past four years. (Id. at Ex. C No. 1-2). He lost hearing in
1 Because Wittman has been released from MDOC custody, Plaintiffs seek to proceed with a class represented only by McBride and Williams. (Doc. #80 at 10-11 n.2).
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his left ear and wears a hearing aid. (Id., Ex. D). Recently he has developed substantial hearing loss in his right ear. (Id.).
Plaintiffs contend that the “MDOC does not have adequate policies, procedures, or practices to provide system-wide accommodation for deaf and hard of hearing prisoners.” (Id. at 12). Plaintiffs identify five areas in which the MDOC fails to reasonably accommodate the class members.
i. Identification and Classification of Deaf and Hard of Hearing Prisoners Plaintiffs first argue that the MDOC has failed to establish standard policies or procedures for identifying deaf and hard of hearing prisoners, and has never undertaken any systematic effort to identify which prisoners in its custody were deaf and hard of hearing and at which facilities they were housed. According to Plaintiffs, the MDOC created its first list of deaf and hard of hearing prisoners in 2015 in response to this litigation. Specifically, Plaintiffs contend that about a year after they filed the complaint, the MDOC issued a one-page document called “Guidelines for Hearing Impaired Accommodations and Classification” which, for the first time, established MDOC guidelines for identifying deaf and hard of hearing prisoners and classifying their degree of hearing loss. Plaintiffs argue that this guidance is insufficient. According to Plaintiffs, the document contains “no detail on appropriate accommodations for deaf and hard of hearing prisoners,” besides a “single sentence specifying that one single hearing aid ‘will be issued for prisoners with deficit in both ears of 26 decibels or greater.’” (Doc. #61 at 13) (emphasis in original). Further, although the MDOC reportedly has six facilities designated to house hearingimpaired prisoners, Plaintiffs contend that some inmates with “severe and profound” hearing loss are nevertheless housed at facilities not designated on the health care grid to house such
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prisoners. (Id., Ex. L (identifying alleged deaf and hard of hearing prisoners housed in at least eight different undesignated facilities), Ex. M at 60:6–8 (Slagter 30(b)(6) dep.), Ex. N at 82:9–16 (Gilbert 30(b)(6) dep.) (noting that the MDOC transferred 26 prisoners from non-designated facilities to designated facilities in May 2016). Lastly, Plaintiffs assert that the MDOC has failed to establish any standards for the accommodations necessary to appropriately house deaf or hard of hearing prisoners. (Id., Ex. M at 34:9–15).
ii. Telecommunications Services and Hearing Devices Plaintiffs next allege that the MDOC has not installed videophones at any of their facilities to enable deaf or hard of hearing prisoners to communicate with persons outside of the prison using sign language, despite the MDOC’s concession that such video communication can be made available at no cost to the MDOC. (Id., Ex. O at 12:22–13:1 (Slagter 30(b)(6) dep.), Ex. P at 236034). According to Plaintiffs, the current telecommunications system, which uses teletypewriters, is obsolete because “the family members in the [hearing-impaired] community no longer have the machines.” (Id. at 15). Per an internal email from the MDOC official primarily responsible for implementing technological solutions to accommodate deaf and hard of hearing prisoners, relying on this system would be akin to “sending someone a fax to their home versus using e-mail to communicate.” (Id., Ex. Q). Additionally, Plaintiffs find the MDOC’s response to prisoners requiring hearing aids to be problematic. As mentioned above, the one-page guidance memo issued in 2015 specifies that qualifying hearing-impaired inmates are entitled to one hearing aid, without regard to whether a prisoner suffers hearing loss in both ears. Finally, the MDOC allegedly has failed to implement any policies or procedures for repairing or replacing hearing aid devices. (Id., Ex. G at 42:19– 43:21).
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iii. Access to Sign Language Interpreters Plaintiffs argue that the MDOC has no statewide policies or procedures setting any standards for ASL interpreter quality and performance, or for the minimum amount of time that interpreters must be made available to prisoners at MDOC facilities. Current policies and procedures also allegedly fail to specify the appropriate protocol for providing interpreter services for emergency medical care. Plaintiffs note that the MDOC had previously contracted with a single vendor, Linguistica International (“Linguistica”), to provide all ASL interpreter services at all MDOC prison facilities. Linguistica allegedly “frequently failed to provide interpreters when they were requested by MDOC.” (Id. at 16). The MDOC terminated the contract with Linguistica on July 1, 2015, and has reportedly not secured the services of another statewide provider of interpreter services to fill the void. Instead, the MDOC has instructed individual facilities to retain their own interpreter service providers via purchase order. Plaintiffs contend that this approach has resulted in service gaps – “in one case for eight months” – during which certain MDOC facilities allegedly had not retained any replacement providers of interpreter services. (Id. at 17). Because of the lack of interpreter services, Plaintiffs claim that they have been unable to consistently access educational opportunities, religious services, medical care, rehabilitative programs, employment opportunities, or to participate fully in disciplinary and parole hearings. (Id., Ex. X (Grievance WHV-13-04-159112D1), Ex. Y (Grievance WHV-11-11-4704-06C), Ex. A at No. 3, Ex. E at No. 3).
iv. Notification of Prison Warnings and Announcements Plaintiffs also argue that the MDOC has no system-wide policies ensuring visual notification of announcements and safety alerts, such as fire alarms and alarms signaling emergency lockdowns, at every MDOC facility. (Id., Ex. M at 112:10–113:17, 123:16–23).
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Although some facilities have implemented “limited notification procedures,” Plaintiffs argue that such procedures lack adequate detail about how to handle emergency situations. (Id. at 17). They also argue that the MDOC fails to provide “visual safety alerts in some facilities that are designated for deaf and hard of hearing prisoners.” (Id. at 18, Ex. R. at No. 7, Ex. M at 110:14– 111:17). Other alleged failures include inadequate visual notification systems for daily activities such as meal time and count time, and a lack of in-cell visual alarms or bed shakers to alert deaf or hard of hearing prisoners in the event of a fire or other exigent circumstances. (Id., Ex. M at 111:1–111:9, Ex. R at No. 6, Ex. BB at 19-20).
v. Accommodation and Sensitivity Training for Corrections Staff Lastly, Plaintiffs contend that the MDOC failed to implement policies or procedures that address training related to the treatment of or accommodations for deaf and hard of hearing prisoners, despite receiving “numerous grievances about the mistreatment” of hearing-impaired inmates. (Id. at 18). According to Plaintiffs, MDOC does not provide system-wide training on: (a) the identification and classification of deaf and hard of hearing prisoners; (b) the use and maintenance of teletypewriters; (c) access to ASL interpreters; (d) visual systems notification for alarms and announcements; (e) the needs of deaf and hard of hearing prisoners in emergencies; and (f) sensitivity or awareness training about deaf and hard of hearing prisoners. (Id. at 19). Moreover, Plaintiffs contend that the MDOC does not provide any “facility-specific” training or education regarding the needs of deaf and hard of hearing prisoners. (Id.). III. APPLICABLE LEGAL STANDARDS To be certified, a class must satisfy “all four of the Rule 23(a) prerequisites – numerosity, commonality, typicality, and adequate representation – and fall within one of the three types of class actions” maintainable under Rule 23(b). Young v. Nationwide Mut. Ins. Co., 693 F.3d 532,
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537 (6th Cir. 2012). A failure on either front dooms the class. Pilgrim v. Universal Health Card, LLC, 660 F.3d 943, 946 (6th Cir. 2011). Although not reflected in the text of Rule 23, there is an implicit requirement that “the class definition be sufficiently definite so that it is administratively feasible” to determine the scope of the class. Young, 693 F.3d at 537-38.
The plaintiffs must “affirmatively demonstrate” compliance with all conditions of class certification by proving “that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2013) (emphasis in original). Ultimately, a “class may only be certified if, after rigorous analysis, the district court is satisfied that all prerequisites have been met.” Beattie v. CenturyTel, Inc., 511 F.3d 554, 560 (6th Cir. 2007). IV. ANALYSIS
A. Plaintiffs Identify a Definable Class “[B]efore a court may certify a class pursuant to Rule 23, ‘the class definition must be sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member of the proposed class.’” Young, 693 F.3d 532, 537-38 (citation omitted). Class definitions which are “amorphous” or “imprecise” do not meet this standard. Id. at 537-38 (citation omitted). See also Avio, Inc. v. Alfoccino, Inc. (Avio II), 311 F.R.D. 434, 441 (E.D. Mich. 2015) (granting class certification); John v. Nat’l Sec. Fire and Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007) (holding that “[t]he existence of an ascertainable class of persons to be represented by the proposed class representative is an implied prerequisite of Federal Rule of Civil Procedure 23”). Further, “[f]or a class to be sufficiently defined, the court must be able to resolve the question of whether class members are included or excluded from the class by reference to objective criteria. In some circumstances, a reference to damages or injuries caused
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by particular wrongful actions taken by the defendants will be sufficiently objective for proper inclusion in a class definition.” Young, at 538-39 (citation omitted). Objective criteria are essential “so that class members may be identified without individualized fact finding.” Davidson v. Henkel Corp., 302 F.R.D. 427, 434 (E.D. Mich. 2014) (citing In re OnStar Contract Litig., 278 F.R.D. 352, 373 (E.D. Mich. 2011)).
In this case, Plaintiffs satisfy this implicit threshold obligation by offering a class definition based on sufficiently objective criteria: MDOC inmates with hearing impairments requiring an accommodation. Applying this definition, class members are ascertainable without individualized fact finding. Thus, the Court turns to an analysis of Rule 23’s express requirements.
B. Plaintiffs Satisfy the Rule 23(a) Requirements Pursuant to Rule 23(a), a plaintiff seeking class certification must demonstrate that: (1) the class is so numerous that joinder of all members is impracticable (“numerosity”); (2) there are questions of law or fact common to the class (“commonality”); (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class (“typicality”); and (4) the representative parties will fairly and adequately protect the interests of the class (“adequacy of representation”). See Fed. R. Civ. P. 23(a)(1)-(4). These four requirements effectively limit class claims to those fairly encompassed by the class representative’s claim and ensure zealous advocacy on behalf of all class members. In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 853 (6th Cir. 2013).
i. Numerosity Rule 23(a)(1) mandates that the class be “so numerous that joinder is impracticable.” Fed. R. Civ. P. 23(a)(1). Because “[t]here is no strict numerical test for determining the
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impracticability of joinder,” In re Am. Med. Sys., 75 F.3d at 1079, “[t]he numerosity requirement requires examination of the specific facts of each case.” Gen. Tel. Co. v. Equal Emp’t Opportunity Comm’n, 446 U.S. 318, 330 (1980). The modern trend for meeting this factor is to require at least “21 [to] 40 class members.” Davidson, 302 F.R.D. at 436 (internal citations omitted). In the Eastern District of Michigan, “it is generally accepted that a class of 40 or more members is sufficient to satisfy the numerosity requirement.” Id. (citing Crawford v. TRW Auto. U.S. LLC, No. 06-14276, 2007 WL 851627, at *3 (E.D. Mich. Mar. 21, 2007). Here, the MDOC has identified 183 prisoners in its custody that suffer from a hearing impairment. (Doc. # 61, Ex. I). This clearly satisfies the numerosity requirement, and the MDOC does not argue otherwise. (Doc. #70 at 12).
ii. Commonality Next, class certification is appropriate only when there are “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). “Although Rule 23(a)(2) refers to common questions of law or fact, in the plural, there need only be one question common to the class – though that question must be a ‘common issue the resolution of which will advance the litigation.’” Alkire v. Irving, 330 F.3d 802, 820 (6th Cir.2003) (quoting Sprague v. Gen. Motors Corp., 133 F.3d 388, 397 (6th Cir. 1998)) (en banc). The plaintiff must identify “a common contention . . . capable of classwide resolution – which means its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Dukes, 564 U.S. at 350. Plaintiffs argue that the record evidence demonstrates the existence of several common questions of law and fact, including:
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(1) Have Defendants failed to provide adequate access to telecommunications services, hearing devices, ASL interpreters, visual notification systems, or other auxiliary aids for deaf and hard of hearing prisoners? (2) Have Defendants failed to provide deaf and hard of hearing prisoners with access to programs and services comparable to what is provided to hearing individuals in MDOC custody? (3) Have Defendants failed to provide sufficient training related to treatment and accommodation of deaf and hard of hearing prisoners? (Doc. # 61 at 16). In response, Defendants argue that commonality is lacking because the class members vary in (1) degree of hearing loss2; (2) accommodation needs; (3) programming needs; and (4) security level. (Doc. #70 at 14). From the premise that each deaf or hard of hearing inmate requires individualized accommodation, i.e., that their impairments are not identical, Defendants reason that the proposed class members share no common contention of law or fact in their respective claims. This logic is critically flawed for a number of reasons. First, Defendants’ argument runs counter to a broad body of Sixth Circuit case law, which has consistently held that the commonality requirement demands that claims share only a single issue, not be identical. See, e.g., Bittinger v. Tecumseh Prods. Co., 123 F.3d 877, 884 (6th Cir. 1997) (“[Rule 23(a)(2)] simply requires a common question of law or fact.”) (emphasis added); Rikos v. Procter & Gamble Co., 799 F.3d 497, 508-09 (6th Cir. 2015) (“[A]ll Dukes requires . . . is a common question.”) (emphasis added); Whirlpool, 722 F.3d at 853 (“[T]here need be only one common question to certify a class.”); Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410, 424 (6th Cir. 1998) (“The interests and claims of the various plaintiffs need not be identical.”).
2 Defendants admit that the proposed class members all suffer from “some level of hearing loss.” (Doc. #70 at 8).
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Second, the Defendants’ argument is at odds with rulings in prior analogous prisoner
class action cases. As the undersigned explained in a 2012 Report and Recommendation to
certify a class of inmates in a different action against the MDOC:
“[C]ases involving enforcement of a uniform policy or procedure, including those relating to prisoners, are often approved as class actions because they involved questions of fact and law common to all members.” [Johnson v. Martin, 2002 U.S. Dist. LEXIS 12550, at *14 (W.D. Mich. Apr. 29, 2002)] (citing inter alia, Armstrong v. Davis, 275 F.3d 849, 868-69 (9th Cir. 2001) (“in a civil-rights suit, [] commonality is satisfied where the lawsuit challenges a system-wide practice or policy that affects all of the putative class members . . .”)). See also Jones v. Goord, 190 F.R.D. 103, 111 (S.D.N.Y. 1999) (“The requirement that there be common questions of law and fact is satisfied in an action by prison inmates when ‘inmates have a common interest in preventing the recurrence of the objectionable conduct.’”) (citations omitted). As the court in [Glover v. Johnson, 85 F.R.D. 1 (E.D. Mich. 1977)] explained:
Clearly each individual member of the class has a unique situation and has been affected in diverse ways by the alleged discriminatory policy. That there are differences in situation and effect does not preclude a finding by this Court of commonality. That each class member’s case is in other ways unique does not affect the commonality of the action, as long as the members of the class have allegedly been affected by a general policy of the defendant, and the general policy is the focus of the litigation. Glover, 85 F.R.D. at 4-5 [].
Dowdy-El v. Caruso, No. 06-11765, 2012 WL 6642793, at *4 (E.D. Mich. Aug. 15, 2012),
report and recommendation adopted, No. 06-11765, 2012 WL 6642763 (E.D. Mich. Dec. 20,
2012).
Here, the mere fact that each potential class member may have a hearing impairment
somewhat different than other class members does not negate the “focus” of this litigation: the
MDOC’s alleged failure to accommodate the needs of all of these proposed class members in
terms of their ability to effectively communicate and participate in MDOC programs, services,
and activities. The recent case of Holmes v. Godinez, 311 F.R.D. 177 (N.D. Ill. 2015), is
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analogous and instructive on this point. In Holmes, the court certified a class of deaf or hard of hearing prisoners housed at multiple facilities across the State of Illinois because, “[d]espite factual variations in putative class members’ situations, Plaintiffs’ allegations regarding [the prison’s] system-wide failures are the ‘glue’ that ties their claim together.” Id. at 220. See also Williams v. Conway, 312 F.R.D. 248, 254 (N.D.N.Y. 2016) (“The jail’s alleged failure to provide [inmate] class members with services for the deaf and hearing-impaired provides the basis for the putative class members’ claims. Therefore, the ‘plaintiffs’ grievances share a common question of law or fact’ and ‘[arise] from the same course of events[.]’”) (internal citation omitted); Glover, 85 F.R.D. at 5 (certifying class of female prisoners, although “[c]learly each individual member of the class has a unique situation and has been affected in diverse ways by the alleged discriminatory policy”); Parsons v. Ryan, 289 F.R.D. 513, 521 (D. Ariz. 2013), aff’d, 754 F.3d 657 (9th Cir. 2014) (“It matters not that each inmate may suffer from different ailments or require individualized treatment because commonality may be met where ‘the claims of every class member are based on a common legal theory, even though the factual circumstances differ for each member.’”) (internal citation omitted).
Finally, Defendants’ argument ignores that Plaintiffs’ experts, Dr. Dennis Cokely and Richard Ray, identified several accommodations that would address the needs of all or most class members with “some level of hearing loss.” (Doc. # 61, Ex. BB at 4-5, 26; Ex. FF at 3-6). For instance, the MDOC’s adoption of a system-wide policy requiring adequate visual notification of announcements and emergency alerts would benefit all prisoners with a hearing deficit, particularly at night when prisoners typically do not wear hearing aids. (Id., Ex. BB at 19-20; Ex. FF at 39). Also, implementation of uniform training guidelines for MDOC staff on how to interact with and treat deaf and hard of hearing prisoners – with a range of specific needs
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– would do the same. (Id., Ex. BB at 25; Ex. FF at 31-32). The conclusions of Dr. Cokely and Mr. Ray can be summarized generally as finding that the MDOC fails to provide hearingimpaired prisoners with the means to communicate effectively inside and outside of MDOC facilities, to receive important announcements, and to have equal access to facilities, programs, services, and activities. (Id., Ex. BB at 4; Ex. FF. at 3). The MDOC has not offered rebuttal expert testimony, nor otherwise challenged the conclusions of Dr. Cokely and Mr. Ray.
In sum, although each proposed class member’s specific impairment and accommodation needs may vary somewhat, they all allege that they have been similarly affected by a policy of the MDOC, which is the focus of this litigation. Accordingly, commonality exists here.
iii. Typicality The MDOC also contends that class certification is inappropriate under Rule 23(a)(3), which requires proof that Plaintiffs’ claims are typical of the class members’ claims. Fed. R. Civ. P. 23(a)(3). With the typicality requirement, the focus shifts from the characteristics of the class (i.e., numerosity, commonality) to the relationship between the class and the named plaintiffs. This element is met if the class members’ claims are “fairly encompassed by the named plaintiffs’ claims.” Whirlpool, 722 F.3d at 852 (quoting Sprague, 133 F.3d at 399). In other words, typicality exists where a claim “arises from the same event or practice or course of conduct that gives rise to the claims of other class members,” and if the claims are based on the same legal theory. Davidson, 302 F.R.D. at 437 (quoting Beattie, 511 F.3d at 561). As with the commonality analysis, the interests and claims of the various plaintiffs need not be identical to satisfy the typicality requirement. Id. (citing Reese v. CNH America LLC, 227 F.R.D. 483, 487 (E.D. Mich. 2005)). The proper inquiry is “whether a sufficient relationship exists between the injury to the named plaintiff and the conduct affecting the class, so that the
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court may properly attribute a collective nature to the challenged conduct.” Beattie, 511 F.3d at 561. Critically, a class representative’s claim will be deemed typical even though “the evidence relevant to his or her claim varies from other class members, some class members would be subject to different defenses, and the members may have suffered varying levels of injury.” Reese, 227 F.R.D. at 487-88 (citing Bittinger v. Tecumseh Prods. Co., 123 F.3d 877, 884-85 (6th Cir. 1997)).
The concepts of commonality and typicality “tend to merge” in practice because both elements “serve as guideposts” in evaluating whether the claims are sufficiently interrelated so that “the interests of the class members will be fairly and adequately protected in their absence.” Dukes, 564 U.S. at 349-50 n.5. Indeed, Defendants’ typicality argument mirrors their commonality argument; here, Defendants argue that because “the named plaintiffs vary in terms of their degree of hearing loss, the accommodations they need, and the facilities’ responses to their specific needs and/or complaints,” their claims are not representative of the proposed class at large. (Doc. #70 at 15).
For the same reasons discussed above – namely that the named Plaintiffs’ claims arise from the same alleged policy and course of conduct as the claims of all others in the proposed class – the class members’ claims are “fairly encompassed by the named plaintiffs’ claims.” Therefore, Plaintiffs satisfy the typicality requirement under Rule 23(a)(3).
iv. Adequacy of Representation The final Rule 23(a) prerequisite considers the adequacy of representation, and requires that the named plaintiffs “fairly and adequately protect the interests of the class” by having a “sufficient interest in the outcome [of the litigation] to ensure vigorous advocacy.” Fed. R. Civ. P. 23(a)(4). The Sixth Circuit has held that there are two criteria for determining the adequacy of
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representation: “(1) the representative must have common interests with unnamed members of the class; and (2) it must appear that the representatives will vigorously prosecute the interests of the class through qualified counsel.” Salem v. Mich. Dept. of Corr., No. 13-14567, 2016 WL 7409953, at *6 (E.D. Mich. Dec. 22, 2016) (citing In re Am. Med. Sys. Inc., 75 F.3d at 1083). At its core, this factor exists to confront “any concerns about the competency of class counsel and any conflicts of interest that may exist.” Whirlpool, 722 F.3d at 853 (citing Dukes, 564 U.S. at 349-50 n.5).
Plaintiffs argue that these standards are satisfied because the named Plaintiffs’ interests are consistent with – not antagonistic to – the interests of the class generally. (Doc. #61 at 20). While Defendants disagree, they do so based on the same logic which underpins their commonality and typicality arguments: differences among the individual members of the proposed class foreclose the possibility that the named Plaintiffs can “adequately protect” the interests of the unnamed class members. (Doc. #70 at 16). Again, this argument lacks merit. As Plaintiffs’ experts conclude, the relief requested here would benefit all hearing-impaired inmates. Plaintiffs have carried their burden on this final Rule 23(a) factor because they possess the same interest in effective communication and access to MDOC programs and services as the other class members. They have also shown a desire and ability to vigorously prosecute this case as a class action through competent counsel.
C. Plaintiffs Satisfy the Rule 23(b) Requirements Upon finding that the Rule 23(a) factors are satisfied, the proposed class must also meet one of the criteria listed in Rule 23(b). In this case, Plaintiffs argue that they satisfy Rule 23(b)(2), which provides that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief
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is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). As the Supreme Court explained in Dukes, “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant.” Dukes, 564 U.S. at 360 (emphasis in original). The requirements of Rule 23(b)(2) are satisfied when “the common claim is susceptible to a single proof and subject to a single injunctive remedy.” Sheick v. Auto. Component Carrier, LLC, No. 09-14429, 2010 WL 3070130, at *4 (E.D. Mich. Aug. 2, 2010) (quoting Senter v. Gen. Motors Corp., 532 F.2d 511, 525 (6th Cir. 1976)).
Civil rights cases against parties charged with unlawful, class-based discrimination are prime examples of the types of cases with a class that satisfies Rule 23(b)(2). See, e.g., Johnson, 2002 U.S. Dist. LEXIS 12550, at *28; Anchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997); Adv. Comm. Notes, 28 U.S.C. App., p. 697 (noting the relief offered under Rule 23(b)(2) is frequently sought in the civil rights setting). For essentially the same reasons germane to the Rule 23(a) analysis, the proposed class in this case also meets the standard imposed by Rule 23(b)(2); final injunctive or declaratory relief by this Court could resolve at least one issue common to each class member. V. CONCLUSION
For the foregoing reasons, the court RECOMMENDS that Representative Plaintiffs’ Motion for Class Certification (Doc. #61) be GRANTED.

Dated: June 30, 2017 Ann Arbor, Michigan

s/David R. Grand DAVID R. GRAND United States Magistrate Judge

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NOTICE TO THE PARTIES REGARDING OBJECTIONS Within 14 days after being served with a copy of this Report and Recommendation and Order, any party may serve and file specific written objections to the proposed findings and recommendations and the order set forth above. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2); E.D. Mich. LR 72.1(d)(1). Failure to timely file objections constitutes a waiver of any further right of appeal. See Thomas v. Arn, 474 U.S. 140, (1985); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005). Only specific objections to this Report and Recommendation will be preserved for the Court’s appellate review; raising some objections but not others will not preserve all objections a party may have. See Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987); see also Frontier Ins. Co. v. Blaty, 454 F.3d 590, 596-97 (6th Cir. 2006). Copies of any objections must be served upon the Magistrate Judge. See E.D. Mich. LR 72.1(d)(2). A party may respond to another party’s objections within 14 days after being served with a copy. See Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1). Any such response should be concise, and should address specifically, and in the same order raised, each issue presented in the objections.
CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court’s ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on June 30, 2017.
s/Eddrey O. Butts EDDREY O. BUTTS Case Manager
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 2:15-cv-11222-SFC-DRG Doc # 96 Filed 02/08/18 Pg 1 of 36 Pg ID 4024

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MARY ANN MCBRIDE, et al.,

Plaintiffs, v.

Civil Action No. 15-11222 Honorable Sean F. Cox Magistrate Judge David R. Grand

MICHIGAN DEPARTMENT OF CORRECTIONS, et al.,

Defendants. __________________________________/

REPORT AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT [76]
AND TO DENY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [74]

In this class action, the Court has certified the following class of Plaintiffs: “all deaf and

hard of hearing individuals in the custody of the [Michigan Department of Corrections (the

“MDOC”)] (whether now or in the future), who require hearing-related accommodations,

including but not limited to interpreters, hearing devices, or other auxiliary aids or services, to

communicate effectively and/or to access or participate in programs, services, or activities

available to individuals in the custody of the MDOC.” (Doc. #95). Defendants are the MDOC

and several agency administrators and prison wardens who are sued in their official capacities

(collectively, the “Defendants”). Plaintiffs allege that the MDOC has denied them, and will

continue to deny them, the hearing accommodations they need to effectively communicate with

prison staff and others, participate in MDOC programs, services, and activities, and follow safety

warnings and directives, in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C.

§ 12131 et seq.; the Rehabilitation Act, 29 U.S.C. § 794 et seq.; the Religious Land Use and

Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq.; and the First and

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Fourteenth Amendments of the United States Constitution. Plaintiffs seek only declaratory and
injunctive relief to remedy these alleged violations of their rights. More specifically, Plaintiffs
seek, inter alia, a Court Order (1) declaring that the Defendants have violated the foregoing laws,
and (2) enjoining Defendants from “refusing to provide the proper interpretive services, TDD,
videophones, and other hearing devices that are required for deaf and hard of hearing inmates to
fully participate in and benefit from the programs offered by [the MDOC and its facilities], and
required to ensure their physical safety.” (Doc. #1 at 49).
The parties have filed cross-motions for summary judgment that have been referred to the
undersigned for a Report and Recommendation; Plaintiffs moved for summary judgment with
respect to their claims under the ADA and the Rehabilitation Act (Doc. #76), and the Defendants
moved for summary judgment as to all of Plaintiffs’ claims (Doc. #74). The motions are fully
briefed, and the Court heard oral argument on June 13, 2017.
For the reasons discussed below, IT IS RECOMMENDED that Plaintiffs’ motion for
summary judgment (Doc. #76) be GRANTED IN PART AND DENIED IN PART and
Defendants’ motion for summary judgment (Doc. #74) be DENIED. I. FACTUAL BACKGROUND1
1 Although the parties’ summary judgment motions have been referred to the undersigned for a Report and Recommendation, this action is assigned to the Honorable Sean F. Cox, and ¶(C)(2)(a) of his Motion Practice Guidelines specify “The moving party’s papers shall include a separate document entitled Statement of Material Facts Not in Dispute.” The Guidelines go on to specify additional requirements for that Statement. As was the case with their initial summary judgment motion, Defendants’ instant summary judgment motion is not accompanied by the required Statement. Moreover, while Plaintiffs filed such a Statement in support of their instant summary judgment motion (Doc. #78) (“Pl. SMF”), Defendants, again contrary to ¶(C)(2)(b) of Judge Cox’s Guidelines, failed to submit a Counter-Statement of Facts. In light of Judge Cox’s prior admonition (Docs. #36 at 2), Defendants’ excuses for again failing to follow these requirements (Doc. #88 at 4-5) are hardly worth further discussion. While Defendants’ failure in this regard could warrant denying their summary judgment motion or deeming them to have admitted the facts asserted by Plaintiffs, such sanctions would be too harsh, particularly
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Two named plaintiffs, Mary McBride (“McBride”) and Ralph Williams2 (“Williams”), represent the class of “all deaf and hard of hearing individuals in the custody of the MDOC (whether now or in the future), who require hearing-related accommodations, including but not limited to interpreters, hearing devices, or other auxiliary aids or services, to communicate effectively and/or to access or participate in programs, services, or activities available to individuals in the custody of the MDOC.” (Doc. #95). MDOC is a Michigan state agency that receives federal funds for a variety of programs. It is undisputed that when McBride and Williams commenced this action in March 2015, the MDOC did not have statewide policies for identifying and classifying deaf and hard of hearing prisoners, ensuring they were housed at (or transferred to) facilities properly designated to house them, or ensuring that their specific communication needs were being consistently and properly accommodated. (PX E3 at 7-8, 11; PX F at 6, 10-11, 17; PX G at 7-8, 11; PX H at 11, 14; PX K at 19, 29; DX 6).
It is also undisputed, however, that since the filing of this action, the MDOC has taken certain steps to address these clear deficiencies. For instance, the MDOC created “Guidelines for Hearing Impaired Accommodations and Classification” pursuant to which new prisoners are
considering (1) that Defendants did clearly articulate in the body of their briefs the facts on which they rely, and (2) the importance of this case to both sides. In the future, however, Defendants should pay strict attention to judges’ motion practice guidelines. Similarly, while Defendants should have sought permission to file a second motion for summary judgment, see E.D. Mich. LR 7.1(b)(2), again, the Court finds it would be too harsh to deny their instant motion on that basis. Moreover, as explained below, the salient facts are not in dispute; rather the parties dispute whether those facts establish violations of the law and the need for injunctive relief. 2 Another named plaintiff, Brian Wittman, was released on parole after this litigation began. 3 Plaintiffs’ exhibits to their various summary judgment filings are identified by letter, seriatim, from A through KKKK. For ease, the Court will refer to these exhibits as “PX __.” The exhibits to Defendants’ summary judgment motion are numbered 1-26, and the Court will refer to these as “DX __.” Defendants’ exhibits filed in response to Plaintiffs’ summary judgment motion are numbered 1-6. The Court will refer to these exhibits as “DRX ___.”
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evaluated for hearing impairment and then “classified” based on their level of impairment: “N” – hearing impaired without deficit; “H” hearing impaired with deficit, with the classifications being based on the degree of hearing loss in one or both ears. (DX 6 at ¶¶3-4; PX I). Prisoners whose hearing needs can be met by the use of a hearing aid are classified “HA”. (Id.). While Plaintiffs “welcome” the MDOC’s changes, they contend that those changes “still fall well short of what is required under the law . . .” (Doc. #76 at 10). Defendants, on the other hand, assert that the MDOC is now “providing meaningful access4 to all programs and services for its hearing impaired population rendering the relief sought in this matter moot.” (Doc. #74 at 26).
The parties’ arguments focus on three general topics: (1) Telecommunications Services and Auxiliary Aids (i.e., certified sign language interpreters); (2) Notification of Prison Warnings and Announcements; and (3) Training Related to Treatment and Accommodation of Deaf and Hard of Hearing Prisoners. Below the Court addresses the evidence marshalled by each side as to these areas and concludes that, at least as to the first one, Plaintiffs are entitled to summary judgment, and that Defendants’ summary judgment motion lacks merit.
II. LEGAL STANDARDS Federal Rule of Civil Procedure 56 instructs courts to “grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A genuine dispute of material fact exists
4 Both sides agree that the laws in question require the MDOC to provide disabled persons “meaningful access” to the benefits of its services. (Doc. #76 (“the ADA also requires affirmative steps to ‘make reasonable accommodations for disabled individuals so as not to deprive them of meaningful access to the benefits of the services such entities provide.’”) (quoting Ability Ctr. of Greater Toledo v. City of Sandusky, 385 F.3d 901, 907 (6th Cir. 2004); Doc. #74 (“Individuals are denied the opportunity to participate in or benefit from a defendant’s services, programs, or activities, if they are denied ‘meaningful access’ to those services, programs or activities based on their disability.”) (citing Alexander v. Choate, 469 U.S. 287, 301 (1985)).
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“if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Marshall v. The Rawlings Co. LLC, 854 F.3d 368, 381 (6th Cir. 2017) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). In determining whether the evidence presents a disputed issue for trial, the evidence must be viewed in the light most favorable to the nonmoving party. Gillis v. Miller, 845 F.3d 677, 683 (6th Cir. 2017) (citation omitted). And where both parties seek summary judgment, “the court must evaluate each party’s motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.” McKay v. Federspiel, 823 F.3d 862, 866 (6th Cir. 2016) (quoting Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991)).
The initial burden rests with the moving party to demonstrate that no genuine issue of material fact exists. Savage v. Fed. Express Corp., 856 F.3d 440, 446 (6th Cir. 2017) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). Once the moving party clears this threshold hurdle, the opposing party must specifically identify “significant probative evidence” in the record upon which a reasonable jury could find in its favor to survive summary judgment. Miller v. Maddox, 866 F.3d 386, 389 (6th Cir. 2017) (citation omitted). The court is not required to search the record to determine whether genuine issues of material fact exist. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989); see also Bormuth v. Cty. of Jackson, 870 F.3d 494, 499-500 (6th Cir. 2017) (noting that the nonmoving party “has an affirmative duty to direct the court’s attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact”).
The party bearing the burden of proof faces a “substantially higher hurdle” to obtain summary judgment. E.g., Arnett v. Myers, 281 F.3d 552, 561 (6th Cir. 2002). While the party free of a trial burden needs only show that the opponent cannot sustain its burden to prevail on
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summary judgment, a movant which bears the burden of persuasion must convince the court that “no reasonable trier of fact could find other than for the moving party.” Epperson v. Res. Healthcare of Am., Inc., 566 F. App’x 433, 438 (6th Cir. 2014) (citing Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986)).
III. ANALYSIS Title II of the ADA & Section 504 of the Rehabilitation Act
The ADA was enacted “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities” and “to provide clear, strong, consistent, enforceable standards addressing discrimination against” such individuals. 42 U.S.C. § 12101(b)(1)-(2). Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Section 504 of the Rehabilitation Act applies the same prohibition to any program or activity receiving federal funds: “[n]o otherwise 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 receiving Federal financial assistance.” 29 U.S.C. § 794(a).
Other than Section 504’s limitation to denials of benefits “solely” by reasons of disability and its applicability only to entities that receive federal funds, “the reach and requirements of both statutes are precisely the same.” S.S. v. E. Kentucky, 532 F.3d 445, 452-53 (6th Cir. 2008); see also Babcock v. Michigan, 812 F.3d 531, 540 (6th Cir. 2016) (explaining that “analysis of Rehabilitation Act claims roughly parallels ADA claims because the statutes contain similar language and are quite similar in purpose and scope”) (internal quotation marks omitted). When,
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as is the case here, neither of these differences are at issue, Title II and Section 504 claims are addressed together. Id. (citing Thompson v. Williamson County, 219 F.3d 555, 557 n.3 (6th Cir. 2000)); see also C.R. v. Novi Cmty. Sch. Dist., No. 14-14531, 2017 WL 5282264 at *15 (E.D. Mich. Feb. 9, 2017). Accordingly, the Court will discuss the Plaintiffs’ claims in the context of the ADA.
Under Title II’s implementing regulations, “[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of a disability.” 28 C.F.R. § 35.130(b)(7). With respect to hearing disabilities specifically, public entities must “take appropriate steps to ensure that communications with . . . participants . . . with disabilities are as effective as communications with others,” id. § 35.160(a)(1), and to “furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities . . . an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity,” id. § 35.160(b)(1). In order to be “effective” in the relevant sense, “auxiliary aids and services must be provided in accessible formats [and] in a timely manner.” Id. § 35.160(b)(2).
A. Claims and Issues on which Plaintiffs Seek Summary Judgment i. Identification, Classification and Placement of Deaf and Hard of Hearing Prisoners
In their summary judgment motion, Plaintiffs provide a detailed “overview” of the MDOC’s “Identification and Classification of Deaf and Hard of Hearing Prisoners.” (Doc. #76 at 12-14). While Plaintiffs criticize the manner in which the MDOC identifies and places deaf and hard of hearing prisoners, they did not separately argue for the entry of summary judgment on this basis. Rather, Plaintiffs argued for summary judgment based on the MDOC’s alleged failure to provide accommodations for telecommunications services and auxiliary aids,
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notification of prison warnings and announcements, and training issues. (Doc. #76 at 22-30). However, at the conclusion of their “Argument” section, Plaintiffs wrote:
Any one of MDOC’s failures to appropriately accommodate Plaintiffs is sufficient to grant summary judgment for Plaintiffs. So too is MDOC’s admission that there are numerous deaf and hard of hearing prisoners housed at facilities not designated to house them, and thus likely lacking even the limited accommodations available at designated facilities. SMF  í  Clarkson [v. Coughlin, 898 F. Supp. 1019, 1050-51 (S.D.NY. 1995)] (placing certain deaf and hard of hearing prisoners at facilities not designated for accommodations, even for “disciplinary, safety and/or medical reasons,” renders the prison system’s “accommodations conditional and is therefore violative of the ADA”). (Doc. #76 at 30) (emphasis added). While Clarkson does appear to support Plaintiffs’ position, summary judgment on the MDOC’s classification and placement of deaf and hard of hearing prisoners is not appropriate at this time. In addition to failing to properly argue the issue in their motion, at least on the record presently before the Court, factual questions exist about how and when the MDOC places such inmates at particular facilities. As noted supra at 3, it is undisputed that when Plaintiffs commenced this action, the MDOC did not have statewide policies for identifying and classifying deaf and hard of hearing prisoners, or ensuring they were housed at (or transferred to) facilities properly designated to house them. In early 2016, however, the MDOC created “Guidelines for Hearing Impaired Accommodations and Classification.” (DX 6 at ¶3; PX I). The parties do not seem to dispute that new prisoners are being evaluated and classified pursuant to these Guidelines. The only real issue the Plaintiffs raise in their “overview” is a contention that even with these Guidelines, there were, at the time they filed their summary judgment motion, at least some deaf and hard of hearing inmates who were not housed at one of the MDOC’s six designated facilities. Initially, the Plaintiffs asserted that the “MDOC’s current list of deaf and hard of hearing prisoners
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indicates that 84 of the 200 deaf and hard of hearing prisoners in its custody (42%) continue to be housed at non-designated facilities—including 32 of the 82 prisoners with the most severe hearing loss classification (39%).” (Doc. #76 at 13). Although they did not address the issue further in their reply brief, Plaintiffs noted in their response to Defendants’ summary judgment motion that a different “MDOC list” shows “only five individuals with the most severe designation are so housed.” (Doc. #83 at 15 n.6). The MDOC presented other evidence indicating that “[i]n May of 2016, all prisoners – with the exception of five – who had been classified with an “H” designation were transferred to one of the six designated facilities.” (Doc. #74 at 12; DX 6 at ¶6). The MDOC also presented evidence that these five prisoners had not been transferred yet “due to programming needs” that could not be met at one of the six designated facilities, and that these prisoners are scheduled to be transferred upon completion of this programming. (Id. at ¶7; DX 9 at 3-8).
In light of the foregoing, questions exist as to the number of affected prisoners, their “programming needs,” and why those needs cannot be met at one of the six designated facilities. Accordingly, at least on the present record, summary judgment is not appropriate as to the MDOC’s identification, classification and placement of deaf and hard of hearing inmates.
ii. Telecommunications Services and Auxiliary Aides Plaintiffs make a much stronger factual showing that the MDOC continues to violate the ADA with respect to the telecommunications services and auxiliary aides it does and does not provide to deaf and hard of hearing inmates. Plaintiffs argue that the “MDOC has failed to take the necessary steps to ensure that deaf and hard of hearing prisoners’ communications are as effective as those of hearing prisoners, and to provide appropriate auxiliary aids to permit communication and participation on an equal basis.” (Doc. #76 at 23).
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Plaintiffs’ desire for equally effective means of communication is not just an aspiration – it is the law. Regulations promulgated under the ADA explain that in order to “reasonably accommodate” individuals with disabilities, public entities like the MDOC must “take appropriate steps to ensure that communications with applicants, participants, and members of the public, and companions with disabilities are as effective as communications with others” and must “furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities . . . an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity.” 28 C.F.R §§ 35.160(a), (b)(1). The regulations also provide that, “[i]n order to be effective,” these “auxiliary aids and services must be provided in accessible formats [and] in a timely manner.” Id. § 35.160(b)(2). Finally, public entities must “operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by, people with disabilities.” 28 C.F.R. § 35.150.
The parties dispute whether Plaintiffs can effectively communicate without using videobased communication devices, and whether they have been denied meaningful access to sign language interpreters and other auxiliary aids. Both issues are addressed in turn.
a. TTYs versus Video-Based Communication The MDOC provides deaf and hard of hearing prisoners with access to teletypewriters, or “TTYs” to meet their communication needs, but not video-based communication equipment, such as videophones and video relay service (“VRS”). (PX M at 9-10, PX T at 19-21). Plaintiffs not only argue that they cannot communicate effectively without such video-based communication tools, they factually established the point.
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This aspect of Plaintiffs’ motion is supported in large part by expert reports authored by Richard Ray and Dr. Dennis Cokely. (PXs P and Q). Ray was born with severe hearing loss and, as an adult, became completely deaf. (PX P at 7). In 2000, he received a Disability Rights Masters Certificate from Loyola Law School in Los Angeles, California. (Id.). For the past 23 years, Ray has been employed by the City of Los Angeles Department on Disability to assess, monitor, and ensure the city’s compliance with the ADA, Rehabilitation Act, and other federal, state and local disability laws. (Id. at 5). Presently he is Los Angeles’ ADA Technology Access Coordinator, and before that, he was its Deputy ADA Compliance Officer and ADA Compliance Officer. (Id. at 5-6). Ray’s expert reports documents his wealth of experience and recognition as an expert in the field.
Dr. Cokely is a Professor of American Sign Language (“ASL”) and Modern Languages at Northeastern University. (PX Q at 5). He also serves as the Director of the American Sign Language Program, and has served two terms as President of the Registry of Interpreters for the Deaf. (Id.). Dr. Cokely has published numerous textbooks on ASL, and is the Principal Investigator for a $3 million grant from the U.S. Department of Education to establish a National Interpreter Education Center at Northeastern University. (Id.). Prior to joining Northeastern, Dr. Cokely worked for twelve years as he President and co-owner of Sign Media, Inc., a videoproduction company that specialized in print and video material focused on the deaf community in the United States. (Id.).
As relevant here, both Ray and Dr. Cokely opine that the MDOC’s systemic failure to provide deaf and hard of hearing inmates with appropriate video-based communication tools such as videophones and VRS denies them the ability to effectively communicate. (PX P at 8-9, 13; PX Q at 7).
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Ray provided the following uncontroverted description of TTYs and the two types of
video-based technologies in issue, videophones and VRS:
TTY is a 60-year-old technology that enables remote communications between deaf individuals and between deaf and hearing individuals. In a conversation between two deaf individuals, both parties type and read responses using the teletypewriter device, and their typed conversation is transmitted back and forth across the standard telephone network. In a conversation between a deaf individual and a hearing individual, the deaf party uses the TTY while the hearing party uses a standard telephone. An operator then dictates the deaf individual’s typed messages to the hearing party and types the hearing individual’s spoken messages to the deaf party. To utilize a TTY a deaf individual must have access to a teletypewriter device. Thus, in order for a deaf individual to communicate with another deaf individual, both individuals must have a TTY.
* * *
Videophones are telephones with a high-definition video display, capable of simultaneous two-way interactive video and audio for communication between people in realtime using separate internal high-speed bandwidth Internet telecommunication services.
* * *
VRS uses high-speed internet to enable remote communications between deaf and hearing individuals. The deaf individual signs to an intermediary sign language interpreter via video monitor. The interpreter, in turn, relays the deaf person’s message to the hearing individual in spoken English and vice versa. In a VRS conversation, the hearing party speaks into a standard telephone as he or she normally would. VRS has been widely available in the U.S. since at least the mid-2000s.
(PX P at 11, 14-16).
Thus, video-based communication allows deaf and hard of hearing individuals to
communicate both with other deaf and hard of hearing individuals using ASL (through
videophones) and with hearing individuals through VRS. Far more than simply being available
technology, Plaintiffs presented ample evidence that that TTYs are not a practical or effective
communication tool for deaf and hard of hearing persons, and that video-based communication is
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today’s standard mode of remote communication for such persons who communicate through
sign language. (PX P at 14-17; PX Q at 49-52; PX R at 5). For example, Dr. Cokely explained:
There are several limitations to TTYs, however. One limitation is that this direct point-to-point TTY communication requires that both parties have TTYs. Although TTYs and free, federally mandated TTY relay services have, in the past, provided a significant level of communication access for [deaf] and hard of hearing people, the fact is that TTY technology has essentially become obsolete for reasons discussed below. Because TTYs are obsolete, it is increasingly unlikely that those with whom MDOC [deaf] and hard of hearing inmates wish to communicate will even own TTYs.5 Also because a TTY conversation is typed, TTY conversations always take more time than if the conversation had been spoken or signed.
. . . TTY does not provide MDOC [deaf] and hard of hearing inmates with effective communication with those outside MDOC. In order to use a TTY effectively, the user must be proficient in written English and, as described above, many [deaf] and hard of hearing inmates do not communicate effectively in English.
* * *
During the past 10 to 15 years, Deaf people have eagerly and quickly replaced TTYs with Videophones [] for two very understandable reasons. First, TTYs require communication in typed English (the second language for most [deaf] and hard of hearing people and a language in which, as noted above, they rarely attain any significant level of fluency). Second, because TTY conversations are typed, those conversations take significantly longer and thus when [deaf] or hard of hearing people use TTYs they tend to keep conversations very brief (e.g. to make arrangements to meet in person).
[Videophones] by contrast, enable [deaf] and hard of hearing people to communicate using American Sign Language, a language in which they are much more comfortable and fluent. Thus their [videophone] conversations are not encumbered by written English nor slowed by having to type.
5 Defendants do not challenge this assertion, much less present evidence that it is inaccurate. Indeed, in a June 27, 2013 e-mail from Paul Slagter, the person designated by the MDOC as its 30(b)(6) witness with knowledge about, inter alia, communications devices and/or services for deaf and hard of hearing prisoners, to MDOC Office of Legal Affairs Administrator, Daphne Johnson, he wrote, “we are hearing locally from the prisoners . . . that [TTY] is outdated and the family members and the community no longer have the machines. It would be comparable to sending someone a fax to their homes versus an email to communicate.” (PX R; PX Y at 7).
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Signed [videophone] conversations are analogous to spoken telephone conversations.
If each party has a VP then they can communicate directly; however, if only one party has a VP then communication with the party who does not have a VP is only possible using a free Video Relay Service (VRS), which utilizes the same hardware/software as the VP. Either party can initiate communication by connecting with a VRS provider and a VRS interpreter will facilitate the call, communicating via VP with the d/Deaf or hard of hearing caller and via voice with the non-deaf caller. If calling someone who does not have a VP, d/Deaf and hard of hearing inmates could use the VP to call a VRS center where a qualified ASL interpreter would answer. The [deaf] or hard of hearing inmate would then provide the phone number he or she wishes to call, and the ASL interpreter would place the call. The [deaf] or hard of hearing inmate would sign to the interpreter who would then interpret into spoken English for the non-deaf person on the other end of the phone line, and also interpret that person’s spoken English into ASL for the [deaf] or hard of hearing inmate.6
(PX Q at 49-51).
Dr. Cokely thus concluded, “MDOC must provide access to [videophones] for [deaf] or
hard of hearing inmates and access to Video Relay Service (VRS)7 providers in order for them to
have telephone services and benefits that are equivalent to those afforded non-deaf inmates.”
(Id. at 52). Ray offered a similar analysis and opinion as to why the MDOC’s provision of TTYs
6 Importantly, and contrary to what one might assume, Dr. Cokely explains, “There is no cost to the individual for using VRS other than the cost of internet connectivity. The Federal Communications Commission (FCC) established the Telecommunications Relay Fund to fund the costs of Telecommunication Relay Services (established under Title IV of the Americans with Disabilities Act). Funding comes from rate adjustments or surcharges on local telephone bills that are set annually by the FCC. Companies that offer [VRS] are paid from the TRS fund and those companies provide free Videophone equipment to [deaf] individuals and companies/entities with [deaf] employees.” (PX Q at 51-52).
7 Defendants do not raise “cost” as a basis for declining to provide such technology. Yet, it is worth noting that Plaintiffs established, in part through internal MDOC memos and Slagter’s testimony, that at least VRS can be made available at MDOC facilities at no cost. (PX K at 3233; PX S at 4; PX P at 15-16). Moreover, the evidence before the Court establishes that videophones are readily available for implementation at MDOC facilities at essentially no cost to the MDOC (or the user, for that matter). (PX Q at 51).
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does not enable deaf and hard of hearing prisoners to communicate effectively with persons
outside the prison:
TTYs offer limited effectiveness compared to sign language translation and the other auxiliary aids and services. Most fundamentally, a TTY’s capacity to facilitate communication is completely dependent on deaf users’ often limited reading and writing skills. In addition, most deaf individuals no longer use TTY devices (relying instead on videophones) and, as a result, deaf inmates who can only access TTYs are often unable to contact deaf friends and family members with the device. According to an FCC report, TTY use has declined by 10% per year. Of all operatorassisted calls involving deaf individuals, the FCC estimates that today only 12% are TTY calls. The majority (75%) are video-based calls.
Whereas an average typing rate is 40 words per minute and a professional typist can type as many as 80-100 words per minute, in the U.S. most TTYs use a communication code that is limited to transmitting text over telephone lines between the rate 30 to 60 words per minute. . . . Consequently, a TTY conversation takes much longer than a signed conversation . . .
* * *
For all of the above reasons, MDOC’s provision of limited TTY access to deaf and hard-of-hearing inmates fails to provide them with the means to effectively communicate with deaf, hard-of-hearing, and hearing individuals outside the correctional center. MDOC needs to replace or supplement these TTY devices with the video-based services [] to provide deaf and hard-of-hearing inmates with remote communications technology comparable to that used by their hearing peers.
(PX P at 11, 13).
Defendants presented no expert evidence to rebut the opinions offered by Dr. Cokely and
Ray, or any of the factual assertions on which those opinions rest. Instead, Defendants argue
principally, “While Cokely and Ray state that videophones offer better communication than TTY
telephones, they do not refute that TTY telephones provide meaningful access, which is the
standard.” (Doc. #85 at 8) (emphasis in original). Both aspects of this argument are flawed.
First, one cannot reasonably interpret Dr. Cokely and Ray to be asserting that videophones are
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merely a “better” alternative to TTYs. Rather, Plaintiffs’ experts clearly opine that video technology is necessary to enable deaf and hard of hearing prisoners to communicate effectively with persons outside of prison. Moreover, this aspect of Defendants’ argument ignores that under the ADA, “[i]n determining what type of auxiliary aid and service is necessary, a public entity shall give primary consideration to the requests of individuals with disabilities.” 28 C.F.R. § 25.160(b)(2). Second, Plaintiffs’ experts clearly refute that TTYs provide “meaningful access”; indeed, the very gist of their lengthy, detailed expert reports is that TTYs “fail[] to provide [deaf and hard of hearing prisoners] with the means to effectively communicate with . . . individuals outside the correctional center.” (PX P at 13) (emphasis added).8 Defendants’ evidence that TTYs “function” and are available to MDOC prisoners (DX 24 at 18; DRX 2 at 4), fails to address any of the evidence which shows that the machines’ mere functionality does not equate with “meaningful access.”
Defendants’ other arguments in opposition to Plaintiffs’ motion lack merit. They argue that “the Department of Justice’s 2011 regulations specifically reference text telephones or TTYs as reasonable accommodations to be provided to individuals who are deaf or hard of hearing . . .” (Doc. #85 at 10). Here, Defendants are referring to 28 C.F.R. § 35.161, which provides, in relevant part, “[w]here a public entity9 communicates by telephone with applicants and
8 In the analogous case of Pierce v. D.C., 128 F.Supp.3d 250 (D.D.C. 2015), although the court ultimately found it unnecessary to rule on the issue, id. at 277, it did characterize TTY technology is “outmoded.” Id. at 261. The very recent case of Heyer v. U.S. Bureau of Prisons, 849 F.3d 202 (4th Cir. 2017), although not involving the ADA, also sheds some light on this issue. At issue in that case was a Board of Prisons “ban on videophones.” The Fourth Circuit wrote that “TTY is old technology that is fast becoming obsolete,” and that “because a TTY device is required on both ends of the call, the abandonment of TTY technology means there are fewer and fewer people with whom [the plaintiff] can communicate.” Heyer, 849 F.3d at 207. Although not in the context of an ADA claim, the Fourth Circuit “disagree[d]” that the Bureau of Prisons “ban on videophones is reasonable.” Id. at 216. 9 This regulation was not directed specifically at prisons.
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beneficiaries, [TTYs] or equally effective telecommunications systems shall be used to
communicate with individuals who are deaf or hard of hearing.” 28 C.F.R. § 35.161(a). But,
this regulation was promulgated in 1991, when videophone technology would have been
nonexistent or, at best, nascent. 28 C.F.R. § 35.161 (1992). More recently, in November 2015,
the Federal Communications Commission issued a Report and Order which “strongly
encouraged” prisons to provide deaf and hard of hearing inmates with such technologies:
We reaffirm our existing policy of strongly encouraging correctional facilities to provide inmates with communication disabilities with access to TTYs, as well as equipment used for advanced forms of TRS, such as videophones . . . In addition, we strongly encourage correctional facilities to comply with obligations that may exist under other federal laws, including Title II of the ADA, which require the provision of services to inmates with disabilities that are as effective as those provided to other inmates. Access to more advanced forms of TRS, including VRS . . . may be necessary to ensure equally effective telephone services for these inmates. We recognize that some facilities have already begun providing access to alternative forms of TRS, often as the result of litigation brought under these other statutes. We strongly encourage other facilities to continue this trend voluntarily, without the need for further litigation.
Rates for Interstate Inmate Calling Services, 80 FR 79136-01, 2015 WL 9195269 (Dec. 18, 2015).
Most fundamentally, the question before the Court is whether TTYs actually provide deaf
and hard of hearing inmates with an effective means of communication today. The fact that
TTYs may have been recommended as an industry standard more than a quarter century ago, or
even at some point in the less-distant past, helps very little in answering that question. It
certainly fails to raise a material question of fact as to the validity of the evidence proffered by
Plaintiffs that TTYs do not provide today’s deaf and hard of hearing inmates with an effective
means of communicating with persons outside of prison.
Next Defendants argue that summary judgment in Plaintiffs’ favor is not warranted
because the MDOC “is in the process of implementing a [VRS] on a trial basis.” (Doc. #85 at
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10-11). This argument lacks merit for a few reasons. First, the statement is too vague to establish that any wrong has been remedied or will not recur in the future. Second, Plaintiffs have shown that a VRS-only solution will not address the needs of deaf inmates who wish to communicate with other deaf inmates because, as explained by Ray, VRS is a tool for communication between a deaf person and a hearing person in which an interpreter “relays the deaf person’s [signed] message to the hearing individual in spoken English and vice versa. In a VRS conversation, the hearing party speaks into a standard telephone as he or she normally would.” (PX P at 15-16).
Defendants’ final argument against providing video telecommunications technology for deaf and hard of hearing inmates is about safety and control, both inside and outside the prison:
It is impossible to monitor, in real time, every telephone conversation. If that conversation is taking place via a videophone, the prisoner and the individual the prisoner is communicating with are doing so through an unfiltered video channel. In such a circumstance, it is possible that innocent victims could be put at risk. For instance, a child who may very well have been the victim of the prisoner’s crime could be in the room with a family member when he or she is communicating with the prisoner. . . . Or someone communicating with a prisoner via videophone could display prohibited explicit sexual images or pornography to the prisoner or engage in sexual activity for the prisoner. (Doc. #85 at 8-9). Safety and control are very legitimate concerns for the Defendants to raise. The Sixth Circuit has stated that, in general, “because the daily operation of a correctional facility poses difficult and unique management problems, prison official should be accorded substantial deference in the adoption and implementation of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Brown v. Johnson, 743 F.2d 408, 410 (6th Cir. 1984) (internal quotations omitted). However, even giving
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due consideration to Defendants’ concerns, they have not shown a material question of fact that would prevent the Court from granting summary judgment in Plaintiffs’ favor on this issue.
First, the types of concerns expressed by Defendants are not limited to the video technology at issue here. Just as a child victim could be visible to a prisoner communicating over a video transmission, the outside participant could put the inmate on speakerphone in the child’s presence, or pass a receiver to the child. Similarly, in a traditional telephone call, the outside participant could engage in sexually explicit conversation with the inmate. The MDOC admits that it “is impossible to monitor, in real time, every telephone conversation”10 (Doc. #85 at 8) (emphasis added), and its response to risks associated with telephone calls has not been to deny inmates access to telephones, but to adopt a formal policy (1) expressly prohibiting calls with victims and calls that are “harass[ing],” “unwelcome,” or “obscene,” and (2) mandating that all telephone calls be “monitored,” with at least 50 such calls or recordings actually listened to or reviewed by assigned staff. (PX BBBB). Defendants have not explained why the same policies would not be as effective at addressing risks associated with video transmissions.
The only affirmative evidence Defendants cite in support of their position is the affidavit of Paul Slagter, who avers that “In the past, the MDOC allowed prisoners to send and receive 30 second pre-recorded video messages (video-grams) as a pilot program. This pilot was ended 60 days early when examples of this behavior was realized, resulting in the cessation of the videogram program.” (DRX 3). While this does speak to the potential for concern, it still fails to raise a material question of fact for two reasons. First, as noted above, the MDOC has failed to
10 In fact, MDOC policy is that, except for a limited types of calls, such as between a prisoner and his attorney, “[a]ll telephone calls made from telephones designated for prisoner use shall be monitored . . .” with “monitor” being defined as “[t]o listen to or record, or both.” (PX BBBB). Thus, even if all telephone calls are not being followed in real time by a prison official, they are all subject to some form of monitoring.
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explain why its policy for monitoring telephone calls would not be equally effective in addressing video transmissions. Second, there is no indication that the situation alluded to by Slagter involved any deaf and hard of hearing inmates, whereas a video communication pilot program the MDOC implemented for that population did not result in any significant issues. Indeed, in a December 19, 2016 memo from Slagter to Kenneth T. McKee, the MDOC’s Deputy Director, he wrote, “[two facilities using VRS have] realized very few prisoners attempting to misuse11 VRS equipment . . . There are some security concerns that will need to be addressed prior to a program of this nature being implemented. However, it is the opinion of this committee that these risks can be mitigated through operational controls.” (PX S, at 5). Plaintiffs’ expert Ray similarly explained numerous ways in which monitoring of video-based communications can be accomplished, none of which the Defendants rebutted. (PX P, at 17-19. In short, the Defendants failed to raise a material question of fact about safety concerns that would prevent the Court from entering summary judgment to Plaintiffs.
All of the foregoing firmly establishes that merely providing deaf and hard of hearing inmates with TTYs does not satisfy the MDOC’s obligations under the ADA because, even if TTYs could, in theory, provide a means of communication for deaf and hard of hearing prisoners, Plaintiffs have shown that, in reality, TTYs do not enable them to communicate effectively with persons outside of prison, much less provide them with telecommunications access equal to that provided to hearing prisoners. Accordingly, Plaintiffs are entitled to summary judgment on this aspect of their ADA and Rehabilitation Act claims.
11 Slagter identified three instances of “misuse,” but none had anything to do with the video technology itself, and could just as easily have happened in a telephone call between hearing individuals. (PX S at 4) (e.g., “One prisoner using VRS to call the girlfriend of another;” “One prisoner making abusive remarks to the called party.”).
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b. Auxiliary Aids Another issue in this case is whether the MDOC provides deaf and hard of hearing inmates with access to sign language interpreters that enables them to communicate and participate in programs and activities inside the prison to the same extent as hearing prisoners. While this question could arise in innumerable contexts inside the prison setting, Plaintiffs focus on their need for ASL interpreters in what they label “high-stakes” interactions and programs, including, “unexpected medical emergencies, hospital visits, psychological evaluations, offender treatment programs, disciplinary/investigative proceedings, religious activities, and educational courses and evaluations.” (Doc. #76 at 33) (citing PX Q at 8). Specifically, Plaintiffs assert that the “MDOC does not provide sufficient access to auxiliary aids for deaf and hard of hearing prisoners to communicate and participate in programs and activities inside the prison on an equal basis with hearing prisoners” and that “sign language interpreters are often unavailable” which has required these prisoners to “rely on untrained and uncertified fellow inmates as de facto interpreters.” (Doc. #76 at 26). Defendants, on the other hand, assert that “[t]he evidence simply does not bear out this allegation,” and that “translation services are offered for all programming that is operated by12 MDOC staff.” (Doc. #85 at 12). Before turning to the merits, the Court addresses two contradictions in the Defendants’ arguments, each of which precludes entry of summary judgment in their favor. First, the Defendants expressly “admit[] that before June of 2015, there were issues with the services provided by its translation services vendor[,]” Linguistica. (Doc. #85 at 12). Nevertheless, they argue that the MDOC “addressed” any related “systemic problems . . . before
12 As discussed below, the Defendants take the position that religious services held inside MDOC prisons are voluntary activities, conducted by volunteers, and therefore, are not “programming operated by MDOC staff” that is subject to the ADA.
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Plaintiffs filed the instant lawsuit,” and that as a result, Defendants, not Plaintiffs, are entitled to summary judgment on this issue:
[Linguistica’s] contract was terminated as a result of the problems [] [which] demonstrates that MDOC is responsive to the concerns of its hearing impaired prison population. As stated in Defendants’ motion, translation services are offered for all programming that is operated by MDOC staff. Interpreter services are also provided for all healthcare visits, parole board hearings, parole violation hearings, during the prisoner discipline process, during all required programming, for all administrative hearings, during the grievance process, for any legal needs, during prisoner orientation, and during all educational programs. Thus, any systemic problems with interpreting services were addressed before Plaintiffs filed the instant lawsuit and have been resolved. (Doc. #85 at 12-13) (internal citations omitted). But the evidence on which Defendants principally rely for this argument is a July 20, 2015 memo from the MDOC’s Deputy Director, Kenneth T. McKee, to all MDOC wardens, informing them that effective July 1, 2015, the MDOC had cancelled the Linguistica contract, and that all “CFA facilities shall retain services via a purchase order (PO) for . . . (as appropriate) (3) American Sign Language Services (ASL) . . .” (DX 20) (the “McKee Memo”). The McKee Memo lists numerous such “settings,” including during: healthcare visits; Parole Board hearings and proceedings; discipline proceedings; “required programming (for example, GED class, VPP programing, sex offender programing, etc.)”; administrative hearings; grievance proceedings; orientation meetings; and “[o]ther instances as the facility determine necessary.” (Id.). The problem with Defendants’ argument is that Plaintiffs filed their complaint on March 31, 2015, a few months before McKee issued his memo. Thus, while the MDOC may have begun “addressing” these problems before Plaintiffs commenced this action, Defendants’ own admission and evidence nullifies their argument that the McKee Memo entitles them to summary judgment.
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A second contradiction in Defendants’ argument is that whereas they seem to agree that the MDOC must provide interpreter services for deaf and hard of hearing inmates in connection with their health care visits (id.), they simultaneously argue that the MDOC’s failure to do so would not violate the ADA if the prisoner failed to “establish[] that she was not able to get necessary or effective medical treatment.” (Doc. #85 at 13). This argument lacks merit because it erroneously focuses on the outcome of any particular prisoner’s health care visit when the MDOC’s obligation under the law arises before, and in connection with, the visit; the MDOC must provide accommodations to deaf and hard of hearing prisoners sufficient to afford them “an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity” of a the MDOC’s facilities. 28 C.F.R. § 35.130(b)(1) (emphasis added); see also id. § 35.160(a)(1) (requiring public entities to “take appropriate steps to ensure that communications with . . . participants . . . with disabilities are as effective as communications with others”). Indeed, the issue is particularly acute in the health care setting where the accurate communication of information between patient and medical provider during the visit can significantly impact the patient’s health and well-being.
In short, a positive outcome in any particularly medical appointment does not necessarily mean that equal participation was offered or took place. See, also e.g., Robertson v. Las Animas Cty. Sheriff’s Dep’t, 500 F.3d 1185, 1199 (10th Cir. 2007) (rejecting argument that deaf prisoner was not injured for purposes of ADA claim by exclusion from hearing, when charges were dropped, because he was “denied the ability to participate in his probable cause hearing to the same extent as non-disabled individuals”).
Turning to the merits of the instant dispute, there principally are two separate issues in play. The first is whether Plaintiffs have shown sufficient evidence of interpreters not being
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present to assist deaf and hard of hearing inmates for “high-stakes” MDOC programs and services like medical appointments to merit the injunctive relief they seek. The second is whether, under the ADA, the MDOC must provide ASL interpreters for activities like religious services that are voluntary and are run by volunteers.
i. Provision of ASL Interpreters for “High Stakes” Programs and Services Other than Religious Services
Plaintiffs assert that “[t]here is no genuine dispute on the failure of MDOC to provide sufficient access to ASL interpreters” and that “the record is replete with examples of interpreters not being present for high-stakes activities like medical appointments well after the lawsuit was filed, and after the Linguistica contract was cancelled.” (Doc. #89 at 8). Defendants disagree, and assert, “[w]ith the exception of one medical appointment scheduled for Plaintiff McBride, Plaintiffs have not presented evidence that they have been denied meaningful access to any program, service or activity as a result of a denial of translation services since the filing of the instant case. . . . They certainly have not demonstrated that there has been a systemic denial of interpreting services.” (Doc. #85 at 13-14). In their reply brief, Plaintiffs reiterate their position that, “the record is replete with examples of interpreters not being present for high-stakes activities like medical appointments well after the lawsuit was filed, and after the Linguistica contract was cancelled.” (Doc. #89 at 8). Plaintiffs then cite numerous exhibits that they contend support this assertion. (Id.).
Although this issue presents a closer call factually than Plaintiffs’ argument regarding telecommunications services, ultimately, Defendants have failed to raise a material question of fact that violations of the ADA have occurred, and that the injunctive relief sought by Plaintiffs is appropriate and necessary to ensure that future violations do not take place. The Court begins by recognizing that the MDOC has taken positive steps towards addressing the issues Plaintiffs
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complain about in this litigation. Prior to the commencement of this action, it is undisputed that the MDOC did not have guidelines for medically classifying prisoners with hearing deficits, and had no policies related to housing such prisoners at appropriately designated facilities, or to providing specific communications accommodations. See supra at 3. The MDOC also admits that Linguistica was failing to provide ASL interpreting services on a reliable basis. (Doc. #74 at 18; DX 18; DX 22 at 3). Equally undisputed, however, is that since this lawsuit was filed, the MDOC has taken steps to address many of those issues, including through the McKee Memo discussed above, supra at 21-22. Thus, unlike the situation with the video communication technology, where the parties dispute whether the accommodation must be provided at all, the question here is one of degree.
Defendants are correct that the vast majority of the medical records Plaintiffs cited in their initial motion pre-dated the filing of the complaint in this matter, the McKee Memo, or both (e.g., PX V, PX DD, PX EE, PX GG, PX II, PX MM, PX NN, PX OO, PX RR). And, while Plaintiffs thereafter supplied a handful of other more recent records which show deaf and hard of hearing inmates being unable to effectively participate in medical appointments that needed to be rescheduled because an interpreter was not present or not “available” (PX HH, PX JJ, PX PP, PX QQ, PX KKK, PX LLL), neither side provided a detailed quantitative analysis of the issue.
At the same time, Plaintiffs’ post-litigation exhibits do document violations of the ADA, which, coupled with other more qualitative evidence before the Court, shows that absent appropriate injunctive relief, the MDOC’s deaf and hard of hearing inmates face a very real risk of not timely receiving the accommodations they need to effectively communicate during “high stakes” interactions such as medical appointments. For instance, Defendants’ “no harm, no foul” argument discussed supra at 23, at least gives the impression that they believe the obligations the
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ADA imposes on the MDOC are something less mandatory. So too, does the fact that, despite the prior problems, and the pendency of this litigation, the MDOC has not taken any steps to monitor or verify whether its facilities are complying with the McKee Memo’s directives.13 (PX AA at 7-8). Perhaps, then it is not surprising that Plaintiffs have shown numerous post-litigation instances of deaf and hard of hearing prisoners having to reschedule medical appointments because no interpreter was present at the scheduled one.
In sum, the undisputed evidence is that (1) before this lawsuit was filed, the MDOC’s deaf and hard of hearing prisoners’ rights under the ADA were violated when they were not provided with ASL interpreters during high-stakes interactions such as health care visits, (2) since this lawsuit was commenced, some advancements have been made in that area, but as noted above, there still have been numerous instances since that time of these prisoners not receiving “effective” accommodations, such as when an inmate’s medical appointment had to be rescheduled because no ASL interpreter was present at the appointed time,14 and (3) absent Court-ordered injunctive relief, there remains a real risk that these ADA violations will continue. Accordingly, Plaintiffs are entitled to summary judgment on this aspect of their ADA and Rehabilitation Act claims. See Pierce, 128 F. Supp. 3d at 275-76; Clarkson v. Coughlin, 898 F. Supp. 1019, 1038, 1048-49 (S.D.N.Y. 1995).
13 Furthermore, the McKee Memo is “not a policy directive,” and at any rate, does not establish any specific procedures to ensure that interpreters are available for “high stakes” interactions, such as medical appointments and disciplinary hearings. Nor are such procedures part of any other formal MDOC policy. (PX K at 44). 14 See 28 C.F.R. § 35.160(b)(2) (In order to be “effective” “auxiliary aids and services must be provided in accessible formats [and] in a timely manner.”).
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ii. Provision of ASL Interpreters for Religious Services Plaintiffs also argue that under the ADA the MDOC must provide deaf and hard of hearing inmates with ASL interpreters during religious services that take place inside the prison. It is undisputed that the McKee Memo does not include religious services in its list of activities for which ASL interpreters must be provided, and that the MDOC does not provide ASL interpreters at religious services conduct at its prisons. (PX AA at 61; PX BB; PX K at 50). Indeed, the MDOC argues that the ADA does not require it to provide interpreters for religious services because “[s]uch services are led by volunteers and participation in voluntary.” (Doc. #74 at 29). As explained below, Plaintiffs are entitled to summary judgment on this issue. Title II of the ADA mandates that, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The ADA also requires public entities to provide accommodations that allow disabled individuals to enjoy the same services provided to non-disabled persons. Pursuant to the Department of Justice’s Regulation, 28 C.F.R. § 35.160(b)(1), “[a] public entity shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity.” The definition of auxiliary aids includes:
Qualified interpreters, note takers, transcription services, written materials, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunications devices for deaf persons (TDD's), videotext displays, or other effective methods of making aurally delivered materials available to individuals with hearing impairments. 28 C.F.R. § 35.104(1).
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The Court can easily dispense with Defendants’ argument that the ADA does not apply to the situation at hand because religious services are “voluntary.” In Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 211 (1998), the U.S. Supreme Court specifically found that the ADA applied to programs, services, or activities that were “voluntary.” See also Robertson v. Las Animas Cty. Sheriff's Dep’t, 500 F.3d 1185, 1199 (10th Cir. 2007) (defendant’s voluntariness argument “misses the point” of the ADA). Accordingly, the mere fact that attending religious services is voluntary, as opposed to mandatory, does not render Title II inapplicable.15
Nor is Title II inapplicable to religious services conducted inside MDOC prisons simply because the MDOC does not itself “lead” those services or employ the clergy who do. Defendants’ argument seems to be that because the MDOC does not itself lead the religious services held inside the prison walls, such services are not services, programs, or activities “of a public entity,” 42 U.S.C. § 12132, or “conducted by a public entity”. 28 C.F.R. § 35.160(b)(1), and therefore, are not subject to the ADA. This argument lacks merit as it relies on too narrow an interpretation of the phrase “services, programs, or activities,” as that phrase is used in the relevant statutes and regulations.
The Court begins with the fact that although Title II does not define “services, programs, or activities of a public entity,” courts have defined that phrase with considerable breadth. The Sixth Circuit, for instance, has held that as used in the ADA, the phrase “‘programs, services, and activities,’ include all of the activities of a public entity.” See Johnson v. City of Saline, 151 F.3d 564, 570 (6th Cir. 1998). The Johnson court also explained, “our conclusion—that the
15 Defendants cite Rothschild v. Grottenthaler, 907 F.2d 286, 293 (2nd Cir. 1990), arguing that that court held that “requiring school district to provide sign-language interpreter for deaf parents of student at school-initiated conferences incident to student's education, but not at voluntary extra-curricular activities, was ‘reasonable accommodation’”. (Doc. #74 at 29-30). Rothschild, however, is no help to Defendants as that case was decided years before Yeskey.
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discrimination forbidden by § 12132 must be with regard to services, programs, or activities—is for the most part a distinction without a difference. This is because we find that the phrase ‘services, programs, or activities’ encompasses virtually everything that a public entity does.” Id. at 569 (emphasis added). The Sixth Circuit noted that “this broad reading of ‘programs, services, and activities’ is consistent with the broad definition used in § 504 of the Rehabilitation Act (‘the term ‘program or activity’ means all of the operations’). 29 U.S.C. § 794(b). This is significant, because we look to the Rehabilitation Act for guidance in construing similar provisions in the Americans with Disabilities Act.” Id. at 570 (citing, inter alia, McPherson v. Michigan High School Athletic Ass'n, Inc., 119 F.3d 453, 459–60 (6th Cir. 1997) (en banc); House Report at 50 (1990), 1990 U.S.C.C.A.N. at 473 (“The Committee intends that title II work in the same manner as Section 504.”)).
Viewed against the above standards, it is clear that although the MDOC’s officials do not serve as the clergy at the religious services, the ADA still applies. Here, the MDOC offers its prisoners a service – the opportunity to attend a religious service inside the prison. See Yeskey, 524 U.S. at 211 (“[t]he prison law library, for example, is a service (and the use of it an activity).)” Providing this opportunity is therefore part of the operations of the MDOC’s prisons. It must therefore “furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities . . . an equal opportunity to participate in, and enjoy the benefits of” that service. 28 C.F.R. § 35.160(b)(1). Because the MDOC admits it does not do this with respect to religious services, summary judgment in Plaintiffs’ favor on this issue is appropriate.
iii. Notification of Prison Warnings and Announcements Plaintiffs also argue that the MDOC “has failed to ensure that deaf and hard of hearing prisoners are consistently notified of emergency and other announcements.” (Doc. #76 at 28).
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They note that 28 C.F.R. § 35.152(b)(3) provides that “[p]ublic entities shall implement
reasonable policies . . . so as to ensure that each inmate with a disability is housed in a cell with
the accessible elements necessary to afford the inmate access to safe, appropriate housing.” The
MDOC claims it does exactly that. The Court finds a question of fact exists as to this issue.
Factually, Plaintiffs rely on the expert reports of Ray and Dr. Cokely. Ray writes:
From reviewing the photos of MDOC facilities that MDOC produced in this case and that I received, it appears that there is no visual alarm in the cells. . . . Deaf inmates may not be able to see the [common area] strobe light from their cells . . . Also, the light may not be bright enough to be seen during daylight.
WHV lacks an effective system of notification lights or signs for notifying Ms. McBride and other deaf and hard-of-hearing inmates. WHV has a single, red notification light outside the officer’s station at the facility’s Gladwin Housing Unit B. This light is sometimes used to announce inmate “count time” – officers sometimes turn the light on when count starts and off when count is over. Ms. McBride cannot see the signs or the single, red notification light in her cell or in the television room.
WHV has issued pagers to approximately six deaf and hard-of-hearing inmates, including Ms. McBride, to help the facility notify these inmates of alarms and announcements. WHV apparently has used the pages sporadically; thus this communication system may not yet be effective.
(PX P at 23-24).
Similarly, Dr. Cokely writes:
Based on my tour of MDOC facilities, my review of documents and my interviews with [deaf] and hard of hearing inmates, I believe that MDOC has failed to provide visual alarms and/or signals, and that such failure poses significant risks for [deaf] and hard of hearing inmates. My tour of MDOC “designated” facilities for [deaf] and hard of hearing inmates (WHV, DRF and SRF), revealed no visual alarms and/or signals in any of the areas we were allowed to visit. Those areas included medical areas, inmate common areas and inmate cell areas. In none of these locations did I observe any sort of visual alarms or signaling device. If there are no visual alarms/signals in the “preferred” facilities, one can assume that the non-preferred facilities also have no visual alarms/signals. Indeed, MDOC personnel have admitted that they are not aware whether all facilities that house [deaf] and hard of hearing inmates have visual alarms/signals.
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(PX Q at 42). Like Ray, Dr. Cokely also recognized that the MDOC “has installed a page alert system which is designed to function as an alternative to a lighted message board or other visual signaling system,” though he questions its efficacy in light of what he learned during interviews of unspecified “WHV inmates.”
Defendants contest Plaintiffs’ argument and evidence, and in so doing raise material questions of fact about this aspect of Plaintiffs’ claims. For example, Defendants have presented evidence that the facilities designated to house hearing impaired prisoners “all have strobe lighting to notify prisoners in the event of a fire emergency.” (DRX 3). They also argue that during Dr. Cokely’s visit, “he did not ask for a demonstration of the emergency notification system and has no idea of how bright the lights are or the breadth of their warning capability.” (Doc. #85 at 15-16). To this end, the Court also notes that Ray’s opinion was not very specific. (PX P at 23) (noting that prisoners “may not be able to see . . .” and “the light may not be bright enough to be seen during daylight.”) (emphasis added).
Defendants also note that the MDOC has implemented a “page alert system,” which they contend Dr. Cokely “admitted . . . is also an acceptable individualized messaging tool.” (Doc. #85 at 16). What Dr. Cokely actually said is that he had heard some complaints about the page alert system not functioning “reliably,” but that if the “individual variables that could go wrong . . . can be reliably controlled,” the pagers “may be an acceptable alternative” to his recommended solution of a flashing light board. (DRX 2 at 6).
Taken together, there is at least a question of fact as to whether the technology utilized by the MDOC satisfies the requirements of 28 C.F.R. § 35.152(b)(3). Accordingly, summary judgment on this issue is not appropriate for either side.
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iv. Training Related to Treatment and Accommodation of Deaf and Hard of Hearing Prisoners
Lastly, it is undisputed that while the MDOC offers training to its staff on a multitude of subjects related to the administration of prisons, it has no system-wide policy of educating and training prison staff on specifically how to appropriately identify, communicate, and interact with deaf and hard of hearing prisoners. (DRX 6; PX WW at 7-8). Plaintiffs correctly acknowledge that ADA guidance instructs that it is “appropriate for public entities to evaluate training efforts” because a lack of education will oftentimes lead to discriminatory practices. See Appendix B, 1991 Section-by-Section Analysis on 28 C.F.R. § 35.105, at 192 (PX III). Additionally, Dr. Cokely and Ray opine that the MDOC should implement and offer staff training on both the Rehabilitation Act and the ADA. (PX P at 29; PX Q at 35-36).
Defendants, in addition to pointing to the extensive training MDOC staff does receive, argues that “if there were systemic issues related to inadequate training those issues would have surfaced in the form of repeated grievances on the same or similar subjects. Plaintiff has not presented any evidence that such a pattern exists because that is simply not the case.” (Doc. #85 at 17). Plaintiffs respond, simply, “they have: MDOC ignores the myriad relevant complaints in the record.” (Doc. #89 at 10) (emphasis in original).
The Court has reviewed the handful of grievances cited by Plaintiffs, some of which pertain to the same prisoner, and they largely reflect the types of issues discussed herein. While many of those issues seem at least potentially intertwined with the absence of a formal training program like the one suggested by Plaintiffs, Plaintiffs have not shown entitlement to “summary judgment” on this point as an independent basis for relief. Nevertheless, in light of all of the matters discussed herein, and assuming this Report and Recommendation is adopted, it would be an appropriate exercise of the Court’s remedial powers and discretion to include in any Consent
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Order a provision requiring MDOC correctional officers and staff to receive some form of reasonable training on how to identify and appropriately interact with deaf and hard of hearing prisoners.
B. Defendants’ Summary Judgment Motion Should be Denied i. Plaintiffs’ ADA and Section 504 Claims are Not Moot
For the reasons discussed above, the MDOC’s post-litigation efforts to provide accommodations for deaf and hard of hearing prisoners do not moot Plaintiffs’ ADA or Section 504 claims. Sixth Circuit law is clear that “voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” E.g., Unan v. Lyon, 853 F.3d 279, 288 (6th Cir. 2017). Rather, the party asserting mootness faces the “heavy burden” of making “absolutely clear” that the conduct giving rise to the suit “could not reasonably be expected to recur.” See Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S.Ct. 2012, 2019 n.1 (2017); A. Philip Randolph Inst. v. Husted, 838 F.3d 699, 712 (6th Cir. 2016); Heyer v. United States Bureau of Prisons, 849 F.3d 202, 219 (4th Cir. 2017) (rejecting BOP’s claim of mootness in the context of hearing-impaired prisoner litigation).
In assessing the likelihood that a defendant will reinflict a given injury, the chain of potential events leading to recurrence need not “be air-tight or even probable” to justify a finding of non-mootness. Barry v. Lyon, 834 F.3d 706, 716 (6th Cir. 2016). Instead, it is enough if the controversy “possibly could” arise again. Id. (citing Honig v. Doe, 484 U.S. 305, 319 n.6 (1988)). Although voluntary cessation by government officials is generally accorded more weight, e.g., Ammex, Inc. v. Cox, 351 F.3d 697, 705 (6th Cir. 2003), greater skepticism is warranted where such remedial action “only appears to have occurred in response to the present
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litigation, which shows a greater likelihood that it could be resumed.” Northland Family Planning Clinic, Inc. v. Cox, 487 F.3d 323, 342-43 (6th Cir. 2007).
Moreover, in the context of prison litigation, courts are particularly suspicious of nonbinding policy changes by correctional institutions party to the litigation. See Akers v. McGinnis, 352 F.3d 1030, 1035 (6th Cir. 2003) (noting that because the policy directive fell “solely within the discretion of the MDOC, there is no guarantee that MDOC will not change back to its older, stricter Rule as soon as this action terminates”); Heyer, 849 F.3d at 219 (observing that “midlitigation change of course” in accommodating deaf and hard of hearing prisoners does not moot ADA and Rehabilitation Act claims because “[b]ald assertions of a defendant – whether governmental or private – that it will not resume a challenged policy fail to satisfy any burden of showing that a claim is moot”).
For all of the reasons discussed above, Defendants clearly do not satisfy this demanding burden, and their “mootness” argument fails.
ii. Defendants’ Arguments for Summary Judgment as to Plaintiffs’ RLUIPA and Constitutional Claims Lack Merit
Defendants contend they are entitled to judgment on Plaintiffs’ RLUIPA and constitutional claims using virtually the exact same four pages of argument contained in their 2015 motion that was expressly considered and rejected by the undersigned and the Honorable Sean F. Cox. (Docs. #28, #36). Plaintiffs pointed this out in their response brief, and attached Exhibit PPP which is a comparison of the salient portions of Defendants’ two motions. (PX PPP). Defendants did not meaningfully address the matter in their reply brief.
Plaintiffs correctly argue that as to these claims, the Defendants have presented no new evidence or arguments that would compel the Court to reconsider its prior ruling. Accordingly the law of the case doctrine applies in these circumstances, and Defendants’ request for summary
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judgment should be denied. See Howe v. City of Akron, 801 F.3d 718, 739 (6th Cir. 2015) (“courts should not reconsider a matter once resolved in a continuing proceeding.”) (quoting 18B Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice And Procedure: Jurisdiction And Related Matters § 4478 (4th ed.2015)).
IV. CONCLUSION For the reasons stated above, the Court RECOMMENDS that Plaintiffs’ Motion for Summary Judgment (Doc. #76) be GRANTED IN PART AND DENIED IN PART, and that Defendants’ Summary Judgment Motion (Doc. #74) be DENIED. Further, the Court should: 1. Enter summary judgment in favor of Plaintiffs on Counts I and II of the complaint
consistent with the foregoing analysis of their claims. 2. Mandate that the MDOC:
a. Make videophones available to all deaf and hard of hearing prisoners; b. Provide necessary auxiliary aids for all deaf and hard of hearing prisoners to
participate equally in prison programs and services, including consistent access to ASL interpreters for all “high-stakes” interactions and programs, see supra at 21, including religious services;
c. Institute mandatory training for MDOC’s correctional officers and staff on how to identify and appropriately interact with deaf and hard of hearing prisoners;
d. Adopt effective and comprehensive policies and procedures in each of the above areas, including for appropriate compliance monitoring;
3. Require the parties to meet and confer in an attempt to resolve any aspects of Plaintiffs’ claims not disposed of in this Report and Recommendation, and to agree on an appropriate consent order implementing the relief specified in Paragraph 2 above, and any other relief necessary to bring this action to a close.
4. Require the parties to either file the aforementioned proposed consent order for the Court’s review and approval within 60 days of the Court’s ruling on this Report and Recommendation, or to file by that same date a joint status report regarding any outstanding issues preventing the parties from agreeing on such a consent order.
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Dated: February 8, 2018 Ann Arbor, Michigan

