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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
Northern Division
CHRISTOPHER JARBOE, P.O. Box 549, Jessup, MD 20794, CARROLL CONNELLY, P.O. Box 549, Jessup, MD 20794, VANDER DAVIS, P.O. Box 549, Jessup, MD 20794, GARY DENMARK, P.O. Box 549, Jessup, MD 20794, GARFIELD REDD, P.O. Box 549, Jessup, MD 20794, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
MARYLAND DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES (DPSCS), 300 East Joppa Road, Suite 1000, Towson, MD 21286; MARYLAND DIVISION OF CORRECTIONS, 6776 Reisterstown Rd., Suite 310, Baltimore, MD 21215; MARYLAND DEPARTMENT OF LABOR, LICENSING AND REGULATION, DIVISION OF WORKFORCE DEVELOPMENT AND ADULT LEARNING (CORRECTIONAL EDUCATION), 1100 North Eutaw St., Room 616, Baltimore, MD 21201; MARYLAND CORRECTIONAL ENTERPRISES, 7275 Waterloo Road, Jessup, MD 20794; MARYLAND CORRECTIONAL INSTITUTION, JESSUP (MCIJ), P.O. Box 549, Jessup, MD 20794; WESTERN CORRECTIONAL INSTITUTION (WCI), 13800 McMullen Highway, S.W., Cumberland, MD 21502; GARY D. MAYNARD, Secretary, Maryland Department of Public Safety and Correctional Services, 300 East Joppa Road, Suite 1000, Towson, MD 21286; J. MICHAEL STOUFFER, Maryland Commissioner of Corrections, 300 East Joppa Road, Suite 1000, Towson, MD 21286; PAULETTE FRANCOIS, Assistant Secretary, Department of Labor, Licensing and Regulation, Division of Workforce Development and Adult Learning, 1100 North Eutaw St., Room 616, Baltimore, MD 21201; STEPHEN M. SHILOH, Chief Executive Officer, Maryland Correctional Enterprises, 7275 Waterloo Road, Jessup, MD 20794; DAYENA CORCORAN, Warden, Maryland Correctional Institution, Jessup, P.O. Box 549, Jessup, MD 20794; and J. PHILIP MORGAN, Warden, Western Correctional Institution, 13800 McMullen Highway, S.W., Cumberland, MD 21502,
Defendants.
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Case No. _ _ __
CLASS ACTION COMPLAINT

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PLAINTIFF'S COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES I. PRELIMINARY STATEMENT
1. This is a class action lawsuit based on the willful and deliberate refusal of the Defendants to comply with federal laws protecting the rights of the Plaintiffs, who are deaf or hard of hearing individuals in the custody of Defendant Maryland Department of Public Safety and Correctional Services (DPSCS).
2. The state agencies, entities and officials named as Defendants in this case have failed to comply with federal laws, including the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq., the Rehabilitation Act, 29 U.S.C. § 794 et seq., and the Constitution of the United States.
3. Through their policies and practices, Defendants discriminate against deaf and hard of hearing individuals in DPSCS's custody. They have done this by denying deaf and hard of hearing individuals in their custody adequate and equally effective means to communicate by telephone with individuals outside of prison. Defendants have also failed to provide adequate access to other auxiliary aids and services necessary to accommodate deaf and hard of hearing individuals in a variety of settings including in connection with educational and rehabilitative programs. Defendants also refuse to provide deaf and hard of hearing individuals in DPSCS custody with adequate notification of important daily events and safety announcements and also refuse to provide adequate interpretative services at disciplinary hearings. Additionally, Defendants have discriminated against inmates who are deaf or hard of hearing in work assignments.
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4. As a result of the Defendants' discriminatory policies and practices, deaf and hard of hearing individuals in DPSCS's custody and under DPSCS's supervision: • have been prevented from effectively communicating by telephone with family, friends, and attorneys outside of prison; • have missed prison-wide safety announcements, prison counts and announcements for meals and other important daily activities; • have been excluded from participation in educational and counseling programs offered by DPSCS and Correctional Education, including those required under the terms of their sentencing; • have been discriminated against in work assignments; • have been denied the ability to meaningfully participate and defend themselves in disciplinary hearings; • and have been prevented from learning a trade, and receiving educational and industrial credits that could reduce their overall incarceration time.
S. Plaintiffs seek declaratory and injunctive relief and damages on their own behalf and on behalf of the class of all deaf and hard of hearing individuals in DPSCS's custody for the harms they have suffered and continue to suffer as a result of the Defendants' discrimination. II. JURISDICTION
6. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 (Federal Question).
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III. VENUE 7. Venue is proper in this District, under 28 U.S.C. § 1391(b), all the defendants reside in
Maryland in this District and a substantial part of the events giving rise to claims herein occurred within this District.
IV. PARTIES A. Plaintiffs 8. Named Plaintiffs Jarboe, Connelly, Davis, Denmark and Redd are men with a hearing disability currently incarcerated at MCI-J, and under DPSCS's custody and control. 9. Mr. Christopher Jarboe (Inmate # 233959) is profoundly deaf, and has been deaf since birth. He was educated at the Maryland School for the Deaf, Frederick, where he learned, and was instructed in, American Sign Language ("ASL"). He relies on ASL to communicate and requires a sign language interpreter to allow him to communicate effectively with persons who do not know ASL. He cannot use a standard telephone. 10. Mr. Carroll Connelly (Inmate # 367534) is profoundly deaf, and has been deaf since birth. He was educated at the Maryland School for the Deaf, Frederick, where he learned, and was instructed in, ASL. He relies on ASL to communicate and requires a sign language interpreter to allow him to communicate effectively with persons who do not know ASL. He cannot use a standard telephone. 11. Mr. Vander Davis (Inmate # 323484) is profoundly deaf due to an auto-immune disease with an onset in 1999, which prompted a progressive hearing loss and left him with severe tinnitus that further impedes his ability to communicate effectively. Mr. Davis does not use ASL, and requires Computer Assisted Real Time Transcripts (CART) to enable him to
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understand and participate in programs and classes. Mr. Davis cannot use a standard telephone. 12. Mr. Gary Denmark (Inmate # 320355) is profoundly deaf, and has been deaf since birth. He was educated at the Maryland School for the Deaf, Frederick, where he learned, and was instructed in, ASL. He relies on ASL to communicate and requires a sign language interpreter to allow him to communicate effectively with persons who do not know ASL. He cannot use a standard telephone. Like many deaf people, Mr. Denmark is not fluent in reading and writing English, and considers ASL his native language. 13. Mr. Garfield Redd (Inmate #349085) is profoundly deaf due to a progressive hearing loss. He cannot use a standard telephone. Mr. Redd was incarcerated at MCI-J from October, 2009 to September 22, 2011. On September 22, 2011, without explanation, Mr. Redd was moved from MCI-J to WCI. In late October, 2011, Mr. Redd was transferred back to MCIJ. 14. Plaintiffs bring this Complaint on their own behalves and on behalf of a class of persons similarly situated, pursuant to the provisions of Fed. R. Civ. P. 23. This suit is properly maintainable as a class action under Fed. R. Civ. P. 23(b)(2) and 23(b)(3). Plaintiffs represent all deaf or hard of hearing inmates who currently are or will in the future be within the custody or supervision of DPSCS ("Deaf and Hard of Hearing DPSCS Inmates" or "Deaf and Hard of Hearing Inmates.") B. Defendants
1. State Agency Defendants 15. Maryland Department of Public Safety and Correctional Services ("DPSCS") is the
Maryland state agency responsible for the operation of 24 prisons and pre-release centers, 5
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whose mission is to protect the public by incarcerating sentenced criminals DPSCS has nearly 12,000 employees. 16. Maryland Division of Corrections is the division of DPSCS responsible for operation of the State prison system, and the oversight of the State's twenty-four prisons and pre-release centers. 17. Maryland Department of Labor, Licensing and Regulation, Division of Workforce Development and Adult Learning (Correctional Education) is the Maryland agency responsible for providing educational programs to individuals under DPSCS' s custody. 18. Maryland Correctional Enterprises ("MCE") is the division of DPSCS responsible for training and employing inmates in a conglomerate of business units located in the major State prisons. Mandatory education requirements along with the development of technical and social skills have proven to improve the employability of inmates who participate in MCE programs upon release. 19. Maryland Correctional Institute-MCI-J ("MCI-J") is a medium security correctional institute located in Jessup, Maryland. The facility opened in 1981. Upon information and belief, most, but not all, deaf and hard of hearing DPSCS inmates are housed at MCI-J. 20. Western Correctional Institution ("WCI") is a maximum security correctional institute located in Cumberland, Maryland. The facility opened in 1996. Upon information and belief, some deaf and hard of hearing DPSCS inmates are housed at WCI, including those who rely on mobility devices or wheelchairs for mobility.
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2. Defendants Sued in Their Individual and/or Official Capacities 2l. Gary D. Maynard, Secretary, Maryland Department of Public Safety and Correctional
Services is the Director of DPSCS and is responsible for the day-to-day operations of DPSCS. On information and belief, he is aware of DPSCS's policies and practices regarding deaf and hard of hearing individuals. He is sued in his official capacity. 22. J. Michael Stouffer is the Commissioner of Maryland Corrections. He is responsible for overseeing DPSCS prisons and correctional units, including MCI-J and WCI. He is also responsible for responding to appeals of complaints and grievances brought by individuals in DPSCS custody. He is aware of DPSCS policies and practices regarding deaf and hard of hearing individuals and he is aware of specific written complaints by deaf and hard of hearing individuals at MCI-J and WCI regarding the violation of their rights. He is sued in his official capacity. 23. Paulette Francois, Assistant Secretary, Department of Labor, Licensing and Regulation, Division of Workforce Development and Adult Learning is responsible for DPSCS correctional educational programs. On information and belief, she is aware of DPSCS educational policies and practices regarding deaf and hard of hearing individuals. She is sued in her official capacity. 24. Stephen M. Shiloh is the Chief Executive Officer of Maryland Correctional Enterprises. As Chief Executive Officer, Mr. Shiloh is responsible for all MCE programs. On information and belief, he is aware of MCE policies and practices regarding employment of deaf and hard of hearing individuals. He is sued in his official capacity. 25. Dayena Corcoran is the Warden of MCI-J. As Warden, Ms. Corcoran is the legal custodian of all individuals incarcerated at MCI-J, and is responsible for their safe, secure, and
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humane treatment. On information and belief, she is aware of DPSCS's policies and practices regarding deaf and hard of hearing individuals and she is aware of specific written complaints by deaf and hard of hearing individuals at MCI-J regarding the violation of their rights. She is sued in her individual and official capacities. 26. J. Philip Morgan is the Warden of WCI. As Warden, Mr. Morgan is the legal custodian of all individuals incarcerated at WCI, and is responsible for their safe, secure, and humane treatment. On information and belief, he is aware of DPSCS's policies and practices regarding deaf and hard of hearing individuals and he is aware of specific written complaints by deaf and hard of hearing individuals at WCI regarding the violation of their rights. He is sued in his individual and official capacities. 27. Defendants Maynard, Stouffer, Francois, Shiloh, Corcoran, and Morgan are state actors, acting under color of Maryland statutes and regulation in all activities relevant to this action.
V. STATEMENT OF FACTS 28. For years, DPSCS has failed to provide the deaf and hard of hearing inmates housed at its
facilities the accommodations that are required by the Title II of the Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act of 1973 ("Section 504"). In September 2006, Mr. Christopher Jarboe (233959) and other deaf and hard of hearing inmates at MCI-J retained the services of Foley & Lardner LLP ("Foley") and the Washington Lawyers' Committee for Civil Rights and Urban Affairs ("WLC") to assist them in obtaining such accommodations. Attorneys at Foley and the WLC first began to raise these matters with MCI-J in October 2006, through correspondence with thenAssistant Warden John S. Wolfe, and subsequently through regular communications and inperson meetings with Ms. Carolyn A. Atkins, who was then Warden of MCI-J, and Ms.
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Laura Mullally, Assistant Attorney General for the State of Maryland. While some progress was made on certain issues, the discrimination on other matters continues to the present day. 29. 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 individuals, resulting in disability-based discrimination in at least five different areas: (i) ineffective access to telecommunications; (ii) ineffective access to auxiliary aids and services; (iii) ineffective access to prison alerts and announcements; (iv) ineffective communication during disciplinary proceedings; and (v) inadequate access to prison vocational opportunities. A. Inadequate Access to Telecommunications 30. DPSCS provides hearing individuals in its custody access to telecommunications services in order for them to communicate with family, friends, and other individuals outside of prison. 31. As the Federal Bureau of Prisons has recognized, "[t]elephone privileges are a supplemental means of maintaining community and family ties that will contribute to an inmate's personal development." 28 C.F.R. § 540.100. Telephone and other forms of telecommunication are very important to individuals in DPSCS's custody because they foster the family and community ties that are fundamental to motivate incarcerated individuals to improve themselves and to prepare them to make a positive transition back to civilian life once their sentence is complete. 32. Most deaf and hard of hearing DPSCS inmates cannot use traditional telephones to communicate with individuals outside of prison.
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1. Telecommunications Devices for the Deaf 33. Some DPSCS facilities provide deaf individuals in their custody with limited access to
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. Based on fifty-year-old technology, the TDD is basically a telephone equipped with a keyboard and a display screen. For two parties to have a direct TDD conversation, each party must have a TDD. 34. Relay services are federally-mandated services that allow TDD users to communicate with hearing individuals who do not have TDDs. Relay services operate as follows: the party using the TDD places a call to a relay center, and a relay operator answers the call using another TDD. The caller provides the operator with the phone number of the party with whom they wish to communicate, and the operator places the call. When a hearing person answers the phone, the relay operator explains the relay service and states the name of the caller. The responses of the hearing person are typed by the relay operator into a TDD, and transmitted over the telephone lines to the TDD user. The call proceeds with the relay operator voicing what the TDD user types to the hearing person receiving the call, and typing what the hearing person speaks. The process can also work the other way - a hearing person who has no TDD can call deaf individuals from a traditional telephone by using the relay service. 35. The relay service is free of cost to the users, and the caller pays only for the cost of the call to the party with whom the caller wishes to converse. To connect to a relay services center, an individual can either dial "711" from anywhere within the United States or dial the tollfree "800" number of the relay service in the caller's locality. Accordingly, TDD relay
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serVIces III Maryland may be accessed in two ways by calling 711 or by calling

Maryland's toll-free relay service number.