s/David R. Grand DAVID R. GRAND United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within fourteen (14) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of HHS, 932 F.2d 505, 508 (6th Cir.1991); United States v. Walters, 638 F.2d 947, 949–50 (6th Cir.1981). The filing of objections which raise some issues, but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir.1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this magistrate judge. A party may respond to another party’s objections within 14 days after being served with a copy. See Fed. R. Civ. P. 72(b)(2); 28 U.S.C. §636(b)(1). Any such response should be concise, and should address specifically, and in the same order raised, each issue presented in the objections.
CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court’s ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on February 8, 2018.
s/Eddrey O. Butts EDDREY O. BUTTS Case Manager
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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Mary Ann McBride et al.,

Plaintiffs,

v.

Case No. 15-11222

Michigan Department of Corrections, et al.,
Defendants. ______________________________/

Sean F. Cox United States District Court Judge

OPINION AND ORDER ADOPTING 2/8/18 REPORT AND RECOMMENDATION

In this class action, named Plaintiffs Mary McBride and Ralph Williams represent a class

of deaf or hard of hearing individuals in the custody of the Michigan Department of Corrections

who require hearing-related accommodations for various reasons. They have filed suit against

the MDOC and various agency administrators and prison wardens, asserting violations of the

American Disabilities Act, 42 U.S.C. § 12101, et seq.; the Rehabilitation Act, 29 U.S.C. § 794, et

seq.; The Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc, et seq.; and

the Free Exercise and Free Speech Clauses of the First and Fourteenth Amendment. They seek

only declaratory and injunctive relief to remedy these alleged violations.

The Court referred this matter to Magistrate Judge David R. Grand for a report and

recommendation under 28 U.S.C. § 636(b)(1)(B) (Doc. # 37), after which the parties filed cross-

motions for summary judgment (Doc. # 74, 76).

On February 8, 2018, Magistrate Judge Grand issued a Report and Recommendation

(R&R) (Doc. # 96) wherein he recommends that the Court grant in part and deny in part

1

Plaintiffs’ Motion for Summary Judgment and deny Defendants’ Motion for Summary Judgment. Defendants timely objected to the R&R on February 22, 2018 (Doc. # 97). Plaintiffs have not objected to the R&R and the time for them to do so has passed.
For the reasons below, the Court finds Defendants’ objections to be without merit. Thus, the Court shall overrule the objections and adopt the R&R.
STANDARD OF REVIEW Pursuant to FED. R. CIV. P. 72(b), a party objecting to the recommended disposition of a matter by a Magistrate Judge must filed objections to the R&R within fourteen days after being served with a copy of the R&R. The objecting party must do more than merely restate the arguments set forth in its summary judgment motion. Senneff v. Colvin, 2017 WL 710651 at * 2 (E.D. Mich 2017). “The district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge’s disposition to which specific written objection has been made.” Fed. R. Civ. P. 72(b)(3).
ANALYSIS Defendants raise three objections to the R&R: (1) that questions of fact exist as to whether prisoners housed within the MDOC have been denied meaningful access to telecommunications devices; (2) the Magistrate Judge improperly applied an optimal accommodation standard instead of a reasonable accommodation standard when assessing their purported denial of interpreter services for essential programs; and (3) the Magistrate Judge improperly recommended that a formal training be required in a Consent Judgment. The Court shall address each in turn.
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Objection 1: Meaningful Access to Telecommunications Devices Defendants’ first objection pertains to Plaintiffs’ ADA and Rehabilitation Act claims that the “MDOC has failed to take the necessary steps to ensure that deaf and hard of hearing prisoners’ communications are as effective as those of hearing prisoners, and to provide appropriate auxiliary aids to permit communication and participation on an equal basis.” Doc. # 76 at 23. On this claim, Magistrate Judge Grand concluded that the MDOC’s existing practices fail to provide Plaintiffs “with telecommunications access equal to that provided to hearing prisoners.” R&R at 20. Thus, he determined that Plaintiffs are entitled to summary judgment on this aspect of their ADA and Rehabilitation Acts claims. Defendants object that there is at least a question of fact as to whether Plaintiffs’ rights have been violated. Their reasoning is two-fold; they contend that Magistrate Judge Grand erred by failing to accord them the deference due to a correctional facility’s safety judgments, see Bell v. Wolfish, 441 U.S. 520, 546, and that he impermissibly required them to provide optimal, rather than reasonable, accommodations. The Court finds neither of these arguments, both of which were raised and considered by the Magistrate Judge, persuasive. First, Magistrate Jude Grand did give Defendants the required deference. He expressly recognized the “substantial deference” due to Defendants, see Brown v. Johnson, 743 F.2d 408, 410 (6th Cir. 1984), and considered and addressed their safety and control concerns. Defendants cannot create a question of fact merely by referring to possible safety concerns. And the Court agrees with Magistrate Judge Grand’s analysis and conclusion that the safety concerns articulated by Defendants do not preclude summary judgment. Indeed, even in their objections Defendants have still failed to explain why the safety policies applied to telephone conversations
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“would not be as effective at addressing risks associated with video transmissions.” R&R at 19. Second, the Magistrate Judge’s report did not shift the standard as Defendants claim. To
“reasonably accommodate” individuals with disabilities, public entities like the MDOC must “take appropriate steps to ensure that communications with applicants, participants, and members of the public, and companions with disabilities are as effective as communications with others.” 28 C.F.R. § 35.160(a)(1) (emphasis added). After carefully examining the record, Magistrate Judge Grand found that the MDOC’s existing system–providing prisoners with access to teletypewriters–fails to provide reasonable accommodations. He did not, as Defendants assert, require optimal accommodations to be provided. Indeed, one of Defendants’ own witnesses likened the MDOC’s existing system to “sending someone a fax to their homes versus an email to communicate.” R&R at 13 n. 5. Again, the Court agrees with the Magistrate Judge’s analysis and conclusion that “Plaintiffs have shown that, in reality, [teletypewriters] do not enable them to communicate effectively with persons outside of prison, much less provide them with telecommunications access equal to that of hearing prisoners. Thus, the Court shall overrule Defendants’ first objection.
Objection 2: Denial of Interpreter Services for Essential Programs The second objection relates to “whether the MDOC provides deaf and hard of hearing inmates with access to sign language interpreters that enables them to communicate and participate in programs and activities inside the prison to the same extent as hearing prisoners.” R&R at 21. Magistrate Judge Grand concluded that Plaintiffs are entitled to summary judgment on this aspect of their ADA and Rehabilitation Act claims as well, finding that absent appropriate injunctive relief, the MDOC’s deaf and hard of hearing inmates face a real risk of
4

not timely receiving necessary accommodations. R&R at 25. Defendants’ objection to this portion of the R&R is brief; they again argue that the
Magistrate Judge erred by applying an optimal accommodation standard. This is not so. The MDOC is required to “furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities . . . an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity.” 28 C.F.R. § 35.160(b)(1). And although the Magistrate Judge did not find that there has been a systemic denial of interpreting services, he did find that the evidence shows both that Defendants have continued to fail to furnish appropriate auxiliary aids by way of an interpreter and that there is a tangible risk that this failure will continue to occur. This finding supported Magistrate Judge Grand’s ultimate conclusion: that Defendants’ accommodations were not reasonable. The Court agrees with the Magistrate Judge’s analysis on this issue, which did not employ an optimal accommodation standard. Thus, the Court shall overrule Defendants’ second objection.
Objection 3: Recommendation to Include a Reasonable Training Provision Finally, while denying Plaintiffs’ summary judgment on their claim relating to the MDOC’s training practices, Magistrate Judge Grand stated that it would nevertheless “be an appropriate exercise of the Court’s remedial powers and discretion to include in any Consent Order a provision requiring MDOC correctional officers and staff to receive some form of reasonable training on how to identify and appropriately interact with deaf and hard of hearing prisoners.” R&R at 32-33. Defendants cursorily object to this recommendation, stating only that it is improper. Having reviewed the R&R, the Court agrees with Magistrate Judge Grand that including
5

a training provision in any consent order would be an appropriate discretionary exercise of the Court’s remedial powers. Indeed, the R&R details the MDOC’s history of failing to adequately respond to the needs of deaf and hard of hearing prisoners and its continuing failure to address the issues that Plaintiffs have raised. See e.g., R&R at 26 (“[D]espite the prior problems, and the pendency of this litigation, the MDOC has not taken any steps to monitor or verify whether its facilities are complying with the McKee Memo’s directives.”). And because the Court shall grant Plaintiffs’ Motion for Summary Judgment in part, the MDOC will likely be faced with implementing new policies or procedures to ensure ADA compliance. Under the circumstances, the Court agrees with the Magistrate Judge that a reasonable training requirement is appropriate. Thus, the Court shall overrule Defendants’ third objection.
CONCLUSION For the reasons above, the Court OVERRULES Defendants’ objections and ADOPTS the Magistrate Judge’s February 8, 2018 Report and Recommendation. IT IS ORDERED that Plaintiffs’ Motion for Summary Judgment (Doc. # 76) shall be GRANTED IN PART AND DENIED IN PART and that Defendant’s Motion for Summary Judgment (Doc. # 74) shall be DENIED. Specifically, the Court GRANTS Plaintiff’s Motion for Summary Judgment as to Counts I and II of the complaint and denies their motion as to the remaining counts. IT IS FURTHER ORDERED THAT: 1) The MDOC shall:
a) Make videophones available to all deaf and hard of hearing prisoners; b) Provide necessary auxiliary aids for all deaf and hard of hearing prisoners to participate equally in prison programs and services, including consistent access to
6

ASL interpreters for all “high-stakes” interactions and programs, see R&R at 21, including religious services; c) Institute mandatory training for MDOC’s correctional officers and staff on how to identify and appropriately interact with deaf and hard of hearing prisoners; d) Adopt effective and comprehensive policies and procedures in each of the above areas, including for appropriate compliance monitoring; 2) The parties shall meet and confer in an attempt to resolve any aspects of Plaintiffs’ claims not disposed of by this order, and to agree on an appropriate consent order implementing the relief specified in Paragraph 1 above, and any other relief necessary to bring this action to a close. 3) Within 60 days of this order, the parties shall either file a proposed consent order for the Court’s review and approval or file a joint status report regarding any outstanding issues preventing the parties from agreeing on a consent order. IT IS SO ORDERED.
s/Sean F. Cox Sean F. Cox United States District Judge Dated: March 9, 2018 I hereby certify that a copy of the foregoing document was served upon counsel of record on March 9, 2018, by electronic and/or ordinary mail. s/Jennifer McCoy Case Manager
7

 
 Case 2:15-cv-11222-SFC-DRG ECF No. 111 filed 09/28/18 PageID.4176 Page 1 of 21

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

_______________________________

MARY ANN MCBRIDE, et al., )

) Civil Action No. 2:15-cv-11222

Plaintiffs,

)

) Hon. Sean F. Cox

v.

) Mag. David R. Grand

)

MICHIGAN DEPARTMENT

)

OF CORRECTIONS, et al.,

)

)

Defendants.

)

______________________________ )

JOINT MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND INCORPORATED MEMORANDUM OF LAW

A. Peter Govorchin (P31161) Assistant Attorney General MI Dept of Attorney General Complex Litigation Division P.O. Box 30736 Lansing, MI 48909 (517) 373-6434 govorchinp@michigan.gov
Counsel for Defendants

Andrew D. Lazerow Stephen C. Bartenstein Philip J. Levitz Covington & Burling LLP One CityCenter 850 Tenth Street, NW Washington, DC 20001 (202) 662-6000 alazerow@cov.com sbartenstein@cov.com plevitz@cov.com

Chris E. Davis (P52159) Mark A. Cody (P42695) Michigan Protection and Advocacy Service, Inc. 4095 Legacy Parkway, Ste 500 Lansing, MI 48911 (517) 487-1755 cdavis@mpas.org mcody@mpas.org

Case 2:15-cv-11222-SFC-DRG ECF No. 111 filed 09/28/18 PageID.4177 Page 2 of 21
Abraham Singer (P23601) Law Offices of Abraham Singer LLC 30833 Northwestern Hwy Suite 120 Farmington Hills, MI 48334 (248) 626-8888 asinger@singerpllc.com Counsel for Plaintiffs
ii

Case 2:15-cv-11222-SFC-DRG ECF No. 111 filed 09/28/18 PageID.4178 Page 3 of 21

JOINT MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

Plaintiffs Mary Ann McBride and the other named Plaintiffs, on behalf of

themselves and the class of deaf and hard of hearing individuals certified by the

Court (the “Class”), and Defendant Michigan Department of Corrections and the

other named defendants, jointly move for an Order, pursuant to Rule 23(e) of the

Federal Rules of Civil Procedure, (1) granting preliminary approval of the class

action settlement agreement, attached as Exhibit A; (2) directing that the Class be

given notice of the settlement in the form and method of the Parties’ proposed

Notice Plan, attached as Exhibit B, in accordance with Rule 23(e)(1); and (3)

setting a date for a fairness hearing on the proposed Settlement Agreement in

accordance with Rule 23(e)(2).

Date: September 28, 2018
/s/ A. Peter Govorchin A. Peter Govorchin (P31161) Assistant Attorney General MI Dept of Attorney General Complex Litigation Division P.O. Box 30736 Lansing, MI 48909 (517) 373-6434 govorchinp@michigan.gov
Counsel for Defendants

Respectfully submitted,
/s/ Andrew D. Lazerow Andrew D. Lazerow Stephen C. Bartenstein Philip J. Levitz Covington & Burling LLP One CityCenter 850 Tenth Street, NW Washington, DC 20001 (202) 662-6000 alazerow@cov.com sbartenstein@cov.com plevitz@cov.com

Counsel for Plaintiffs

iii

Case 2:15-cv-11222-SFC-DRG ECF No. 111 filed 09/28/18 PageID.4179 Page 4 of 21
JOINT MEMORANDUM OF LAW

Case 2:15-cv-11222-SFC-DRG ECF No. 111 filed 09/28/18 PageID.4180 Page 5 of 21
CONCISE STATEMENT OF ISSUES PRESENTED 1. Whether this Court should grant preliminary approval to the proposed
settlement agreement attached as Exhibit A, direct that notice be given to class members in accordance with the form and plan specified at Exhibit B, and set a date for a fairness hearing.
ii

Case 2:15-cv-11222-SFC-DRG ECF No. 111 filed 09/28/18 PageID.4181 Page 6 of 21
CONTROLLING OR MOST IMPORTANT AUTHORITY Berry v. School Dist. of City of Benton Harbor, 184 F.R.D. 93
(W.D. Mich. 1998) Int'l Union, United Auto., Aerospace, & Agr. Implement Workers of Am. v. Gen.
Motors Corp., 497 F.3d 615 (6th Cir. 2007) (Ex. C) In re Packaged Ice Antitrust Litig., No. 08-MD-01952, 2010 WL 3070161
(E.D. Mich. Aug. 2, 2010) (Ex. D) In re S. Ohio Corr. Facility, 173 F.R.D. 205, 211 (S.D. Ohio 1997) Webster v. Sowders, 928 F.2d 1134
(6th Cir. 1991) (unpublished table opinion)
iii

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TABLE OF CONTENTS CONCISE STATEMENT OF ISSUES PRESENTED ............................................ ii CONTROLLING OR MOST IMPORTANT AUTHORITY.................................. iii INTRODUCTION .................................................................................................... 1 BACKGROUND ...................................................................................................... 1 I. Summary of Litigation.................................................................................... 1 II. Summary of the Agreement............................................................................ 3 ARGUMENT ............................................................................................................ 8 I. The Agreement Merits Preliminary Approval................................................ 8 II. The Proposed Notice Is Reasonable and Should Be Approved. .................. 11 CONCLUSION ....................................................................................................... 12
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INTRODUCTION Plaintiffs Mary Ann McBride and the other named Plaintiffs, on behalf of themselves and the class of deaf and hard of hearing individuals certified by the Court (the “Class”), and Defendant Michigan Department of Corrections (“MDOC”) and the other named defendants (collectively with the Class, the “Parties”), submit this joint memorandum in support of their Joint Motion for Preliminary Approval of Class Action Settlement (“Motion”). The proposed settlement agreement (“Agreement,” attached to the Motion as Exhibit A1) is fair and reasonable, and provides substantial benefits to the entire Class. The Parties ask the Court to grant preliminary approval of the Agreement, direct notice to be given in the form and manner described by the Notice Plan attached to the Motion as Exhibit B, and proceed to set a prompt date for a fairness hearing on the proposed Agreement.
BACKGROUND I. Summary of Litigation
Plaintiffs filed a complaint on March 31, 2015 on behalf of themselves and those deaf and hard of hearing prisoners similarly situated in the custody of the MDOC, seeking declaratory and injunctive relief that would require MDOC to
1 The Parties have reached verbal agreement on the Agreement attached as Exhibit A, but are still waiting for the MDOC Director to sign the Agreement. The Parties will file an executed version of the Agreement as soon as possible next week.
1

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provide the assistance necessary for prisoners who are deaf or hard of hearing to adequately participate in programs and services and to enjoy equal rights as hearing prisoners while incarcerated, in accordance with the Americans with Disabilities Act (“ADA”), Section 504 of the Rehabilitation Act, the Religious Land Use and Institutionalized Persons Act, and the Constitution of the United States. ECF No. 1.
The Parties then engaged in extensive discovery, where 19 depositions were taken, the opinions of two experts consulted, and thousands of pages of documents reviewed.
Plaintiffs subsequently moved for class certification, which this Court granted. ECF Nos. 94, 95. The Parties also cross-moved for summary judgment. The Court granted Plaintiffs’ motion for summary judgment on Counts I and II of the Complaint in substantial part, and denied Defendants’ motion. ECF Nos. 96, 99. In its summary judgment ruling, the Court ordered MDOC to:
a) Make videophones available to all deaf and hard of hearing prisoners; b) Provide necessary auxiliary aids for all deaf and hard of hearing prisoners to participate equally in prison programs and services, including consistent access to ASL interpreters for all ‘high-stakes’ interactions and programs . . . including religious services; c) Institute mandatory training for MDOC’s correctional officers and staff on how to identify and appropriately interact with deaf and hard of hearing prisoners; [and]
2

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d) Adopt effective and comprehensive policies and procedures in each of the above areas, including for appropriate compliance monitoring[.] ECF No. 99 at 6-7 (citations omitted). This Court further ordered the Parties to meet and confer to attempt to negotiate an agreement that implements the relief the Court ordered, and any other relief necessary to bring this action to a close. Id. at 7. On May, 9, 2018, the Court referred this case to a settlement conference with Magistrate Judge Grand. ECF No. 103. That in-person conference was held on June 4, and settlement negotiations continued with numerous conferences among counsel to negotiate the settlement and periodic reports to Magistrate Judge Grand to apprise him of the progress of the negotiations. This process successfully concluded with the Parties agreeing to the Agreement attached to this motion as Exhibit A. II. Summary of the Agreement The Agreement fairly, reasonably, and adequately affords relief to all Class members. Plaintiffs brought this action to ensure that deaf and hard of hearing prisoners received the auxiliary aids and services they need for effective communication and to enjoy equal rights as hearing prisoners while they are incarcerated within MDOC facilities. The relief afforded by the Agreement achieves that goal. A description of the key provisions follows.
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Case 2:15-cv-11222-SFC-DRG ECF No. 111 filed 09/28/18 PageID.4186 Page 11 of 21
A. Hearing Assessments The Agreement requires the MDOC to provide hearing assessments to all prisoners with a perceived or reported hearing deficit when they first enter MDOC custody, and to provide assessments when requested by prisoners during annual physical exams if there are perceived or reported changes in hearing. The Agreement further provides that upon indication of a hearing deficit, the prisoner will be evaluated by a professionally accredited audiologist to perform a comprehensive hearing assessment and determine whether hearing aids or other auxiliary aids or services are medically necessary. B. Housing The Agreement requires the MDOC to house deaf and hard of hearing prisoners at facilities specially designated to accommodate their needs except when necessary to address safety or security issues, medical or programming needs, or unanticipated emergencies. If a deaf or hard of hearing prisoner is housed at a non-designated facility, all reasonable steps will be taken to ensure that the person is still provided appropriate accommodations. C. Auxiliary Aids and Services The Agreement specifies that the MDOC will provide auxiliary aids and services necessary to allow deaf and hard of hearing prisoners to access MDOC services, programs, and activities.
4

Case 2:15-cv-11222-SFC-DRG ECF No. 111 filed 09/28/18 PageID.4187 Page 12 of 21
Under the Agreement, hearing aids and other medical devices deemed medically necessary by medical personnel will be provided promptly to deaf and hard of hearing prisoners free of charge. When medically necessary, hearing aids for both ears will be provided. The MDOC also will be responsible for facilitating the repair, replacement, and adjustment of such medical devices, and will pay shipping costs associated with their repair and replacement.
The Agreement also provides that the MDOC “shall maintain all Auxiliary Aids and Services in its custody in good working condition.” Agreement at § VI.C. It further states that MDOC will provide auxiliary aids and services (including qualified sign language interpreters) during MDOC programs and activities, including religious services, most medical appointments, MDOC “core programming” (which includes the MDOC’s vocational and educational programing), disciplinary proceedings and other “significant communications” (as defined in the Agreement). Agreement at §§ VII.A and VII.G.
D. Communication Technology The MDOC also will provide deaf and hard of hearing prisoners access to technology that will allow them to effectively communicate with those outside of prison. In addition to continuing to provide TTY/TDD machines and telephone amplifiers and making sure that such devices are in good working order, the MDOC will provide deaf and hard of hearing prisoners access to videophones that
5

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will allow both direct, videophone to videophone communication, as well as calls to conventional telephones through a Video Relay Service (VRS). The MDOC also will ensure that deaf and hard of hearing prisoners have access to these methods of communication that is substantially equivalent to the access that hearing prisoners have to conventional telephones.
E. Other Provisions to Ensure Effective Communication The Agreement also contains various other provisions to ensure effective communication with deaf and hard of hearing prisoners. This includes a requirement that adequate non-auditory systems of notification are in place at MDOC facilities to ensure that deaf and hard of hearing prisoners do not miss announcements, alarms, or other information audibly conveyed from personnel to the general prisoner population. F. Enhanced Compliance Infrastructure and Training The Agreement specifies that the MDOC will develop and implement new and updated policies and procedures regarding the accommodations that it will be providing to deaf and hard of hearing prisoners, and these policies and procedures will be audited annually. MDOC personnel will be trained on these policies and procedures as well as on other topics related to communicating effectively with deaf and hard of hearing prisoners and accommodating their needs.
6

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In addition, the Agreement specifies that the MDOC will maintain ADA Coordinator positions for each MDOC facility. These personnel will be trained on and responsible for compliance with legal requirements for accommodating deaf and hard of hearing prisoners.
G. Monitoring and Enforcement The Agreement provides for the appointment of Michael K. Brady, the Director of Sabot Consulting’s Criminal Justice Division, to monitor the MDOC’s compliance with the terms of the Agreement. Mr. Brady, who has experience working with prisons and jails to ensure that they are compliant with the ADA, will issue semi-annual reports to the Court and the Parties detailing the MDOC’s compliance with and implementation of the Agreement. Mr. Brady will serve in this role for at least two years from the date that the MDOC implements the terms of the Agreement, at which time his responsibilities will be discharged if he issues written certification to the Court and the Parties that the MDOC is in substantial compliance with its obligations under the Agreement. The Court also will retain jurisdiction to enforce the terms of the Agreement for the period of the monitor’s appointment. H. Attorneys’ Fees and Costs In settlement of attorneys’ fees and costs incurred by Plaintiffs’ counsel in the lawsuit, which Plaintiffs’ counsel has worked on for over 4 years, Defendants
7

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will pay $1,300,000 to Plaintiffs’ counsel. This payment also will be used to compensate the independent monitor for the time he spends monitoring the Agreement.
ARGUMENT I. The Agreement Merits Preliminary Approval.
Preliminary approval is the first step in a two-step process to approve the Parties’ settlement. At this stage, the Court is only required to make a limited inquiry into whether the proposed settlement has the “potential[]” for final approval, and there is thus a basis to notify class members and to proceed with a fairness hearing. Berry v. School Dist. of City of Benton Harbor, 184 F.R.D. 93, 97 (W.D. Mich. 1998). A proposed settlement agreement should be preliminarily approved if the Court “finds that the proposed settlement falls within the range of possible approval, does not disclose grounds to doubt its fairness, and includes no obvious deficiencies.” In re Packaged Ice Antitrust Litig., No. 08-MD-01952, 2010 WL 3070161, at *4 (E.D. Mich. Aug. 2, 2010) (citation omitted).
Before approving a settlement, the Court must conclude that the settlement is “fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). The factors to be considered are:
1. the risk of fraud or collusion; 2. the complexity, expense, and likely duration of the litigation;
8

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3. the amount of discovery engaged in by the parties; 4. the likelihood of success on the merits; 5. the opinions of class counsel and class representatives . . . ; and [6.] the public interest. Int'l Union, United Auto., Aerospace, & Agr. Implement Workers of Am. v. Gen. Motors Corp., 497 F.3d 615, 631 (6th Cir. 2007). (Another factor, the reaction of class members, is omitted from this list because that information will be more fully available after notice is distributed to the Class and members have had an opportunity to raise their concerns.) Each of these factors favors approval of the settlement here. First, there is no risk of fraud or collusion as counsel for the Parties engaged in arms-length negotiations over a period of several months. The negotiation process involved the exchange of multiple draft agreements, and the process was overseen by Magistrate Judge Grand who convened an in-person settlement conference and held multiple telephonic conferences to discuss the status of settlement negotiations. Second, the complexity, expense, and likely duration of the litigation also favors approving the settlement. This case is complex in that it involves the crafting of injunctive relief that requires balancing the interest in protecting the civil rights of prisoners with legitimate safety and security concerns of the MDOC.
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Continued litigation also would further delay relief in this matter, which has already been pending before this Court for over three and a half years.
Third, the significant amount of discovery engaged in by the Parties also favors approving the settlement. In particular, the Parties engaged in extensive written, oral, and expert discovery in the years leading up to their cross motions for summary judgment, which has enabled them to understand both the legal and factual issues present in this case.
Fourth, Plaintiffs already prevailed on most of their claims on summary judgment, and the settlement in large part codifies the relief the Court already ordered.
Fifth, the opinions of class counsel also favor approval of this settlement. Class counsel, who are competent and experienced in class action, civil rights, prisoners’ rights, and disability rights litigation, all recommend acceptance of the proposed Agreement. The proposed Agreement provides a fair, reasonable, and adequate settlement; it embodies the core aspects of the relief sought by Plaintiffs—that all MDOC prisoners who are deaf and hard of hearing are provided the assistance necessary to adequately participate in MDOC programs and services and to enjoy equal rights as hearing prisoners while incarcerated.
Sixth, the public interest here is protected because the Agreement ensures that measures are taken to institute policies and procedures, training, reporting, and
10

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other measures that will ensure the protection of individual statutory and constitutional rights without the need for continued delay or expense occasioned by litigation. II. The Proposed Notice Is Reasonable and Should Be Approved.
A court must “direct notice in a reasonable manner to all class members who would be bound” by the settlement. Fed. R. Civ. P. 23(e)(1). Notice should be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Int'l Union, United Auto., Aerospace, & Agr. Implement Workers of Am. v. Gen. Motors Corp., 497 F.3d 615, 629–30 (6th Cir. 2007) (citations and internal quotation marks omitted).
The proposed notice attached as Exhibit B-1 is reasonably calculated to apprise the Class of the pendency of this action and their rights to object. The notice sets forth the state of the case, outlines the main terms of the Agreement, explains to the Class how to object and the deadline for doing so, and informs the Class how they can obtain more information about the Agreement.
The proposed notice plan also will ensure that all known members of the Class receive reasonable notice of the Agreement. In particular, the notice plan will require personal delivery of the proposed notice to all current MDOC prisoners known to be deaf or hard of hearing. See, e.g., Webster v. Sowders, 928
11

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F.2d 1134 (6th Cir. 1991) (unpublished table opinion) (holding that notice was adequate when hand-delivered to known class members and providing adequate information about the settlement). The notice plan will additionally require posting the proposed notice in common areas that would allow an unknown Class member to view it, a method of notice that also has been approved by other courts in prisoner class actions. See, e.g., In re S. Ohio Corr. Facility, 173 F.R.D. 205, 211 (S.D. Ohio 1997) (posting of settlement notice in library and in all male cell blocks helped provide sufficient notice of the proposed class settlement as part of a broader notice plan). Finally, the notice plan will ensure that the terms of the notice are communicated in American Sign Language (“ASL”) to those Class members who are unable to read and understand written English.
CONCLUSION For the foregoing reason, the Parties respectfully request that the Court grant the Parties’ Motion and (1) preliminarily approve the Agreement attached as Exhibit A, (2) direct that notice be made according to the plan and in the form provided in Exhibit B, and (3) proceed to set a prompt date for a fairness hearing.
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Dated: September 28, 2018
/s/ A. Peter Govorchin A. Peter Govorchin (P31161) Assistant Attorney General MI Dept of Attorney General Complex Litigation Division P.O. Box 30736 Lansing, MI 48909 (517) 373-6434 govorchinp@michigan.gov
Counsel for Defendants

Respectfully submitted,
/s/ Andrew D. Lazerow Andrew D. Lazerow Stephen C. Bartenstein Philip J. Levitz Covington & Burling LLP One CityCenter 850 Tenth Street, NW Washington, DC 20001 (202) 662-6000 alazerow@cov.com sbartenstein@cov.com plevitz@cov.com
Counsel for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that, on September 28, 2018, I caused a true and correct copy of the foregoing Joint Motion for Preliminary Approval of Class Action Settlement and Incorporated Memorandum of Law to be served on all counsel of record via ECF.
/s/ Andrew D. Lazerow Attorney for Plaintiffs
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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

_______________________________

MARY ANN MCBRIDE, et al., )

) Civil Action No. 2:15-cv-11222

Plaintiffs,

)

) Hon. Sean F. Cox

v.

) Mag. David R. Grand

)

MICHIGAN DEPARTMENT

)

OF CORRECTIONS, et al.,

)

)

Defendants.

)

______________________________ )

EXHIBIT A [Proposed] Settlement Agreement

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

_______________________________

MARY ANN MCBRIDE, et al., )

)

Plaintiffs,

)

) Civil Action No. 2:15-cv-11222

v.

)

) Hon. Sean F. Cox

MICHIGAN DEPARTMENT

) Mag. David R. Grand

OF CORRECTIONS, et al.,

)

)

Defendants.

)

______________________________ )

SETTLEMENT AGREEMENT

Abraham Singer (P23601) Law Offices of Abraham Singer PLLC 30833 Northwestern Hwy Suite 120 Farmington Hills, MI 48334 (248) 626-8888 asinger@singerpllc.com
Elliot M. Mincberg (of counsel) Washington Lawyers’ Committee for Civil Rights and Urban Affairs 11 Dupont Circle, NW Suite 400 Washington, DC 20036 (202) 319-1000 elliot_mincberg@washlaw.org

Andrew D. Lazerow Stephen C. Bartenstein Philip J. Levitz Covington & Burling LLP One CityCenter 850 Tenth Street, NW Washington, DC 20001 (202) 662-6000 alazerow@cov.com sbartenstein@cov.com plevitz@cov.com
Chris E. Davis (P52159) Mark A. Cody (P42695) Michigan Protection and Advocacy Service, Inc. 4095 Legacy Parkway, Ste 500 Lansing, MI 48911 (517) 487-1755 cdavis@mpas.org mcody@mpas.org

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Phoebe Yu (of counsel) Brian Kempfer (of counsel) Covington & Burling LLP One CityCenter 850 Tenth Street, NW Washington, DC 20001 (202) 662-6000 pyu@cov.com bkempfer@cov.com
Attorneys for Plaintiffs

Jeanmarie Miller (P44446) James E. Long (P53251) Allan J. Soros (P43702) Assistant Attorneys General MI Dept of Attorney General Civil Litigation, Employment & Elections Division P.O. Box 30736 Lansing, MI 48909 (517) 373-6434
Attorneys for Defendants

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I. INTRODUCTION
The Plaintiffs, Mary McBride, et al., and the Defendants, the Michigan Department of Corrections, et al. enter into this Settlement Agreement (“Agreement”) in order to settle the litigation captioned McBride et al. v. Michigan Department of Corrections et al., No. 2:15-cv-11222 (E.D. Mich.). The Parties agree to comply with the following terms. The Agreement is enforceable in federal court.
The Parties hereby stipulate and agree as follows:
WHEREAS Plaintiffs are deaf and hard of hearing individuals in the custody of the MDOC (whether now or in the future), who require hearing-related accommodations, including but not limited to interpreters, hearing devices, or other auxiliary aids or services, to communicate effectively and/or to access or participate in programs, services, or activities available to individuals in the custody of the MDOC;
WHEREAS Plaintiffs have filed a lawsuit against the Defendants in the United States District Court for the Eastern District of Michigan, styled McBride et al. v. MDOC et al., No. 2:15-cv-11222, claiming violations of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq., the Rehabilitation Act, 29 U.S.C. § 794 et seq., the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq., and the U.S. Constitution, based upon Defendants’ failure to provide adequate assistance required by prisoners who are deaf and/or hard of hearing to effectively communicate and participate in services, programs, and activities offered by the Defendants;
WHEREAS on March 9, 2018, the Court issued its Opinion and Order Adopting 2/8/18 Report and Recommendation (Doc. # 99), granting in part Plaintiffs’ motion for summary judgment and ruling that Defendants have violated the Americans with Disabilities Act and Rehabilitation Act, and ordering the MDOC to implement specified relief;
WHEREAS the Defendants have denied and continue to deny such violations;
WHEREAS the Parties desire, through this Agreement, to resolve and settle the litigation without the costs and burdens associated with further litigation with respect to the claims and defenses raised in the litigation;
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NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and which consideration includes, but is not limited to, the mutual promises and covenants contained herein, the Parties hereby agree to be bound as follows:
II. DEFINITIONS
1. “ADA” means the Americans with Disabilities Act, codified at 42 U.S.C. § 12101 et seq.
2. “Auxiliary Aids and Services” include, but are not limited to, “Qualified Interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments,” 42 U.S.C. § 12103, such as hearing aids, computer-aided transcription services, assistive listening systems, closed caption decoders, open and closed captioning, “TDDs” or “TTYs” as defined below, videotext displays, written materials (see 28 C.F.R. § 35.104); as well as Videophones, access to telephone relay services, and visual alert or alarm systems.
3. “Deaf and/or Hard of Hearing Prisoners” means deaf and hard of hearing individuals incarcerated in a MDOC Facility (whether now or in the future), who require any Auxiliary Aids and Services to communicate effectively and/or to access or participate in programs, services, or activities available to individuals in the custody of the MDOC.
4. “Defendants” means MDOC; Heidi Washington, in her official capacity as Director of the Michigan Department of Corrections; Ken McKee, in his official capacity as Deputy Director of the Correctional Facilities Administration; Shawn Brewer, in his official capacity as Warden of the Women’s Huron Valley Correctional Facility; Connie Horton, in her official capacity as Warden of the Chippewa Correctional Facility; and Shane Jackson, in his official capacity as Warden of the Carson City Correctional Facility.
5. “Designated Facility” means a MDOC Facility designated to house Deaf and/or Hard of Hearing Prisoners and required to have available the Auxiliary Aids and Services for Deaf and/or Hard of Hearing Prisoners specified under this Agreement.
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6. “Effective Communication” and “Effectively Communicate” means communication with Deaf and/or Hard of Hearing Prisoners that is substantially as effective as communication with the general Prisoner population (see 28 C.F.R. § 35.160(a)) and will, when necessary, include the provision of appropriate Auxiliary Aids and Services. Effective Communication affords Deaf and/or Hard of Hearing Prisoners an opportunity to participate in, and enjoy the benefits of, the MDOC’s services, programs, or activities in a way that is substantially equal to the opportunity provided to Prisoners who are not Deaf and/or Hard of Hearing.
7. “Effective Date” means the date upon which the Court approves this Agreement.
8. “Prisoner” means any person under the jurisdiction of the MDOC and currently incarcerated in a MDOC Facility.
9. “MDOC” means Michigan Department of Corrections.
10. “Personnel” mean all employees, contractors, and other staff of the MDOC whose job responsibilities entail interaction with Deaf and/or Hard of Hearing Prisoners, and the supervisors of those Personnel.
11. “MDOC Facility” means any facility owned by the MDOC for the care and custody of Prisoners, including but not limited to Alger Correctional Facility (LMF), Baraga Correctional Facility (AMF), Bellamy Creek Correctional Facility (IBC), Carson City Correctional Facility (DRF), Central Michigan Correctional Facility (STF), Charles Egeler Reception & Guidance Center (RGC), Chippewa Correctional Facility (URF), Cooper Street Correctional Facility (JCS), Detroit Reentry Center (DRC), Duane L. Waters Health Center (DWH), Earnest C. Brooks Correctional Facility (LRF), G. Robert Cotton Correctional Facility (JCF), Gus Harrison Correctional Facility (ARF), Ionia Correctional Facility (ICF), Kinross Correctional Facility (KCF), Lakeland Correctional Facility (LCF), Macomb Correctional Facility (MRF), Marquette Branch Prison (MBP), Michigan Reformatory (RMI), Muskegon Correctional Facility (MCF), Newberry Correctional Facility (NCF), Oaks Correctional Facility (ECF), Ojibway Correctional Facility (OCF), Parnall Correctional Facility (SMT), Richard A. Handlon Correctional Facility (MTU), Saginaw Correctional Facility (SRF),
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Special Alternative Incarceration Facility (SAI), St. Louis Correctional Facility (SLF), Thumb Correctional Facility (TCF), Women’s Huron Valley Correctional Facility (WHV), and Woodland Center Correctional Facility (WCC).
12. “Off-site Medical Care” means medical care that is provided at a location not owned or operated by the MDOC.
13. “On-site Medical Care” means medical care that is provided at a MDOC Facility, including medical care provided by third parties in facilities owned or operated by the MDOC.
14. “Parties” means, for the purposes of this Agreement, the Plaintiffs and the MDOC.
15. “Plaintiffs” means, for purposes of this Agreement, the class certified on July 20, 2017 by order of U.S. District Court Judge Sean F. Cox, consisting of “all Deaf and/or Hard of Hearing individuals in the custody of the MDOC (whether now or in the future), who require hearing related accommodations, including but not limited to interpreters, hearing devices, or other auxiliary aids or services, to communicate effectively and/or to access or participate in programs, services, or activities available to individuals in the custody of the MDOC.”
16. “Plaintiffs’ Counsel” means attorneys-of-record for Plaintiffs in McBride et al. v. MDOC et al., No. 2:15-cv-11222 (E.D. Mich.). The current attorneys-of-record are Covington & Burling LLP, Law Offices of Abraham Singer PLLC, Michigan Protection and Advocacy Service, Inc., and Washington Lawyers’ Committee for Civil Rights and Urban Affairs.
17. “Qualified Interpreter” means a person who is able to interpret effectively, accurately, and impartially, both receptively and expressively, with an individual Deaf and/or Hard of Hearing Prisoner using any necessary specialized vocabulary. See 28 C.F.R. § 35.104. A Qualified Interpreter must hold a valid certification from the National Registry of Interpreters for the Deaf or the National Association of the Deaf. Another MDOC prisoner shall not be considered a Qualified Interpreter.
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A Qualified Interpreter may be provided by the MDOC either in person, or via video remote interpreting, videoconferencing, or other similar means that provide Effective Communication.
18. “Section 504” means Section 504 of the Rehabilitation Act of 1973, codified at 29 U.S.C. § 701 et seq. (2014).
19. “Settlement Monitor” means Michael K. Brady of Sabot Consulting.
20. “TTYs” or “TDDs” means teletypewriters or telecommunications devices for the Deaf, which are devices used with a telephone to communicate with persons who are Deaf by typing and reading communications.
21. “Video Remote Interpreting” or “VRI” means a videotelecommunication interpreting service, which uses Qualified Interpreters.
22. “Video Relay Services” means a form of Telecommunications Relay Service that enables persons with hearing disabilities who use American Sign Language to communicate with voice telephone users through video equipment.
23. “Videophone” means a telephone with a camera and screen for visual, real-time communications.
III. GENERAL POLICIES
A. Non-discrimination Based on Disability
The MDOC shall ensure that Deaf and/or Hard of Hearing Prisoners have full and equal access to the same programs, activities, services and accommodations available to non-Deaf and/or Hard of Hearing Prisoners.
B. ADA Coordinators and Supervisor
No later than sixty (60) days after the Effective Date of this Agreement, the MDOC shall assign a staff member at each MDOC Facility with the title, duties, and responsibilities of Worksite Offender ADA Coordinator. The MDOC shall maintain ADA Coordinator positions with responsibilities for each MDOC
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Facility. The Worksite Offender ADA Coordinator shall be trained on the implementation of the requirements of federal and state law regarding the contents of this Agreement and the MDOC’s obligations to provide full and equal access to its programs, activities, services, and accommodations to Deaf and Hard of Hearing Prisoners.
The MDOC has and shall maintain a designated Statewide Offender ADA Coordinator at its central headquarters. The Statewide Offender ADA Supervisor and/or his/her designee shall oversee and supervise the Worksite Offender ADA Coordinators in their implementation of the requirements under this Agreement.
The contact information of each Worksite Offender ADA Coordinator shall be communicated to the Settlement Monitor and all Deaf and/or Hard of Hearing Prisoners incarcerated in the respective MDOC Facility and shall also be prominently posted in a secure area in any housing unit in which Deaf and/or Hard of Hearing Prisoners are held.
As set forth in MDOC P.D. 04.06.155 “Offenders with Disabilities,” ADA Coordinators shall assist with providing, coordinating, and overseeing Auxiliary Aids and Services for Deaf and/or Hard of Hearing Prisoners. The Worksite Offender ADA Coordinators shall be provided with and responsible for knowing the contents of this Agreement and shall assist with implementing this Agreement. The ADA Coordinators shall be available to assist Deaf and/or Hard of Hearing Prisoners in learning about the resources available to them and training in the use of Auxiliary Aids and Services. If necessary, the Worksite Offender ADA Coordinators will be assisted by a Qualified Interpreter in carrying out these responsibilities.
IV. INITIAL CLASSIFICATION, ASSESSMENT, AND ASSIGNMENT
A. General Policy
The MDOC shall Effectively Communicate with Deaf and/or Hard of Hearing Prisoners at initial intake, assessment, and classification. The purpose is to facilitate communication between the Deaf and/or Hard of Hearing Prisoner and Personnel (or other persons) responsible for medical, psychological, and educational testing and evaluation, as well as to help provide an explanation of prison policies and procedures, including Prisoner discipline, grievances, and how to utilize the TTY/TDD, Videophone, and other Auxiliary Aids and Services.
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B. Hearing Assessment
During initial intake and within 7 days of entering the MDOC prison system, every prisoner with a perceived or reported (including self-reported) hearing deficit shall receive an initial hearing assessment consistent with medical standards. If there is indication of a potential hearing deficit, the prisoner shall be referred to a professionally accredited audiologist to perform a comprehensive hearing assessment. These prisoners shall be housed in a Designated facility (barring any medical, security or programming needs requiring an alternative housing arrangement) pending this assessment. If medical Personnel determine that a Prisoner is Deaf and/or Hard of Hearing, medical Personnel shall note the disability and comply with MDOC P.D. 04.06.160 “Medical Details and Special Accommodation Notices.” Any Deaf and/or Hard of Hearing Prisoner who was not assessed according to the requirements of this paragraph at his or her initial intake, or who requires reassessment due to perceived or reported changes in hearing, shall be assessed according to the requirements of this paragraph at the prisoner’s annual physical exam.
C. Auxiliary Aids and Services Assessment
After a determination is made that a Prisoner is Deaf and/or Hard of Hearing, medical Personnel, which may include a professionally accredited audiologist, shall determine if Auxiliary Aids and Services are medically necessary and facilitate ordering those aids and services as provided in MDOC P.D. 04.06.160 “Medical Details and Special Accommodation Notices.” The Worksite Offender ADA Coordinator shall address all non-medical aids and services needed for the Deaf and/or Hard of Hearing Prisoner to Effectively Communicate.
If any Deaf and/or Hard of Hearing Prisoner indicates that he or she does not require any of the Auxiliary Aids and Services set forth in this Agreement, he or she shall sign a Waiver of Auxiliary Aids and Services and that document shall be kept in the Prisoner’s medical file. No prisoner may be coerced, pressured, or compelled to sign a Waiver.
If a Prisoner is found to have a hearing impairment at intake or a later hearing assessment and refuses or does not request Auxiliary Aids and Services, but later believes that Auxiliary Aids and Services are necessary to ensure Effective Communication, he or she may submit a kite requesting Auxiliary Aids and Services. MDOC shall provide a Prisoner who was initially not found to have a hearing impairment with a hearing assessment if so ordered by medical Personnel.
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If that individual is found to be Deaf and/or Hard of Hearing, MDOC shall follow the procedures set forth in MDOC P.D. 04.06.160.
D. Ensuring Personnel Awareness Through Identification Cards
The MDOC shall take appropriate steps to ensure that all Personnel having regular contact with any Deaf and/or Hard of Hearing Prisoner are made aware of such Prisoner’s need for Auxiliary Aids and Services. Upon identifying a Prisoner as Deaf and/or Hard of Hearing, the Deaf and/or Hard of Hearing Prisoner shall receive an identification (ID) card that clearly identifies him or her as a Deaf and/or Hard of Hearing Prisoner. The ID card shall signify to the Personnel that the Prisoner has been classified by MDOC as “hearing impaired” with or without deficit.
All Personnel having regular contact with any Deaf and/or Hard of Hearing Prisoner shall be trained on the meaning of the ID cards.
The MDOC shall post in a prominent location in all MDOC Facilities housing Deaf and/or Hard of Hearing Prisoners a notice clearly stating that the MDOC Facility houses Deaf and/or Hard of Hearing Prisoners and that the Deaf and/or Hard of Hearing Prisoners carry an ID card or other official indicator with them. The notice shall include a picture of the ID card and other official indicator carried by Deaf and/or Hard of Hearing Prisoners. The Notice shall also be posted in each housing unit where Deaf and/or Hard of Hearing Prisoners are held.
E. Interpretation of Materials
Within thirty (30) days of the Effective Date of this Agreement, and upon any Deaf and/or Hard of Hearing Prisoner submitting a medical kite requesting Auxiliary Aids and Services, including but not limited to the services of a Qualified Interpreter, the MDOC shall provide the Deaf and/or Hard of Hearing Prisoner materials it provides to all Prisoners either:
x in a recorded video sign language interpreted format (“interpreted materials”);1 or
1 If the MDOC chooses this option, the MDOC would also provide the equipment necessary to view the interpreted materials.
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x closed captioning if the material is in video form and the prisoner can read and comprehend closed captioning; or
x by providing a Qualified Interpreter to permit the Deaf and/or Hard of Hearing Prisoner to understand the contents of the materials.
In providing these materials, the MDOC agrees to Effectively Communicate with the Deaf and/or Hard of Hearing Prisoner. At the request of the Deaf and/or Hard of Hearing Prisoner, the MDOC shall provide that Deaf and/or Hard of Hearing Prisoner with a meaningful opportunity to meet with Personnel and a Qualified Interpreter to ask any questions regarding the written or interpreted materials.
F. Creation and Interpretation of Rights Materials
Within thirty (30) days of the Effective Date of this Agreement, the MDOC shall provide each Deaf and/or Hard of Hearing Prisoner with materials outlining the services available to them under this Agreement. The MDOC shall create these materials using language designed to be accessible to each Deaf and/or Hard of Hearing Prisoner. The MDOC shall provide these materials to Deaf and/or Hard of Hearing Prisoners with the orientation materials provided to all other Prisoners at initial intake, assessment, and classification.
The MDOC shall provide Deaf and/or Hard of Hearing Prisoners with these materials either:
x in a recorded video sign language interpreted format (“interpreted materials”)2; or
x Closed captioning if the material is in video form and the prisoner can read and comprehend closed captioning; or
x by providing a Qualified Interpreter to interpret these materials to the Deaf and/or Hard of Hearing Prisoner.
2 If the MDOC chooses this option, the MDOC would also provide the equipment necessary to view the interpreted materials.
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V. HOUSING
A. General Policy
Except as otherwise set forth herein, the MDOC shall house Deaf and/or Hard of Hearing Prisoners at Designated Facilities. The MDOC may house a Deaf and/or Hard of Hearing Prisoner at a non-Designated Facility when necessary to address safety or security issues, medical or programming needs, and unanticipated emergencies and in accordance with MDOC P.D. 04.06.155 “Offenders with Disabilities,” P.D. 04.06.160 “Medical Details and Special Accommodation Notices,” and P.D. 05.01.140 “Prisoner Placement and Transfer.” Within two (2) business days of a Deaf or Hard of Hearing Prisoner’s transfer to a non-Designated Facility, the ADA Coordinator at the non-Designated Facility shall meet with the Prisoner to determine that Prisoner’s accommodation needs and take all reasonable steps to ensure the Prisoner is provided appropriate accommodations to ensure substantially equal access to the MDOC’s programs, activities, and services. In the event the MDOC houses a Deaf or Hard of Hearing Prisoner at a non-Designated Facility, the MDOC shall provide the Settlement Monitor with the prisoner’s name and prisoner number, and the reason for the housing assignment within two (2) business days of the transfer. The MDOC shall consider advice from the Settlement Monitor regarding the housing assignment in light of legitimate safety or security concerns.
The MDOC’s current Designated Facilities are DRC, DRF, JCF, SMT, SRF, TCF, WCC, and WHV. Should the MDOC wish to designate any other facility as a Designated Facility, or de-designate a Designated Facility, it shall notify the Settlement Monitor before changing the facility’s designation and consider advice from the Settlement Monitor regarding the proposed designation change.
Wherever a Deaf and/or Hard of Hearing Prisoner is housed, that Deaf and/or Hard of Hearing Prisoner retains all rights as required by this Agreement.
VI. PROVISION OF AUXILIARY AIDS AND SERVICES
A. General Policy
In order to ensure substantially equal access to the MDOC’s programs, activities, and services, the MDOC shall provide appropriate Auxiliary Aids and Services to Deaf and/or Hard of Hearing Prisoners. Substantial equality shall include providing appropriate auxiliary aids and services to Deaf and/or Hard of Hearing
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Prisoners for MDOC core programs and services, including those set forth in section VII.A of this Agreement.
The MDOC shall provide instructions for the use of all Auxiliary Aids and Services to ensure Deaf and/or Hard of Hearing Prisoners’ full use and enjoyment of the Auxiliary Aids and Services.
B. Medical Devices
Except as otherwise provided herein, all Auxiliary Aids and Services required by this Agreement which are deemed medically necessary by qualified medical Personnel, shall be provided promptly upon request, free of charge, to Deaf and/or Hard of Hearing Prisoners.
The prisoner shall be responsible for the cost of repair or replacement of damaged or lost Auxiliary Aids and Services that were issued by the MDOC except when verified that the damage or loss was not the fault of the prisoner (e.g. accident on an assignment, victim of an assault) or if only minor repair is necessary. If the prisoner does not have sufficient funds to pay the cost of repair or replacement, the cost shall be considered an institutional debt and collected as set forth in P.D. 04.02.105 “Prisoner Funds.”
Healthcare at the facility where the Deaf or Hard of Hearing Prisoner is housed shall be responsible for facilitating the repair, replacement, and adjustment of medical devices such as hearing aids and shall be responsible for ensuring the delivery of the device. The MDOC will initiate a work order or other applicable mechanism for resolving the issue within two (2) business days of the complaint, and will attempt to resolve the complaint as promptly as possible. If there is a delay caused by third-party vendors outside of the MDOC’s control, the MDOC will provide status updates to the Deaf and/or Hard of Hearing Prisoner until the issue is resolved. The MDOC shall pay for shipping costs associated with the repair and replacement of medical devices.
Prisoners who suffer bilateral hearing loss shall be offered hearing aids for both ears promptly upon request, and free of charge.
C. Maintenance of Non-Medical Auxiliary Aids and Services
The MDOC shall maintain all Auxiliary Aids and Services in its custody in good working condition.
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The ADA Coordinator at the facility where the Deaf or Hard of Hearing Prisoner is housed shall be responsible to facilitate the repair, replacement, and adjustment of Auxiliary Aids and services. The MDOC shall pay for shipping costs associated with the repair and replacement of Auxiliary Aids and Services.
VII. QUALIFIED SIGN LANGUAGE INTERPRETERS
A. General Policy
The MDOC shall provide Qualified Interpreters as required by this Agreement. The MDOC agrees that Deaf and/or Hard of Hearing Prisoners in need of interpreter services shall receive a Qualified Interpreter to facilitate Effective Communication with that particular Deaf and/or Hard of Hearing Prisoner. At a minimum, the MDOC shall provide Deaf and/or Hard of Hearing Prisoners with access to Qualified Interpreters in the following circumstances:
x Communications to and interviews with prisoners regarding their healthcare, including dental, vision, audiological, and mental healthcare;
x Communications to and interviews with prisoners for Parole Board hearings, Parole Eligibility Report (PER) preparations, Parole Board interviews, parole violation hearings, and institutional Parole Agents/transitional programming;
x Disciplinary hearings, investigative interviews, and any other communications with Deaf and/or Hard of Hearings Prisoners as part of the MDOC’s investigatory or disciplinary processes for alleged misconduct or violations of law, policy, or other requirements. This includes communications with Deaf and/or Hard of Hearing Prisoners who are suspected of, charged with, or witness to, disciplinary misconduct or violations;
x During Core programming as defined in Attachment A of MDOC P.D. 05.01.100;
x For administrative hearing proceedings, including required notices (e.g. Notice of Intent to Conduct an Administrative Hearing);
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x Communications to and interviews with prisoners during the grievance process;
x Communications with legal writer if approved to receive services from the Legal Writer Program;
x During prisoner orientation at both intake and receiving facilities including any forms, multi-media, or educational information provided regarding the Prison Rape Elimination Act (PREA);
x Program classification and Security Classification Committee interviews;
x Any prison work/job-assignment related training for matters that are outside the routine day-to-day schedule;
x Formal meetings with facility administration or housing unit staff;
x Group religious services, whether organized by MDOC or by volunteers; and
x Individual (one-on-one) religious programs with clergy if requested by the prisoner and agreed to/approved by the qualified clergy that is to conduct the religious program, provided that the program is scheduled and coordinated by the facility chaplain or designee.
When a Deaf and/or Hard of Hearing Prisoner requests to attend a service or program set forth in this section VII.A, he/she may make a request for a Qualified Interpreter or Auxiliary Aids or Services as appropriate.
The MDOC shall be responsible for scheduling and overseeing the provision of Qualified Interpreters. Qualified Interpreters shall be made available either inperson or via a Video Remote Interpreter (VRI) Service. The MDOC shall provide an in-person Qualified Interpreter if requested by a prisoner and where a medical professional or Worksite Offender ADA Coordinator, in consultation with the prisoner, determines that the prisoner is unable to effectively communicate via VRI.
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B. Other Means of Communication
1. General Policy
Personnel shall communicate with Deaf and/or Hard of Hearing Prisoners for such purposes, and to the same extent, as they would communicate with non-Deaf and/or Hard of Hearing Prisoners.
2. Video Remote Interpreting (VRI) Service
The MDOC has begun the process of providing access to on-demand VRI service in each of its Designated Facilities. When installed and operational, the ondemand VRI service will comport with the following standards unless it is not possible in an emergency situation:
x high quality, clear, delay-free full-motion video and audio over a high-speed Internet connection;
x a clear, sufficiently large, and sharply delineated picture of the Qualified Interpreter’s and the Deaf individual’s heads, arms, hands, and fingers, regardless of the body position of the Deaf individual; and
x voices being transmitted are clear and easily understood.
MDOC shall make all reasonable efforts to ensure that the on-demand VRI service is installed and operational at each Designated Facility by December 1, 2018. If VRI service will not be available at any Designated Facility by December 1, 2018, MDOC shall notify the Settlement Monitor and explain the reason for the delay and the expected timeline for making VRI service available.
C. On-site Medical Care
1. General Policy
The MDOC shall provide Effective Communication for all scheduled appointments between Deaf and/or Hard of Hearing Prisoners and medical Personnel at MDOC facilities, including, but not limited to, review of medical history, medical appointments, follow up meetings or appointments, and treatment meetings. The Parties agree that for many Deaf and/or Hard of Hearing Prisoners, a Qualified
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Interpreter may be a necessary means of providing Effective Communication in these circumstances.
2. Informing Appropriate Medical Personnel
The MDOC shall ensure that all medical Personnel are made aware of a Prisoner’s deafness or hearing disability by clearly noting the prisoner’s disability in his/her medical file.
3. Scheduling Medical Appointments with Interpreters
Designated MDOC Personnel shall schedule all medical appointments requiring Qualified Interpreters. Appointments for Deaf and/or Hard of Hearing Prisoners requiring Qualified Interpreters shall be scheduled within the same time period from the initial request as those for non-Deaf and/or Hard of Hearing Prisoners.
4. Emergency Events
The MDOC shall provide a Qualified Interpreter via VRI service for use in unscheduled medical emergencies. If VRI services are not appropriate in the situation, MDOC Personnel shall make every reasonable effort in conjunction with medical Personnel to attempt to secure an in-person Qualified Interpreter as soon as possible. Lifesaving medical care should never be delayed because no interpretation services are available.
D. Off-site Medical Care
When scheduling off-site medical care, the MDOC shall inform all off-site medical providers that a Deaf and/or Hard of Hearing Prisoner requiring a Qualified Interpreter or other Auxiliary Aids or Services shall be seeking medical care at a particular date and time.
In the case of an emergency, the MDOC shall, as soon as possible, inform an offsite medical provider that a Deaf and/or Hard of Hearing Prisoner requiring a Qualified Interpreter or other Auxiliary Aid or Service is being transported to the off-site medical provider. Notification shall include the Deaf and/or Hard of Hearing Prisoner’s estimated time of arrival. The MDOC shall request that the offsite medical provider shall make available to the Deaf and/or Hard of Hearing Prisoner a Qualified Interpreter and/or other reasonable Auxiliary Aids or Services.
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E. Work Assignments
The MDOC shall provide opportunities for institutional work assignments that are consistent with the opportunities for the same assignments given to non-Deaf and/or Hard of Hearing Prisoners.
F. Religious Services
No Deaf and/or Hard of Hearing Prisoner shall be required to attend a religious service where an interpreter is not provided in order to receive any religious meal, diet, or otherwise offered religious accommodation.
G. Additional Communications
The MDOC shall provide Qualified Interpreters for any significant communications that are not specifically discussed in this Agreement and that would otherwise be communicated to a prisoner that is not Deaf or Hard of Hearing. A significant communication includes any communication for which (i) the risks of miscommunication or misunderstanding are significant; and (ii) the consequences of miscommunication/misunderstanding would have significant negative repercussions for the Deaf and/or Hard of Hearing Prisoner.
VIII. DISCIPLINARY MATTERS
The MDOC must hold disciplinary hearings for Deaf and/or Hard of Hearing Prisoners within the same time frame as it holds disciplinary hearings for non-Deaf and/or Hard of Hearing Prisoners, in accordance with MDOC P.D. 03.03.105 “Prisoner Discipline.”
IX. NON-AUDITORY ALERT NOTIFICATIONS
A. General Policy
Adequate non-auditory systems of notification must be put in place to ensure that Deaf and/or Hard of Hearing Prisoners incarcerated at MDOC facilities do not miss announcements, alarms, or any other information audibly conveyed from Personnel to the general prisoner population because of their disability.
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B. Relaying Information
The MDOC shall provide an effective non-auditory alert system that shall notify Deaf and/or Hard of Hearing Prisoners of events (including but not limited to announcements and visitations). The non-auditory alert system must effectively alert Deaf and/or Hard of Hearing Prisoners of such events in real time.
C. Non-Auditory Alarms and Emergency Evacuation
The MDOC shall provide Deaf and/or Hard of Hearing Prisoners with an effective non-auditory alert system that shall advise them of an emergency evacuation or other emergency situation. Such non-auditory alert system may include in-person contact/communication between Personnel and the Deaf and/or Hard of Hearing Prisoner and must notify Deaf and/or Hard of Hearing Prisoners of emergencies in real-time. At a minimum, the non-auditory alert system shall include electronic messages through the Page Alert Broadcast System and flashing strobe lights. Further, the alarm and signaling notifications in each of the Designated Facilities shall comply with the National Fire Protection Association’s (NFPA) Code 72 – “National Fire Alarm and Signaling Code,” in effect at the time the alarm and signaling system was installed, including any provisions related to visible appliances and visible signaling for persons with hearing deficiencies. As fire alarm and signaling systems are updated and/or replaced, the MDOC will ensure that the updated or new system complies with the version of NFPA Code 72 adopted by the Michigan Department of Licensing and Regulatory Affairs / Bureau of Fire Services at the time of installation.
Personnel shall be responsible for the evacuation or safe relocation of Deaf and/or Hard of Hearing Prisoners during an emergency. Therefore, during emergencies, Personnel shall personally and effectively communicate adequate information about the emergency to Deaf and/or Hard of Hearing Prisoners.
X. TELECOMMUNICATIONS
A. General Policy
The MDOC shall provide Deaf and/or Hard of Hearing Prisoners with access to telecommunication devices that enable them to communicate with people outside of the MDOC in a manner that is substantially equivalent—in terms of the amount and quality of the information conveyed, as well as the expense incurred by the prisoner—to the communications that non-Deaf and/or Hard of Hearing Prisoners
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have with people outside of the MDOC using traditional telecommunication devices such as telephones. This provision does not apply to charges incurred by offenders’ family and friends for use of third-party telecommunications providers.
B. Monitoring Communications
Telephone and videophone calls between Deaf and/or Hard of Hearing Prisoners and individuals outside of the MDOC will be monitored as provided in MDOC Policy Directive 05.03.130. The MDOC will monitor such calls in the same manner and to the same extent as any other prisoner call under PD 05.03.130 and shall not increase such monitoring solely because the call involves a Deaf and/or Hard of Hearing Prisoner. Consistent with its policies, the MDOC reserves the right to monitor any recorded audio phone call, recorded Video Relay Service session, TTY call, or recorded person-to-person video-phone call, including any related video feed or transcript.
C. Additional Time for Communication
The MDOC shall implement a policy that allows Deaf and/or Hard of Hearing Prisoners at least twice as many minutes to complete a TTY/TDD call or Videophone call relying on VRS services as the number of minutes afforded to non-Deaf and/or Hard of Hearing Prisoners to make calls using traditional telecommunication devices such as telephones.
D. Technology MDOC Shall Provide
The MDOC shall make the following communications technologies available at its facilities where Deaf and/or Hard of Hearing Prisoners are incarcerated to enable effective communication between Deaf and/or Hard of Hearing Prisoners and people outside of MDOC facilities. The MDOC shall consider adding additional equipment to reflect technological advances as they become available. MDOC shall provide a list of available communications equipment to Deaf and/or Hard of Hearing Prisoners upon their arrival in MDOC custody.
1. TTY or TDD
For every MDOC Facility at which any Deaf and/or Hard of Hearing Prisoner is incarcerated, access to the TTY/TDD shall be made available at times that the MDOC shall designate, but in no event shall TTY/TDD access for Deaf and/or Hard of Hearing Prisoners be less than equal to the access non-Deaf and/or Hard of
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Hearing Prisoners have to conventional telephones. TTY/TDDs shall be located in areas as accessible to Deaf and/or Hard of Hearing Prisoners as conventional telephones are accessible to non-Deaf and/or Hard of Hearing Prisoners. TTY/TDDs shall be available during the same days and hours as conventional telephones. At each Designated Facility, if only one TTY/TDD is regularly utilized, the MDOC shall ensure that an alternate TTY or TDD unit is available for use when the regular TTY or TDD is broken or otherwise unavailable. Deaf and/or Hard of Hearing Prisoners shall not be charged by the MDOC or a MDOC contractor any more than non-Deaf and/or Hard of Hearing Prisoners for the functionally equivalent use of TTY/TDD services, although the MDOC has no control over charges incurred by offenders’ family and friends for using third-party telecommunications providers.
2. Telephone Relay Services
For every MDOC Facility at which any Deaf and/or Hard of Hearing Prisoner is incarcerated, the MDOC shall enable all TTYs and TDDs to access publicly available relay service phone numbers.
3. Videophones
Videophones shall be installed and accessible to Deaf and/or Hard of Hearing Prisoners at MDOC’s Designated Facilities. Access to the Videophones shall be made available at times that the MDOC shall designate, but no less than equal to the access non-Deaf and/or Hard of Hearing Prisoners have to conventional telephones. Videophones shall be located in areas as accessible to Deaf and/or Hard of Hearing Prisoners as conventional telephones are accessible to non-Deaf and/or Hard of Hearing Prisoners, except that no videophones will be located outside. Videophones shall be available during the same days and hours as conventional telephones. Deaf and/or Hard of Hearing Prisoners shall not be charged any more than non-Deaf and/or Hard of Hearing Prisoners for the functionally equivalent use of videophone services. Videophones shall allow voice carry-over features.
MDOC shall make all reasonable efforts to ensure that videophones are installed and operational at each Designated Facility by December 1, 2018. If videophones will not be available at any Designated Facility by December 1, 2018, MDOC shall notify the Settlement Monitor and explain the reason for the delay and the expected timeline for making videophones available.
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4. Video Relay Services
VRS shall be installed and accessible to Deaf and/or Hard of Hearing Prisoners in Designated Facilities in accordance with the terms and conditions of the contract between the MDOC/DTMB and the successful vendor/contractor for the pending contract number 171-1800000001124.
MDOC shall make all reasonable efforts to ensure that VRS services are available at each Designated Facility by December 1, 2018. If VRS service will not be available at any Designated Facility by December 1, 2018, the MDOC shall notify the Settlement Monitor and explain the reason for the delay and the expected timeline for making VRS service available.
Consistent with the other telecommunications-related requirements set forth herein, Deaf and/or Hard of Hearing Prisoners shall be permitted to utilize videophones both to communicate directly with other persons outside of MDOC facilities using sign language (i.e., direct videophone to videophone communications that are not mediated through VRS), and to communicate with persons (including persons who do not know sign language) through the use of VRS services.
E. Responsibility for Maintaining Equipment and Training Staff
The MDOC shall ensure that the contract entered between the successful vendor/contractor for prisoner telephone services requires, as a term of the contract, that technology used to permit communication between Deaf and/or Hard of Hearing Prisoners and people outside of MDOC facilities is in good working order. Further, the MDOC shall ensure that all telecommunications and other equipment under the MDOC’s control—as opposed to the contractor—that is used to accommodate Deaf and/or Hard of Hearing Prisoners is kept in good working order. Personnel shall attempt to resolve complaints about any malfunctioning equipment within a reasonable time of receiving that complaint. To the extent services, equipment, and resources that are outside the MDOC’s control are involved (for example services or equipment provided by cable, telephone, utilities, or various other companies), the MDOC shall agree to notify those providers/companies of any problems and work with them expeditiously to resolve the problem.
The MDOC shall ensure that appropriately identified Personnel are adequately trained in the operation of the technology.
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XI. MEDIA
The MDOC shall ensure that all audio-visual media purchased by the MDOC for Prisoner use in MDOC Facilities housing Deaf and/or Hard of Hearing Prisoners includes open- and closed-captioning. Televisions purchased by the MDOC for Prisoner use shall support open- and closed-captioning. Captioning shall be turned on and remain on at any Deaf and/or Hard of Hearing Prisoner’s request.
XII. HAND RESTRAINTS
The MDOC shall implement an operating procedure relating to the handcuffing of Deaf inmates at MDOC Facilities that shall, whenever possible, and subject to safety and security considerations, permit Deaf inmates to use their hands for Effective Communication. That procedure shall permit Personnel to consider the needs of a Deaf and/or Hard of Hearing Prisoners to use his or her hands for Effective Communication purposes.
XIII. MISCELLANEOUS DEVICES AND AIDS
A Deaf and/or Hard of Hearing Prisoner shall be allowed to purchase alerting devices, such as vibrating watches, and televisions that are offered through an MDOC approved vendor, to meet the particular needs of his or her disability. The ADA Coordinator shall maintain written records of all Deaf and/or Hard of Hearing Prisoner requests for these devices and the dispositions of the requests.
The MDOC makes available to Deaf and/or Hard of Hearing Prisoners free of charge telephone amplification devices when such devices are needed by the prisoners to communicate effectively during standard telephone calls.
XIV. TRAINING
A. General Policy
The MDOC shall provide training as defined in Section XIV.B below to all MDOC officers and other Personnel who interact with the Prisoner population, all ADA Coordinators, and the ADA Supervisor. The MDOC shall incorporate this training into its regularly scheduled training for new and existing officers and other Personnel. This training shall be included in MDOC’s next scheduled training calendar, which is scheduled to begin October 1, 2018.
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The MDOC shall provide training materials developed under Section XIV of this Agreement to the Settlement Monitor for review and comment prior to the first training session. The MDOC shall consider any reasonable advice from the Settlement Monitor regarding the training. Within 30 days following review and comment by the Settlement Monitor, the MDOC shall finalize its training module covering the areas set forth in Section XIV(B). Within 90 days after the MDOC has finalized its training module, MDOC Personnel shall complete the training topics as set forth in Section XIV(B).
The MDOC shall review the training at least every two years to determine if modifications or updates to the training are needed to ensure consistency with applicable legal requirements. Any time the MDOC updates the training, and during the course of the Settlement Monitor’s appointment, the Settlement Monitor will be provided the updated training materials for review and comment prior to the first training session, and the MDOC shall consider advice from the Settlement Monitor regarding the training.
B. Personnel Training
By October 1, 2018, the MDOC shall develop its fiscal year 2019 training calendar, which shall require training MDOC Personnel on the following topics:
x best practices in communicating with deaf and/or hard of hearing individuals;
x the unique needs and problems encountered by deaf, late-deafened, and hard of hearing individuals;
x identification of communication needs of persons who are deaf and/or hard of hearing;
x the psychological implications of deafness and its relationship to interaction with hearing corrections Personnel;
x the proper use and role of Qualified Interpreters, and the circumstances when Qualified Interpreters must be made available;
x directions about using TTYs, TDDs, Videophones, VRI, the page alert system, and any other telecommunication equipment available
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at the facility that facilitates communication with Deaf and/or Hard of Hearing Prisoners;
x the MDOC’s anti-discrimination policy;
x all equipment, services, and accommodations available to Deaf and/or Hard of Hearing Prisoners; and
x the requirements of this Agreement. XV. GRIEVANCES
Complaints concerning reasonable accommodations filed by a Deaf and/or Hard of Hearing Prisoner shall be handled in accordance with MDOC P.D. 04.06.155 “Offenders with Disabilities.”
A written record of all Deaf and/or Hard of Hearing Prisoners’ grievances (and any responses and outcomes) shall be maintained by the MDOC. During the duration of the Settlement Monitor’s appointment, the Settlement Monitor may request the records of any Deaf and/or Hard of Hearing Prisoner’s grievances, and as long as the Deaf and/or Hard of Hearing Prisoner consents, a copy of that Deaf and/or Hard of Hearing Prisoner’s grievance records shall be provided, free of charge, to the Settlement Monitor.
XVI. MONITORING AND COMPLIANCE
A. Policies and Procedures
The MDOC shall develop and implement system-wide policy directives and facility-specific operating procedures for each facility housing Deaf and/or Hard of Hearing Prisoners documenting in writing the processes and procedures required to satisfy the terms of this Agreement. The MDOC will consult with the Settlement Monitor on the development of the policies and procedures, and will share copies of draft policies and procedures with the Settlement Monitor for review and feedback before finalizing the policies and procedures. The MDOC shall consider advice from the Settlement Monitor regarding the policies and procedures.
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B. ADA Coordinators Annual Audit
The MDOC’s appointed ADA Coordinators/Supervisors shall perform an annual audit of the MDOC’s policies and procedures for compliance with the terms of this Agreement and other applicable federal and state laws. A written report of the audit findings shall be presented to the Settlement Monitor. This audit report shall consider, at a minimum:
x The location of the MDOC’s Deaf and/or Hard of Hearing Prisoners, and whether all such prisoners are housed in Designated Facilities. If any Deaf and/or Hard of Hearing Prisoners are not housed in Designated Facilities, the audit report shall explain why they are housed elsewhere, and whether such housing is consistent with the MDOC’s requirements under this Agreement.
x The MDOC’s compliance with its policies and procedures related to Deaf and/or Hard of Hearing Prisoners, including for: o Initial classification, assessment, and assignment of Deaf and/or Hard of Hearing Prisoners; o Providing Qualified Interpreters and other Auxiliary Aids and Services to Deaf and/or Hard of Hearing Prisoners; o Providing Deaf and/or Hard of Hearing Prisoners with access to telecommunications devices and services, including TTYs/TDDs, Telephone Relay Services, Videophones, and Video Relay Services; and o Providing Deaf and/or Hard of Prisoners with access to the types of non-auditory alert notifications required by this Agreement.
x The merits of grievances and/or other allegations of non-compliance by Deaf and/or Hard of Hearing Prisoners with the above-referenced policies and procedures, and remedial steps taken by the MDOC to correct established instances of non-compliance.
x Whether the MDOC’s TTYs/TDDs, videophones, and non-auditory systems of notification for Deaf and/or Hard of Hearing Prisoners are in good working order at all Designated Facilities.
x Whether the MDOC is providing each of the types of training to its officers and other Personnel required by Section XIV, and Personnel participation in such trainings.
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C. Plaintiffs’ Counsels’ Right of Access
To the extent Plaintiffs’ Counsel maintains a current or prospective attorney-client relationship with any Deaf and/or Hard of Hearing Prisoner, they shall be provided the same access to that Deaf and/or Hard of Hearing Prisoner and to the records relating to that Deaf and/or Hard of Hearing Prisoner, as any other attorney with a similar relationship to another non-Deaf and/or Hard of Hearing Prisoner.
D. The Settlement Monitor’s Activities
In addition to and without limiting the Settlement Monitor’s activities and responsibilities specified elsewhere in this Agreement, on at least a six-month basis following the execution of this Agreement, the MDOC shall permit the Settlement Monitor:
x access to MDOC facilities that house Deaf and/or Hard of Hearing Prisoners or that the MDOC has identified to be designated to house Deaf and/or Hard of Hearing Prisoners, to evaluate efforts by the MDOC to provide Deaf and/or Hard of Hearing Prisoners with access to auxiliary aids and services, Qualified Interpreters, and non-auditory systems of notification;
x access to any medical records made during the preceding twelve (12) months or since the prior investigation, whichever is longer, provided the Deaf and/or Hard of Hearing Prisoner consents to such disclosure; and
x access to any non-security logs or other business records that the MDOC keeps in the regular course of business relating to Deaf and/or Hard of Hearing Prisoners generally, or any given Deaf and/or Hard of Hearing Prisoner in particular, prepared or updated during the preceding twelve (12) months or since the prior investigation, whichever is longer.
Deaf and/or Hard of Hearing Prisoners shall be provided with contact information for the Settlement Monitor, and shall be granted private access to the Settlement Monitor. Depending on the preference of the Settlement Monitor, access shall be granted via videophone, TTY/TDD, or telephone, or through in-person visitation by the Settlement Monitor.
During the duration of the Settlement Monitor’s appointment, the Settlement Monitor will issue semi-annual reports to the Court and the Parties detailing the Defendants’ compliance with and implementation of this Agreement.
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The Settlement Monitor’s responsibilities shall continue for a period of two (2) years after the MDOC has implemented the terms of this Settlement Agreement, which include the installation and availability of Videophones, VRI, and a nonauditory alert system at all Designated Facilities, the adoption of required policies and/or procedures (consistent with Section XVI.A), the appointment of ADA Supervisor and Coordinators, and implementation of Personnel training (consistent with Section XIV). Subject to the Court’s continuing oversight responsibilities under this Agreement, the Settlement Monitor’s responsibilities will be discharged after this period if the Settlement Monitor issues written certification to the Court and the Parties that the MDOC is in substantial compliance with its obligations under this Settlement Agreement.
Covington & Burling LLP shall be responsible to pay all reasonable fees and expenses charged by the Settlement Monitor for his or her services from the attorneys’ fees paid by the MDOC pursuant to Section XVII.C of this Agreement.
XVII. RELEASE AND SETTLEMENT OF CLAIMS
A. Release
Plaintiffs hereby release and discharge Defendants, including their successors and assigns, of and from any claims or causes of action arising out of the matter described in the Plaintiffs’ Complaint filed with the U.S. District Court for the Eastern District of Michigan (the “Court”) in Case No. 2:15-cv-11222, through the period of the Settlement Monitor’s appointment.
B. Dismissal
The Plaintiffs agree to dismiss with prejudice all claims of the Complaint in Case Number 2:15-cv-11222 subject to the continued enforcement powers of the Court and the Plaintiffs as set forth below in Section XVII.D.
The Parties agree that the Court shall retain jurisdiction over this Agreement as set out in Section XVII.D of this Agreement, below.
C. Attorneys’ Fees, Costs, Disbursements and Expenses
In settlement of all of Plaintiffs’ claims up to and including the submission of the Settlement Monitor’s final report, including any claims for attorney fees and costs,
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any disbursements and expenses, including expert fees incurred on behalf of Plaintiffs in this litigation, the Parties agree that within 30 days of the Effective Date, the MDOC shall pay $1,300,000 to Covington & Burling LLP, which shall equitably divide the payment with other Plaintiffs’ Counsel.
D. Court Approval and Enforcement Powers
Upon execution of this Agreement, the Parties shall jointly move the Court for approval of this Agreement and dismissal of the claims in this action pursuant to Federal Rules of Civil Procedure 23(e) and 41(a). This dismissal shall be with prejudice subject to the Court’s ongoing authority to enforce the terms of this Settlement Agreement.
The Court will retain jurisdiction over this action, McBride et al. v. MDOC et al., No. 2:15-cv-11222, during the period of the Settlement Monitor’s term of appointment, and shall have the power to enforce all terms of this Agreement.
Approval of this Agreement by the Court is a condition precedent to the Agreement’s effectiveness.
XVIII. MISCELLANEOUS PROVISIONS
A. Entire Agreement
This Agreement constitutes the entire Agreement between the Parties. There were no inducements or representations leading to the execution of this document, except as stated within the document itself.
B. Binding
This Agreement is final and binding on the Parties and their successors in interest. Each Party has a duty to so inform any such successor in interest.
C. Non-Waiver
Failure by the Plaintiffs to seek enforcement of this Agreement pursuant to its terms with respect to any instance or provision shall not be construed as a waiver to such enforcement with regard to other instances and/or provisions.
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D. Severability