36. For the most part, deaf individuals in the United States who use ASL have abandoned TDD

technology, and now utilize video phones. Yet, for those deaf individuals still using a TDD,

it is impossible to communicate with a video phone user.

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.

38. For example, neither Mr. Davis nor Mr. Redd use sign language. As they cannot use a

traditional telephone, they require a TDD in order to communicate by telephone.

a.

TDD Service at MCI-J

39. MCI-J provides TDD units in some cellblocks.

40. The TDDs at MCI-J are frequently damaged and in need of repair.

41. A TDD conversation takes significantly longer than a traditional VOIce telephone call,

because it takes much longer to type and read rather than to speak and listen. At times,

however, defendants refuse to provide additional time for TDD calls.

42. Inmates at MCI-J cannot place direct calls by TDD to friends and family members; they can

only use the relay service. Thus, they cannot communicate with friends or family members

who possess TDD units. This is particularly important in an instance where they are seeking

to communicate with other deaf or hard of hearing individuals.

43. MCI-J uses a private service company, T-Netix to provide relay services. Inmates at MCI-J

are required to make Collect calls when using the TDDs, and are charged an eight dollar

connection fee, as well as an additional thirty cents per minute of call time. They cannot use

pre-paid phone cards with the T-Netix system. On information and belief, hearing inmates

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are charged only fifteen cents per minute for phone calls, and are permitted to use a debit card for payment. The plaintiffs must use T-Netix to make calls to family and friends. 44. On January 23, 2012, named plaintiff, Mr. Jaboe, filed a Request for Administrative Remedy with Warden Dayena Corcoran to address the unequal treatment afforded to deaf inmates whose only mode of communication is through the TDD units. On January 31, 2012, Ms. Corcoran dismissed the request and referred Mr. Jaboe to file his complaint elsewhere, using the T-Netix/Securus Inmate Telephone Complaint Form, claiming that grievances pertaining to the T-Netix system were outside of the Correctional Division jurisdiction. Yet, MCI-J officers monitor and administer the phone conversations made over TDD, and Ms. Corcoran is responsible for ensuring that inmates are provided with facilities that meet the requirements ofthe law, including communication facilities. 45. At MCI-J, inmates with family emergencies are permitted to place and receIve free compassion telephone calls. Formerly, deaf inmates could place or receive such calls through a TDD in the captain's office. That TDD is no longer available for these calls. As a result, deaf inmates cannot communicate with their families during critical family emergencIes. 46. For example, in late October, 2011, Mr. Connelly'S father had a stroke. Mr. Connelly'S family was unable to contact him directly, and he was unable to contact his family. In midNovember, 2011, Mr. Jarboe's father had a heart attack. His family was unable to contact him directly by telephone. Mr. Jarboe learned of his father's serious illness several days after the heart attack through a letter from his family.
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b. TDD Service at WeI 47. weI has a portable TDD unit, which upon information and belief is usually kept in the
Social Work Office. 48. Deaf and hard of hearing individuals incarcerated at WeI are repeatedly denied access to the
TDD. They are told that they must write a request and make an appointment to use it, and then can only use it during limited hours. There is no provision to enable deaf and hard of hearing inmates to place confidential legal calls. There is also no provision to enable deaf and hard of hearing inmates in segregation to place telephone calls. Hearing inmates have no such restrictions on their use of telephones. 49. There are deaf and hard of hearing individuals who have been incarcerated at weI for years and who, despite repeated requests, have never been able to use the TDD, and thus have never been able to place a call from the institution.
2. Video Phones 50. Videophones and free or low-cost internet-based video links (collectively, "videophones")
are replacing TDDs among deaf people because they allow deaf individuals to communicate with one another directly in ASL, without having to communicate through written English, a language that is difficult for some of them to communicate in. 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. 51. Deaf individuals using videophones can also call a Video Relay Service ("VRS") to place calls to people who do not understand ASL or do not have a videophone. The mechanics of VRS are very similar to those of traditional TDD relay service - the caller is routed to an
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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.

52. 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 DPSCS institutions, is generally much lower than that of

hearing people.

53. 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.

54. Deaf individuals in Defendants' custody have repeatedly requested videophone access, but

have been denied this access.

a.

Video Phones at MCJ-J

55. Mr. Connelly has requested access to a videophone so that he can communicate with his

friends and family. Mr. Connelly'S sister, father, niece and nephew are hearing and use

ASL to communicate with deaf family members. They have videophones but not TDDs.

Mr. Connelly'S friends are deaf and have videophones but not TDDs. Mr. Connelly'S

request for access to a videophone was denied due to the availability ofTDD services.

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56. Therefore, Mr. Connelly has no means at all to call his deaf friends because it is not possible to connect a TDD to a videophone. He also cannot call his family directly, but only through TDD relay services. This creates an additional impediment for Mr. Connelly because the need to use relay services further extends the time it takes to complete a TDD call. By bringing in a third person intermediary through the relay service, it takes considerably more time for the typing, reading, and verbal transmission to loved ones.
57. Mr. Denmark has requested access to a videophone so that he can communicate with his mother and his friends. Mr. Denmark has limited English language skills, and can communicate only very basic messages by TDD. Mr. Denmark's mother is hearing but she uses ASL; his friends are deaf and have videophones but not TDDs. Mr. Denmark's request for access to a videophone was denied due to the availability of TDD services.
58. Therefore, Mr. Denmark has no means at all to call his deaf friends. He has not called any of his deaf friends since he was incarcerated at MCI-J. He also cannot communicate effectively by telephone with his mother, as he can only communicate the most cursory messages by means ofTDD relay services.
59. Mr. Jarboe has requested access to a videophone so that he can communicate with his family. Mr. Jarboe's sister, niece, cousins and his niece's father are deaf and have videophones but not TDDs. Mr. Jarboe's parents are hearing, and use ASL to communicate with him. They have a videophone but not a TDD. Mr. Jarboe's fiance is hearing and uses ASL to communicate with him. She has both a videophone and a TDD. Mr. Jarboe's request for access to a videophone was denied due to the availability ofTDD services.
60. Therefore, Mr. Jarboe has no means at all to call his deaf family members, and cannot call his fiance or his hearing family members directly, but only through TDD relay services. 15
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61. In response to a grievance filed by Mr. Jarboe on the issue of provision of videophone equipment, Mr. R. Watson, Acting Assistant Commissioner of Corrections stated, on June 15,2011: ... it is noted that the Division of Correction will eventually have to explore the new technology for the hearing impaired in the future. Response Part B, Case No. MCIJ-0176-11 (June 15,2011).
62. Mr. Connelly, Mr. Denmark and Mr. Jarboe have met with Ms. Corcoran in a group to discuss their grievances with MCI-J TDD services.
63. Because Mr. Connelly, Mr. Denmark and Mr. Jarboe have used ASL their entire lives, their ability to communicate with family and friends is extremely compromised by typing messages on a TDD, as written communications are not effective for them. Thus, a videophone is the most effective mode of communication.
64. Moreover, because their deaf friends and family members no longer have TDD equipment, and use only videophones, Mr. Connelly, Mr. Denmark and Mr. Jarboe have been completely cut off from telecommunication access with all their deaf friends and family members by the failure of Defendants to provide this equipment. h. Videophones at WeI
65. There are deaf inmates at WCI who use ASL and who are denied effective telecommunication services due to the failure of WCI to provide videophone services to them. 3. Other Telecommunication Issues at MCI-J
66. While none of the named plaintiffs can use a traditional telephone because they are profoundly deaf, several inmates housed at MCI-J are hard of hearing but not profoundly 16
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deaf. These hard of hearing inmates can use a traditional telephone provided the telephone has either an internal or external amplification speaker. While the pay phones available to the general population and hard of hearing inmates were manufactured and originally equipped with internal amplification speakers, the speakers have at various times been in a state of disrepair, thereby limiting the hard of hearing inmates' use of telephone services. Thus, MCI-J fails to maintain the traditional telephones in a condition operable for the hard of hearing inmates, thereby limiting phone access and use by such inmates.
4. Telecommunications at Other DPSCS Facilities 67. Upon information and belief, deaf and hard of hearing inmates at other DPSCS facilities
have been denied equal and consistent access to telecommunication services at those facilities. 68. For example, deaf and hard of hearing inmates at the Jessup Pre-Release Unit and the Maryland Correctional Training Center have been denied equal and consistent access to TDD services at those facilities. 69. It is reported that guards and other authority figures have not only ignored inmates' requests to use the TDD services, but also blocked calls to specific inmates and disposed of inmates' complaints addressing this issue. B. Inadequate Access to Auxiliary Aids and Services 70. Individuals in the custody of DPSCS are wholly dependent on DPSCS for medical, dental, educational, mental health, employment, and religious services, among other services. Individuals in the custody of DPSCS are also dependent on DPSCS and prison staff for all of their basic daily needs, including food, exercise, and safety.
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1. Sign Language Interpreter Services 71. For deaf or hard of hearing individuals who rely on ASL as their pnmary form of
communication, use of a qualified American Sign Language interpreter is necessary to ensure effective communication between a deaf or hard of hearing individual and an individual who does not use ASL to communicate. 72. 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. 73. 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 language-ASL 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 DPSCS, is generally much lower than that of hearing people. 74. 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 lip-reading, 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. 75. Thus, provision of qualified sign language interpreter servIces is the auxiliary serVIce necessary to allow deaf individuals who use ASL in DPSCS's custody and under DPSCS's supervision to effectively communicate with DPSCS officials, DPSCS employees, and medical personnel. 76. Defendants, through their policies and practices, fail to provide adequate access to sign language interpreters for deaf individuals in DPSCS's custody and control and under DPSCS's supervision. 77. On information and belief, Defendants do not provide adequate access to sign language interpreters at DPSCS facilities throughout Maryland.
a. Interpreters for Access to Medical Services 78. Defendants are responsible for the medical care of all individuals incarcerated by DPSCS. 79. Deaf individuals who rely on ASL require sign language interpreters to communicate
effectively with medical staff. 80. After receiving numerous written requests, Defendants are aware that deaf individuals need
sign language interpreters for their medical appointments. 81. Nonetheless, deaf inmates at MCI-J are still periodically denied interpreter servIces at
medical appointments. 82. Deaf inmates at facilities other than MCI-J, including those housed at WCI, are consistently
denied interpreter services for medical appointments. One deaf inmate at WCI has never received an interpreter at medical appointments, despite serious physical disabilities.
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b. Interpreters for Access to Prison Programs 83. Defendants provide educational, mental health and counseling programs for individuals in
DPSCS's custody. 84. Interpreters are not provided consistently by Defendants for such programs, including for
educational classes and for Anger Management and Narcotics Abuse and Alcohol Abuse ("NAIAA") counseling, even when such programs are required under the terms of the inmate's sentence. 85. Deaf inmates at WCI have also been denied interpreter services for classes such as Adult Basic Education, as well as at disciplinary proceedings and religious services.
2. Other Auxiliary Aids and Services 86. For deaf and hard of hearing inmates who do not use ASL, other auxiliary aids and services
are necessary to ensure their effective participation in and understanding of Defendants' services and programs. 87. Computer Assisted Real Time (CART) is a system that provides access to spoken information for people with hearing loss. CART operators use a court reporting machine to input spoken text. The output of the court reporting machine is fed to a computer, which produces a text document that corresponds very closely to the words used by the speaker. Once in the computer, the text can be displayed on a computer monitor (for one or two users) or projected onto a screen (for more users.) CART is generally the system of choice for late-deafened people attending classes or meetings. 88. An Assistive Listening Device or System (ALDS) can be anyone of several technologies that are used to improve the reception of speech for people with hearing loss in situations when it might be difficult or impossible to hear otherwise. ALDS can be used by people
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without hearing aids, with hearing aids and with cochlear implants. Generally speaking, ALDS are especially beneficial for persons who have lost some of their hearing but are still able to understand speech if it is amplified and directed appropriately. 89. Thus, CART and/or ALDS is necessary to allow certain deaf or hard of hearing individuals in DPSCS's custody and under DPSCS's supervision to effectively understand and participate in DPSCS programs and services. 90. Defendants, through their policies and practices, fail to provide any access to CART or ALDS for deaf or hard of hearing individuals in DPSCS's custody and control and under DPSCS's supervision. 91. On information and belief, Defendants do not provide adequate access to CART or ALDS at DPSCS facilities throughout Maryland.
a. Auxiliary Aids and Services at MCJ-J 92. Deaf and hard of hearing inmates at MCI-J have been denied effective access to programs,
such as stress management, anger management and other classes, due to the lack of any system of providing them with effective communication, such as CART and/or ALD. 93. In September, 2010, Mr. Davis began an MCI-J Stress Management class. He was unable to fully participate in the class due to his hearing impairment. 94. Mr. Davis has used CART, supplemented by ALDS, successfully in the past. Following the onset of his hearing loss, Mr. Davis attended and received an Associate's degree from Baltimore County Community College, where he received an accommodation of CART, supplemented by ALDS, to enable him to understand and participate in classes.
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95. Mr. Davis filed a request for administrative remedy regarding this denial of effective communication, which was investigated and found meritorious. The Warden's November 11, 2010 response stated: Your request for administrative remedy has been investigated and was found meritorious. An investigation revealed that the facility is not equipped with an assistive listening device to assist communication for the Hearing Impaired to participate in programs. However, the facility is taking the necessary steps to inquire about a device that can be provided to you for assistance.
96. As of November, 2011, Mr. Davis has still not been provided with CART or ALDS. He must attend an Anger Management program and drug/narcotic abuse program in order to be eligible for parole, but is unable to effectively participate in or understand these programs without the provision of CART. b. Auxiliary Aids and Services at WCI
97. Deaf and hard of hearing inmates at WCI have also been denied educational opportunities, such as classes to achieve a General Educational Development (GED) degree, due to the lack of any system of providing them with effective communication, such as CART and/or ALDS. c. Auxiliary Aids and Services at other DPSCS Facilitie§.
98. Upon information and belief, deaf and hard of hearing inmates at other DPSCS facilities have been denied auxiliary aids and services at those facilities. C. Access to Visual Notification of Announcements
99. Deaf and hard of hearing inmates throughout DPSCS institutions have difficulty in accessing public address and other audio alerts and announcements available to other inmates.
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1. Visual Notification at MCI-J 100. Because deaf and hard of hearing inmates had been unable to hear daily announcements
made by MCI-J staff, such as announcements requiring inmates to report to their cells for head counts, Foley and WLC urged MCI-J to use vibrating pagers to communicate with the deaf inmates. MCI-J agreed to use pagers to essentially send text messages to the deaf inmates so that the deaf inmates receive the same messages and announcements as the hearing inmates. 101. Unfortunately, the pagers are often not used and when they are, they are used improperly. 102. While some DPSCS correctional officers attempt to use the pagers correctly, many do not even attempt to use the pagers and others simply do not know how to use them. MCIJ's failure to train and require that its officers consistently use the pagers and use them for proper purposes causes the deaf and hard of hearing inmates to miss visitors, meal calls, appointments, and other important announcements, a problem that the hearing inmates do not have. 103. For example, Mr. Davis frequently misses meals because officers do not alert him by pager, while other inmates receive information announcing the meal through audio announcements. He most often misses breakfast, sometimes as often as three or four times a week. Mr. Davis also frequently misses mail call announcements, and instead of alerting him by pager or other means, officers distribute Mr. Davis's mail to his cellmate. Additionally, one sergeant, Ms. Fisher, who works in units with deaf inmates and was assigned to Mr. Davis' unit, told him that she does not know how to enter data for the pagers.
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104. MCI-J does on occasion use the pagers for awakening deaf inmates in the morning. However, when the deaf inmates are awakened by pagers, they are awakened substantially earlier than the hearing inmates.
105. Moreover, the volume of the pagers cannot be adjusted, and they are very loud and disruptive for both deaf and hearing inmates. Some deaf inmates do not use the pagers, as they do not want to annoy hearing cell mates who are also awakened early by the pager.
106. The pager in use at MCI-J has an extremely small LED screen. Deaf and hard of hearing inmates cannot see the display on the pager easily, and the information that can be provided on the pager screen is by nature extremely limited.
107. In addition to pagers, approximately seven years ago MCI-J installed LED electronic bulletin boards to provide visual notification of announcements for deaf inmates in the deaf inmates' housing unit, as well as in other central areas of the prison. These worked well to announce visitors to deaf and hard of hearing inmates, as well as for other announcements.
108. For the last few years, MCI-J has stopped using the visual electronic bulletin board system. Currently, the system displays only a default message, and is not used to transmit messages to the deaf and hard of hearing inmates.
109. MCI-J does not dispute this deficiency and Defendants admitted in a Memorandum from counsel on April 23, 2009 that the prison does not use the LED system simply because "the Warden does not have an instructional manual." Upon information and belief, MCI-J attempts to rectify the inaccessibility of audio announcements by increasing the decibel level of those announcements. The resulting decibel level of the announcements in some areas of the institution is so high that it causes severe ear pain to those inmates with some
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residual hearing who utilize hearing aids. Requests to decrease the decibel level of these announcements have been denied. 110. Mr. Redd has been late for meals, kitchen detail, medical appointments and visits because of Defendants' failure to provide him with visual or alternative notification of these events. He has requested and has been denied visual or alternative notification of announcements, including a request for a vibrating alarm clock.
2. Visual Notification at WCI 111. WCI provides several means of communicating information to those incarcerated at that
institution. 112. One means is through an audio Public Address system, transmitted through speakers
throughout the facility. 113. Deaf and hard of hearing inmates at WCI have no access to the Public Address system. 114. Another means by which WCI provides information to those incarcerated there is by
television broadcast. One channel, Channel 6, is an internal information channel specifically broadcast to provide information relevant to WCI inmates. 115. Television programming 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). 116. Channel 6 provides no captions, either open or closed. As a result, deaf and hard of hearing inmates are not able to access the important content of Channel 6 broadcasts. 117. For example, in early 2011 there was a severe influenza epidemic at WCI. Information was broadcast on Channel 6 about influenza, including its symptoms, and how to avoid contagion. Deaf and hard of hearing inmates were denied access to this critical information.
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118. At the request of a deaf inmate at WCI, Maryland School for the Deaf at Frederick offered to lend its captioning equipment to WCI, but the offer was refused. 3. Visual Notification at Other DPSCS Facilities
119. Upon information and belief, deaf and hard of hearing inmates at other DPSCS facilities have been denied visual notification of announcements at those facilities. D. Failure to Provide Effective Communication at Disciplinary Proceedings
120. Deaf and hard of hearing inmates are subjected to disciplinary proceedings without effective communication.
121. Although they are punished, many of these inmates do not understand the charges against them or the parameters of their punishment. Moreover, the inmates are denied the ability to defend themselves when they cannot hear what is happening during the hearings.
122. When inmates violate rules and regulations of MCI-J and WCI they undergo disciplinary proceedings conducted by hearing officers. During these proceedings, the inmates have an opportunity to defend themselves, to hear the allegations against them, and to understand the parameters of their punishment.
123. In their inmate handbook, the DPSCS acknowledges the inmates' right to be present at these hearings, to defend themselves, and to present evidence. DPSCS Inmate Handbook specifically describes these hearing as a mechanism that "shall provide due process for the inmate and a decision as to any violation of a rule." Contrary to their own directives, DPSCS, MCI-J, WCI, and their agents are denying the deaf and hard of hearing inmates full due process by failing to provide appropriate auxiliary services, interpreters, or other means of interpretation.
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124. The deaf and hard of hearing inmates are subjected to these proceedings without understanding what is happening during the hearings. Because they are denied interpreters and/or assistive listening devices or other auxiliary aids or services the inmates are unable to hear the judge, 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.
125. In one instance, Plaintiff Vander Davis was taken to a disciplinary hearing without any auxiliary aids or services or computer assisted real time transcripts to enable him to understand the proceedings. He immediately informed the hearing officer of his inability to hear. The hearing officer then preceded to physically move closer to Mr. Davis. Although Mr. Davis informed the hearing officer that he still could not hear, the hearing officer just stood up and moved closer. Intimidated by the hearing officer, Davis decided to discontinue his pleas for effective communication. Mr. Davis was found guilty but he did not understand his punishment nor any other details discussed at the hearing.
126. MCI-J's failure to provide interpreters or other auxiliary aids or services for effective communication at critical periods is further substantiated by the complaints of other inmates with hearing impairments. Plaintiff Christopher Jarboe filed two complaints challenging MCI-J's failure to provide interpreters on four separate occasions. The first complaint filed was ignored. Mr. Jarboe filed another complaint on December 2, 2011 seeking a response to this initial complaint and once again challenging MCI-J's failure to provide an interpreter. Thus, the MCI-J was and remains aware of the problems and actively chooses to deny relief to deaf and hard of hearing inmates.
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E. Access to Employment Opportunities 127. Deaf and hard of hearing inmates are, solely because of their disabilities, routinely denied
employment opportunities within DPSCS facilities. 128. For example, Mr. Redd was rejected three times for employment with the MCE print
printing program at MCI-J solely due to his hearing impairment. 129. On information and belief, inmates at WCI have also been denied employment
opportunities based solely on their hearing impairments. 130. Upon information and belief, deaf and hard of hearing inmates at other DPSCS facilities
have been denied employment opportunities based solely on their hearing impairments at those facilities. 131. Defendants' failure to provide its deaf and hard of hearing inmates with access to telecommunication devices and services, effective communication within DPSCS institutions, access to announcements and alerts within the DPSCS institutions, and access to employment opportunities within DPSCS institutions has resulted in harm, and may result in future harm, to deaf and hard of hearing individuals in DPSCS custody. It also violates their rights under the U.S., the Americans with Disabilities Act and the Rehabilitation Act of 1973.
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VI. CLAIMS FOR RELIEF COUNT I - Discrimination on the Basis of a Disability in Violation of the Americans with Disabilities Act (42 U.S.C. § 12131 et seq.) (Against All Defendants by the Plaintiffs on behalf of themselves and a class of similarly situated individuals) 132. Plaintiffs reallege and incorporate by reference each and every allegation above as if fully set forth herein. 133. On July 12, 1990, Congress enacted the ADA "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(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. 134. Plaintiffs are qualified individuals with a disability within the meaning of Title II of the ADA, 42 U.S.C. § 12131(2). 135. The claims under the ADA are brought against the Defendants as departments, agencies, or instrumentalities of the State of Maryland. 136. Defendants are each a "public entity" within the meaning of 42 U.S.C. § 12131(1)(B). 137. 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.
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138. 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.
139. The regulation states that "[a] public entity shall take appropriate steps to ensure that communications with applicants, participants, and members of the public . . . with disabilities are as effective as communications with others." 28 C.F.R. § 35.160(a).
140. 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 defendant's services, benefits, activities, programs, or privileges as the access provided to hearing individuals.
141. 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 DPSCS services, and unable to learn of daily life and safety alert and other notifications as effectively as hearing individuals in DPSCS 's custody.
142. In order to ensure effective communication, the ADA requires that "a public entity shall furnish appropriate auxiliary aids and services where necessary to afford qualified individuals with a disabilities ... an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity." 28 C.F.R. § 35.160(b)(1).
143. 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,
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assistive listening systems, closed caption decoders, open and close captioning, TDDs, videophones, and videotext displays. 28 C.F.R. § 35.104. 144. Defendant subjected Plaintiffs to discrimination solely on the basis of their disability, in violation of their rights under the ADA. They have done this by failing to provide effective communication, and by not ensuring that adequate access to qualified sign language interpreter services and other auxiliary aids and services is made available to individuals with hearing impairments in DPSCS's custody or under DPSCS supervision. 145. In determining what type of auxiliary aid and service is necessary, "a public entity shall give primary consideration to the requests of the individual with disabilities." 28 C.F.R. §160(b)(2). 146. 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, and for other auxiliary aids and services. 147. On information and belief, the failure to provide effective communication and the failure to provide comparable access to services, benefits, activities, programs, or privileges are policies, regular practices, and/or customs of defendants. These failures are ongoing and continue to this date. 148. 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 and other appropriate auxiliary aids and services to enable them to participate in and benefit from Defendants' programs;
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b. inadequate access to prison audio alerts and notifications; and c. inadequate access to telecommunication devices. 149. The U.S. Department of lustice ("DOl") regulation implementing Title II of the ADA also requires that public entities, either directly or indirectly through other contractual or private arrangements, provide disabled individuals with the same opportunities to participate and benefit from services as is afforded to other individuals. 28 C.F.R. 35.160. 150. The regulation states, in relevant portion, that "[a] public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability - (i) [d]eny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service; (ii) [a]fford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others." 28 C.F.R. 35.130 (b)(1 )(i) -(ii). 151. Defendants are in violation of this regulation directly and indirectly through private entities, such as T-Netix, by providing unequal phone services and refusing to permit certain deaf and hard of hearing inmates to participate in vocational and employment opportunities because of their hearing disabilities. 152. 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 defendant's services, benefits, activities, programs, and privileges), violations of their rights under the laws of the United States, financial loss, loss of dignity, frustration, humiliation, emotional pain and suffering, anxiety, trauma, embarrassment, and unnecessary loss of rights and privileges, including unnecessary disciplinary measures.
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153. Defendant's 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 DPSCS 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 the defendants are ordered by this Court to make modifications to the policies, practices, and procedures of DPSCS 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»
154. Plaintiffs reallege and incorporate by reference each and every allegation above as if fully set forth herein.
155. The purpose of the Rehabilitation Act is to ensure that no "qualified individual with a disability in the United States ... shall, solely by reason of [ ] disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance ...." 29 U.S.C. § 794(a).
156. Plaintiffs are qualified individuals with a disability within the meaning of the Rehabilitation Act, 29 U.S.C. § 705(20).
157. Defendants receive Federal financial assistance within the meanmg of 29 U.S.C. § 794(a).
158. The operations of DPSCS and Defendants are "program[s] or activit[ies]" within the meaning of29 U.S.C. § 794(b)(l)(A)-(B) and/or (b)(2)(B).
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159. At all times relevant to this action, the Rehabilitation Act was in full force and effect in the United States and Plaintiffs had a right not to be subjected to discrimination on the basis of their disability by defendants. 29 U.S.C. § 794(a).
160. The DO] regulation implementing the Rehabilitation Act clarifies the requirements for Federal financial recipients, including correctional facilities, stating that "[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(f).
161. Appropriate auxiliary aids include, but are not limited to, "qualified interpreters ...and telephonic devices." 28 C.F.R. § 42.503(f).
162. 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.
163. Defendant's 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 defendant's services, benefits, activities, programs, or privileges as the access provided to hearing individuals.
164. 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. 34
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165. 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 appropriate auxiliary aids and services to enable them to participate in and benefit from Defendants' programs; b. inadequate access to prison alerts and announcements; and c. inadequate access to telecommunication devices.
166. Defendants have also violated Section 504 and its implementing regulation by excluding inmates who are deaf or hard of hearing from Defendants' employment and vocational benefits and opportunities. 28 C.F.R. 42.503(a).
167. 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 defendant's 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.
168. 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 DPSCS 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 35
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by this Court to make modifications to their policies, practices and procedures pursuant to the Rehabilitation Act.
COUNT III - Violation of Free Speech Rights Under the First and Fourteenth Amendments of the United States Constitution (Against All Defendants by the Plaintiffs on behalf of themselves and a class of similarly situated individuals) 169. Plaintiffs reallege and incorporate by reference each and every allegation above as if fully set forth herein. 170. Under the First and Fourteenth Amendments of the United States Constitution, States "shall make no law... abridging the freedom of speech." U.S. Const. amend. 1. 171. 42 USC 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." 172. Defendants Maynard, Stouffer, Francois, Shiloh, Corcoran, and Morgan, in their individual and official capacities, and acting under color of Maryland 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 DPSCS, DPSCS through the official actions of Defendants Maynard, Stouffer, Francois, Shiloh, Corcoran, and Morgan, has denied and continues to deny Plaintiffs access to telecommunication
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devices that would give them the ability and opportunity to communicate with people outside of prison. 173. Defendants Maynard, Stouffer, Francois, Shiloh, Corcoran, and Morgan'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 DPSCS or under the supervision of DPSCS and continue to attempt to communicate with people outside prison unless and until damages are awarded that will deter future violations against Plaintiffs by these Defendants 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.
WHEREFORE, the Plaintiffs pray that the Court: A. Certify this case as a Plaintiff class action pursuant to Rule 23 (b)(2) and
(3) of the Federal Rules ofCivil Procedure; B. Pursuant to 42 U.S.C.§ 794(a) and 42 U.S.C.§ 12133, award the named
plaintiffs and the class members the amount of any and all damages incurred because of the actions of the defendants;
C. Preliminarily and permanently enjoin the defendants from refusing to provide the proper interpretative services, TTD, videophones and other hearing devices that are required for deaf and hard of hearing inmates to fully participate in the programs offered by the federally funded prison system;
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D. Preliminarily and permanently enjoin the defendants from refusing to provide the proper interpretative services, TTD, 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;
E. Preliminarily and permanently enjoin the defendants from depriving Plaintiffs and Plaintiff class members of the protections of the First and Fourteenth Amendments ofthe United States Constitution pursuant to 42 U.S.C. § 1983;
F. Award prejudgment interest; G. Award reasonable attorneys' fees; H. Award Plaintiffs such other and further relief as the Court deems just and proper.
JURY TRIAL DEMAND
Plaintiffs, by their counsel and pursuant to Federal Rule of Civil Procedure 38(b), hereby demand a trial by jury on all claims so triable in this action.
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Dated: February _,2012