In the event that a court determines that any provision of this Agreement is unenforceable, such provision will be severed from this Agreement and all other provisions will remain valid and enforceable, provided however that if the severance of any such provision materially alters the rights and obligations of the Parties hereunder, the Parties will attempt, through reasonable, good faith negotiations, to agree upon such other amendments to this Agreement as may be necessary to restore the Parties as closely as possible to the relative rights and obligations initially intended by them hereunder.

Consenting parties:

For the Defendants:

For the Plaintiffs:

Printed Name

Printed Name

Signature

Signature

Date

Date

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 Case 2:15-cv-11222-SFC-DRG ECF No. 151 filed 02/20/20 PageID.4718 Page 1 of 9

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MARY ANN MCBRIDE, et al.,

Plaintiffs, v.

Civil Action No. 15-11222 Honorable Sean F. Cox Magistrate Judge David R. Grand

MICHIGAN DEPARTMENT OF CORRECTIONS, et al.,

Defendants. __________________________________/

REPORT AND RECOMMENDATION TO DENY BRANDON RESCH’S MOTIONS TO ENFORCE COMPLIANCE WITH SETTLEMENT AGREEMENT (ECF Nos. 124, 144)

Background

In this class action, the plaintiffs are “all Deaf and/or Hard of Hearing individuals in the

custody of the [Michigan Department of Corrections (“MDOC”)] (whether now or in the future),

who require hearing related accommodations, including but not limited to interpreters, hearing

devices, or other auxiliary aids or services, to communicate effectively and/or to access or

participate in programs, services, or activities available to individuals in the custody of the

MDOC.” On March 9, 2018, the Court issued an Opinion and Order granting in part the Plaintiffs’

motion for summary judgment, and ruling that the MDOC (and certain of its officers) (collectively,

the “Defendants”) had violated the Americans with Disabilities Act, (“ADA”), 42 U.S.C. § 12131

et seq., and the Rehabilitation Act, 29 U.S.C. § 794 et seq. (ECF No. 99). The Court ordered the

MDOC to provide certain specified relief, including:

a) Make videophones available to all deaf and hard of hearing prisoners;

b) Provide necessary auxiliary aids for all deaf and hard of hearing prisoners to participate equally in prison programs and services, including

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consistent access to ASL interpreters for all “high-stakes” interactions and programs, see R&R at 21, including religious services;
c) Institute mandatory training for MDOC’s correctional officers and staff on how to identify and appropriately interact with deaf and hard of hearing prisoners;
d) Adopt effective and comprehensive policies and procedures in each of the above areas, including for appropriate compliance monitoring;
(Id., PageID.4096-97). The Court also ordered the parties to “meet and confer in an attempt to resolve any aspects
of Plaintiffs’ claims not disposed of by this order, and to agree on an appropriate consent order
implementing the relief specified in Paragraph 1 above, and any other relief necessary to bring this
action to a close.” (Id., PageID.4097). When the parties were unable to agree on the terms of a
consent order, the Plaintiffs unilaterally moved the Court to order the parties to attend a settlement
conference. (ECF No. 102). The undersigned held a settlement conference in this matter on June
4, 2018, which ultimately resulted in the parties filing a Joint Motion for Final Approval of Class
Action Settlement, along with their Proposed Settlement Agreement (the “Settlement Agreement”)
on March 4, 2019. (ECF No. 118, 118-2). In executing the Settlement Agreement, the MDOC
agreed to, among other things:
(1) “ensure that Deaf and/or Hard of Hearing Prisoners have full and equal access to the same programs, activities, services and accommodations available to non-Deaf and/or Hard of Hearing Prisoners”;
(2) ensure that MDOC officials are able to “Effectively Communicate with Deaf and/or Hard of Hearing Prisoners at initial intake, assessment, and classification,” providing new MDOC inmates “an initial hearing assessment consistent with medical standards” during initial intake and within seven days of their entry into the MDOC;
(3) provide “medical Personnel . . . to determine if Auxiliary Aids and Services are medically necessary” for any inmate determined to be Deaf and/or Hard of Hearing, and then “facilitate[ing] ordering those aids and services;”
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(4) house Deaf and/or Hard of Hearing Prisoners at “Designated Facilities,” unless safety or security issues, medical or programming needs, and unanticipated emergencies required a different housing location; and (5) provide “Auxiliary Aids and Services required by [the] [Settlement] Agreement which are deemed medically necessary by qualified medical Personnel . . .” (ECF No. 118-2, PageID.4348-54). The Settlement Agreement also provided that a “Settlement Monitor” whose expertise lies in monitoring correctional facilities’ compliance with the ADA – Michael K. Brady of Sabot Consulting – would be involved in ensuring that the MDOC had complied with its obligations under the Settlement Agreement. It provided that “Deaf and/or Hard of Hearing Prisoners shall be provided with contact information for the Settlement Monitor, and shall be granted private access to [him].” (Id., PageID.4368). It further provided that “the Settlement Monitor will issue semi-annual reports to the Court and the Parties detailing the Defendants' compliance with and implementation of this Agreement.” (Id.). The parties agreed that “the Court will retain jurisdiction over this action [] during the period of the Settlement Monitor's term of appointment, and shall have the power to enforce all terms of this Agreement.” (Id., PageID.4370). The Honorable Sean F. Cox held a fairness hearing on the parties’ Joint Motion for Final Approval of Class Action Settlement, and, on March 29, 2019, entered an Order granting it. (ECF No. 120). The Order specified that, pursuant to the Settlement Agreement’s terms, the Court would “retain[] jurisdiction over this action to enforce the terms of the [Settlement] Agreement as needed.” (Id., PageID.4465). Presently before the Court are two motions filed by pro se inmate Brandon Resch that ask the Court do just that. (ECF Nos. 124, 144).1
1 Pursuant to 28 U.S.C. 636(b)(1)(B), these motions have been referred to the undersigned for a report and recommendation. (ECF No. 147).
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Resch’s Motions to Enforce the Settlement Agreement Resch contends that he is “a hard of hearing prisoner, as defined in [] [the] Settlement
Agreement.” (ECF No. 124, PageID.4476).2 He further contends that his hearing impairment “has gone nearly ignored,” and that his impairment “causes daily issues with both staff and prisoner and telephonic issues . . .” (Id.). Resch contends that he needs “auxiliary aids and services.” (Id.). He claims that he has formally requested accommodation by completing the “MDOC Offender ADA Reasonable Accommodation Request/Appeal” form, by appealing the denial of his requests, and by contacting the Settlement Monitor. (Id., PageID.4477). Resch did not contend that he raised his concerns with class counsel. In fact, technically, the only specific relief Resch requested in this motion was that the Court appoint counsel “to assist in enforcing [the MDOC’s] compliance with the Settlement Agreement . . .” (Id.).
The MDOC filed a response on September 26, 2019. (ECF No. 131). The MDOC denied Resch’s contention that he is a “Plaintiff” in this case, because that term is defined in the Settlement Agreement as “deaf and hard of hearing [MDOC inmates] who require any Auxiliary Aids and Services to communicate effectively and/or to access or participate in programs, services, or activities available to individuals in the custody of the MDOC,” and Resch’s own evidence indicated that he did not have a hearing “deficit.” The MDOC made a slew of additional factual assertions about Resch’s hearing capabilities, and concluded that they show he requires no auxiliary aids or services. However, the MDOC provided no evidentiary support for any of its assertions. The MDOC also represented that notwithstanding its position, it had scheduled Resch “for additional testing with an audiologist.”
2 The sole piece of evidence supplied by Resch in support of his first motion was a single form entitled, “Special Accommodation Orders,” which indicates that Resch was “N-hearing impaired w/o deficit.” (Id., PageID.4479).
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Resch filed a reply insisting that he has a hearing impairment that qualifies him as a “Plaintiff” under the Settlement Agreement’s definitions. (ECF No. 134). He also denied some of the MDOC’s factual contentions. However, he did not deny that he had been scheduled for additional testing, as the MDOC alleged, but merely complained that “it has taken extensive petitioning” to obtain that relief. (Id., PageID.4559).3 At the end of his reply brief, Resch makes numerous requests that were not contained in his initial motion, including that the Court order the MDOC to (1) provide Resch with a “comprehensive hearing assessment conducted through a professionally accredited audiologist,” (2) mandate that Resch remain housed at one of the “designated facilities” listed in the Settlement Agreement, (3) compensate Resch financially, both for emotional harm he allegedly has suffered and as a fine for the MDOC’s alleged non-compliance with the Settlement Agreement, and (4) allow Resch to correspond with another particular inmate through the MDOC’s “Expedited Legal Mail process.” (Id., PageID.4559-60).
On December 2, 2019, Resch filed a “Second Motion to Enforce Defendants’ Compliance with Stipulated Settlement Agreement.” (ECF No. 144). In this motion, Resch recounts his efforts to be evaluated for a hearing deficit, and admits that on October 17, 2019, he “was provided a comprehensive hearing evaluation through MDOC sole audiologist and diagnosed as having a hearing impairment that requires hearing aids in both of his ears.” (Id., PageID.4620). Resch also contends that the MDOC’s “deliberate indifference . . . has directly contributed to [his] being issued four (4) separate class II & III institutional misconducts between August 31, 2018, through August 14, 2019,” at least one of which caused his custody level to increase, thereby allegedly
3 In his second motion, discussed below, Resch contends that on October 17, 2019, he “was provided a comprehensive hearing evaluation through the MDOC’s sole audiologist and diagnosed as having a hearing impairment that requires hearing aids in both of his ears.” (ECF No. 144, PageID.4620).
5

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impacting his parole eligibility. (Id., PageID.4621). Among other relief, Resch asks in his second motion for the appointment of counsel, a declaration that his Eighth Amendment rights and Fourteenth Amendment Due Process rights have been violated, the expungement of his misconduct tickets, and a substantial award of compensatory and punitive damages. (Id., PageID.4622-23). Discussion
The Court should deny Resch’s motions. First, as to his initial motion, the only evidence Resch supplied to the Court was the summary Special Accommodation Orders page, which indicates that his impairment is “w/o [without] deficit.” Second, Resch admitted in his reply brief to that motion that he was scheduled for additional testing, and in his second motion, he confirmed that the testing has since taken place. Third, the sole specific request Resch made in his initial motion (and his similar request in his second motion) is moot; Plaintiffs’ class counsel is still involved in this litigation and Resch has not explained why he cannot enlist their assistance. (See ECF No. 118-2, PageID.4368) (Paragraph XVI(C) of Settlement Agreement, stating, “To the extent Plaintiffs’ Counsel maintains a current or prospective attorney-client relationship with any Deaf or Hard of Hearing Prisoner, they shall be provided the same access to that [] Prisoner and to the records relating to that [] Prisoner, as any other attorney with a similar relationship to another [prisoner].”).4 Finally, on today’s date, the Court entered a Stipulated Order regarding a “process
4 The appointment of counsel would not be appropriate here, in any event. Pursuant to 28 U.S.C. §1915, “[t]he court may request an attorney to represent any person unable to afford counsel.” 28 U.S.C. §1915(e)(1) (emphasis added). The Sixth Circuit has held that “there is no right to counsel in prisoner civil rights cases.” Bennett v. Smith, 110 F. App'x 633, 635 (6th Cir. 2004). “Appointment of counsel in a civil case is not a constitutional right. It is a privilege that is justified only by exceptional circumstances,” which depend on the type of case, the plaintiff’s abilities to represent himself, the complexity of the factual and legal issues involved, and the claim’s relative merits. Lavado v. Keohane, 992 F.2d 601, 605-606 (6th Cir. 1993) (internal quotations and citations omitted). Here, the issues are not complicated, class counsel exists to assist Resch, and Resch has shown he possesses the ability to adequately explain the factual and legal issues to the
6

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for post-judgment complaints initiated by class members against Defendants as it pertains to the implementation of the terms and conditions of the Settlement Agreement.” (ECF No. 150). Paragraph 2 of the Stipulated Order provides, in relevant part:
a. The [complaining] class member shall submit [his or her] complaint to the Settlement Monitor assigned in this matter, through a process that is clearly identified to all class members and ensures that the complaints are promptly received by the Settlement Monitor. In particular, complaints should be submitted to the Settlement Monitor, Mike Brady from Sabot Consulting using the below contact information: Mike Brady Sabot Consulting 101 Parkshore Drive, Suite 100 Folsom, California 95630 Phone: (888) 447-2268 Email: Mike.Brady@sabotconsult.com
(Id.). The Stipulated Order goes on to describe a “mediation process” by which the Settlement
Monitor can gather pertinent information from both the complaining class member and the MDOC, engage in confidential communications with the complaining class member, and make a recommendation to the parties for a resolution. (Id.). As reflected in the Settlement Monitor’s detailed and comprehensive December 2, 2019 Amended First Six Month Report to the Court, he has been actively involved in reviewing the MDOC’s compliance with the Settlement Agreement, and is in an excellent position – both in terms of his professional experience and in terms of his being “on the ground” and accessible to MDOC inmates – to expedite resolution of any class member complaints. The Stipulated Order also provides a process by which a dissatisfied party can appeal the Settlement Monitor’s recommendation to the Court. (ECF No. 150).
Court. Moreover, as discussed below, the Settlement Monitor is now able to help facilitate the resolution of disputes through a stipulated “mediation process.”
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For all of the reasons stated above, the Court finds that the most efficient and effective means of addressing the issues Resch raised in his motions is for him to first pursue them through the mediation process with the Settlement Monitor pursuant to the procedures outlined in the Stipulated Order.5 Conclusion
For all of the above reasons, the Court RECOMMENDS that Resch’s Motions to Enforce Compliance with Settlement Agreement (ECF Nos. 124, 144) be DENIED.

Dated: February 20, 2020 Ann Arbor, Michigan

s/David R. Grand DAVID R. GRAND United States Magistrate Judge

NOTICE REGARDING OBJECTIONS The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within fourteen (14) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of HHS, 932 F.2d 505, 508 (6th Cir.1991); United States v. Walters, 638 F.2d 947, 949–50 (6th Cir.1981). The filing of objections which raise some issues, but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and

5 The Court notes that the Stipulated Order provides that the mediation process is solely to resolve “the implementation of the terms and conditions of the Settlement Agreement,” and that “[a]ny requests for fees and/or money damages by the [complaining] class member must be made through an independent cause of action.” At any rate, Resch’s request for financial compensation in his reply brief in support of his initial motion is procedurally improper. Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008). Moreover, nothing in the Settlement Agreement provides for a complaining class member to receive monetary compensation, and Resch admits that since filing his initial motion, he has been seen by an MDOC audiologist.
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Case 2:15-cv-11222-SFC-DRG ECF No. 151 filed 02/20/20 PageID.4726 Page 9 of 9 Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir.1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this magistrate judge. A party may respond to another party’s objections within 14 days after being served with a copy. See Fed. R. Civ. P. 72(b)(2); 28 U.S.C. §636(b)(1). Any such response should be concise, and should address specifically, and in the same order raised, each issue presented in the objections.
CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court’s ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on February 20, 2020.
s/Eddrey O. Butts EDDREY O. BUTTS Case Manager
9

 
 Case 2:15-cv-11222-SFC-DRG ECF No. 152 filed 03/03/20 PageID.4727 Page 1 of 4

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

MARY ANN MCBRIDE; BRIAN STANLEY WITTMAN; & RALPH WILLIAMS, on behalf of themselves & all others similarly situated,
Plaintiffs,

NO. 2:15-cv-11222 HON. SEAN F. COX

v

MAG. DAVID R. GRAND

MICHIGAN DEPARTMENT OF CORRECTIONS; DANIEL H. HEYNS, in his official capacity as Director of the Michigan Department of Corrections; THOMAS FINCO, in his official capacity as Deputy Director of the Correctional Facilities Administration; RANDALL TREACHER, in his official capacity as Chief Deputy Director of the Michigan Department of Corrections; ANTHONY STEWART, in his official capacity as Warden of the Women’s Huron Valley Correctional Facility; JEFFREY WOODS, in his official capacity as Warden of the Chippewa Correctional Facility; & CATHLEEN STODDARD, in her official capacity as Warden of the Carson City Correctional Facility,

Defendants.

v

EDWARD BURLEY #502426 & BRANDON RESCH #304507,

Interested Parties. /

Abraham Singer (P23601)

Scott A. Mertens (P60069)

Law Offices of Abraham Singer

Assistant Attorney General

30833 Northwestern Hwy. Ste. 120 Attorney for Defendants Michigan

Case 2:15-cv-11222-SFC-DRG ECF No. 152 filed 03/03/20 PageID.4728 Page 2 of 4

Farmington Hills, MI 48334 (248) 626-8888 asinger@singerpllc.com
Andrew D. Lazerow Stephen C. Bartenstein Brian E. Kempfer Covington & Burling LLP 850 Tenth Street NW Washington, DC 20001 (202) 662-6000 alazerow@cov.com
Chris E. Davis (P52159) Michigan Protection & Advocacy Service 4095 Legacy Parkway, Ste 500 Lansing, MI 48911 (517) 487-1755 cdavis@mpas.org
Attorneys for Plaintiffs

Dep’t of Corrections; Daniel H. Heyns, Thomas Finco, Randall Treacher, Anthony Stewart, Jeffrey Woods & Cathleen Stoddard Michigan Dep’t of Attorney General MDOC Division P.O. Box 30217 Lansing, MI 48909 (517) 335-3055 MertensS@michigan.gov
Attorneys for Defendants

STIPULATED ORDER ON SETTLEMENT COMPLIANCE The parties hereby stipulate and agree to the following deadlines
for implementation of certain terms of the Settlement Agreement (ECF No. 112):
1. The Michigan Department of Corrections (MDOC) shall enact a statewide policy that implements the terms of the Settlement Agreement by March 1, 2020, on which date MDOC will verify its compliance in writing to the Settlement Monitor.