Respectfully submitted,

\!osepliD. Edmondsof, Jr. (rj.Md. Bar No. 09481)

PBbEY & LARDNER LLP/

\

,~/

3000 K Street, N.W.,'Sulte 600

Washington, D.C. 20007

E-mail: jedmondson@foley.com

Tel: (202) 672-5354

Fax: (202) 672-5399

Ivy Finkenstadt (D.Md. Bar No. 29775) Washington Lawyers' Committee For Civil Rights and Urban Affairs 11 Dupont Circle, N.W., Suite 400 Washington, D.C. 20036 E-mail: ivy_finkenstadt@washlaw.org Tel: (202) 319-1000 Fax: (202) 319-1010

Debra J. Patkin (D.Md. Bar No. 29529) National Association of the Deaf 8630 Fenton Street, Suite 820 Silver Spring, MD 20910 E-Mail: debra.patkin@nad.org Tel: (301) 587-1791 Fax: (301) 587-1788 TTY: (301) 587-1789

Attorneys for Plaintiffs

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 Case 1:12-cv-00572-ELH Document 50 Filed 03/13/13 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

CHRISTOPHER JARBOE, et al., on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
MARYLAND DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES (DPSCS), et al.,
Defendants.

Civil Action No. ELH-12-572

ORDER
For the reasons stated in the accompanying Memorandum Opinion, it is, this 13th day of
March, 2013, by the United States District Court for the District of Maryland, ORDERED:
1. The “Motion to Dismiss or, In the Alternative, for Summary Judgment” filed by the Maryland Department of Labor, Licensing, and Regulation and Paulette Francois (ECF 25) is DENIED; and
2. The “Motion to Dismiss for Failure to Exhaust Administrative Remedies” filed by all other defendants (ECF 29) is DENIED; and
3. The dismissal of the motions is without prejudice to defendants’ rights to reassert certain arguments contained therein on the basis of subsequent procedural developments or further factual development through discovery, as discussed in the Memorandum Opinion.

/s/ Ellen Lipton Hollander United States District Judge

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

CHRISTOPHER JARBOE, et al., on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
MARYLAND DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES (DPSCS), et al.,
Defendants.

Civil Action No. ELH-12-572

MEMORANDUM OPINION Five Maryland state prisoners who are profoundly deaf have brought this three-count putative class action against several Maryland state entities and officials, alleging violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131 et seq. (Count I); the Rehabilitation Act, 29 U.S.C. §§ 794 et seq. (Count II); and the right of free speech guaranteed by the First Amendment (made applicable to the states by the Fourteenth Amendment), pursuant to 42 U.S.C. § 1983 (Count III).1 Plaintiffs seek an award of damages, with prejudgment interest and attorneys’ fees, as well as preliminary and permanent injunctive relief. In particular, they seek to enjoin the defendants from violating plaintiffs’ constitutional free speech rights and from “refusing to provide the proper interpretive services, [telecommunications devices for the deaf (‘TDDs’)], videophones and other hearing devices” that plaintiffs maintain are “required for deaf and hard of hearing inmates” in order “to fully participate in the programs offered by the

1 This Court has subject matter jurisdiction under 28 U.S.C. § 1331.

federally funded [state] prison system” and “to fully participate in and benefit from the programs offered by [the defendant] public entities.” Complaint at 37-38 (ECF 1).2
The named plaintiffs are Christopher Jarboe, Carroll Connelly, Vander Davis, Gary
Denmark, and Garfield Redd. They seek to represent a class composed of “all deaf or hard of
hearing inmates who currently are or will in the future be in the custody or supervision of” the
Maryland Department of Public Safety and Correctional Services (“DPSCS” or the “Department”). Complaint ¶ 14.3 Plaintiffs have sued six state entities and six individual
defendants who are the principal officers for the six entities. The defendants consist of two
groups: the “Correctional Defendants” and the “DLLR Defendants.”
The Correctional Defendants consist of DPSCS, which is the Maryland state agency
responsible for the operation of prisons and pre-release centers; the Department’s Secretary,
Gary D. Maynard; the Maryland Division of Corrections (“DOC”), which is the division of
DPSCS responsible for operation of the state prison system; J. Michael Stouffer, the
Commissioner of DOC; the Maryland Correctional Institute – Jessup (“MCI-J”), a medium-
security correctional institute located in Jessup, Maryland, that plaintiffs allege houses most, but
not all, deaf and hard-of-hearing DPSCS inmates; Dayena Corcoran, the Warden of MCI-J;
Western Correctional Institution (“WCI”), a maximum-security correctional institution located in
Cumberland, Maryland, that plaintiffs allege houses some deaf and hard-of-hearing DPSCS
inmates, including those who rely on wheelchairs or other mobility devices; J. Philip Morgan, 2 Although plaintiffs requested preliminary injunctive relief in the ad damnum clause of
their Complaint, they did not file a separate motion for a preliminary injunction, nor have they submitted any evidence or argument to demonstrate their satisfaction of the standards for preliminary injunctive relief. See Winter v. Nat. Res. Defense Council, Inc., 555 U.S. 7, 20 (2008). Accordingly, I have not considered their request for injunctive relief.
3 The issue of class certification has not yet been resolved. - 2 -

the Warden of WCI; Maryland Correctional Enterprises (“MCE”), the division of DPSCS responsible for training and employing inmates who perform vocational services in business units in the state prison system; and Stephen M. Shiloh, the Chief Executive Officer of MCE. The “DLLR Defendants” are the Maryland Department of Labor, Licensing, and Regulation (“DLLR”), Division of Workforce Development and Adult Learning (Correctional Education) (“DWDAL”), which is the Maryland agency responsible for providing educational programs to DPSCS inmates; and Paulette Francois, the Assistant Secretary for DWDAL. All of the individual defendants have been sued in their official capacities. The wardens of MCI-J and WCI, Ms. Corcoran and Mr. Morgan, were also sued in their individual capacities.
Pending before the Court are two pre-discovery motions, one filed by the DLLR Defendants and the other by the Correctional Defendants (the “Motions”). See “DLLR Motion” (ECF 25); “Correctional Motion” (ECF 29).4 The Motions are styled as motions to dismiss; the DLLR Motion is also styled, in the alternative, as one for summary judgment. Both Motions are supported by exhibits. They have been fully briefed, and no hearing is necessary to resolve them. See Local Rule 105.6.5 For the reasons that follow, I will deny both Motions.
Background As noted, plaintiffs’ claims arise under the ADA, the Rehabilitation Act, and the First Amendment. It is helpful to provide some background as to these provisions and the nature of plaintiffs’ claims.
4 MCE and its CEO, Mr. Shiloh, did not initially join in the filing of the Correctional Motion, but subsequently adopted it by reference, with plaintiffs’ consent. See ECF 31, 33, 36.
5 Plaintiffs have separately opposed each Motion, and defendants have filed replies. See “DLLR Opposition” (ECF 30); “Correctional Opposition” (ECF 38); “DLLR Reply” (ECF 37); “Correctional Reply” (ECF 43).
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The ADA was enacted in 1990 “to provide a clear and comprehensive national mandate
for the elimination of discrimination against individuals with disabilities,” 42 U.S.C.
§ 12101(b)(1), and “to provide clear, strong, consistent, enforceable standards addressing
discrimination against individuals with disabilities.” Id. § 12101(b)(2). Title II of the ADA,
which is at issue here, prohibits public entities, including “any State or local government” and
“any department, agency, special purpose district, or other instrumentality of a State or States or
local government,” id. § 12131(1), from discriminating “by reason of” disability against a “qualified individual with a disability.” Id. § 12132.6
For purposes of Title II, a “qualified individual with a disability” is defined as an
individual with a disability “who, with or without reasonable modifications to rules, policies, or
practices, the removal of architectural, communication, or transportation barriers, or the
provision of auxiliary aids and services, meets the essential eligibility requirements for the
receipt of services or the participation in programs or activities provided by a public entity.” 42
U.S.C. § 12131(2). State prisoners, such as plaintiffs, may qualify as “qualified individual[s]
with . . . disabilit[ies],” id., so as to come within the protection of Title II of the ADA. In
Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206, 213 (1998), a unanimous
Supreme Court held that “the plain text of Title II of the ADA unambiguously extends to state prison inmates.”7 Although the Fourth Circuit “has not squarely addressed the issue,” several
6 Title I of the ADA prohibits discrimination against individuals with disabilities in employment. See id. §§ 12111 et seq. Title III applies to public accommodations. See id. §§ 12181 et seq.
7 In addition to prohibiting discrimination by the states on the basis of disability, the ADA contains a provision abrogating the states’ sovereign immunity under the Eleventh Amendment. 42 U.S.C. § 12202. This provision is not valid under all circumstances. See Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) (holding ADA’s immunity-stripping
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circuits “have determined that § 12132’s words ‘or be subjected to discrimination by that entity’
are meant to be a ‘catch-all phrase that prohibits all discrimination by a public entity, regardless
of the context’”—in other words, that Title II of the ADA applies to “‘anything a public entity
does.’” Seremeth v. Bd. of County Comm’rs of Frederick County, 673 F.3d 333, 338 (4th Cir.
2012) (citing cases) (citations omitted); see also Paulone v. City of Frederick, 787 F. Supp. 2d
360, 380-81 (D. Md. 2011) (collecting authority).
The Rehabilitation Act was enacted seventeen years prior to the ADA. Title II of the
ADA is closely related to § 504 of the Rehabilitation Act, and to “the extent possible, [courts]
construe similar provisions in the two statutes consistently.” Freilich v. Upper Chesapeake
Health, Inc., 313 F.3d 205, 214 (4th Cir. 2002). See Seremeth, 673 F.3d at 336 n.1 (“Claims
under the ADA’s Title II and the Rehabilitation Act can be combined for analytical purposes
because the analysis is ‘substantially the same.’”) (citation omitted); Rogers v. Dept. of Health &
Environmental Control, 174 F.3d 431, 433-34 (4th Cir. 1999) (stating that courts may apply
Rehabilitation Act precedent in interpreting the ADA, and vice versa). Indeed, the statutes
“share the same definitions of disability,” id. at 433, and Title II of the ADA explicitly provides
that “[t]he remedies, procedures, and rights” provided under § 504 of the Rehabilitation Act
“shall be the remedies, procedures, and rights [that Title II of the ADA] provides to any person
provision invalid with respect to Title I of the ADA). But, it has been upheld in a number of circumstances with respect to Title II of the ADA, including in the context of state prisons. See United States v. Georgia, 546 U.S. 151 (2006) (holding that Title II of ADA validly abrogates sovereign immunity as to conduct in state prisons that also violates the Constitution); see also Tennessee v. Lane, 541 U.S. 509 (2004) (holding that Title II of ADA validly abrogates sovereign immunity with respect to physical access to state courts by persons with disabilities); Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474 (4th Cir. 2005) (holding that Title II of ADA validly abrogates sovereign immunity of state institutions of higher education). None of the defendants has asserted a sovereign immunity defense.
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alleging discrimination on the basis of disability. . . .” 42 U.S.C. § 12133.8
Despite the general congruence of Title II of the ADA and § 504 of the Rehabilitation
Act, there are two principal differences between the statutes. First, a plaintiff must show a
different “causative link between discrimination and adverse action” under the two statutes.
Baird ex rel. Baird v. Rose, 192 F.3d 462, 469 (4th Cir. 1999). Under Title II, a plaintiff need
only prove discrimination “by reason of” disability. 42 U.S.C. § 12132. But, a successful
Rehabilitation Act claim requires a showing of discrimination “solely by reason of” disability.
29 U.S.C. § 794(a) (emphasis added). See Constantine v. Rectors & Visitors of George Mason
Univ., 411 F.3d 474, 498 n.17 (4th Cir. 2005) (“[W]e have recognized that the causation
standards under Title II of the ADA and § 504 of the Rehabilitation Act are ‘significantly
dissimilar.’”) (quoting Baird, 192 F.3d at 469).
The second significant difference between Title II and the Rehabilitation Act is that, as
noted, Title II applies to any “public entity,” while § 504 of the Rehabilitation Act applies only
to federal agencies or to “any program or activity receiving Federal financial assistance.” 29
U.S.C. § 794(a). Thus, to show a violation of the Rehabilitation Act by a state, local, or private
8 In turn, the Rehabilitation Act incorporates by reference the “remedies, procedures, and rights” established by Title VI of the Civil Rights Act of 1964 (codified at 42 U.S.C. § 2000d et seq.), which prohibits discrimination on the basis of race, color, or national origin by recipients of federal financial assistance. 29 U.S.C. § 794a(a)(2). Accordingly, courts look to Title VI precedent to resolve remedial and procedural issues arising in Rehabilitation Act and ADA Title II cases. In general, a successful plaintiff in a suit under Title II of the ADA or § 504 of the Rehabilitation Act is entitled to a “full panoply” of legal and equitable remedies, including money damages and injunctive relief. Pandazides v. Virginia Bd. of Educ., 13 F.3d 823, 830 (4th Cir. 1994); see generally id. at 829-32. However, there are some limitations as to available relief. Punitive damages are not available. See Barnes v. Gorman, 536 U.S. 181, 189 (2002). Moreover, compensatory damages are available only upon proof of disparate treatment, rather than mere disparate impact. Pandazides, 13 F.3d at 829-30 & n.9.
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entity, a plaintiff must demonstrate that the “program or activity” at issue receives “Federal
financial assistance.”
“Program or activity” is defined in 29 U.S.C. § 794(b). In relevant part, it includes:
[A]ll of the operations of— (1)(A) a department, agency, special purpose district, or other instrumentality of a State or of a local government; or (B) the entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government . . .
any part of which is extended Federal financial assistance.[9]
The definition of “program or activity” in § 794(b) is expansive, but it has its limits.
Under the plain meaning of the statutory language quoted above, receipt of federal funding by a
state or state agency does not subject the entire state to Rehabilitation Act liability. Rather, the
liability of state entities under the Rehabilitation Act exists at the department or agency level. If
“any part” of “a department, agency, . . . or other instrumentality of a State” receives federal
financial assistance, the entire agency is subject to the Rehabilitation Act. Id. If federal financial
assistance is received at the state level, Rehabilitation Act liability extends to the state agency
that distributes the funding and any state agency (or part thereof) that receives it. See id.
9 The definition of “program or activity” in 29 U.S.C. § 794(b) was enacted by Congress in the Civil Rights Restoration Act of 1987. It was intended to overrule legislatively the Supreme Court’s decisions in the companion cases of Grove City College v. Bell, 465 U.S. 555 (1984) (under Title IX, one of many civil rights statutes that, like the Rehabilitation Act, conditions liability on receipt of federal financial assistance), and Consolidated Rail Corp. v. Darrone, 465 U.S. 624 (1984) (under the Rehabilitation Act), in which the Court had derived a more restrictive definition from the earlier statutory text. In each case, the Court had held that, within a given institution, only specific, discrete programs that received federal funding were subject to the statute. See, e.g., Haybarger v. Lawrence County Adult Probation & Parole, 551 F.3d 193, 199-200 (3d Cir. 2008) (discussing enactment of Civil Rights Restoration Act of 1987); McCormick v. Sch. Dist. of Mamaroneck, 370 F.3d 275, 287-88 (2d Cir. 2004) (same).
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Moreover, courts have given a particular meaning to the term “Federal financial assistance” under the Rehabilitation Act and other federal statutes (such as Title VI of the Civil Rights Act of 1964) that condition liability on receipt of such assistance. In Venkatraman v. REI Systems, Inc., 417 F.3d 418 (4th Cir. 2005), the Fourth Circuit explained that “an entity receives ‘assistance’ [under Title VI] when it receives a subsidy, as opposed to compensation.” Id. at 421 (citing Jacobson v. Delta Airlines, Inc., 742 F.2d 1202, 1209-11 (9th Cir. 1984), cert. dismissed, 471 U.S. 1062 (1985)). In other words, “[o]nly if the government intends to provide a subsidy does Title VI [or the Rehabilitation Act] apply.” Venkatraman, 417 F.3d at 421. The statutes do “not forbid discrimination by a government contractor, but instead forbid[ ] discrimination by entities receiving assistance.” Id.10
It is well established that private parties may sue to enforce Title II of the ADA and the Rehabilitation Act. Barnes v. Gorman, 536 U.S. 181, 184-85 (2002); Pandazides v. Virginia Bd. of Educ., 13 F.3d 823, 828 (4th Cir. 1994); Davis v. Southeastern Community Coll., 574 F.2d 1158, 1159 (4th Cir. 1978), rev’d on other grounds, 442 U.S. 397 (1979). Cf. Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582 (1983) (establishing that Title VI of the Civil Rights Act of 1964 supports a private right of action). To prevail under an ADA Title II or Rehabilitation Act § 504 claim, “a plaintiff must show that [he or] she was excluded from participation in, or denied the benefits of, a program or service offered by a public entity, or subjected to discrimination by that entity.” Constantine, 411 F.3d at 499 (emphasis omitted). To that end, the Fourth Circuit has recognized “three distinct grounds for relief: (1) intentional discrimination or disparate
10 None of the defendant entities has disputed that it qualifies as a “program or activity” that receives “Federal financial assistance” within the meaning of the Rehabilitation Act. 29 U.S.C. § 794(a).
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treatment; (2) disparate impact; and (3) failure to make reasonable accommodations.” Helping Hand, 515 F.3d at 362.
The term “reasonable accommodations,” which is derived from the employment discrimination provisions of Title I of the ADA, is essentially synonymous with the term “reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services,” 42 U.S.C. § 12131(2), which is what Title II of the ADA requires a public entity to provide. See, e.g., Robertson v. Las Animas County Sheriff’s Dept., 500 F.3d 1185, 1195 n.8 (10th Cir. 2007) (“Title II’s use of the term ‘reasonable modifications’ is essentially equivalent to Title I’s use of the term ‘reasonable accommodation.’”); McGary v. City of Portland, 386 F.3d 1259, 1266 n.3 (9th Cir. 2004) (“Although Title II of the ADA uses the term ‘reasonable modification,’ rather than ‘reasonable accommodation,’ these terms create identical standards.”).
Under the rubric of “reasonable modifications,” the statute defines “auxiliary aids or services” to include the following:
(A) qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments; (B) qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments; (C) acquisition or modification of equipment or devices; and (D) other similar services and actions. 42 U.S.C. § 12103(1). The statutory definition is not exclusive, however. Pursuant to Congressional authorization, see 42 U.S.C. § 12134(a), the Justice Department has promulgated, by regulation, a more expansive listing of auxiliary aids and services. See 28 C.F.R. § 35.104. In this suit, plaintiffs claim that defendants have violated Title II of the ADA and § 504