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2. MDOC shall complete training of all its ADA Coordinators on the requirements of the Settlement Agreement by March 1, 2020, on which date MDOC will verify its compliance in writing to the Settlement Monitor.
3. MDOC shall give Plaintiffs’ Counsel and the Settlement Monitor weekly updates starting on March 1, 2020 and continuing until MDOC verifies in writing to the Settlement Monitor that it has implemented all local operating procedures necessary to implement the terms of the Settlement Agreement. MDOC shall ensure that it has implemented all local operating procedures no later than September 30, 2020.
4. MDOC shall complete training of all of its Personnel at Designated Facilities pursuant to Section XIV of the Settlement Agreement by June 1, 2020, on which date MDOC will verify its compliance in writing to the Settlement Monitor and will provide records showing the completion of the training of such Personnel to the Settlement Monitor.
5. MDOC shall complete training of all of its Personnel at all facilities that house deaf and hard of hearing pursuant to Section XIV of the Settlement Agreement by September 30, 2020, on 3

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which date MDOC will verify its compliance in writing to the

Settlement Monitor and will provide records showing the

completion of the training of such Personnel to the Settlement

Monitor.

IT SO ORDERED.
THIS 3rd DAY OF MARCH 2020
s/Sean F. Cox Sean F. Cox United States District Judge

s/David R. Grand
David R. Grand United States Magistrate Judge

The parties, through their respective counsel, stipulate to the entry of the above order.

Date: February 26, 2020

Date: February 26, 2020

/s/ Scott A. Mertens Scott A. Mertens (P60069) Attorney for Defendants Michigan Dep’t of Corrections, Daniel H. Heyns, Thomas Finco, Randall Treacher, Anthony Stewart, Jeffrey Woods & Cathleen Stoddard MDOC Division P.O. Box 30217 Lansing, MI 48909 (517) 335-3055 MertensS@michigan.gov
Counsel for Defendants

/s/Andrew D. Lazerow w/permission Andrew D. Lazerow Stephen C. Bartenstein Brian E. Kempfer Covington & Burling LLP One CityCenter, 850 Tenth St, NW Washington, DC 20001 (202) 662-6000 alazerow@cov.com sbartenstein@cov.com bkempfer@cov.com
Counsel for Plaintiffs

4

 
 Case 2:15-cv-11222-SFC-DRG ECF No. 154 filed 03/25/20 PageID.4750 Page 1 of 2

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Mary Ann McBride, et. al.,

Plaintiff,

v.

Case No. 15-11222

Michigan Department of Corrections, et. al.,

Sean F. Cox United States District Court Judge

Defendant. ______________________________/

ORDER OVERRULING OBJECTIONS (ECF No. 153) AND ADOPTING 2/20/20 REPORT AND RECOMMENDATION (ECF No. 151)

On March 29, 2019, the Court entered an order granting the parties’ joint motion for final

approval of class action settlement. (ECF No. 120). This order implemented a settlement

agreement that had been reached by the parties. On August 12, 2019, Brandon Resch (who purports

to be a class member) filed a motion to enforce compliance with the settlement agreement. (ECF

No. 124). The Defendants responded (ECF No. 129), and Resch replied. (ECF No. 134). Resch

filed another motion on October 22, 2019. (ECF No. 137). On January 9, 2020, the Court referred

Resch’s motions to Magistrate Judge David R. Grand. (ECF No. 147).

On February 20, 2020, the undersigned and Judge Grand entered a stipulated order

regarding a mediation process for post-judgment complaints. (ECF No. 150). That same day, Judge

Grand issued a Report and Recommendation, wherein he recommends that the Court deny Resch’s

motions for four reasons: (1) they are insufficiently substantiated; (2) Resch confirmed that

additional testing had taken place; (3) Resch’s specific request for relief was moot because

Plaintiffs’ class counsel is still involved in this litigation; and (4) the Stipulated Order regarding

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post-judgment complaints was the most efficient and effective means of addressing Resch’s issues. (ECF No. 151, PageID 4723-4725).
Resch filed objections to Judge Grand’s February 20, 2020 Report and Recommendation. (ECF No. 153). Pursuant to Fed. R. Civ. P. 72(b), if objections are filed to the recommended disposition of a matter by a magistrate judge, “[t]he district judge must determine de novo any part of the magistrate judge’s disposition that has been properly objected to.”
The Court has reviewed Resch’s objections and finds them meritless. Specifically, the Court agrees with Judge Grand that, for the reasons he articulates, the most efficient and effective means of addressing the issues that Resch raised in his motions is for him to first pursue them through the mediation process with the Settlement Monitor pursuant to the procedures outlined in the February 20, 2020 Stipulated Order.
Accordingly, the Court OVERRULES Resch’s objections (ECF No. 153); ADOPTS Judge Grand’s February 20, 2020 Report and Recommendation (ECF No. 151); and DENIES Resch’s motions to enforce compliance with the Settlement Agreement. (ECF No. 124 and 144).
IT IS SO ORDERED. s/Sean F. Cox Sean F. Cox United States District Judge
Dated: March 25, 2020

 
 Case 2:15-cv-11222-SFC-DRG ECF No. 156 filed 05/26/20 PageID.4754 Page 1 of 9

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MARY ANN MCBRIDE, et al.,

Plaintiffs, v.

Civil Action No. 15-11222 Honorable Sean F. Cox Magistrate Judge David R. Grand

MICHIGAN DEPARTMENT OF CORRECTIONS, et al.,

Defendants. __________________________________/

REPORT AND RECOMMENDATION TO DENY EDWARD BURLEY’S MOTION FOR RELIEF FROM JUDGMENT (ECF No. 133)

Background

In this class action, the plaintiffs are “all Deaf and/or Hard of Hearing individuals in the

custody of the [Michigan Department of Corrections (“MDOC”)] (whether now or in the future),

who require hearing related accommodations, including but not limited to interpreters, hearing

devices, or other auxiliary aids or services, to communicate effectively and/or to access or

participate in programs, services, or activities available to individuals in the custody of the

MDOC.” On March 9, 2018, the Court issued an Opinion and Order granting in part the Plaintiffs’

motion for summary judgment, and ruling that the MDOC (and certain of its officers) (collectively,

the “Defendants”) had violated the Americans with Disabilities Act, (“ADA”), 42 U.S.C. § 12131

et seq., and the Rehabilitation Act, 29 U.S.C. § 794 et seq. (ECF No. 99.) The Court ordered the

MDOC to provide certain specified relief, including:

a) Make videophones available to all deaf and hard of hearing prisoners;

b) Provide necessary auxiliary aids for all deaf and hard of hearing prisoners to participate equally in prison programs and services, including

Case 2:15-cv-11222-SFC-DRG ECF No. 156 filed 05/26/20 PageID.4755 Page 2 of 9
consistent access to ASL interpreters for all “high-stakes” interactions and programs, see R&R at 21, including religious services;
c) Institute mandatory training for MDOC’s correctional officers and staff on how to identify and appropriately interact with deaf and hard of hearing prisoners;
d) Adopt effective and comprehensive policies and procedures in each of the above areas, including for appropriate compliance monitoring;
(Id., PageID.4096-97.) The Court also ordered the parties to “meet and confer in an attempt to resolve any aspects
of Plaintiffs’ claims not disposed of by this order, and to agree on an appropriate consent order implementing the relief specified in Paragraph 1 above, and any other relief necessary to bring this action to a close.” (Id., PageID.4097). On September 28, 2018, the parties filed a Proposed Settlement Agreement and a Joint Motion for the Court to approve that Agreement. (ECF Nos. 111.) As the parties explained in their motion, “The Agreement fairly, reasonably, and adequately affords relief to all Class members. Plaintiffs brought this action to ensure that deaf and hard of hearing prisoners received the auxiliary aids and services they need for effective communication and to enjoy equal rights as hearing prisoners while they are incarcerated within MDOC facilities. The relief afforded by the Agreement achieves that goal.” (Id., PageID.4185.) The parties then highlighted a few of the Proposed Settlement Agreement’s “key provisions,” including:
A. Hearing Assessments The Agreement requires the MDOC to provide hearing assessments to all prisoners with a perceived or reported hearing deficit when they first enter MDOC custody, and to provide assessments when requested by prisoners during annual physical exams if there are perceived or reported changes in hearing. . . . B. Housing The Agreement requires the MDOC to house deaf and hard of hearing prisoners at facilities specially designated to accommodate their needs
2

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except when necessary to address safety or security issues, medical or programming needs, or unanticipated emergencies.
C. Auxiliary Aids and Services
The Agreement specifies that the MDOC will provide auxiliary aids and services necessary to allow deaf and hard of hearing prisoners to access MDOC services, programs, and activities. . . .
D. Communication Technology
The MDOC also will provide deaf and hard of hearing prisoners access to technology that will allow them to effectively communicate with those outside of prison. . . .
E. Other Provisions to Ensure Effective Communication
The Agreement also contains various other provisions to ensure effective communication with deaf and hard of hearing prisoners. This includes a requirement that adequate non-auditory systems of notification are in place at MDOC facilities to ensure that deaf and hard of hearing prisoners do not miss announcements, alarms, or other information audibly conveyed from personnel to the general prisoner population.
F. Enhanced Compliance Infrastructure and Training
The Agreement specifies that the MDOC will develop and implement new and updated policies and procedures regarding the accommodations that it will be providing to deaf and hard of hearing prisoners, and these policies and procedures will be audited annually. . . .
G. Monitoring and Enforcement
The Agreement provides for the appointment of Michael K. Brady, the Director of Sabot Consulting’s Criminal Justice Division, to monitor the MDOC’s compliance with the terms of the Agreement. . . .
(Id., PageID.-41865-89.)
The Proposed Settlement Agreement also provided:
XVII. RELEASE AND SETTLEMENT OF CLAIMS
A. Release
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Plaintiffs hereby release and discharge Defendants, including their successors and assigns, of and from any claims or causes of action arising out of the matter described in the Plaintiffs’ Complaint filed with the U.S. District Court for the Eastern District of Michigan (the “Court”) in Case No. 2:15-cv-11222, through the period of the Settlement Monitor’s appointment.
(ECF No. 111-2, PageID.4226.)
Judge Cox held a hearing on the Joint Motion on January 10, 2019, and on January 15,
2019, issued an “Order Granting the Parties’ Joint Motion for Preliminary Approval of Class
Action Settlement (Doc. #111) and Setting Date for Fairness Hearing.” (ECF No. 116.) Judge
Cox indicated that Notice was to be directed to class members in accordance with the parties’
Proposed Notice Plan. (Id.) A fairness hearing was scheduled for March 21, 2019. (Id.)
On January 29, 2019, class member Edward Burley (“Burley”) filed objections to the
Proposed Settlement Agreement. (ECF No. 117.) Burley’s main objection was with respect to the
Release provision quoted above (though his objection actually referenced a similar provision
contained in the Class Notice):
I specifically object to the numerated paragraph 15. Sole Remedy for Class Members, pg. 5. I object on the grounds that I had and remain to have discrimination related issues presented to the Court. . . . I still have a constitutional right to enforce my rights under Federal Statutes. Should this Court find that I am precluded under the aforestated provision, I wish to immediately withdraw my class membership and waive any rights that the settlement agreement offers. I don’t agree to have class-counsel waive my Federal Rights to seek relief under existing or future litigation. . . . (ECF No. 117.) When the parties filed their Joint Motion for Final Approval, they provided a copy of
Burley’s objection (ECF No. 118-3, PageID.4378) and specifically addressed Burley’s argument
(raised by a few others, also), explaining that class members:
. . . are not entitled to opt out as the Class was certified under Rule 23(b)(2), which does not permit opt outs. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 362 (2011) (“The Rule provides no opportunity for (b)(1) or (b)(2)
4

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class members to opt out.”). Moreover, the only reason the objectors provide for wanting to opt out of the settlement is to retain their right to pursue individual claims. But the Agreement does not bar individual claims that do not arise out of Plaintiffs’ complaint, and the Agreement establishes a monitor and continuing jurisdiction of this Court as needed to address any residual concerns that do arise out of Plaintiffs’ complaint. (ECF No. 118, PageID.4330.) Judge Cox held the fairness hearing on March 28, 2019, and the following day entered an Order Granting the Parties’ Joint Motion for Final Approval of Class Action Settlement. (ECF No. 120.) In the Order, Judge Cox specifically acknowledged having reviewed the objections. (Id.) On October 7, 2019, Burley filed a motion for relief from judgment. (ECF No. 133.) In that motion, Burley argues, “This Court has not adjudicated ruling on my objections to date.” (Id.) He also challenged the adequacy of the remedy, asserting he and other deaf and hearing impaired MDOC inmates were prejudiced in three ways: “1) not being able to equally participate in several Federally funded programs, to wit, the PREA confidential reporting, Crimestoppers, etc.), 2) have [sic] major misconducts (Class I Misconducts relating to hearings held where they’ve been denied an interpreter), in their files regarding major misconducts which the hearing impaired prisoner was not given an interpreter, and 3) material prejudice manifest where the deaf and hard of hearing prisoner’s liberty interest will be substantially affected.” (Id., PageID.4543-44.) Burley explained that he raised these issues with plaintiffs’ lead counsel “at the outset of this litigation,” but that counsel “overlooked” the “remedy” he proposed, “and, as such, a Court remedy is necessary . . .” (Id., PageId.4544.) Accordingly, Burley asks the Court to “re-open the case and permit the parties to fashion equitable remedies consistent with other similarly situation [sic] lawsuits regarding remedies.” On January 9, 2020, Burley’s motion for relief from judgment was referred to the
5

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undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). (ECF No. 147.)
Standard of Review Federal Rule of Civil Procedure 60(b) provides, “[o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:”
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief. Fed. R. Civ. P. 60(b). Here, Burley moves under Rule 60(b)(6). The Sixth Circuit has explained that relief under Rule 60(b)(6) should be granted “only in exceptional and extraordinary circumstances, which are defined as those unusual and extreme situations where principles of equity mandate relief.” Export–Import Bank of U.S. v. Advanced Polymer Sciences, Inc., 604 F.3d 242, 247 (6th Cir. 2010) (quotations omitted). See also Price v. United States, No. CR 15-20472, 2020 WL 230275, at *1 (E.D. Mich. Jan. 15, 2020). In addition, “something more than one of the grounds in subsections (1) through (5)” must be shown to justify relief under Rule 60(b)(6). East Brooks Books, Inc. v. City of Memphis, 633 F.3d 459, 465 (6th Cir. 2011).
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Analysis Burley’s instant motion should be denied because the issues he raises are not “exceptional or extraordinary.” Export–Import Bank, 604 F.3d at 247. Burley first argues that the Court did not rule on his objections to the Proposed Settlement Agreement. But, as explained above, Burley’s objections were before Judge Cox (both directly from Burley and as an exhibit to the Proposed Settlement Agreement), and Judge Cox explicitly recognized having reviewed the objections in his Order Granting the Parties’ Joint Motion for Final Approval of Class Action Settlement. (ECF No. 120.) Thus, Burley’s first argument lacks merit. Burley’s request that the Court “re-open” the case also lacks merit. The Final Settlement Agreement already encompasses the “equal participation” issues raised by Burley, albeit in a broader fashion, without specifying each and every type of program where deaf and hard of hearing inmates may need an accommodation. In Paragraph III(A), entitled, “Non-discrimination Based on Disability,” the Final Settlement Agreement provides, “The MDOC shall ensure that Deaf and/or Hard of Hearing Prisoners have full and equal access to the same programs, activities, services and accommodations available to non-Deaf and/or Hard of Hearing Prisoners.” (ECF No. 118-2, PageID.4348.) In light of this provision, there is no need to specify particular programs to which deaf and hard of hearing inmates must be given equal access. Other provisions also offer protections for these types of issues. First, the Final Settlement Agreement requires the MDOC to “provide Qualified Interpreters for any significant communications that are not specifically discussed in this Agreement and that would otherwise be communicated to a prisoner that is not Deaf or Hard of Hearing.” (Id., PageID.4359.) The provision goes on to define “significant communications” as including ones for which “(i) the risks of miscommunication or misunderstanding are significant; and (ii) the consequences of miscommunication/misunderstanding would have significant negative repercussions for the Deaf
7

Case 2:15-cv-11222-SFC-DRG ECF No. 156 filed 05/26/20 PageID.4761 Page 8 of 9
and/or Hard of Hearing Prisoner.” (Id.) Second, the Agreement requires the MDOC to “assign a staff member at each MDOC Facility with the title, duties, and responsibilities of Worksite Offender ADA Coordinator,” and provides that this person shall “be trained on the implementation of the requirements of federal and state law regarding the contents of this Agreement and the MDOC’s obligations to provide full and equal access to its programs, activities, services, and accommodations to Deaf and Hard of Hearing Prisoners.” (Id., PageID.4348-49.) Third, the Agreement contains numerous provisions regarding monitoring and compliance. (Id., PageID.4366-69.) This not only includes appointment of a settlement monitor, but also a requirement that “Deaf and/or Hard of Hearing Prisoners shall be provided with contact information for the Settlement Monitor, and shall be granted private access to the Settlement Monitor.” (Id., PageID.4368.)
Finally, in their Joint Motion for Final Approval of Class Action Settlement, the parties specifically recognized that the Settlement Agreement “does not bar individual claims that do not arise out of Plaintiffs’ complaint . . .” (ECF No. 118, PageID.4330.) Thus, Burley retained whatever rights and claims he may have had that did not arise out of the Plaintiffs’ complaint.
In sum, Judge Cox approved the Settlement Agreement over Burley’s objections, and Burley has at most shown a disagreement about the level of specificity with which the Settlement Agreement was drafted. Burley has not shown the “exceptional and extraordinary circumstances” required to warrant relief under Fed. R. Civ. P. 60(b)(6). Accordingly, his motion for relief from judgment should be denied.
Conclusion For all of the foregoing reasons, Burley’s motion for relief from judgment (ECF No. 133) should be DENIED.
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Case 2:15-cv-11222-SFC-DRG ECF No. 156 filed 05/26/20 PageID.4762 Page 9 of 9

Dated: May 26, 2020 Ann Arbor, Michigan

s/David R. Grand DAVID R. GRAND United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within fourteen (14) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of HHS, 932 F.2d 505, 508 (6th Cir.1991); United States v. Walters, 638 F.2d 947, 949–50 (6th Cir.1981). The filing of objections which raise some issues, but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir.1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this magistrate judge. A party may respond to another party’s objections within 14 days after being served with a copy. See Fed. R. Civ. P. 72(b)(2); 28 U.S.C. §636(b)(1). Any such response should be concise, and should address specifically, and in the same order raised, each issue presented in the objections.
CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court’s ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on May 26, 2020.
s/Eddrey O. Butts EDDREY O. BUTTS Case Manager

9

 
 Case 2:15-cv-11222-SFC-DRG ECF No. 157 filed 05/26/20 PageID.4763 Page 1 of 10

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MARY ANN MCBRIDE, et al.,

Plaintiffs, v.

Civil Action No. 15-11222 Honorable Sean F. Cox Magistrate Judge David R. Grand

MICHIGAN DEPARTMENT OF CORRECTIONS, et al.,

Defendants. __________________________________/

REPORT AND RECOMMENDATION TO DENY EDWARD BURLEY’S MOTION TO ENFORCE COMPLIANCE WITH THE SETTLEMENT
AGREEMENT (ECF No. 135) AND MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION (ECF No. 137)

Background

In this class action, the plaintiffs are “all Deaf and/or Hard of Hearing individuals in the

custody of the [Michigan Department of Corrections (“MDOC”)] (whether now or in the future),

who require hearing related accommodations, including but not limited to interpreters, hearing

devices, or other auxiliary aids or services, to communicate effectively and/or to access or

participate in programs, services, or activities available to individuals in the custody of the

MDOC.” On March 9, 2018, the Court issued an Opinion and Order granting in part the Plaintiffs’

motion for summary judgment, and ruling that the MDOC (and certain of its officers) (collectively,

the “Defendants”) had violated the Americans with Disabilities Act, (“ADA”), 42 U.S.C. § 12131

et seq., and the Rehabilitation Act, 29 U.S.C. § 794 et seq. (ECF No. 99). The Court ordered the

MDOC to provide certain specified relief, including:

a) Make videophones available to all deaf and hard of hearing prisoners;

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Case 2:15-cv-11222-SFC-DRG ECF No. 157 filed 05/26/20 PageID.4764 Page 2 of 10
b) Provide necessary auxiliary aids for all deaf and hard of hearing prisoners to participate equally in prison programs and services, including consistent access to ASL interpreters for all “high-stakes” interactions and programs, see R&R at 21, including religious services;
c) Institute mandatory training for MDOC’s correctional officers and staff on how to identify and appropriately interact with deaf and hard of hearing prisoners;
d) Adopt effective and comprehensive policies and procedures in each of the above areas, including for appropriate compliance monitoring;
(Id., PageID.4096-97.) The Court also ordered the parties to “meet and confer in an attempt to resolve any aspects
of Plaintiffs’ claims not disposed of by this order, and to agree on an appropriate consent order
implementing the relief specified in Paragraph 1 above, and any other relief necessary to bring this
action to a close.” (Id., PageID.4097.) When the parties were unable to agree on the terms of a
consent order, the Plaintiffs unilaterally moved the Court to order the parties to attend a settlement
conference. (ECF No. 102.) The undersigned held a settlement conference in this matter on June
4, 2018, which ultimately resulted in the parties filing a Joint Motion for Final Approval of Class
Action Settlement, along with their Proposed Settlement Agreement (the “Settlement Agreement”)
on March 4, 2019. (ECF No. 118, 118-2.) In executing the Settlement Agreement, the MDOC
agreed to, among other things:
(1) “ensure that Deaf and/or Hard of Hearing Prisoners have full and equal access to the same programs, activities, services and accommodations available to non-Deaf and/or Hard of Hearing Prisoners;”
(2) ensure that MDOC officials are able to “Effectively Communicate with Deaf and/or Hard of Hearing Prisoners at initial intake, assessment, and classification,” providing new MDOC inmates “an initial hearing assessment consistent with medical standards” during initial intake and within seven days of their entry into the MDOC;
(3) provide “medical Personnel . . . to determine if Auxiliary Aids and Services are medically necessary” for any inmate determined to be Deaf
2

Case 2:15-cv-11222-SFC-DRG ECF No. 157 filed 05/26/20 PageID.4765 Page 3 of 10
and/or Hard of Hearing, and then “facilitate[ing] ordering those aids and services;” (4) house Deaf and/or Hard of Hearing Prisoners at “Designated Facilities,” unless safety or security issues, medical or programming needs, and unanticipated emergencies required a different housing location; and (5) provide “Auxiliary Aids and Services required by [the] [Settlement] Agreement which are deemed medically necessary by qualified medical Personnel . . .” (ECF No. 118-2, PageID.4348-54.) The Settlement Agreement also provided that an experienced “Settlement Monitor” – Michael K. Brady – would be involved in ensuring that the MDOC had complied with its obligations under the Settlement Agreement. It provided that “Deaf and/or Hard of Hearing Prisoners shall be provided with contact information for the Settlement Monitor, and shall be granted private access to [him].” (Id., PageID.4368.) It further provided that “the Settlement Monitor will issue semi-annual reports to the Court and the Parties detailing the Defendants' compliance with and implementation of this Agreement.” (Id.) The parties agreed that “the Court will retain jurisdiction over this action [] during the period of the Settlement Monitor's term of appointment, and shall have the power to enforce all terms of this Agreement.” (Id., PageID.4370.) The Honorable Sean F. Cox held a fairness hearing on the joint motion, and, on March 29, 2019, entered an Order granting the motion. (ECF No. 120.) The Order specified that, pursuant to the Settlement Agreement’s terms, the Court would “retain[] jurisdiction over this action to enforce the terms of the [Settlement] Agreement as needed.” (Id., PageID.4465.) Presently before the Court are two motions filed by pro se inmate and class member Edward Burley: (1) motion to
3

Case 2:15-cv-11222-SFC-DRG ECF No. 157 filed 05/26/20 PageID.4766 Page 4 of 10
enforce the Settlement Agreement; and (2) motion for temporary restraining order and preliminary injunction. (ECF Nos. 135, 137.)1
Motion to Enforce the Settlement Agreement
Burley contends that he is a “Class Member and Interested Party [] [who] suffers from
severe hearing loss in both ears.” (ECF No. 135, PageID.4577.) He claims that staff at the Oaks
Correctional Facility where he was housed committed multiple violations of the Settlement
Agreement, including, not providing a proper videophone and denying “access to VRI or [a] live
interpreter for orientation, investigative process, Notice of Intent, Medical consults, classification,
Optometry consults, and other high stakes interactions . . .” (Id., PageID.4578.)
Shortly before Burley filed his motion to enforce settlement agreement, a different MDOC
hearing impaired inmate, B.R., filed a similar motion complaining about alleged violations of the
Settlement Agreement by MDOC staff. On February 20, 2020, the undersigned issued a Report
and Recommendation to deny B.R.’s motion, explaining:
. . . on today’s date, the Court entered a Stipulated Order regarding a “process for post-judgment complaints initiated by class members against Defendants as it pertains to the implementation of the terms and conditions of the Settlement Agreement.” (ECF No. 150). Paragraph 2 of the Stipulated Order provides, in relevant part:
a. The [complaining] class member shall submit [his or her] complaint to the Settlement Monitor assigned in this matter, through a process that is clearly identified to all class members and ensures that the complaints are promptly received by the Settlement Monitor. In particular, complaints should be submitted to the Settlement Monitor, Mike Brady from Sabot Consulting using the below contact information:
Mike Brady Sabot Consulting 101 Parkshore Drive, Suite 100 Folsom, California 95630
1 Pursuant to 28 U.S.C. 636(b)(1)(B), these motions were referred to the undersigned for a Report and Recommendation. (ECF No. 147.)
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Case 2:15-cv-11222-SFC-DRG ECF No. 157 filed 05/26/20 PageID.4767 Page 5 of 10
Phone: (888) 447-2268 Email: Mike.Brady@sabotconsult.com
(Id.).
The Stipulated Order goes on to describe a “mediation process” by which the Settlement Monitor can gather pertinent information from both the complaining class member and the MDOC, engage in confidential communications with the complaining class member, and make a recommendation to the parties for a resolution. (Id.). As reflected in the Settlement Monitor’s detailed and comprehensive December 2, 2019 Amended First Six Month Report to the Court, he has been actively involved in reviewing the MDOC’s compliance with the Settlement Agreement, and is in an excellent position – both in terms of his professional experience and in terms of his being “on the ground” and accessible to MDOC inmates – to expedite resolution of any class member complaints. The Stipulated Order also provides a process by which a dissatisfied party can appeal the Settlement Monitor’s recommendation to the Court. (ECF No. 150.)
For all of the reasons stated above, the Court finds that the most efficient and effective means of addressing the issues [B.R.] raised in his motions is for him to first pursue them through the mediation process with the Settlement Monitor pursuant to the procedures outlined in the Stipulated Order.
(ECF No. 151, PageID.4723-25.)
Judge Cox adopted the Report and Recommendation over B.R.’s objection, concluding,
“the most efficient and effective means of addressing the issues that [the inmate] raised in his
motions is for him to first pursue them through the mediation process with the Settlement Monitor
pursuant to the procedures outlined in the February 20, 2020 Stipulated Order.” (ECF No. 154,
PageID.4751.)
For all of the same reasons, the Court finds that Burley should be required to first pursue
his allegations about Settlement Agreement violations through the mediation process described in
the February 20, 2020 Stipulated Order. The Court notes that other than Burley’s and B.R.’s
complaints, the docket does not reflect any other inmates alleging non-compliance with the
Settlement Agreement by MDOC or its staff. This suggests the Stipulated Order’s mediation
5

Case 2:15-cv-11222-SFC-DRG ECF No. 157 filed 05/26/20 PageID.4768 Page 6 of 10
process is the proper (and agreed-upon) first step for resolving alleged Settlement Agreement violations. Finally, the Court notes that about a week ago in Burley v. Abdellatif, No. 16-12256, the Court held a telephonic settlement conference in which Mr. Burley participated. Although Burley was aided by an “amplifier” provided by his facility,2 he had no difficulty whatsoever fluidly engaging in dialogue during the lengthy telephonic conference.
Accordingly, Burley’s motion to enforce the Settlement Agreement should be denied. Motion for Temporary Restraining Order and Preliminary Injunction
On October 7, 2020, Burley filed a motion for relief from judgment, arguing that the Settlement Agreement was deficient in certain respects. (ECF No. 133.)3 On October 22, 2020, Burley filed a motion for temporary restraining order and preliminary injunction. (ECF No. 137.) In that motion, Burley claims, “[a]s a direct result” of filing the motion for relief from judgment, he was retaliated against by prison officials. (Id., PageID.4592.) Specifically, Burley contends that he “is being issued false misconduct reports, Notice of Intents, harassment, degradation, maltreatment, and other adverse actions for asserting my rights under the [Settlement] Agreement.” (Id., PageID.4592.) Burley filed a declaration in support of his motion, though it provides virtually no detail beyond the conclusory allegations in his motion, and makes no specific reference to his motion for relief from judgment having been a catalyst for the retaliation:
5. I’ve been written several false misconduct reports and Notice of Intents out of retaliation for filing grievances and reporting to the Settlement Monitor . . .
6. Correctional Staff here at Oaks [Correctional Facility] are extremely aggravated against me for asserting my rights to be reasonable [sic] accommodated here. They’ve been threatening and making hostile
2 This shows at least some level of accommodation by MDOC staff at Burley’s facility. 3 On today’s date, the undersigned issued a Report and Recommendation to deny that motion. (ECF No. 156.)
6

Case 2:15-cv-11222-SFC-DRG ECF No. 157 filed 05/26/20 PageID.4769 Page 7 of 10
grimaces against me on a daily basis. I fear for my safety even in this protection unit by staff and the administration. (ECF No. 138, PageID.4600-01.) Because Burley has provided ample notice to Defendants as to his request for injunctive relief, the Court will treat his motion as one for preliminary injunction. See Malam v. Adducci, No. 20-10829, 2020 WL 2616242, at *2 (E.D. Mich. May 23, 2020). Regardless, “Courts consider the same four factors in deciding whether to issue a temporary restraining order or a preliminary injunction under Federal Rule of Civil Procedure 65, although the balancing process is not identical due to the different procedural posture in which each judicial determination arises.” Fifth Third Bank v. Droskie, No. 1:18-CV-565, 2018 WL 3458719, at *2 (W.D. Mich. June 4, 2018) (citing Michigan Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991)). “Specifically, in evaluating a request for a preliminary injunction, a district court should consider: (1) the movant’s likelihood of success on the merits; (2) whether the movant will suffer irreparable injury without a preliminary injunction; (3) whether issuance of a preliminary injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of a preliminary injunction.” Id. (citing McNeilly v. Land, 684 F.3d 611, 615 (6th Cir. 2012)). The four considerations are factors to be balanced and not prerequisites that must be satisfied. McNeilly, 684 F.3d at 615. The party seeking the preliminary injunction bears the burden of justifying such relief. Id. While issuance of injunctive relief is a matter within a trial court’s discretion, id. at 614, a “preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Natural Res. Def. Council, 505 U.S. 7, 22 (2008). Although the Court must balance these factors, the movant’s failure to establish a likelihood of success on the merits or irreparable harm is usually fatal. See CLT Logistics v. River West Brands, 777 F.Supp.2d 1052, 1064 (E.D. Mich. 2011). “It
7

Case 2:15-cv-11222-SFC-DRG ECF No. 157 filed 05/26/20 PageID.4770 Page 8 of 10
follows that a district court need not address all the preliminary injunction factors where fewer are dispositive of the issue.” Id. (citing In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985)). A preliminary injunction should be granted “only if the movant carries his or her burden of proving that the circumstances clearly demand it.” Id.
Overall, the above factors weigh in favor of denying Burley’s motion for a preliminary injunction. First, Burley has not shown a likelihood of success on the merits. He has merely made a few vague allegations about “being issued false misconduct reports, Notice of Intents, harassment, degradation, maltreatment, and other adverse actions for asserting [his] rights under the [Settlement] Agreement.” (ECF. No. 137, PageID.4592.) Even the declaration Burley filed in support of his motion fails to provide the Court with any meaningful details or evidence about the allegedly false misconduct reports and other retaliatory actions. Second, although Burley alleges some harms that may be considered “irreparable” given that they relate to his medical conditions, Caspar v. Snyder, 77 F. Supp. 3d 616, 640 (E.D. Mich. 2015), particularly considering his failure to show a likelihood of success on the merits, this factor is outweighed by the others. The third and fourth factors favor denying Burley’s motion. While Burley’s claims have some connection to this case in that he alleges retaliation based on his complaints about the Settlement Agreement, in reality, he presents independent claims that he would have even absent that Agreement; at bottom, Burley’s claim exists because he alleges retaliation for exercising his First Amendment rights, not because he exercised those rights with respect to the Settlement Agreement in this case. Allowing Burley to pursue an independent constitutional claim in this already-existing action would enable him (and others who might follow suit in this or other similar cases) to improperly bypass the Prison Litigation Reform Act’s exhaustion requirements, one purpose of which “is to allow prison officials ‘a fair opportunity’ to address grievances on the merits to correct prison
8

Case 2:15-cv-11222-SFC-DRG ECF No. 157 filed 05/26/20 PageID.4771 Page 9 of 10

errors that can and should be corrected to create an administrative record for those disputes that eventually end up in court.” Reed-Bey v. Pramstaller, 603 F.3d 322, 324 (6th Cir. 2010). Such an outcome would harm those accused of the alleged wrongdoing as well as the Court which would have less of a record on which to base its consideration. For the same reasons, issuing a preliminary injunction in this case would not serve the public interest.
For all of these reasons, the Court should deny Burley’s motion for temporary restraining order and preliminary injunction.
Conclusion For all of the above reasons, the Court RECOMMENDS that Burley’s motion to enforce compliance with settlement agreement (ECF No. 135) and his motion for temporary restraining order and preliminary injunction (ECF No. 137) be DENIED.

Dated: May 26, 2020 Ann Arbor, Michigan

s/David R. Grand DAVID R. GRAND United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within fourteen (14) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of HHS, 932 F.2d 505, 508 (6th Cir.1991); United States v. Walters, 638 F.2d 947, 949–50 (6th Cir.1981). The filing of objections which raise some issues, but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir.1991); Smith v. Detroit
9

Case 2:15-cv-11222-SFC-DRG ECF No. 157 filed 05/26/20 PageID.4772 Page 10 of 10 Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this magistrate judge. A party may respond to another party’s objections within 14 days after being served with a copy. See Fed. R. Civ. P. 72(b)(2); 28 U.S.C. §636(b)(1). Any such response should be concise, and should address specifically, and in the same order raised, each issue presented in the objections. CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court’s ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on May 26, 2020. s/Eddrey O. Butts EDDREY O. BUTTS Case Manager
10

 
 Case 2:15-cv-11222-SFC-DRG ECF No. 164 filed 07/06/20 PageID.4842 Page 1 of 2

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Mary Ann McBride, et. al.,

Plaintiff,

v.

Case No. 15-11222

Michigan Department of Corrections, et. al.,

Sean F. Cox United States District Court Judge

Defendant. ______________________________/

ORDER STRIKING BRANDON RESCH’S OBJECTIONS (ECF No. 162); ADOPTING MAGISTRATE JUDGE GRAND’S MAY 26, 2020 REPORTS AND
RECOMMENDATIONS (ECF Nos. 156 and 157); AND DENYING EDWARD BURLEY’S MOTIONS (ECF Nos. 133, 135, and 137)

On March 29, 2019, the Court entered an order granting the parties’ joint motion for final

approval of class action settlement. (ECF No. 120). This order implemented a settlement

agreement that had been reached by the parties. Thereafter, Edward Burley (who purports to be a

class member) filed three pro se motions: (1) a motion for relief from judgment (ECF No. 133);

(2) a motion to enforce compliance with the Settlement Agreement (ECF No. 135); and (3) a

motion for temporary restraining order and preliminary injunction. (ECF No. 137).

On January 9, 2020, the Court referred Burley’s motions to Magistrate Judge David R.

Grand. (ECF No. 147). On May 26, 2020, Judge Grand issued two Reports and Recommendations,

wherein he recommends that the Court deny Burley’s three pending motions. (ECF Nos. 156 and

157).