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of the Rehabilitation Act by failing to provide meaningful access or reasonable accommodations to plaintiffs. According to plaintiffs, the violations encompass discriminatory policies of defendants, as well as defendants’ failure to make available necessary auxiliary aids and services that would accommodate plaintiffs’ hearing disabilities and enable them to communicate effectively with both hearing and deaf or hard-of-hearing persons. In particular, plaintiffs contend that, as a result of defendants’ statutory violations, they “have been prevented from effectively communicating by telephones with family, friends, and attorneys outside of prison”; that they “have missed prison-wide safety announcements, prison counts and announcements for meals and other important daily activities”; that they “have been excluded from participation in educational and counseling programs offered by DPSCS and Correctional Education, including those required under the terms of their sentencing”; that they “have been discriminated against in work assignments”; that they “have been denied the ability to meaningfully participate and defend themselves in disciplinary hearings”; and that they “have been prevented from learning a trade, and receiving educational and industrial credits that could reduce their overall incarceration time.” Complaint ¶ 4.
In addition to the alleged statutory violations, plaintiffs maintain that defendants’ conduct rises to the level of a deprivation of constitutional rights. In particular, they claim that defendants have deprived them “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.” Id. ¶ 172. Defendants have done so, plaintiffs assert, by denying them “access to telecommunication devices that would give them the ability and opportunity to communicate with
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people outside of prison.” Id. As noted, plaintiffs seek to recover monetary damages. Courts (including several federal
appellate courts, as well as district courts in the Fourth Circuit) have held that compensatory damages may be awarded under Title II of the ADA or the Rehabilitation Act, if a public entity “intentionally or with deliberate indifference fails to provide meaningful access or reasonable accommodation to disabled persons.” Mark H. v. Lemahieu, 513 F.3d 922, 938 (9th Cir. 2008); accord Adams v. Montgomery College (Rockville), 834 F. Supp. 2d 386, 393-95 (D. Md. 2011) (applying deliberate indifference standard); Paulone, supra, 787 F. Supp. 2d at 373-74 (collecting cases endorsing deliberate indifference standard).
Additional facts will be presented in the Discussion. Discussion
The Correctional Defendants and the DLLR Defendants challenge plaintiffs’ Complaint on separate grounds. The Correctional Defendants argue that plaintiffs’ claims are barred because plaintiffs failed to exhaust administrative remedies before filing suit, as is required of prisoners by 42 U.S.C. § 1997e(a), a provision of the Prison Litigation Reform Act of 1996 (“PLRA”). The DLLR Defendants are defendants by virtue of plaintiffs’ contention that plaintiffs have been denied reasonable accommodations with respect to prison educational and vocational programs conducted by the DWDAL (a division of DLLR). According to the DLLR Defendants, they are not liable for plaintiffs’ claims because plaintiffs have no legal entitlement to participation in educational or vocational programs, and it is within DPSCS’s sole discretion whether a prisoner may participate in the programs that the DWDAL offers. As the DLLR Defendants see it, to the extent that plaintiffs complain about the unavailability or inaccessibility
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of DWDAL programs, plaintiffs’ complaint is with DPSCS, not the DLLR Defendants. I will consider each motion in turn.
A. Correctional Motion Neither Title II of the ADA nor § 504 of the Rehabilitation Act contains a requirement of exhaustion of administrative remedies by private litigants. Moreover, 42 U.S.C. § 1983 is the vehicle for plaintiffs’ First Amendment claims, and the “general rule” is that “plaintiffs proceeding under § 1983 need not exhaust state administrative remedies before filing suit.” Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 676 (4th Cir. 2005) (citing Porter v. Nussle, 534 U.S. 516, 523 (2002), and Patsy v. Bd. of Regents, 457 U.S. 496, 516 (1982)); see also Wright v. City of Roanoke Redevelopment & Hous. Auth., 479 U.S. 418, 427-28 (1987) (“[T]he existence of a state administrative remedy does not ordinarily foreclose resort to § 1983.”); Earle v. Gunnell, 78 Md. App. 648, 653-59, 554 A.2d 1256, 1258-61 (1989) (holding that administrative exhaustion ordinarily is not a necessary predicate to suit under § 1983 in either federal court or Maryland state court). However, suits filed by prisoners come within a legislatively created exception to the general rule. In the PLRA, Congress established a prerequisite of administrative exhaustion for any federal claims brought by prisoners. See Anderson, 407 F.3d at 676-77. The PLRA’s exhaustion requirement states: “No action shall be brought with respect to prison conditions under [42 U.S.C.] section 1983 . . . , or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). For purposes of the PLRA, “the term ‘prisoner’ means any person incarcerated or detained in any facility who is accused of, convicted
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of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and
conditions of parole, probation, pretrial release, or diversionary program.” 42 U.S.C. § 1997e(h).
Invoking the requirement of § 1997e(a), the Correctional Defendants contend that plaintiffs’
claims have not fully been exhausted through the available administrative remedies.
DPSCS has made an administrative remedy procedure “available” to Maryland state
prisoners, within the meaning of 42 U.S.C. § 1997e(a), for the submission of “grievance[s]
against . . . official[s] or employee[s] of the Division of Correction.” Md. Code (2008 Repl.
Vol., 2011 Supp.), § 10-206(a) of the Correctional Services Article (“C.S.”); see generally C.S.
§§ 10-201 et seq. Regulations promulgated by DPSCS concerning the administrative remedy
procedure define a “grievance” to include a “complaint of any individual in the custody of the
[DOC] . . . against any officials or employees of the [DOC] . . . arising from the circumstances of
custody or confinement.” Code of Maryland Regulations (“COMAR”) 12.07.01.01.B(8).11
11 Maryland state appellate case law indicates that the administrative grievance procedure does not encompass “‘every kind of civil matter that could be brought by a DOC [Division of Correction] inmate.’” Massey v. Galley, 392 Md. 634, 646, 898 A.2d 951, 958 (2006) (citation omitted). Rather, it applies only to matters that “relate to or involve a prisoner’s ‘conditions of confinement.’” Id. at 651, 898 A.2d at 960 (citation omitted). Thus, the grievance procedure does not apply to requests for public information under the Maryland Public Information Act, see id., nor does it apply to medical malpractice claims against private medical service providers who treat inmates under contract with the DOC. See Adamson v. Correctional Med. Servs., Inc., 359 Md. 238, 753 A.2d 501 (2000). Moreover, the administrative grievance procedure does not apply to claims for compensation for disabilities resulting from “personal injury arising out of and in the course of [an inmate’s] work for which wages or a stipulated sum of money was paid by a correctional facility,” C.S. § 10-304, for which a claim to a different administrative body, the Sundry Claims Board, is the exclusive remedy. See Dixon v. DPSCS, 175 Md. App. 384, 927 A.2d 445 (2007). On the other hand, the grievance process does apply to a wide variety of claims that arise out of the conditions of confinement, even if the grievance process cannot provide a comprehensive remedy for such claims, such as tort claims of assault and battery against prison officers. See McCullough v. Wittner, 314 Md. 602, 552 A.2d 881 (1989).
The parties have not raised the question of whether the claims asserted by plaintiffs concern their “conditions of confinement,” so as to come within the definition of a “grievance”
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In the Maryland correctional system, if the particular institution in which an inmate is incarcerated provides an internal administrative remedy procedure (“ARP”), the inmate must complete the ARP process as a condition precedent to further review of the inmate’s grievance. See C.S. § 10-206(b); see also COMAR 12.07.01.02.D. Thereafter, within 30 days after the completion of the ARP process, the inmate may request further review by submission of a complaint to the statewide Inmate Grievance Office (“IGO”). See COMAR 12.07.01.05.B; see also C.S. § 10-206. Complaints are reviewed preliminarily by the IGO. See C.S. § 10-207; COMAR 12.07.01.06. And, if a hearing is deemed necessary by the IGO, the hearing is conducted by an administrative law judge for the Maryland Office of Administrative Hearings. See C.J. § 10-208; COMAR 12.07.01.07-.08.
A decision of the administrative law judge denying all relief to the inmate is considered a final agency determination. However, a decision concluding that the inmate’s complaint is wholly or partly meritorious constitutes a recommendation to the Secretary of DPSCS, who must make a final agency determination within fifteen days after receipt of the proposed decision of the administrative law judge. See C.S. § 10-209(b)-(c). In either event, the final agency determination is subject to judicial review in Maryland state court. See C.S. § 10-210. But, an inmate need not seek judicial review in state court in order to satisfy the PLRA’s administrative exhaustion requirement. See, e.g., Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir.) (“[A] prisoner who uses all administrative options that the state offers need not also pursue judicial review in state court.”), cert. denied, 537 U.S. 949 (2002).
and be subject to Maryland’s administrative remedy procedure for state prisoners. Accordingly, I assume, without deciding, that the claims are subject to the requirement of administrative exhaustion.
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1. Standard of Review As a preliminary matter, the Correctional Defendants have raised their contention by way of a motion to dismiss pursuant to Fed. R. Civ. P. 12(b). Rule 12(b) authorizes the presentation of seven enumerated defenses by motion, before the filing of a responsive pleading. The Correctional Defendants have not specified a particular subsection of Rule 12(b) on which they rely, but the only ones that could arguably apply are Rule 12(b)(1), pertaining to lack of subject matter jurisdiction, and Rule 12(b)(6), for failure to state a claim upon which relief can be granted. In my view, neither Rule 12(b)(1) nor Rule 12(b)(6) is an appropriate vehicle for the Correctional Defendants’ argument. Rather, as I will explain, I must resolve the motion under a summary judgment standard, pursuant to Rule 56. Rule 12(b)(1) is not applicable here. Although exhaustion of administrative remedies is an important and mandatory prerequisite to certain suits, “[e]very court to have considered the question has concluded that § 1997e(a)’s exhaustion requirement is not a jurisdictional requirement,” and the Fourth Circuit “agree[s].” Anderson, 407 F.3d at 677. Cf. Henderson ex rel. Henderson v. Shinseki, ___ U.S. ___, 131 S. Ct. 1197, 1202 (2011) (“[A] rule should not be referred to as jurisdictional unless it governs a court’s adjudicatory capacity . . . . Other rules, even if important and mandatory . . . should not be given the jurisdictional brand. Among the types of rules that should not be described as jurisdictional are . . . ‘claim-processing rules[,]’ [which] seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.”) (internal citations omitted). Moreover, in Jones v. Bock, 549 U.S. 199 (2007), the Supreme Court made clear that a prisoner’s compliance with the PLRA’s administrative exhaustion requirement ordinarily cannot
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be resolved by way of a Rule 12(b)(6) motion. This is because “failure to exhaust is an affirmative defense under the PLRA, and . . . inmates are not required to specially plead or demonstrate exhaustion in their complaints.” Id. at 216. The Supreme Court’s ruling in Jones was in accord with the “settled general rule” that “the burden of proving an affirmative defense is on the party asserting it.” McNeill v. Polk, 476 F.3d 206, 220 n.3 (4th Cir.), cert. denied, 552 U.S. 1043 (2007). A Rule 12(b)(6) motion tests the adequacy of a plaintiff’s pleading, and typically “does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses,” Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999) (internal quotation marks omitted), unless such a defense can be resolved on the basis of the facts alleged in the complaint. As such, a court ordinarily “may not consider any documents that are outside of the complaint, or not expressly incorporated therein, on a motion to dismiss” under Rule 12(b)(6), Clatterbuck v. City of Charlottesville, ___ F.3d ___, No. 12-1149, slip op. at 13, 2013 WL 632950 (4th Cir. Feb. 21, 2013), except for documents that are “integral to the complaint and authentic.” Philips v. Pitt County Memorial Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
Consistent with these principles, the Jones Court stated that a prisoner suit conceivably could be dismissed under Rule 12(b)(6) for failure to exhaust administrative remedies if the “allegations in the complaint suffice to establish that ground.” Jones, 549 U.S. at 215. But, that will be the rare case, because “the burden of pleading exhaustion in a case covered by the PLRA” is not placed “on the prisoner.” Id. at 211; accord Anderson, 407 F.3d at 682 (“While it seems unlikely that the failure to exhaust administrative remedies will often be apparent from the face of a complaint, it is certainly possible that a complaint may clearly show that an inmate has
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not exhausted his administrative remedies.”).
Here, the Correctional Defendants do not suggest that the allegations in the Complaint
establish that plaintiffs have failed to exhaust their administrative remedies. To the contrary, the
Correctional Defendants rely on exhibits to their motion, consisting of copious documentation
from authenticated records of DPSCS related to administrative grievances filed by plaintiffs.
Rule 12(d) requires that, in connection with a Rule 12(b)(6) motion, a court may only consider
“matters outside the pleadings” if the court “treat[s] [the motion] as one for summary judgment
under Rule 56.” Rule 12(d) also provides: “All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.”12
However, plaintiffs have not objected to the Court’s consideration of the extrinsic
documentation submitted by the Correctional Defendants, nor have they submitted additional
documentation to controvert it. Plaintiffs also have not sought the opportunity for discovery,
pursuant to Rule 56(d), before responding to the Correctional Motion. Rather, plaintiffs meet the
Correctional Defendants’ argument head-on and argue that the Correctional Defendants’
evidence, as a matter of law, does not warrant dismissal for failure to exhaust administrative