1

Case 2:15-cv-11222-SFC-DRG ECF No. 164 filed 07/06/20 PageID.4843 Page 2 of 2
The time permitted to file objections has passed and Burley has not objected to Judge Grand’s recommended dispositions of his motions. Typically, that would resolve these motions. However, another purported class member, Brandon Resch, has objected to one of Judge Grand’s Reports and Recommendations. (ECF No. 162). Resch acknowledges that Burley’s motions are “outside of [his] purview,” and that he and Burley “have not talked nor corresponded in any manner whatsoever with one another to date.” (ECF No. 162, PageID 4823-4824). Nonetheless, Resch asks the Court to disregard Judge Grand’s recommended disposition of one of Burley’s motions.
Resch has no authority to object on Burley’s behalf. Accordingly, the Court STRIKES Resch’s objections. (ECF No. 162).
Because Burley has not filed any objection within the time permitted for objections, the Court ADOPTS Judge Grand’s Reports and Recommendations. (ECF Nos. 156 and 157). Accordingly, the Court DENIES the motion for relief from judgment (ECF No. 133); DENIES the motion to enforce compliance with settlement agreement (ECF No. 135); and DENIES the motion for temporary restraining order and preliminary injunction. (ECF No. 137).
IT IS SO ORDERED. s/Sean F. Cox Sean F. Cox United States District Judge
Dated: July 6, 2020
2

 
 Michigan Department of Corrections Facing Class Action Disability Lawsuit -- WASHINGTON, March 31, 2015 /PRNewswire-USNewswire/ --


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See more news releases in Advocacy Group Opinion Legal Issues Public Safety Not For Profit

Michigan Department of Corrections Facing Class Action Disability Lawsuit

WASHINGTON, March 31, 2015 /PRNewswire-USNewswire/ -- The Michigan Department of Corrections (MDOC) unfairly discriminates against and denies equal treatment to prisoners who are deaf or hard of hearing in violation of the Americans with Disabilities Act, the Rehabilitation Act, the Religious Land Use and Institutionalized Persons Act, and the First and Fourteenth Amendments of the Constitution of the United States, according to a class action law suit filed in U.S. District Court today by Michigan Protection & Advocacy Service, Inc. (MPAS), Washington Lawyers' Committee for Civil Rights and Urban Affairs, and the law firms Covington & Burling and Kitch Drutchas Wagner Valitutti & Sherbrook. The class action lawsuit, filed by three current prisoners housed within MDOC facilities, seeks injunctive and declaratory relief on behalf of a class of all deaf or hard of hearing persons who are, or will be, confined in Michigan's prisons.
"The Michigan Department of Corrections has failed or refused to provide necessary accommodations and assistance in a consistent and comprehensive manner," said Chris Davis, MPAS Attorney. "As a result, it has violated the prisoners' rights by
http://www.prnewswire.com/news-releases/michigan-department-of-corrections-facing-class-action-disability-lawsuit-300058638.html[4/1/2015 2:34:34 PM]

Michigan Department of Corrections Facing Class Action Disability Lawsuit -- WASHINGTON, March 31, 2015 /PRNewswire-USNewswire/ --

infringing on their ability to communicate with loved ones, participate in medical and mental health care as well as religious and various other programs."
The lawsuit explains that, as a result of MDOC not providing adequate accommodations and assistance to deaf and hard of hearing inmates, the inmates are unable to adequately maintain contact with loved ones; have access to educational opportunities (including academic classes, vocational training, and other programs) offered to prisoners; access necessary medical care; participate in religious services; or access telephone and television services. The lawsuit further explains that deaf and hard of hearing inmates are improperly disciplined and their safety is jeopardized by MDOC. It emphasizes that as a result of MDOC's numerous legal violations, deaf and hard of hearing inmates are forced to serve their time largely isolated from, and are unable to effectively communicate with, other individuals.
"Unfortunately, it is clear that Michigan's treatment of its deaf and hard of hearing prisoners violates federal law. Deaf prisoners should not be punished or prevented from communicating with their families because of their disability," Deborah M. Golden, Director, Prisoners' Rights Project, Washington Lawyers' Committee for Civil Rights and Urban Affairs (WLC), and one of the legal co-counsel on the lawsuit stated. "While Michigan's mistreatment of deaf prisoners is not unique, as reflected by several cases filed by WLC around the country involving federal and state prisons, such litigation has produced progress in achieving fair treatment for deaf prisoners, and we are committed to working with co-counsel to remedy the violations in this case," Golden continued.

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The remedies sought in the current lawsuit, include: access to videophones as a necessary method to provide deaf inmates access to telecommunications; adequate visual notification of oral announcements concerning emergencies and other events; implementation of necessary policies, training, and monitoring to ensure equal treatment by prison officials; and adequate access to sign language interpreters and other auxiliary aids and services.

"This lawsuit is consistent with Covington's long-standing commitment to pro bono service for important causes and vulnerable clients, regardless of location. Together with co-counsel, the firm is committed to ensuring that Michigan treats its deaf and hard of hearing prisoners fairly and equally," Andrew Lazerow, Partner at Covington, and co-counsel on the lawsuit, stated.

"Unfortunately, it's clear from our investigation into the Michigan Department of Correction's treatment of its deaf and hard of hearing prison population, which involved interviewing inmates at multiple prisons throughout the state and reviewing numerous prison records, that Michigan unfairly punishes and discriminates against deaf and hard of prisoners in violation of federal law and the U.S. Constitution," stated Steve Bartenstein, Associate at Covington.

Michigan Protection & Advocacy Service, Inc. (MPAS) is the independent, private, nonprofit organization designated by the governor of the State of Michigan to advocate and protect the legal rights of people with disabilities in Michigan. The Washington Lawyers' Committee for Civil Rights and Urban Affairs (WLC) is a public interest legal organization with extensive experience in civil rights litigation, including with respect to deaf inmates across the country. In an increasingly regulated world, Covington & Burling helps clients navigate their most complex business problems,

http://www.prnewswire.com/news-releases/michigan-department-of-corrections-facing-class-action-disability-lawsuit-300058638.html[4/1/2015 2:34:34 PM]

Michigan Department of Corrections Facing Class Action Disability Lawsuit -- WASHINGTON, March 31, 2015 /PRNewswire-USNewswire/ --
deals, and disputes. Founded in 1919, the firm has more than 850 lawyers in offices in Beijing, Brussels, London, Los Angeles, New York, San Francisco, Seoul, Shanghai, Silicon Valley, and Washington. Kitch Drutchas Wagner Valitutti & Sherbrook is a Michigan-based law firm with a long history of involvement in significant public questions relating to the health care field. In an increasingly regulated world, Covington & Burling LLP helps clients navigate their most complex business problems, deals, and disputes. Founded in 1919, the firm has more than 850 lawyers in offices in Beijing, Brussels, London, Los Angeles, New York, San Francisco, Seoul, Shanghai, Silicon Valley, and Washington. CONTACT: Rebecca Carr, +1 202-662-5110, rcarr@cov.com Logo - http://photos.prnewswire.com/prnh/20150211/174954LOGO SOURCE Covington & Burling LLP
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http://www.prnewswire.com/news-releases/michigan-department-of-corrections-facing-class-action-disability-lawsuit-300058638.html[4/1/2015 2:34:34 PM]

 
 CLOSED,APPEAL
U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:15−cv−11222−SFC−DRG

McBride et al v. Michigan Department of Corrections et al Assigned to: District Judge Sean F. Cox Referred to: Magistrate Judge David R. Grand Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 03/31/2015 Date Terminated: 03/29/2019 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Mary Ann McBride

represented by Abraham Singer Law Offices of Abraham Singer PLLC 30833 Northwestern Hwy. Ste. 120 Farmington Hills, MI 48334 (248) 626−8888 Email: asinger@singerpllc.com ATTORNEY TO BE NOTICED

Andrew D. Lazerow Covington & Burling LLP 850 Tenth Street NW Washington, DC 20001 202−662−5081 Fax: 202−778−5081 Email: alazerow@cov.com ATTORNEY TO BE NOTICED

Brian Eugene Kempfer Covington & Burling LLP 850 Tenth Street. NW Washington, DC 20001 202−662−5905 Fax: 202−778−5905 Email: bkempfer@cov.com ATTORNEY TO BE NOTICED

Megan E. Gerking Covington & Burling LLP One City Center 850 Tenth Street NW Washington, DC 20001 202−662−5181 Email: mgerking@cov.com TERMINATED: 09/17/2018 ATTORNEY TO BE NOTICED

Philip J. Levitz Covington & Burling LLP One CityCenter 850 Tenth Street NW Washington, DC 20001 202−662−5879 Email: plevitz@cov.com ATTORNEY TO BE NOTICED

Stephen Curtis Bartenstein Covington & Burling LLP One City Center, 850 Tenth Street NW Washington, DC 20001

Plaintiff Brian Stanley Wittman
Plaintiff Ralph Williams

202−662−5471 Fax: 202−662−6291 Email: sbartenstein@cov.com ATTORNEY TO BE NOTICED
Chris E. Davis Michigan Protection and Advocacy Service 4095 Legacy Parkway Suite 500 Lansing, MI 48911 517−487−1755 Fax: 517−478−0827 Email: cdavis@mpas.org ATTORNEY TO BE NOTICED
represented by Abraham Singer (See above for address) ATTORNEY TO BE NOTICED
Andrew D. Lazerow (See above for address) ATTORNEY TO BE NOTICED
Brian Eugene Kempfer (See above for address) ATTORNEY TO BE NOTICED
Megan E. Gerking (See above for address) TERMINATED: 09/17/2018 ATTORNEY TO BE NOTICED
Philip J. Levitz (See above for address) ATTORNEY TO BE NOTICED
Stephen Curtis Bartenstein (See above for address) ATTORNEY TO BE NOTICED
Chris E. Davis (See above for address) ATTORNEY TO BE NOTICED
represented by Abraham Singer (See above for address) ATTORNEY TO BE NOTICED
Andrew D. Lazerow (See above for address) ATTORNEY TO BE NOTICED
Brian Eugene Kempfer (See above for address) ATTORNEY TO BE NOTICED
Megan E. Gerking (See above for address) TERMINATED: 09/17/2018 ATTORNEY TO BE NOTICED

V. Defendant Michigan Department of Corrections

Philip J. Levitz (See above for address) ATTORNEY TO BE NOTICED
Stephen Curtis Bartenstein (See above for address) ATTORNEY TO BE NOTICED
Chris E. Davis (See above for address) ATTORNEY TO BE NOTICED
represented by Scott A. Mertens MI Dept of Attorney General MDOC Division 525 W Ottawa PO Box 30217 Lansing, MI 48909 517−335−3550 Fax: 517−335−7157 Email: mertenss@michigan.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
A. Peter Govorchin Michigan Department of Attorney General 525 West Ottawa Street Suite 4th Floor, G. Mennen Williams Building P.O. Box 30217 Lansing, MI 48909 517−335−3055 Fax: 517−335−7157 Email: AG−Complex@michigan.gov TERMINATED: 06/06/2019 ATTORNEY TO BE NOTICED
Allan J. Soros Michigan Department of Attorney General MDOC Division P.O. Box 30217 525 W. Ottawa Lansing, MI 48909 517−335−3055 Fax: 517−335−7157 Email: sorosa@michigan.gov TERMINATED: 09/25/2018 ATTORNEY TO BE NOTICED
Gary L. Grant Michigan Attonrey General's Office P.O. Box 30736 525 W. Ottawa St. Lansing, MI 48909 517−373−6434 Fax: 517−373−2454 Email: AG−PEET@michigan.gov ATTORNEY TO BE NOTICED
James E. Long Michigan Department of Attorney General

Defendant
Daniel H Heyns in his official capacity as Director of the Michigan Department of Corrections

Civil Litigation, Employment & Elections Division P.O. Box 30736 525 W. Ottawa St. Lansing, MI 48909 517−373−6434 Fax: 517−335−2454 Email: longj@michigan.gov TERMINATED: 09/25/2018 ATTORNEY TO BE NOTICED
Jeanmarie Miller State of Michigan Department of Attorney General P.O. Box 30736 525 W. Ottawa St. Lansing, MI 48909 517−373−6434 Fax: 517−373−2454 Email: MillerJ51@michigan.gov TERMINATED: 09/25/2018 ATTORNEY TO BE NOTICED
Jennifer A. Foster Department of Attorney General 525 West Ottawa Street Lansing, MI 48933 517−335−7573 Fax: 517−335−7578 Email: fosterj15@michigan.gov ATTORNEY TO BE NOTICED
Robert J. Jenkins Michigan Department of Attorney General 525 W. Ottawa P.O. Box 30217 Lansing, MI 48909 517−335−7021 Fax: 517−335−7157 Email: AG−PEET@michigan.gov ATTORNEY TO BE NOTICED
represented by Scott A. Mertens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
A. Peter Govorchin (See above for address) TERMINATED: 06/06/2019 ATTORNEY TO BE NOTICED
Allan J. Soros (See above for address) TERMINATED: 09/25/2018 ATTORNEY TO BE NOTICED
Gary L. Grant (See above for address) ATTORNEY TO BE NOTICED
James E. Long (See above for address)

Defendant Thomas Finco in his official capacity as Deputy Director of the Correctional Facilities Administration
Defendant Randall Treacher in his official capacity as Chief Deputy Director of the Michigan Department of Corrections

TERMINATED: 09/25/2018 ATTORNEY TO BE NOTICED
Jeanmarie Miller (See above for address) TERMINATED: 09/25/2018 ATTORNEY TO BE NOTICED
Jennifer A. Foster (See above for address) ATTORNEY TO BE NOTICED
Robert J. Jenkins (See above for address) ATTORNEY TO BE NOTICED
represented by Scott A. Mertens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
A. Peter Govorchin (See above for address) TERMINATED: 06/06/2019 ATTORNEY TO BE NOTICED
Allan J. Soros (See above for address) TERMINATED: 09/25/2018 ATTORNEY TO BE NOTICED
Gary L. Grant (See above for address) ATTORNEY TO BE NOTICED
James E. Long (See above for address) TERMINATED: 09/25/2018 ATTORNEY TO BE NOTICED
Jeanmarie Miller (See above for address) TERMINATED: 09/25/2018 ATTORNEY TO BE NOTICED
Jennifer A. Foster (See above for address) ATTORNEY TO BE NOTICED
Robert J. Jenkins (See above for address) ATTORNEY TO BE NOTICED
represented by Scott A. Mertens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
A. Peter Govorchin (See above for address) TERMINATED: 06/06/2019 ATTORNEY TO BE NOTICED

Defendant
Anthony Stewart in his official capacity as Warden of the Women's Huron Valley Correctional Facility

Allan J. Soros (See above for address) TERMINATED: 09/25/2018 ATTORNEY TO BE NOTICED
Gary L. Grant (See above for address) ATTORNEY TO BE NOTICED
James E. Long (See above for address) TERMINATED: 09/25/2018 ATTORNEY TO BE NOTICED
Jeanmarie Miller (See above for address) TERMINATED: 09/25/2018 ATTORNEY TO BE NOTICED
Jennifer A. Foster (See above for address) ATTORNEY TO BE NOTICED
Robert J. Jenkins (See above for address) ATTORNEY TO BE NOTICED
represented by Scott A. Mertens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
A. Peter Govorchin (See above for address) TERMINATED: 06/06/2019 ATTORNEY TO BE NOTICED
Allan J. Soros (See above for address) TERMINATED: 09/25/2018 ATTORNEY TO BE NOTICED
Gary L. Grant (See above for address) ATTORNEY TO BE NOTICED
James E. Long (See above for address) TERMINATED: 09/25/2018 ATTORNEY TO BE NOTICED
Jeanmarie Miller (See above for address) TERMINATED: 09/25/2018 ATTORNEY TO BE NOTICED
Jennifer A. Foster (See above for address) ATTORNEY TO BE NOTICED
Robert J. Jenkins (See above for address)

Defendant Jeffrey Woods in his official capacity as Warden of the Chippewa Correctional Facility
Defendant Cathleen Stoddard in her official capacity as Warden of the Carson City Correctional Facility

ATTORNEY TO BE NOTICED
represented by Scott A. Mertens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
A. Peter Govorchin (See above for address) TERMINATED: 06/06/2019 ATTORNEY TO BE NOTICED
Allan J. Soros (See above for address) TERMINATED: 09/25/2018 ATTORNEY TO BE NOTICED
Gary L. Grant (See above for address) ATTORNEY TO BE NOTICED
James E. Long (See above for address) TERMINATED: 09/25/2018 ATTORNEY TO BE NOTICED
Jeanmarie Miller (See above for address) TERMINATED: 09/25/2018 ATTORNEY TO BE NOTICED
Jennifer A. Foster (See above for address) ATTORNEY TO BE NOTICED
Robert J. Jenkins (See above for address) ATTORNEY TO BE NOTICED
represented by Scott A. Mertens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
A. Peter Govorchin (See above for address) TERMINATED: 06/06/2019 ATTORNEY TO BE NOTICED
Allan J. Soros (See above for address) TERMINATED: 09/25/2018 ATTORNEY TO BE NOTICED
Gary L. Grant (See above for address) ATTORNEY TO BE NOTICED
James E. Long (See above for address) TERMINATED: 09/25/2018 ATTORNEY TO BE NOTICED

Interested Party Edward Burley
Interested Party Brandon Resch

Jeanmarie Miller (See above for address) TERMINATED: 09/25/2018 ATTORNEY TO BE NOTICED
Jennifer A. Foster (See above for address) ATTORNEY TO BE NOTICED
Robert J. Jenkins (See above for address) ATTORNEY TO BE NOTICED
represented by Edward Burley 502426 OAKS CORRECTIONAL FACILITY 1500 CABERFAE HIGHWAY MANISTEE, MI 49660 PRO SE
represented by Brandon Resch 304507 CARSON CITY CORRECTIONAL FACILITY 10274 BOYER ROAD CARSON CITY, MI 48811 PRO SE

Date Filed 03/31/2015
04/01/2015 04/06/2015 04/06/2015 04/06/2015 04/06/2015 04/07/2015 04/16/2015

# Docket Text
1 COMPLAINT CLASS ACTION REQUEST FOR DECLARATORY AND INJUNCTIVE RELIEF filed by All Plaintiffs against All Defendants. Plaintiff requests summons issued. Receipt No: 0645−5095800 − Fee: $ 400. County of 1st Plaintiff: Washtenaw − County Where Action Arose: Washtenaw − County of 1st Defendant: Ingham. [Previously dismissed case: No] [Possible companion case(s): None] (Davis, Chris) (Entered: 03/31/2015)
2 SUMMONS Issued for *Thomas Finco, Daniel H Heyns, Michigan Department of Corrections, Anthony Stewart, Cathleen Stoddard, Randall Treacher, Jeffrey Woods* (DAll) (Entered: 04/01/2015)
3 CERTIFICATE of Service/Summons Returned Executed. Michigan Department of Corrections served on 4/3/2015, answer due 4/24/2015. (Davis, Chris) (Entered: 04/06/2015)
4 CERTIFICATE of Service/Summons Returned Executed. Randall Treacher served on 4/3/2015, answer due 4/24/2015. (Davis, Chris) (Entered: 04/06/2015)
5 CERTIFICATE of Service/Summons Returned Executed. Daniel H Heyns served on 4/3/2015, answer due 4/24/2015. (Davis, Chris) (Entered: 04/06/2015)
6 CERTIFICATE of Service/Summons Returned Executed. Thomas Finco served on 4/2/2015, answer due 4/23/2015. (Davis, Chris) (Entered: 04/06/2015)
7 CERTIFICATE of Service/Summons Returned Executed. Anthony Stewart served on 4/2/2015, answer due 4/23/2015. (Davis, Chris) (Entered: 04/07/2015)
8 ATTORNEY APPEARANCE: A. Peter Govorchin appearing on behalf of Thomas Finco, Daniel H Heyns, Michigan Department of Corrections, Anthony Stewart, Cathleen Stoddard, Randall Treacher, Jeffrey Woods (Govorchin, A.) (Entered: 04/16/2015)

04/16/2015 04/16/2015
04/21/2015 04/22/2015 04/28/2015 04/30/2015 05/01/2015
05/07/2015 05/14/2015 05/15/2015
05/15/2015
05/15/2015
05/19/2015 05/19/2015 05/22/2015 06/16/2015 07/23/2015 07/31/2015

9 ATTORNEY APPEARANCE: Allan J. Soros appearing on behalf of Thomas Finco, Daniel H Heyns, Michigan Department of Corrections, Anthony Stewart, Cathleen Stoddard, Randall Treacher, Jeffrey Woods (Soros, Allan) (Entered: 04/16/2015)
10 ATTORNEY APPEARANCE: Robert J. Jenkins appearing on behalf of Thomas Finco, Daniel H Heyns, Michigan Department of Corrections, Anthony Stewart, Cathleen Stoddard, Randall Treacher, Jeffrey Woods (Jenkins, Robert) (Entered: 04/16/2015)
11 CERTIFICATE of Service/Summons Returned Executed. Jeffrey Woods served on 4/10/2015, answer due 5/1/2015. (Davis, Chris) (Entered: 04/21/2015)
12 STIPULATION AND ORDER Extending Time for Defendants to Respond re 1 Complaint. (Responsive Pleading due by 5/1/2015) Signed by District Judge Sean F. Cox. (JMcC) (Entered: 04/22/2015)
13 ATTORNEY APPEARANCE: Abraham Singer appearing on behalf of All Plaintiffs (Singer, Abraham) (Entered: 04/28/2015)
14 CERTIFICATE of Service/Summons Returned Executed. Cathleen Stoddard served on 4/13/2015, answer due 5/4/2015. (Davis, Chris) (Entered: 04/30/2015)
15 MOTION for Summary Judgment by Thomas Finco, Daniel H Heyns, Michigan Department of Corrections, Anthony Stewart, Cathleen Stoddard, Randall Treacher, Jeffrey Woods. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, McBride Step III Grievance Report, # 3 Exhibit B, Wittman Step III Grievance Report, # 4 Exhibit C, Williams Step III Grievance Report, # 5 Exhibit D, MDOC PD 03.02.130, # 6 Exhibit E, Burnett v. Howard) (Govorchin, A.) (Entered: 05/01/2015)
16 NOTICE by All Plaintiffs OF CORRECTION (Davis, Chris) (Entered: 05/07/2015)
17 ORDER Referring Pretrial Matters to Magistrate Judge David R. Grand, including 15 Motion for Summary Judgment. Signed by District Judge Sean F. Cox. (JMcC) (Entered: 05/14/2015)
18 ATTORNEY APPEARANCE: James E. Long appearing on behalf of Thomas Finco, Daniel H Heyns, Michigan Department of Corrections, Anthony Stewart, Cathleen Stoddard, Randall Treacher, Jeffrey Woods w/certificate of service (Long, James) (Entered: 05/15/2015)
19 ATTORNEY APPEARANCE: Jeanmarie Miller appearing on behalf of Thomas Finco, Daniel H Heyns, Michigan Department of Corrections, Anthony Stewart, Cathleen Stoddard, Randall Treacher, Jeffrey Woods w/certificate of service (Miller, Jeanmarie) (Entered: 05/15/2015)
20 ATTORNEY APPEARANCE: Gary L. Grant appearing on behalf of Thomas Finco, Daniel H Heyns, Michigan Department of Corrections, Anthony Stewart, Cathleen Stoddard, Randall Treacher, Jeffrey Woods w/certificate of service (Grant, Gary) (Entered: 05/15/2015)
21 NOTICE of Appearance by Stephen Curtis Bartenstein on behalf of All Plaintiffs. (Bartenstein, Stephen) (Entered: 05/19/2015)
22 NOTICE of Appearance by Andrew D. Lazerow on behalf of All Plaintiffs. (Lazerow, Andrew) (Entered: 05/19/2015)
23 RESPONSE to 15 MOTION for Summary Judgment filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F) (Lazerow, Andrew) (Entered: 05/22/2015)
24 MOTION for Withdrawal of Attorney A. Peter Govorchin by Thomas Finco, Daniel H Heyns, Michigan Department of Corrections, Anthony Stewart, Cathleen Stoddard, Randall Treacher, Jeffrey Woods. (Govorchin, A.) (Entered: 06/16/2015)
25 ORDER granting 24 Motion to Withdraw as Attorney.. Signed by Magistrate Judge David R. Grand. (EBut) (Entered: 07/23/2015)
26 NOTICE OF HEARING on 15 MOTION for Summary Judgment . Motion Hearing set for 9/17/2015 10:00 AM before Magistrate Judge David R. Grand (EBut) (Entered: 07/31/2015)

09/15/2015 09/18/2015
10/30/2015 11/13/2015
11/18/2015
12/04/2015 02/16/2016 03/04/2016
03/10/2016 03/18/2016 03/24/2016 03/24/2016 03/25/2016 04/01/2016 04/12/2016 04/14/2016

27 STIPULATED SCHEDULING ORDER. Signed by Magistrate Judge David R. Grand. (EBut) (Entered: 09/15/2015)
Minute Entry for proceedings before Magistrate Judge David R. Grand: Motion Hearing held on 9/17/2015 re 15 MOTION for Summary Judgment filed by Daniel H Heyns, Cathleen Stoddard, Jeffrey Woods, Anthony Stewart, Michigan Department of Corrections, Randall Treacher, Thomas Finco Disposition: #15 taken under advisement(Court Reporter Digitally Recorded) (EBut) (Entered: 09/18/2015)
28 REPORT AND RECOMMENDATION to Deny Defendants' 15 MOTION for Partial Summary Judgment filed by Daniel H Heyns, Cathleen Stoddard, Jeffrey Woods, Anthony Stewart, Michigan Department of Corrections, Randall Treacher, Thomas Finco − Signed by Magistrate Judge David R. Grand. (FMos) (Entered: 10/30/2015)
29 OBJECTION to 28 Report and Recommendation with Certificate of Service by Thomas Finco, Daniel H Heyns, Michigan Department of Corrections, Anthony Stewart, Cathleen Stoddard, Randall Treacher, Jeffrey Woods. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − McQueen v Woods, Warden, et al. Order) (Miller, Jeanmarie) (Entered: 11/13/2015)
30 STIPULATION AND ORDER EXTENDING PLAINTIFFS' DEADLINE TO RESPOND TO 28 REPORT AND RECOMMENDATION re 15 MOTION for Summary Judgment filed by Daniel H Heyns, Cathleen Stoddard, Jeffrey Woods, Anthony Stewart, Michigan Department of Corrections, Randall Treacher, Thomas Finco, 29 Objection to Report and Recommendation, ( Response due by 12/4/2015.) Signed by District Judge Sean F. Cox. (KWin) (Entered: 11/18/2015)
31 RESPONSE to 29 Objection to Report and Recommendation, by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A) (Lazerow, Andrew) (Entered: 12/04/2015)
32 STIPULATION AND AMENDED SCHEDULING ORDER. Signed by District Judge Sean F. Cox. (JMcC) (Entered: 02/16/2016)
33 MOTION to Compel Production of Documents by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit R, # 20 Exhibit S, # 21 Exhibit T, # 22 Exhibit U, # 23 Exhibit V) (Lazerow, Andrew) (Entered: 03/04/2016)
34 CERTIFICATE OF SERVICE by All Plaintiffs Request for Permission to Enter on MDOC Facilities to Inspect and Photograph (Davis, Chris) (Entered: 03/10/2016)
35 RESPONSE to 33 MOTION to Compel Production of Documents with Certificate of Service filed by Thomas Finco, Daniel H Heyns, Michigan Department of Corrections, Anthony Stewart, Cathleen Stoddard, Randall Treacher, Jeffrey Woods. (Miller, Jeanmarie) (Entered: 03/18/2016)
36 ORDER Adopting 28 Report and Recommendation for Denying 15 Motion for Summary Judgment, filed by Daniel H Heyns, Cathleen Stoddard, Jeffrey Woods, Anthony Stewart, Michigan Department of Corrections, Randall Treacher, Thomas Finco. Signed by District Judge Sean F. Cox. (JMcC) (Entered: 03/24/2016)
37 ORDER Referring Pretrial Matters to Magistrate Judge David R. Grand, including 33 Motion to Compel. Signed by District Judge Sean F. Cox. (JMcC) (Entered: 03/24/2016)
38 NOTICE OF HEARING BY TELEPHONE on 33 MOTION to Compel Production of Documents. Motion Hearing set for 4/14/2016 10:00 AM before Magistrate Judge David R. Grand (EBut) (Entered: 03/25/2016)
39 CERTIFICATE OF SERVICE by All Plaintiffs (Davis, Chris) (Entered: 04/01/2016)
40 NOTICE of Appearance by Megan E. Gerking on behalf of All Plaintiffs. (Gerking, Megan) (Entered: 04/12/2016)
Minute Entry for proceedings before Magistrate Judge David R. Grand: Telephonic Motion Hearing held on 4/14/2016 re 33 MOTION to Compel Production of

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Documents filed by Mary Ann McBride, Ralph Williams, Brian Stanley Wittman Disposition: Held and continued to 5/10/16 at 10:00a.m. (EBut) (Entered: 04/15/2016)
41 NOTICE OF HEARING BY TELEPHONE on 33 MOTION to Compel Production of Documents. Motion Hearing set for 5/10/2016 10:00 AM before Magistrate Judge David R. Grand (EBut) (Entered: 04/15/2016)
42 STIPULATION AND [PROPOSED] FURTHER AMENDED SCHEDULING ORDER. Signed by Magistrate Judge David R. Grand. (EBut) (Entered: 04/15/2016)
43 ANSWER to Complaint with Affirmative Defenses and Certificate of Service by Thomas Finco, Daniel H Heyns, Michigan Department of Corrections, Anthony Stewart, Cathleen Stoddard, Randall Treacher, Jeffrey Woods. (Miller, Jeanmarie) (Entered: 04/21/2016)
44 MOTION for Protective Order with Brief in Support and Certificate of Service by Thomas Finco, Daniel H Heyns, Michigan Department of Corrections, Anthony Stewart, Cathleen Stoddard, Randall Treacher, Jeffrey Woods. (Attachments: # 1 Index of Exhibits A−D, # 2 Exhibit A − Plaintiffs' Notice of Deposition of Heidi Washington, # 3 Exhibit B − Jackson v. City of Detroit, # 4 Exhibit C − Nykoriak v City of Hamtramck, # 5 Exhibit D − Jameson v Oakland County) (Soros, Allan) (Entered: 05/02/2016)
Minute Entry for proceedings before Magistrate Judge David R. Grand: Telephonic Motion Hearing held on 5/10/2016 re 33 MOTION to Compel Production of Documents filed by Mary Ann McBride, Ralph Williams, Brian Stanley Wittman. Disposition: Plaintiffs may have until 5/24/16 to either file their reply brief or withdraw the motion to compel. (EBut) (Entered: 05/10/2016)
45 CERTIFICATE OF SERVICE by All Plaintiffs (Davis, Chris) (Entered: 05/12/2016)
46 STIPULATED ORDER TO EXTEND TIME TO FILE RESPONSE TO MOTION. Signed by Magistrate Judge David R. Grand. (EBut) (Entered: 05/13/2016)
47 RESPONSE to 44 MOTION for Protective Order with Brief in Support and Certificate of Service filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B, # 4 Exhibit Exhibit C, # 5 Exhibit Exhibit D, # 6 Exhibit Exhibit E, # 7 Exhibit Exhibit F, # 8 Exhibit Exhibit G, # 9 Exhibit Exhibit H, # 10 Exhibit Exhibit I, # 11 Exhibit Exhibit J) (Davis, Chris) (Entered: 05/23/2016)
48 NOTICE by All Plaintiffs of withdrawal of 33 MOTION to Compel Production of Documents . (Gerking, Megan) (Entered: 05/24/2016)
49 REPLY to Response re 44 MOTION for Protective Order with Brief in Support and Certificate of Service filed by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Dep of Craig Czinder, # 3 Exhibit B − Dep of Richard Harbaugh, # 4 Exhibit C − Dep of Warden Brewer, # 5 Exhibit D − Dep of Warden Stewart, # 6 Exhibit E − Dep of Warden Campbell) (Soros, Allan) (Entered: 05/31/2016)
50 NOTICE of Appearance by Philip J. Levitz on behalf of All Plaintiffs. (Levitz, Philip) (Entered: 06/22/2016)
51 ORDER granting 44 Motion for Protective Order. Signed by Magistrate Judge David R. Grand. (EBut) (Entered: 06/23/2016)
52 AMENDED SCHEDULING ORDER. Signed by Magistrate Judge David R. Grand. (EBut) (Entered: 07/18/2016)
53 NOTICE of interested party by Edward Burley (DWor) (Entered: 08/02/2016)
54 ORDER DENYING REQUEST FOR ORDER BY "INTERERSTED PARTY" 53 . Signed by Magistrate Judge David R. Grand. (EBut) (Entered: 08/22/2016)
TEXT−ONLY CERTIFICATE OF SERVICE re 54 Order on Edward Burley Pris. No. 502426 at 9625 PIERCE RD., FREELAND, MI 48623. (EBut) (Entered: 08/24/2016)
55 OBJECTION to 54 Order by Edward Burley. (ATee) (Entered: 09/09/2016)

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56 ORDER Overruling 55 Objection filed by Edward Burley and Adopting 54 Order. Signed by District Judge Sean F. Cox. (JMcC) (Entered: 10/24/2016)
57 STIPULATION AND ORDER TO EXTEND DEADLINE FOR DEPOSITION OF PLAINTIFFS EXPERTS AND DEFENDANTS RULE 26(a)(c) EXPERT DISCLOSURES. Signed by Magistrate Judge David R. Grand. (EBut) (Entered: 11/21/2016)
TEXT−ONLY CERTIFICATE OF SERVICE re 57 Stipulation and Order on Edward Burley Pris. No. 502426 at 9625 PIERCE ROAD, FREELAND, MI 48623. (EBut) (Entered: 11/21/2016)
58 MOTION TO EXTEND Time for the Production of Expert Report with Certificate of Service by Thomas Finco, Daniel H Heyns, Michigan Department of Corrections, Anthony Stewart, Cathleen Stoddard, Randall Treacher, Jeffrey Woods. (Miller, Jeanmarie) (Entered: 12/08/2016)
59 RESPONSE to 58 MOTION TO EXTEND Time for the Production of Expert Report with Certificate of Service filed by All Plaintiffs. (Attachments: # 1 Exhibit 1) (Levitz, Philip) (Entered: 12/22/2016)
60 AMENDED SCHEDULING ORDER. Signed by Magistrate Judge David R. Grand. (EBut) (Entered: 12/27/2016)
TEXT−ONLY CERTIFICATE OF SERVICE re 60 Order on Edward Burley Pris. No. 502426 at 9625 PIERCE ROAD, FREELAND, MI 48623. (EBut) (Entered: 12/27/2016)
61 MOTION to Certify Class by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit R, # 20 Exhibit S, # 21 Exhibit T, # 22 Exhibit U, # 23 Exhibit V, # 24 Exhibit W, # 25 Exhibit X, # 26 Exhibit Y, # 27 Exhibit Z, # 28 Exhibit AA, # 29 Exhibit BB, # 30 Exhibit CC, # 31 Exhibit DD, # 32 Exhibit EE, # 33 Exhibit FF, # 34 Exhibit GG, # 35 Exhibit HH, # 36 Exhibit II, # 37 Exhibit JJ, # 38 Exhibit KK, # 39 Exhibit LL, # 40 Exhibit MM, # 41 Exhibit NN) (Lazerow, Andrew) (Entered: 02/10/2017)
62 DECLARATION by Philip J. Levitz re 61 MOTION to Certify Class filed by All Plaintiffs (Attachments: # 1 Exhibit 1) (Lazerow, Andrew) (Entered: 02/10/2017)
63 DECLARATION by Chris E. Davis re 61 MOTION to Certify Class filed by All Plaintiffs (Lazerow, Andrew) (Entered: 02/10/2017)
64 DECLARATION by Elliot M. Mincberg re 61 MOTION to Certify Class filed by All Plaintiffs (Lazerow, Andrew) (Entered: 02/10/2017)
65 DECLARATION by Abraham Singer re 61 MOTION to Certify Class filed by All Plaintiffs (Lazerow, Andrew) (Entered: 02/10/2017)
66 NOTICE OF HEARING on 61 MOTION to Certify Class . Motion Hearing set for 4/27/2017 10:00 AM before Magistrate Judge David R. Grand (EBut) (Entered: 02/13/2017)
TEXT−ONLY CERTIFICATE OF SERVICE re 66 Notice of Hearing on Motion on Edward Burley Pris. No. 502426 at 9625 PIERCE ROAD, FREELAND, MI 48623. (EBut) (Entered: 02/13/2017)
67 COPY of 66 Notice of hearing mailed to Edward Burley and returned as undeliverable. (DPer) (Entered: 02/27/2017)
68 STIPULATION AND ORDER TO EXTEND DEADLINE FORDEFENDANTS RESPONSE TO CLASS CERTIFICATIONMOTION AND PLAINTIFFS REPLY BRIEF. Signed by Magistrate Judge David R. Grand. (EBut) (Entered: 02/27/2017)
TEXT−ONLY CERTIFICATE OF SERVICE re 68 Stipulation and Order on Edward Burley Pris. No. 502426 at 9625 PIERCE ROAD, FREELAND, MI 48623. (EBut) (Entered: 02/27/2017)