remedies. Accordingly, I will consider the Correctional Motion as a motion for summary judgment, under the Rule 56 standard.13
12 Rule 12(d) is discussed in more detail, infra, with respect to the DLLR Motion. 13 Plaintiffs cite some cases from outside the Fourth Circuit for the proposition that administrative exhaustion should be addressed by “unenumerated Rule 12(b) motions to dismiss.” Correctional Opposition at 7 (citing Bryant v. Rich, 530 F.3d 1368 (11th Cir.), cert. denied, 555 U.S. 1074 (2008), and Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir.), cert. denied sub nom. Alameida v. Wyatt, 540 U.S. 810 (2003)). The reasoning of the cited cases is that administrative exhaustion, although “non-jurisdictional, . . . is like a defense for lack of jurisdiction in one important sense: Exhaustion of administrative remedies is a ‘matter[ ] in abatement, and ordinarily [does] not deal with the merits.’” Bryant, 530 F.3d at 1374 (citation
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Summary judgment is governed by Fed. R. Civ. P. 56(a), which provides that “the court
shall 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.” A fact is “material” if it
“might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). Here, the governing law at issue concerns the scope of the legal
requirement to exhaust administrative remedies under the PLRA. The material facts are drawn
from the DPSCS records submitted by the Correctional Defendants. Plaintiffs do not challenge
the accuracy or completeness of the DPSCS records, and so there is no dispute of material fact.
The question is whether, on the basis of the documents presented, the Correctional Defendants
are “entitled to judgment as a matter of law” on the issue of administrative exhaustion. Fed. R.
Civ. P. 56(a).
2. Exhausted and Unexhausted Claims
The Supreme Court articulated another holding in Jones, supra, 549 U.S. 199, that is
salient here. The Court held that, when a “prisoner has failed to exhaust some, but not all, of the
and footnote omitted) (alteration in Bryant). Therefore, the cases reason, failure to exhaust should be “subject to an unenumerated Rule 12(b) motion rather than a motion for summary judgment,” because “‘[s]ummary judgment is on the merits,’ whereas ‘dismissal of an action on the ground of failure to exhaust administrative remedies is not on the merits.’” Wyatt, 315 F.3d at 1119 (internal citation omitted). Moreover, both cases conclude that the judge may decide disputed issues of fact in considering a motion to dismiss for non-exhaustion and that, if the court finds that the defendant has carried its burden to prove non-exhaustion, “the proper remedy is dismissal of the claim without prejudice.” Id. at 1120; accord Bryant, 530 F.3d at 1375-76.
Bryant and Wyatt are persuasive, although it does not appear that either the Fourth Circuit or the Supreme Court has addressed this issue. However, I need not consider whether to adopt the logic of Bryant and Wyatt here and depart from the ordinary rule that consideration of matter outside the pleadings requires application of a summary judgment standard. In this case, there is no dispute of fact for potential resolution by a fact-finder and, given that I will deny the Correctional Motions, the issue of whether judgment should be entered with or without prejudice does not arise. Therefore, in this case, the Rule 56 standard and the “unenumerated Rule 12(b)” standard articulated in Bryant and Wyatt reach the same result.
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claims asserted in the complaint,” the court should dispose of the unexhausted claims, but should “proceed with the exhausted claims”; it should not “dismiss the entire action if any one claim is not properly exhausted.” Id. at 219-20. In other words, administrative exhaustion under the PLRA is not an all-or-nothing proposition.
Over the course of the briefing of the Correctional Motion, the Correctional Defendants have made clear that their motion is, in fact, only a motion for partial dismissal. The Correctional Defendants concede that two of the plaintiffs, Mr. Jarboe and Mr. Redd, have properly exhausted administrative remedies with respect to certain grievances. Mr. Jarboe fully exhausted an administrative grievance proceeding denominated IGO #20111307; Mr. Redd exhausted proceeding IGO #20110140. See Correctional Reply at 1-2. The Correctional Defendants’ also “accept Plaintiffs’ argument” that an uncompleted administrative grievance proceeding initiated by a third plaintiff, Mr. Davis, denominated as IGO #20090995, “represented a sort of ‘reminder’ of [an] earlier meritorious appeal to the Commissioner of Correction,” and thus should not be considered a failure to exhaust. Correctional Reply at 1-2.
Therefore, the Correctional Defendants concede that Jarboe, Redd, and Davis each have exhausted their administrative remedies with respect to the matters that each one raised in his grievance proceeding. Accordingly, the Correctional Defendants agree, pursuant to Jones, that the claims of Jarboe, Redd, and Davis are not subject to dismissal to the extent that each one raised his claims in his administrative grievance proceeding. Nevertheless, no single plaintiff administratively exhausted all of the claims that are alleged here.
Plaintiffs contend, and the Correctional Defendants do not appear to dispute, that between them, Mr. Jarboe, Mr. Redd, and Mr. Davis raised in their administrative grievance proceedings
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all of the claims against the Correctional Defendants that are at issue in this case. In particular, plaintiffs allege that the Correctional Defendants have failed to provide access to appropriate auxiliary aids and services to enable plaintiffs to participate in and benefit from DPSCS’s programs, and have failed to provide deaf and hard-of-hearing inmates with adequate access to the system for audio alerts and notifications used in DPSCS facilities. These allegations, they contend, were exhausted by Mr. Redd and Mr. Davis. In addition, plaintiffs claim that the Correctional Defendants have discriminated against them on the basis of disability, and infringed upon their First Amendment rights by failing to provide adequate access to telecommunications devices for communication with people outside of prison. They assert that these claims were exhausted by Mr. Jarboe.
According to a Declaration of Scott S. Oakley, the Executive Director of the IGO, submitted by the Correctional Defendants, Mr. Redd filed a grievance with the IGO on January 20, 2011, complaining that “MCIJ staff were not accommodating his hearing impairment so that he could participate in programs and have equal access to jobs and services.” Oakley Decl. at 4, Ex.B to Correctional Motion (ECF 29-3). This grievance arose out of an ARP request in which Mr. Redd complained of a failure of MCI-J to “make available appropriate auxiliary aids and services where necessary to ensure effective communication.” Ex.A to Correctional Motion at 146 (Redd ARP Request #MCIJ-0607-10). Among his particular complaints, Mr. Redd asserted: “When I am called for Chow, Kitchen detail, Medical Pass, Visits, etc. the pod officers has [sic] no knowledge how to inform me and I’m late for everything . . . .” Id. According to Mr. Oakley, Mr. Redd’s grievance was “administratively dismissed” by the IGO on March 15, 2011, “for
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failure to state a claim upon which administrative relief could and should be granted.” Oakley
Decl. at 4.
Mr. Davis filed an ARP request to the Warden of MCI-J in October 2010, in which he
stated, in relevant part:
I am a hearing impaired inmate. . . . I have been trying to take different programs that’s [sic] been offered to hearing inmates, but I’m not able to fully participate in class . . . . I’m still lacking the auxiliary hearing aids and services where necessary to ensure effective communication. . . . I can not even hear when I’m called for my legal mail or any other announcements.
Ex.A to Correctional Motion at 94-95 (Davis ARP Request #MCIJ-0633-10).
On or about November 22, 2010, in response to Mr. Davis’s request, the Warden ruled,
id. at 94 (emphasis in original):
Your request for administrative remedy has been investigated and was found meritorious. An investigation revealed that the facility is not equipped with an assistive listening device to assist with communication for the Hearing Impaired to participate in programs. However, the facility is taking the necessary steps to inquire about a device that can be provided to you for assistance.
According to plaintiffs, notwithstanding the Warden’s ruling, no remedy for Mr. Davis’s
complaint was ever implemented. See Correctional Opposition at 12-13. In June 2011, after Mr.
Davis had waited nearly eight months for the prison to implement the remedy, he filed a second
ARP request, reiterating his complaint in light of the lack of follow-through. See Ex.A to
Correctional Motion at 87-88 (Davis ARP Request #MCIJ-0377-11).
Mr. Jarboe filed a grievance on June 21, 2011, complaining that he “could not contact his
friends and family because he did not have access to a video relay or video phones.” Oakley
Decl. at 1. The IGO dismissed the grievance on August 18, 2011, on the basis that it failed “to
state a claim upon which administrative relief could and should be granted,” id. at 2, and for the
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additional reason that “Jarboe had access to TTY devices and Maryland relay services,” id., which the IGO apparently viewed as adequate accommodations for Mr. Jarboe’s disability, in lieu of video relay or video phones.
As indicated, no single plaintiff administratively exhausted all of the claims that are at issue here. And, plaintiffs do not dispute that two of the plaintiffs, Mr. Connelly and Mr. Denmark, have not exhausted administrative remedies at all.14 The Correctional Defendants maintain that the claims of those two plaintiffs should be dismissed in their entirety. And, they insist that the claims of Mr. Jarboe, Mr. Redd, and Mr. Davis should be dismissed to the extent that each one did not assert a given claim in his particular administrative grievance proceeding.
In contrast, plaintiffs contend that they are entitled to proceed because each claim they advance in this lawsuit was administratively exhausted in one or more of the grievance claims of Mr. Jarboe, Mr. Redd, and Mr. Davis. Plaintiffs invoke the doctrine of “vicarious exhaustion,” sometimes called the “single-filing rule,” to argue that exhaustion of a claim by one plaintiff is sufficient to exhaust it for all. This doctrine, originally developed in the context of the administrative exhaustion requirement under Title VII of the Civil Rights Act of 1964 and related employment discrimination statutes, permits employees who allege that they have all been subjected to the same discriminatory employment practice to rely, in a class action or other multi-plaintiff suit, on a single employee’s filing of a complaint with the EEOC challenging the disputed practice to satisfy the requirement of administrative exhaustion.
14 According to the DSPCS records submitted by the Correctional Defendants, Mr. Connelly has never filed a grievance with the IGO. See Correctional Motion at 6. Mr. Denmark filed a grievance with the IGO in July 2011, alleging that he was “fired” from a prison job because he complained “about his rights as a deaf inmate.” Id. at 7. However, his grievance was dismissed when he failed to respond to a letter from the IGO requesting further information. Id.
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The doctrine of vicarious exhaustion has been applied by several courts, including this district, to employment discrimination claims. The Fourth Circuit has also recognized the concept of vicarious exhaustion in the context of class actions under Title VII. See Chisholm v. U.S. Postal Serv., 665 F.2d 482, 490 n.11 (4th Cir. 1981). And, it has been applied by other courts with respect to the exhaustion requirement of the PLRA, and has been extended by some courts beyond the class action context.
Therefore, resolution of the Correctional Motion turns on whether plaintiffs are entitled to rely on vicarious exhaustion, such that exhaustion of each claim by at least one of the plaintiffs satisfies the PLRA’s administrative exhaustion requirement for all of the plaintiffs.
3. Vicarious Exhaustion / Single-Filing Rule The Eleventh Circuit is the only federal circuit court of appeals that has devoted substantial analysis to the vicarious exhaustion doctrine in the context of prisoner litigation. It adopted the doctrine in Chandler v. Crosby, 379 F.3d 1278 (11th Cir. 2004); see also Gates v. Cook, 376 F.3d 323, 329-320 (5th Cir. 2004) (applying vicarious exhaustion in PLRA context without substantial analysis). In Chandler, death-row inmates in Florida state prisons brought a class-action suit, alleging that uncontrolled high temperatures in their cells during the summer months amounted to cruel and unusual punishment under the Eighth Amendment. Id. at 1282. The district court granted the plaintiffs’ unopposed motion to certify the class, without considering whether the plaintiffs had exhausted their administrative remedies pursuant to the PLRA. Id. at 1283. But, following a bench trial, the district court held that the inmates had not suffered an Eighth Amendment violation. Id. On appeal, the Eleventh Circuit raised the issue of administrative
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exhaustion sua sponte, apparently out of concern that the issue might be jurisdictional (a
question that the Supreme Court had not yet resolved). See id. at 1286 & nn.16-17.
Relying on appellate case law articulating the vicarious exhaustion or single-filing rule
under Title VII and on district court decisions extending the doctrine to the PLRA context, the
Chandler Court held that vicarious exhaustion applied. See id. at 1286-88. Accordingly, it ruled
that the requirement of administrative exhaustion did not bar the inmates’ suit because one of the
inmates had exhausted administrative remedies with respect to the issue of excessive heat. Id. In
particular, the court determined that “a class of prisoner-plaintiffs certified under Rule
23(b)(2)[15] satisfies the PLRA’s exhaustion requirement through ‘vicarious exhaustion,’ i.e.,
when ‘one or more class members ha[s] exhausted his administrative remedies with respect to
15 Fed. R. Civ. P. 23(b) enumerates three alternative bases for certification of a class action:
(1) prosecuting separate actions by or against individual class members would create a risk of:
(A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or (B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests; (2) 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 is appropriate respecting the class as a whole; or (3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. . . . Regardless of which basis for class certification applies under Rule 23(b), every class action must also satisfy Rule 23(a)’s requirements of numerosity of the class members, commonality of claims, and typicality and adequacy of the representative plaintiffs.