03/09/2017 03/10/2017
03/15/2017 03/15/2017 03/15/2017 03/17/2017 03/17/2017
03/17/2017

69 STIPULATION AND ORDERTO EXTEND DEADLINES FORRULE 56 MOTIONS. Signed by Magistrate Judge David R. Grand. (EBut) (Entered: 03/09/2017)
70 RESPONSE to 61 MOTION to Certify Class filed by Thomas Finco, Daniel H Heyns, Michigan Department of Corrections, Anthony Stewart, Cathleen Stoddard, Randall Treacher, Jeffrey Woods. (Attachments: # 1 Index of Exhibits Exhibit List, # 2 Exhibit 1. McBride Answers to Defendants Interrogatories, # 3 Exhibit 2. Williams Answers to Defendants Interrogatories, # 4 Exhibit 3. Wittman OTIS Profile, # 5 Exhibit 4. Medical Service Advisory Committee Guidelines, # 6 Exhibit 5. MDOC Hearing Impaired Prisoner Spreadsheet, # 7 Exhibit 6. MDOC Census, February, 2017, # 8 Exhibit 7. Defendants Answers, # 9 Exhibit 8. Deposition of Robin Gilbert, # 10 Exhibit 9. Healthcare Grid, # 11 Exhibit 10. Paul Slagter Declaration, # 12 Exhibit 11. McBride OTIS Profile, # 13 Exhibit 12. Williams OTIS Profile, # 14 Exhibit 13. Emergency Procedures Operating Procedures, # 15 Exhibit 14. Step III Grievance List) (Miller, Jeanmarie) (Entered: 03/10/2017)
71 STIPULATION AND ORDER TO SEAL EXHIBIT 5 OF DEFENDANTS' RESPONSE IN OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION. Signed by Magistrate Judge David R. Grand. (LHos) (Entered: 03/15/2017)
72 Ex Parte MOTION for Leave to File Excess Pages with Certificate of Service by Thomas Finco, Daniel H Heyns, Michigan Department of Corrections, Anthony Stewart, Cathleen Stoddard, Randall Treacher, Jeffrey Woods. (Miller, Jeanmarie) (Entered: 03/15/2017)
TEXT−ONLY ORDER GRANTING 72 Ex Parte MOTION for Leave to File Excess Pages with Certificate of Service filed by Daniel H Heyns, Cathleen Stoddard, Jeffrey Woods, Anthony Stewart, Michigan Department of Corrections, Randall Treacher, Thomas Finco. Enteerd by Magistrate Judge David R. Grand. (EBut) (Entered: 03/15/2017)
73 NOTICE by Thomas Finco, Daniel H Heyns, Michigan Department of Corrections, Anthony Stewart, Cathleen Stoddard, Randall Treacher, Jeffrey Woods Defendants' Notice of Filing Documents Under Seal with Certificate of Service (Miller, Jeanmarie) (Entered: 03/17/2017)
74 MOTION for Summary Judgment with Brief in Support and Certificate of Service by Thomas Finco, Daniel H Heyns, Michigan Department of Corrections, Anthony Stewart, Cathleen Stoddard, Randall Treacher, Jeffrey Woods. (Attachments: # 1 Index of Exhibits 1 − 24, # 2 Exhibit 1 − McBride Answers to Defendants' Interrogatories, # 3 Exhibit 2 − Williams Answers to Defendants' Interrogatories, # 4 Exhibit 3 − Wittman OTIS Profile, # 5 Exhibit 4 − MDOC Census, # 6 Exhibit 5 − Hearing Impaired Prisoner List (Redacted per HIPPA), # 7 Exhibit 6 − Affidavit of Richard Harbaugh, # 8 Exhibit 7 − Deposition of Richard Harbaugh (escerpts), # 9 Exhibit 8 − Healthcare Grid, # 10 Exhibit 9 − Deposition of Robin Gilbert (excerpts), # 11 Exhibit 10 − Affidavit of Paul Slagter, # 12 Exhibit 11 − Wittman Answers to Defendants' Interrogatories, # 13 Exhibit 12 − cover page of McBride Medical Records (filed under seal), # 14 Exhibit 13 − Prisoner Telephone Use Operating Procedures for DRF, JCF, SMT, SRF, and WHV, # 15 Exhibit 14 − cover page of Williams Medical Records (filed under seal), # 16 Exhibit 15 − Page Alert Broadcast System Operating Procedures for DRF, JCF, SMT, SRF, and WHV, # 17 Exhibit 16 − Fire Control and Emergency Evac. Operating Proc. for DRF, JCF, SMT, SRF, and WHV, # 18 Exhibit 17 − Deposition of Paul Slagter (excerpts), # 19 Exhibit 18 − April 20, 2015 email regarding ASL Interpreters, # 20 Exhibit 19 − June 1, 2015 letter to Linguistica Intern. from Dir. Heyns, # 21 Exhibit 20 − July 20, 2015 Memo from Kenneth McKee, # 22 Exhibit 21 − Translation Services Spreadsheet, # 23 Exhibit 22 − Deposition of Kenneth McKee (excerpts), # 24 Exhibit 23 − Part I − Translation Purchase Orders, # 25 Exhibit 23 − Part II − Translation Purchase Orders, # 26 Exhibit 24 − 30(b)(6) Deposition of Paul Slagter (excerpts)) (Miller, Jeanmarie) (Entered: 03/17/2017)
75 SEALED EXHIBIT 12 and 14 re 73 Notice (Other), 74 MOTION for Summary Judgment with Brief in Support and Certificate of Service by Thomas Finco, Daniel H Heyns, Michigan Department of Corrections, Anthony Stewart, Cathleen Stoddard, Randall Treacher, Jeffrey Woods. (Attachments: # 1 Exhibit 14) (Miller, Jeanmarie)

03/17/2017
03/17/2017 03/17/2017 03/17/2017 03/31/2017 03/31/2017 03/31/2017 04/14/2017
04/14/2017 04/14/2017
04/14/2017 04/19/2017

(Entered: 03/17/2017)
76 MOTION for Summary Judgment on Counts I & II of the Complaint by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit W, # 23 Exhibit X, # 24 Exhibit Y, # 25 Exhibit Z, # 26 Exhibit AA, # 27 Exhibit BB, # 28 Exhibit CC, # 29 Exhibit DD, # 30 Exhibit FF, # 31 Exhibit KK, # 32 Exhibit LL, # 33 Exhibit SS, # 34 Exhibit TT, # 35 Exhibit UU, # 36 Exhibit VV, # 37 Exhibit WW, # 38 Exhibit XX, # 39 Exhibit YY, # 40 Exhibit ZZ, # 41 Exhibit AAA, # 42 Exhibit BBB, # 43 Exhibit CCC, # 44 Exhibit DDD, # 45 Exhibit EEE, # 46 Exhibit FFF, # 47 Exhibit GGG, # 48 Exhibit HHH, # 49 Exhibit III, # 50 Exhibit JJJ) (Lazerow, Andrew) (Entered: 03/17/2017)
77 SEALED EXHIBIT re 76 MOTION for Summary Judgment on Counts I & II of the Complaint by All Plaintiffs. (Attachments: # 1 Exhibit V, # 2 Exhibit EE, # 3 Exhibit GG, # 4 Exhibit HH, # 5 Exhibit II, # 6 Exhibit JJ, # 7 Exhibit MM, # 8 Exhibit NN, # 9 Exhibit OO, # 10 Exhibit PP, # 11 Exhibit QQ, # 12 Exhibit RR) (Lazerow, Andrew) (Entered: 03/17/2017)
78 STATEMENT of of Material Facts Not in Dispute re Motion for Summary Judgment on Counts I & II of the Complaint 76 by All Plaintiffs (Lazerow, Andrew) (Entered: 03/17/2017)
79 NOTICE by All Plaintiffs re 77 Sealed Exhibit, (Lazerow, Andrew) (Entered: 03/17/2017)
80 REPLY to Response re 61 MOTION to Certify Class filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit OO − Gooch v. Life Invrs Ins. Co. of Am., 672 F.3d 402 (6th Cir. 2012), # 3 Exhibit PP − Holmes v. Godinez, 311 F.R.D. 177 (N.D. Ill. 2015), # 4 Exhibit QQ − Grievance URF−14−06−1931−17a) (Lazerow, Andrew) (Entered: 03/31/2017)
81 SEALED EXHIBIT RR re 80 Reply to Response to Motion, by All Plaintiffs. (Lazerow, Andrew) (Entered: 03/31/2017)
82 NOTICE by All Plaintiffs re 81 Sealed Exhibit RR (Lazerow, Andrew) (Entered: 03/31/2017)
83 RESPONSE to 74 MOTION for Summary Judgment with Brief in Support and Certificate of Service filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit MMM, # 3 Exhibit OOO, # 4 Exhibit PPP, # 5 Exhibit QQQ, # 6 Exhibit RRR, # 7 Exhibit SSS, # 8 Exhibit TTT, # 9 Exhibit UUU, # 10 Exhibit VVV, # 11 Exhibit WWW, # 12 Exhibit XXX, # 13 Exhibit YYY, # 14 Exhibit ZZZ) (Lazerow, Andrew) (Entered: 04/14/2017)
84 SEALED EXHIBIT KKK re 83 Response to Motion, by All Plaintiffs. (Attachments: # 1 Exhibit LLL, # 2 Exhibit NNN) (Lazerow, Andrew) (Entered: 04/14/2017)
85 RESPONSE to 76 MOTION for Summary Judgment on Counts I & II of the Complaint with Certificate of Service filed by Thomas Finco, Daniel H Heyns, Michigan Department of Corrections, Anthony Stewart, Cathleen Stoddard, Randall Treacher, Jeffrey Woods. (Attachments: # 1 Index of Exhibits 1−6, # 2 Exhibit 1 − Updike v Clackamas Cnty, # 3 Exhibit 2 − Excerpts of deposition of transcript of Dennis Cokely, Ph.D., # 4 Exhibit 3 − Affidavit of Paul Slagter, # 5 Exhibit 4 − Excerpts of deposition transcript of Paul Slagter dated April 11, 2016, # 6 Exhibit 5 − Excerpts of deposition of transcript of Paul Slagter dated October 13, 2016, # 7 Exhibit 6 − Excerpts of deposition of transcript of Craig A. Czinder) (Miller, Jeanmarie) (Entered: 04/14/2017)
86 NOTICE by All Plaintiffs re 84 Sealed Exhibit (Lazerow, Andrew) (Entered: 04/14/2017)
TEXT−ONLY NOTICE: Hearing on 4/27/17 at 10:00a.m. before Magistrate Judge Grand is Cancelled. (EBut) (Entered: 04/19/2017)

04/19/2017 04/19/2017 05/05/2017 05/05/2017
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06/30/2017 06/30/2017 07/20/2017 02/08/2018
02/22/2018

87 NOTICE OF HEARING on 61 MOTION to Certify Class , 76 MOTION for Summary Judgment on Counts I & II of the Complaint, 74 MOTION for Summary Judgment with Brief in Support and Certificate of Service. Motion Hearing set for 6/13/2017 09:30 AM before Magistrate Judge David R. Grand (EBut) (Entered: 04/19/2017)
TEXT−ONLY CERTIFICATE OF SERVICE re 87 Notice of Hearing on Motion, on Edward Burley Pris. No. 502426 at 9625 PIERCE ROAD, FREELAND, MI 48623. (EBut) (Entered: 04/19/2017)
88 REPLY to Response re 74 MOTION for Summary Judgment with Brief in Support and Certificate of Service filed by Thomas Finco, Daniel H Heyns, Michigan Department of Corrections, Anthony Stewart, Cathleen Stoddard, Randall Treacher, Jeffrey Woods. (Miller, Jeanmarie) (Entered: 05/05/2017)
89 REPLY to Response re 76 MOTION for Summary Judgment on Counts I & II of the Complaint filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit AAAA, # 3 Exhibit BBBB, # 4 Exhibit CCCC, # 5 Exhibit DDDD, # 6 Exhibit EEEE, # 7 Exhibit FFFF, # 8 Exhibit GGGG, # 9 Exhibit IIII, # 10 Exhibit JJJJ, # 11 Exhibit KKKK) (Lazerow, Andrew) (Entered: 05/05/2017)
90 SEALED EXHIBIT HHHH re 89 Reply to Response to Motion, by All Plaintiffs. (Lazerow, Andrew) (Entered: 05/05/2017)
91 NOTICE by All Plaintiffs re 90 Sealed Exhibit (Lazerow, Andrew) (Entered: 05/05/2017)
92 Mail Returned as Undeliverable. re 87 Notice of Hearing on Motion, [No name on envelope] (Ahmed, N) (Entered: 05/15/2017)
TEXT−ONLY CERTIFICATE OF SERVICE re 87 Notice of Hearing on Motion, on Edward Burley Pris. No. 502426 at 9625 PIERCE ROAD, FREELAND, MI 48623. (EBut) (Entered: 05/16/2017)
93 COPY of 87 Notice mailed to Edward Burley and returned as undeliverable. (DPer) (Entered: 05/30/2017)
Minute Entry for proceedings before Magistrate Judge David R. Grand: Motion Hearing held on 6/13/2017 re 76 MOTION for Summary Judgment on Counts I & II of the Complaint filed by Mary Ann McBride, Ralph Williams, Brian Stanley Wittman, 74 MOTION for Summary Judgment with Brief in Support and Certificate of Service filed by Daniel H Heyns, Cathleen Stoddard, Jeffrey Woods, Anthony Stewart, Michigan Department of Corrections, Randall Treacher, Thomas Finco. Disposition: Motion taken under advisement (Court Reporter: Digitally Recorded) (EBut) (Entered: 06/13/2017)
94 REPORT AND RECOMMENDATION re 61 MOTION to Certify Class filed by Mary Ann McBride, Ralph Williams, Brian Stanley Wittman Signed by Magistrate Judge David R. Grand. (EBut) (Entered: 06/30/2017)
TEXT−ONLY CERTIFICATE OF SERVICE re 94 REPORT AND RECOMMENDATION re 61 MOTION to Certify Class filed by Mary Ann McBride, Ralph Williams, Brian Stanley Wittman on Edward Burley Pris. No. 502426 at 9625 PIERCE RAOD, FREELAND, MI 48623. (EBut) (Entered: 06/30/2017)
95 ORDER Adopting 94 Report and Recommendation for Granting 61 MOTION to Certify Class by All Plaintiffs. Signed by District Judge Sean F. Cox. (JMcC) (Entered: 07/20/2017)
96 REPORT AND RECOMMENDATION re 76 MOTION for Summary Judgment on Counts I & II of the Complaint filed by Mary Ann McBride, Ralph Williams, Brian Stanley Wittman, 74 MOTION for Summary Judgment with Brief in Support and Certificate of Service filed by Daniel H Heyns, Cathleen Stoddard, Jeffrey Woods, Anthony Stewart, Michigan Department of Corrections, Randall Treacher, Thomas Finco Signed by Magistrate Judge David R. Grand. (EBut) (Entered: 02/08/2018)
97 OBJECTION to 96 Report and Recommendation with Certificate of Service by Thomas Finco, Daniel H Heyns, Michigan Department of Corrections, Anthony Stewart, Cathleen Stoddard, Randall Treacher, Jeffrey Woods. (Miller, Jeanmarie) (Entered: 02/22/2018)

03/08/2018 03/09/2018
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98 RESPONSE to 97 Objection to Report and Recommendation by All Plaintiffs. (Lazerow, Andrew) (Entered: 03/08/2018)
99 ORDER Adopting Report and Recommendation for Granting in Part and Denying in Part 76 Motion for Summary Judgment, filed by Mary Ann McBride, Ralph Williams, Brian Stanley Wittman; and Denying 74 Motion for Summary Judgment, filed by Daniel H Heyns, Cathleen Stoddard, Jeffrey Woods, Anthony Stewart, Michigan Department of Corrections, Randall Treacher, Thomas Finco. Signed by District Judge Sean F. Cox. (JMcC) (Entered: 03/09/2018)
100 Letter from Edward Burley (DWor) (Entered: 03/23/2018)
101 Letter from Edward Burley. (NAhm) (Entered: 04/17/2018)
102 MOTION for the Convening of a Settlement Conference by All Plaintiffs. (Attachments: # 1 Exhibit A − Proposed Consent Order) (Lazerow, Andrew) (Entered: 05/08/2018)
103 ORDER REFERRING OTHER MATTERS to Magistrate Judge Grand: Settlement Conference. Signed by District Judge Sean F. Cox. (JMcC) (Entered: 05/09/2018)
104 NOTICE TO APPEAR: Settlement Conference set for 6/4/2018 10:00 AM before Magistrate Judge David R. Grand (EBut) (Entered: 05/10/2018)
Minute Entry for proceedings before Magistrate Judge David R. Grand: Settlement Conference held on 6/4/2018 Disposition: Settlement conference held on June 4, 2018. The parties shall exchange information as discussed at the conclusion of the settlement conference and shall work cooperatively to resolve any remaining issues. The Court will hold a telephonic conference with counsel on July 10, 2018, at 10:00 a.m. to discuss the potential need for another settlement conference. (EBut) (Entered: 06/05/2018)
Minute Entry for proceedings before Magistrate Judge David R. Grand: Telephonic Status Conference held on 8/13/2018.Disposition: Conference held and continued to 9/6/18 at 3:30p.m. (EBut) (Entered: 08/13/2018)
105 LETTER from Edward Burley re noticing (DPer) (Entered: 08/15/2018)
106 NOTICE of pivity by Edward Burley (DPer) (Entered: 08/17/2018)
107 MOTION for Withdrawal of Attorney Megan Gerking by All Plaintiffs. (Bartenstein, Stephen) (Entered: 08/23/2018)
Minute Entry for proceedings before Magistrate Judge David R. Grand: Telephonic Status Conference held on 9/6/2018.Disposition: Conference held and continued to 9/14/18 at 3:30p.m. (EBut) (Entered: 09/06/2018)
108 ORDER GRANTING PLAINTIFFS COUNSEL MEGAN GERKINGS MOTION TO WITHDRAW 107 . Signed by Magistrate Judge David R. Grand. (EBut) (Entered: 09/17/2018)
TEXT−ONLY CERTIFICATE OF SERVICE re 108 Order on Motion to Withdraw as Attorney on Edward Burley Pris. No. 502426 at 9625 PIERCE ROAD, FREELAND, MI 48623. (EBut) (Entered: 09/17/2018)
109 ORDER for substitution of attorneys. Signed by Magistrate Judge David R. Grand. (DPer) (Entered: 09/25/2018)
110 COPY of 108 Order mailed to Edward Burley and returned as undeliverable. (DPer) (Entered: 09/26/2018)
111 Joint MOTION for Preliminary Approval of Class Action Settlement by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit B−1, # 5 Exhibit C, # 6 Exhibit D) (Lazerow, Andrew) (Entered: 09/28/2018)
112 NOTICE by All Plaintiffs re 111 Joint MOTION for Preliminary Approval of Class Action Settlement attaching Executed Settlement Agreement (Lazerow, Andrew) (Entered: 10/01/2018)

10/11/2018 10/11/2018 01/07/2019 01/10/2019
01/15/2019
01/29/2019 03/14/2019
03/20/2019 03/28/2019 03/29/2019 04/25/2019 04/25/2019 05/28/2019 05/28/2019
06/06/2019 08/12/2019 08/12/2019 09/09/2019

113 NOTICE OF HEARING on 111 Joint MOTION for Preliminary Approval of Class Action Settlement. Motion Hearing set for 1/11/2019 at 03:00 PM before District Judge Sean F. Cox (JMcC) (Entered: 10/11/2018)
114 NOTICE OF RESCHEDULED HEARING on 111 Joint MOTION for Preliminary Approval of Class Action Settlement. Motion Hearing set for 1/10/2019 AT 03:00 PM before District Judge Sean F. Cox (JMcC) (Entered: 10/11/2018)
115 NOTICE of Change of Address/Contact Information by Edward Burley. (DPer) (Entered: 01/08/2019)
Minute Entry for proceedings before District Judge Sean F. Cox: Motion Hearing held on 1/10/2019 re 111 Joint MOTION for Preliminary Approval of Class Action Settlement filed by Mary Ann McBride, Ralph Williams, Brian Stanley Wittman Disposition: Motion granted (Court Reporter: Ronald DiBartolomeo) (JMcC) (Entered: 01/10/2019)
116 ORDER GRANTING 111 Joint MOTION for Preliminary Approval of Class Action Settlement filed by Mary Ann McBride, Ralph Williams, Brian Stanley Wittman. (Fairness Hearing set for 3/21/2019 at 10:00 AM before District Judge Sean F. Cox) Signed by District Judge Sean F. Cox. (JMcC) (Entered: 01/15/2019)
117 LETTER from Edward Burley objecting to settlement agreement (DPer) (Entered: 02/01/2019)
118 Joint MOTION for Final Approval of Class Action Settlement by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Settlement Agreement, # 3 Exhibit B − Objections, # 4 Exhibit C − Bartenstein Declaration, # 5 Exhibit D − Building Services Local 47 v. Grandview Raceway, # 6 Exhibit E − Int'l Union, United Auto., Aerospace, & Agr. Implement Workers of Am. v. Gen. Motors Corp.) (Lazerow, Andrew) (Entered: 03/14/2019)
119 NOTICE TO APPEAR: Rescheduled Fairness Hearing set for 3/28/2019 at 03:30 PM before District Judge Sean F. Cox. (JMcC) (Entered: 03/20/2019)
Minute Entry for proceedings before District Judge Sean F. Cox: Fairness Hearing held on 3/28/2019. Disposition: Granted (Court Reporter: Darlene May) (MacKay, K) (Entered: 03/29/2019)
120 ORDER Granting the Parties' Joint Motion for Final Approval of Class Action Settlement 118 . Signed by District Judge Sean F. Cox. (MacKay, K) (Entered: 03/29/2019)
121 NOTICE of hearing by Edward Burley; with attached letter (DPer) (Entered: 04/25/2019)
122 MOTION for service of 120 Order by Edward Burley. (DPer) (Entered: 04/25/2019)
TEXT−ONLY ORDER GRANTING 122 MOTION for Service of 120 Order on Motion filed by Edward Burley. Signed by District Judge Sean F. Cox. (JMcC) (Entered: 05/28/2019)
TEXT−ONLY CERTIFICATE OF SERVICE re Text−Only Order and 120 Order on Motion on Edward Burley, Pris No. 502426, OAKS CORRECTIONAL FACILITY, 1500 CABERFAE HIGHWAY, MANISTEE, MI 49660. (JMcC) (Entered: 05/28/2019)
123 STIPULATION AND ORDER for substitution of counsel. Signed by District Judge Sean F. Cox. (DPer) (Entered: 06/06/2019)
124 MOTION to enforce compliance with settlement agreement by Brandon Resch. (DPer) (Entered: 08/12/2019)
125 Prisoner Trust Fund Account Statement by Brandon Resch (DPer) (Entered: 08/12/2019)
126 ORDER Requiring Response to 124 Motion to enforce compliance with settlement agreement. Response due by 9/20/2019 Signed by District Judge Sean F. Cox. (JMcC) (Entered: 09/09/2019)

09/09/2019 09/18/2019
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11/04/2019 11/07/2019 11/07/2019

TEXT−ONLY CERTIFICATE OF SERVICE re 126 Order Requiring Responsive Pleading on Brandon Resch Pris. No. 304507, CHIPPEWA CORRECTIONAL FACILITY, 4269 W. M−80, KINCHELOE, MI 49784 (JMcC) (Entered: 09/09/2019)
127 MOTION to Seal 126 Order Requiring Responsive Pleading, 124 MOTION Response to R. 124 Motion, Brief in Support & Certificate of Service by Thomas Finco, Daniel H Heyns, Michigan Department of Corrections, Anthony Stewart, Cathleen Stoddard, Randall Treacher, Jeffrey Woods. (Attachments: # 1 Exhibit A: seeking to file the entire document under seal) (Mertens, Scott) (Entered: 09/18/2019)
128 NOTICE by Thomas Finco, Daniel H Heyns, Michigan Department of Corrections, Anthony Stewart, Cathleen Stoddard, Randall Treacher, Jeffrey Woods re 127 MOTION to Seal 126 Order Requiring Responsive Pleading, 124 MOTION Response to R. 124 Motion, Brief in Support & Certificate of Service CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1(A) (Mertens, Scott) (Entered: 09/18/2019)
129 RESPONSE to 124 MOTION (Redacted) with Certificate of Service filed by Thomas Finco, Daniel H Heyns, Michigan Department of Corrections, Anthony Stewart, Cathleen Stoddard, Randall Treacher, Jeffrey Woods. (Mertens, Scott) (Entered: 09/20/2019)
130 ORDER Granting 127 Motion to Seal. Signed by District Judge Sean F. Cox. (JMcC) (Entered: 09/24/2019)
TEXT−ONLY CERTIFICATE OF SERVICE re 130 Order on Motion to Seal on Brandon Resch Pris. No. 304507, CHIPPEWA CORRECTIONAL FACILITY, 4269 W. M−80, KINCHELOE, MI 49784. (JMcC) (Entered: 09/24/2019)
131 SEALED RESPONSE re 124 Motion by Thomas Finco, Daniel H Heyns, Michigan Department of Corrections, Anthony Stewart, Cathleen Stoddard, Randall Treacher, Jeffrey Woods. (Mertens, Scott) (Entered: 09/26/2019)
132 CERTIFICATE OF SERVICE re 131 Sealed Response to Motion by Thomas Finco, Daniel H Heyns, Michigan Department of Corrections, Anthony Stewart, Cathleen Stoddard, Randall Treacher, Jeffrey Woods (Mertens, Scott) (Entered: 09/26/2019)
133 MOTION for Relief from Judgment by Edward Burley. (NAhm) (Entered: 10/08/2019)
134 REPLY to Defendants' Response by Brandon Resch. (NAhm) (Entered: 10/08/2019)
135 MOTION to Enforce Compliance with the Settlement Agreement by Edward Burley. (NAhm) (Entered: 10/11/2019)
136 LETTER from Allen L. Fleetwood (DPer) (Entered: 10/16/2019)
137 MOTION for Temporary Restraining Order and Preliminary Injunction and Motion for Protection Order by Edward Burley. (SOso) (Entered: 10/23/2019)
138 DECLARATION of Edward Donald Burley (SOso) (Entered: 10/23/2019)
139 NOTICE TO APPEAR: Status Conference set for 11/4/2019 at 3:30 PM before District Judge Sean F. Cox (JMcC) (Entered: 10/24/2019)
140 AMENDED NOTICE TO APPEAR: TELEPHONIC Status Conference set for 11/4/2019 at 03:30 PM before District Judge Sean F. Cox. Counsel for Plaintiffs shall arrange the call and contact the Court at (313) 234−2650 when all counsel are on the line. (JMcC) (Entered: 10/25/2019)
Set Deadlines/Hearings: Telephonic Status Conference reset for 11/7/2019 at 3:30 PM before District Judge Sean F. Cox (JMcC) (Entered: 11/04/2019)
Minute Entry for proceedings before District Judge Sean F. Cox: Telephonic Status Conference held on 11/7/2019. (JMcC) (Entered: 11/07/2019)
TEXT−ONLY ORDER Suspending Briefing 135 MOTION filed by Edward Burley, 137 MOTION for Temporary Restraining Order filed by Edward Burley, 124 MOTION filed by Brandon Resch, and 133 MOTION filed by Edward Burley. Signed by District Judge Sean F. Cox. (JMcC) (Entered: 11/07/2019)

11/12/2019
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02/20/2020
02/20/2020
02/20/2020

141 ATTORNEY APPEARANCE: Jennifer A. Foster appearing on behalf of Thomas Finco, Daniel H Heyns, Michigan Department of Corrections, Anthony Stewart, Cathleen Stoddard, Randall Treacher, Jeffrey Woods as Co−Counsel with Certificate of Service (Foster, Jennifer) (Entered: 11/12/2019)
142 LETTERS from Edward Burley (DPer) (Entered: 11/20/2019)
143 LETTER from Edward Burley (DPer) (Entered: 11/20/2019)
144 MOTION to Enforce Defendants' Compliance withStipulated Settlement Agrement by Brandon Resch. (SSch) (Entered: 12/03/2019)
145 MOTION to Waive Payment of Court Fees by Brandon Resch. (SSch) (Entered: 12/16/2019)
146 NOTICE TO APPEAR: Status Conference set for 1/23/2020 at 03:00 PM before District Judge Sean F. Cox (JMcC) (Entered: 01/07/2020)
147 ORDER REFERRING MOTIONS to Magistrate Judge David R. Grand: 145 MOTION to Waive Payment of Court Fees filed by Brandon Resch, 135 MOTION filed by Edward Burley, 124 MOTION filed by Brandon Resch, 133 MOTION filed by Edward Burley, 144 MOTION to Enforce Defendants' Compliance with Stipulated Settlement Agrement filed by Brandon Resch, and 137 MOTION for Temporary Restraining Order filed by Edward Burley. Signed by District Judge Sean F. Cox. (JMcC) (Entered: 01/09/2020)
TEXT−ONLY CERTIFICATE OF SERVICE re 147 Order Referring Motions to Magistrate Judge on Brandon Resch #304507, CHIPPEWA CORRECTIONAL FACILITY,4269 W. M−80, KINCHELOE MI 49784 and Edward Burley #502426, OAKS CORRECTIONAL FACILITY, 1500 CABERFAE HIGHWAY, MANISTEE, MI 49660. (JMcC) (Entered: 01/09/2020)
TEXT−ONLY NOTICE: Status Conference on 1/23/2020 is Cancelled (JMcC) (Entered: 01/09/2020)
148 ATTORNEY APPEARANCE: Brian Eugene Kempfer appearing on behalf of Mary Ann McBride, Ralph Williams, Brian Stanley Wittman (Kempfer, Brian) (Entered: 01/14/2020)
149 COPY of 147 Order mailed to Brandon Resch and returned as undeliverable (DPer) (Entered: 01/28/2020)
150 STIPULATED ORDER re Post−Judgment Complaints. Signed by District Judge Sean F. Cox and Magistrate Judge David R. Grand. (JMcC) (Entered: 02/20/2020)
151 REPORT AND RECOMMENDATION re 124 MOTION filed by Brandon Resch, 144 MOTION to Enforce Defendants' Compliance withStipulated Settlement Agrement filed by Brandon Resch Signed by Magistrate Judge David R. Grand. (EBut) (Entered: 02/20/2020)
TEXT−ONLY CERTIFICATE OF SERVICE re 151 REPORT AND RECOMMENDATION re 124 MOTION filed by Brandon Resch, 144 MOTION to Enforce Defendants' Compliance withStipulated Settlement Agrement filed by Brandon Resch on Brandon Resch Pris. No. 304507 at 4269 W. M−80, KINCHELOE, MI 49784. (EBut) (Entered: 02/20/2020)
TEXT−ONLY CERTIFICATE OF SERVICE re 151 REPORT AND RECOMMENDATION re 124 MOTION filed by Brandon Resch, 144 MOTION to Enforce Defendants' Compliance withStipulated Settlement Agrement filed by Brandon Resch on Brandon Resch Pris. No. 304507 at 10274 BOYER RD., CARSON CITY, MI 48811. (EBut) (Entered: 02/20/2020)
TEXT−ONLY CERTIFICATE OF SERVICE re 151 REPORT AND RECOMMENDATION re 124 MOTION filed by Brandon Resch, 144 MOTION to Enforce Defendants' Compliance withStipulated Settlement Agrement filed by Brandon Resch on Edward Burley Pris. No. 502426 at 1500 CABERFAE HIGHWAY, MANISTEE, MI 49660. (EBut) (Entered: 02/20/2020)

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152 STIPULATED ORDER on Settlement Compliance. Signed by District Judge Sean F. Cox and Magistrate Judge David R. Grand. (JMcC) (Entered: 03/03/2020)
153 OBJECTIONS to 151 Report and Recommendation and request that ruling on same be held in abeyance by Brandon Resch. (DPer) (Entered: 03/06/2020)
154 ORDER Adopting 151 Report and Recommendation for Denying 124 Motion filed by Brandon Resch and Denying 144 Motion filed by Brandon Resch. Signed by District Judge Sean F. Cox. (JMcC) (Entered: 03/25/2020)
TEXT−ONLY CERTIFICATE OF SERVICE re 154 Order Adopting Report and Recommendation on Brandon Resch #304507, CHIPPEWA CORRECTIONAL FACILITY,4269 W. M−80, KINCHELOE, MI 49784 (JMcC) (Entered: 03/30/2020)
155 REQUEST for enlargement of time to file notice of appeal by Brandon Resch. (DPer) (Entered: 05/07/2020)
158 NOTICE OF APPEAL by Brandon Resch re 154 Order Adopting Report and Recommendation. Fee Status: IFP filed. (SOso) . (Entered: 06/04/2020)
160 Prisoner Trust Fund Account Statement by Brandon Resch (SOso) (Entered: 06/04/2020)
156 REPORT AND RECOMMENDATION re 133 MOTION filed by Edward Burley Signed by Magistrate Judge David R. Grand. (EBut) (Entered: 05/26/2020)
157 REPORT AND RECOMMENDATION re 135 MOTION filed by Edward Burley, 137 MOTION for Temporary Restraining Order filed by Edward Burley Signed by Magistrate Judge David R. Grand. (EBut) (Entered: 05/26/2020)
TEXT−ONLY CERTIFICATE OF SERVICE re 157 REPORT AND RECOMMENDATION re 135 MOTION filed by Edward Burley, 137 MOTION for Temporary Restraining Order filed by Edward Burley, 156 REPORT AND RECOMMENDATION re 133 MOTION filed by Edward Burley on Edward Burley Pris. No. 502426 at 4269 W. M−80, 1500 CABERFAE HIGHWAY. (EBut) (Entered: 05/26/2020)
TEXT−ONLY CERTIFICATE OF SERVICE re 157 REPORT AND RECOMMENDATION re 135 MOTION filed by Edward Burley, 137 MOTION for Temporary Restraining Order filed by Edward Burley, 156 REPORT AND RECOMMENDATION re 133 MOTION filed by Edward Burley on Brandon Resch Pris. No. 304507 at 1500 CABERFAE HIGHWAY, MANISTEE, MI 49660. (EBut) (Entered: 05/26/2020)
159 Certificate of Service re 158 Notice of Appeal. (SOso) (Entered: 06/04/2020)
162 OBJECTION to 156 Report and Recommendation by Brandon Resch. (DPer) (Entered: 06/24/2020)
161 STIPULATION AND ORDER on Settlement Compliance. Signed by District Judge Sean F. Cox. (JMcC) (Entered: 06/12/2020)
163 APPEAL of settlement monitor's recommendation and motion for relief from judgment under Rule 60(b)(6) by Brandon Resch. (DPer) (Entered: 06/30/2020)
164 ORDER Striking 162 Objection; Adopting 156 Report and Recommendation and 157 Report and Recommendation; Denying 135 Motion filed by Edward Burley; Denying 133 Motion filed by Edward Burley; and Denying 137 Motion for TRO filed by Edward Burley. Signed by District Judge Sean F. Cox. (JMcC) (Entered: 07/06/2020)
165 ORDER denying 145 Motion. Signed by Magistrate Judge David R. Grand. (EBut) (Entered: 07/07/2020)
TEXT−ONLY CERTIFICATE OF SERVICE re 165 Order on Motion − Free on Brandon Resch Pris. No. 304507 at 10274 BOYER RD., CARSON CITY, MI 48811. (EBut) (Entered: 07/07/2020)
TEXT−ONLY CERTIFICATE OF SERVICE re 165 Order on Motion − Free on Edward Burley Pris. No. 502426 at 1500 CABERFAE HIGHWAY, MANISTEE, MI 49660. (EBut) (Entered: 07/07/2020)

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TEXT−ONLY CERTIFICATE OF SERVICE re 164 Order Striking Objections and Adopting Reports and Recommendations on Edward Burley 502426, OAKS CORRECTIONAL FACILITY, 1500 CABERFAE HIGHWAY, MANISTEE, MI 49660 and Brandon Resch 304507, CARSON CITY CORRECTIONAL FACILITY, 10274 BOYER ROAD, CARSON CITY, MI 48811 (JMcC) (Entered: 07/07/2020)
166 COPIES of 156 , 157 Report and Recommendation mailed to Edward Burley and returned as undeliverable (DPer) (Entered: 07/10/2020)