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each claim raised by the class.’” Id. at 1287 (quoting Jones’El v. Berge, 172 F. Supp. 2d 1128,
1133 (W.D. Wis. 2001)).
The Eighth Circuit advanced “two reasons” for its decision, id. (internal citations
omitted):
First, this rule advances the purpose of administrative exhaustion, which, we have stated (albeit in the employment context), “is to put the [administrative authority] on notice of all issues in contention and to allow the [authority] an opportunity to investigate those issues.” Once the “prison officials have received a single complaint addressing each claim in a class action, they have the opportunity to resolve disputes internally and to limit judicial intervention in the management of prisons.” Second, a different rule, e.g., one requiring all class members to exhaust their administrative remedies, “could impose an intolerable burden upon the inmate complaint review system.” This is true both for the inmates and the prison officials. In this case, the Florida Department of Corrections would have been taxed with the duty to respond to complaints from over three hundred death row inmates. Moreover, in cases like this one, where the composition of the class is subject to constant change beyond the class members’ control, it could be extraordinarily difficult for all class members to exhaust administrative remedies before filing suit.
Although Chandler is the only reported federal appellate decision considering vicarious
exhaustion in the prison litigation context, many circuits have applied essentially the same
doctrine in the Title VII context for decades, under the rubric of “vicarious exhaustion” or the
“single-filing rule.” In one early case, the Fifth Circuit articulated the pragmatic basis for the
rule: “It would be wasteful, if not vain, for numerous employees, all with the same grievance, to
have to process many identical complaints with EEOC. If it is impossible to reach a settlement
with one discriminatee, what reason would there be to assume that the next one would be
successful[?]” Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 498 (5th Cir. 1968).
The Fourth Circuit “has long applied th[e] ‘single-filing rule’ to class actions” involving
employment discrimination claims, King v. McMillan, 233 F. App’x 242, 244 (4th Cir.) (citing
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Chisholm, supra, 665 F.2d at 490 n.11), cert. denied, 552 U.S. 991 (2007), although it “has not yet . . . adopted” the rule outside the class action context. White v. BFI Waste Servs., LLC, 375 F.3d 288, 293 (4th Cir. 2004). In an unreported decision in this district, Barkhorn v. Ports America Chesapeake, LLC, Civ. No. JKB-10-750, 2011 WL 4479694 (D. Md. Sept. 26, 2011), Judge James K. Bredar recently applied the single-filing rule in a multi-plaintiff employment discrimination suit that was not a class action. He articulated two predicates for application of the doctrine: first, that “‘all plaintiffs’ claims are substantially similar,’” which is necessarily true in any case that has been certified as a class action, but may also be true in a non-class action; and second, that “‘the EEOC charge itself gave notice of the charge’s collective nature.’” Id. at *4 (citation omitted). Both predicates are met here. All of the plaintiffs are profoundly deaf and assert claims based on defendants’ alleged failure to provide reasonable accommodations for their shared disability.
In response to plaintiffs’ invocation of vicarious exhaustion, the Correctional Defendants posit that this case is distinguishable from Chandler and other cases endorsing vicarious exhaustion because this case has not yet been certified as a class action. Moreover, the Correctional Defendants argue that class certification should not be granted here because the size of the proposed class is insufficiently numerous to warrant class treatment, see Fed. R. Civ. P. 23(a)(1), given that there are only about a dozen deaf inmates in the Maryland prison system, and the individual plaintiffs “vary widely in the degree of their hearing impairment and the nature of their complaints.” Correctional Reply at 2.
To be sure, Chandler applied the concept of vicarious exhaustion where a class had been certified. But, the district court in that case had not considered the exhaustion requirement
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before certifying the class. It would make little sense for the application of vicarious exhaustion to turn on whether a defendant chose to interpose the affirmative defense of administrative exhaustion before or after the plaintiffs moved to certify a class.
The Correctional Defendants’ challenge to the suitability of this case for class treatment is premature, because no motion for class certification is pending before the Court. Moreover, the Correctional Defendants improperly asserted their challenge to class certification for the first time in their reply brief. See Marshall v. James B. Nutter & Co., 816 F. Supp. 2d 259, 264 (D. Md. 2011) (“This Court has previously held that ‘[t]he ordinary rule in federal courts is that an argument raised for the first time in a reply brief or memorandum will not be considered.’”) (quoting Clawson v. FedEx Ground Package Sys., Inc., 451 F. Supp. 2d 731, 735 (D. Md. 2006)).
In any event, whether a class is ultimately certified is not necessarily dispositive of the vicarious exhaustion issue. Although the Fourth Circuit has not expressly adopted the first-filing rule outside the class action context, it has not affirmatively rejected it. Indeed, almost every federal appellate court that has decided the issue has applied the single-filing rule beyond the class-action context. See King, 233 F. App’x at 244 (citing cases and noting Third Circuit as only circuit adopting minority view). In Foster v. Geory, 655 F.2d 1319, 1322 (D.C. Cir. 1981), the D.C. Circuit explained that, “[i]n class actions, [the single-filing rule] is invariably applicable, for the very fact that the suit is a class action means that the plaintiffs’ claims not only share common questions of law and fact, but those claims are such that representative plaintiffs will fairly and adequately protect the interests of all plaintiffs of the class.” However, the rule “has been extended to situations where no class action has been certified, but where the
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court was nonetheless able to treat as a class a plaintiff who had [exhausted administrative
remedies] and one or more plaintiffs who had not satisfied that requirement.” Id.
In Barkhorn, Judge Bredar adopted the single-filing rule in a non-class suit involving
multiple plaintiffs, observing that the fact that paintiffs might “be entitled to different amounts of
damages” was “not material to whether their claims are substantially similar in nature.” 2011
WL 4479694, at *4. So too here: although the extent of plaintiffs’ disabilities and requested
accommodations may vary to some degree, all of the plaintiffs are profoundly deaf and complain
about substantially similar alleged failures to accommodate their disability in common aspects of
prison life. In my view, application of the single-filing rule is appropriate in such circumstances,
even if class certification is not obtained or is never sought.16
Indeed, the outcome of the administrative grievance process for the plaintiffs who did
exhaust their administrative remedies provides another indication that this case is an appropriate
candidate for vicarious exhaustion. The grievance claims of Mr. Jarboe and Mr. Redd were both
dismissed on the basis that they failed to state claims on which relief could be granted by way of
16 To be sure, there is case law that has held vicarious exhaustion inapplicable after class certification has been considered and denied. Depending on the reason for denial of class certification, a court’s decision not to certify a class may well undermine the ground for application of vicarious exhaustion. For instance, where certification of a class is inappropriate because the representative plaintiffs do not meet the commonality and typicality requirements of Fed. R. Civ. P. 23(a), see, e.g., Heng v. Donald, Civ. No. 7:08-CV-5, 2010 WL 497347, at *4 (M.D. Ga. Feb. 4, 2010) (denying class certification), it tends to follow logically that the plaintiffs’ claims are insufficiently similar to justify application of vicarious exhaustion. See, e.g., Heng v. Donald, Civ. No. 7:08-CV-5, 2011 WL 925726, at *5 (M.D. Ga. Jan. 25, 2011) (holding vicarious exhaustion inapplicable in light of denial of class certification). On the other hand, there is no logical reason that a lack of sufficient numerosity to justify class treatment should preclude application of vicarious exhaustion. Depending on the ultimate decision in this case regarding class certification, and the basis for that decision, defendants may seek to revisit the issue of exhaustion. But, in the current posture of the case, there is no basis to rule that vicarious exhaustion does not apply.
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the administrative grievance procedure. In Mr. Davis’s case, the warden found that his grievance was meritorious, but then allegedly failed to take further action to provide a timely remedy.17 The strong impression given by the administrative record is that DPSCS’s grievance procedure simply is not equipped to address programmatic complaints such as those advanced here by plaintiffs. Thus, there is no reason to expect that Mr. Denmark, Mr. Connelly, or any of the members of the proposed class would experience any different result than Messrs. Jarboe, Redd, and Davis if they were required to administratively exhaust their claims. Such a requirement would only result in the overburdening of the administrative process with unnecessarily duplicative claims of a nature that the process is demonstrably ill-suited to handle. And, where a correctional institution has been given a full opportunity to address a prisoner complaint without judicial involvement, the purpose of the PLRA’s exhaustion requirement has been fulfilled.
Accordingly, the Correctional Motion will be denied. B. DLLR Motion
Plaintiffs’ Complaint asserts all three of its counts against all defendants, and does not specifically delineate which allegations are directed at which defendants. However, it appears that plaintiffs have sued the DLLR Defendants in connection with the allegation that, due to plaintiffs’ disabilities, they “have been excluded from participation in educational and counseling programs offered by DPSCS and Correctional Education, including those required under the terms of their sentencing.” Complaint at 3.18 As noted, DLLR, through its division DWDAL,
17 Notably, the Correctional Defendants have not controverted plaintiffs’ claim that a remedy was not provided to Mr. Davis, and they bear the burden of proof as to the affirmative defense of administrative exhaustion.
18 Plaintiffs’ allegations against the DLLR Defendants do not seem to be encompassed within Count III of plaintiffs’ Complaint, which alleges violations of the First Amendment on the
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manages the Correctional Education program within the Maryland state prison system.19 The DLLR Defendants advance two arguments in their motion. First, they contend that
plaintiffs fail to state a claim because plaintiffs have no legal entitlement to participation in educational or vocational programs. Second, the DLLR Defendants maintain that they are not liable for any violation of plaintiffs’ rights under the ADA or Rehabilitation Act, because DPSCS controls the assignment of inmates to the educational programs. Therefore, they insist that the DLLR Defendants are not liable for any violation of plaintiffs’ ADA or Rehabilitation Act rights.
1. Conversion to Summary Judgment As noted, the DLLR Motion is styled as a Rule 12(b)(6) motion to dismiss or, in the alternative, as a motion for summary judgment under Rule 56. In support of their Motion, the DLLR Defendants have submitted affidavits of Assistant Secretary Francois and Alice Wirth, the Director of Correctional Education for DLLR. See Francois Aff., Ex.1 to DLLR Motion (ECF 25-2); Wirth Aff., Ex.2 to DLLR Motion (ECF 25-3).20 A motion presented in this manner “implicates the court’s discretion under Rule 12(d) of the Federal Rules of Civil Procedure.” Kensington Vol. Fire Dept., Inc. v. Montgomery County, 788 F. Supp. 2d 431, 436-37 (D. Md. 2011), aff’d, 684 F.3d 462 (4th Cir. 2012). As discussed,
basis of plaintiffs’ alleged deprivation of appropriate accommodations to enable them to communicate with others who are outside of prison. Rather, the claims against the DLLR Defendants appear to arise solely from the ADA (Count I) and the Rehabilitation Act (Count II).
19 The parties agree that the Correctional Education program formerly was within the purview of the Maryland State Department of Education. Responsibility for the program was transferred to DLLR effective July 1, 2009.
20 The affidavits are just over one page in length, and their content is exactly the same, aside from their first paragraphs, which contain background information regarding each affiant.
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supra, Rule 12(d) permits a court, in its discretion, to consider matters outside of the pleadings in
connection with a motion filed under Rule 12(b)(6), and thereby convert the motion to one for summary judgment.21
Under Rule 12(d), a district judge has “complete discretion to determine whether or not
to accept the submission of any material beyond the pleadings that is offered in conjunction with
a Rule 12(b)(6) motion and rely on it, . . . or to reject it or simply not consider it.” 5C WRIGHT &
MILLER, FEDERAL PRACTICE & PROCEDURE § 1366, at 159 (3d ed. 2004, 2012 Supp.). This
discretion “should be exercised with great caution and attention to the parties’ procedural rights.”
Id. at 149. In general, courts are guided by whether consideration of extraneous material “is
likely to facilitate the disposition of the action,” and “whether discovery prior to the utilization of
the summary judgment procedure” is necessary. Id. at 165-67. “When the extra-pleading
material is comprehensive and will enable a rational determination of a summary judgment
motion in accordance with the standard set forth in Rule 56, the district court is likely to accept
it.” Id. at 165. In contrast, when the extraneous material is “scanty, incomplete, or inconclusive,
the district court probably will reject it.” Id. at 165-66.
Ordinarily, summary judgment is inappropriate “where the parties have not had an
opportunity for reasonable discovery.” E.I. du Pont de Nemours v. Kolon Indus., Inc., 637 F.3d
435, 448-49 (4th Cir. 2011). However, a “party opposing summary judgment ‘cannot complain
21 If the court intends to exercise its discretion under Rule 12(d) to convert a motion to dismiss to one for summary judgment, “[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d). However, when the movant expressly captions its motion “in the alternative” as one for summary judgment, and submits matters outside the pleadings for the court’s consideration, the parties are deemed to be on notice that conversion under Rule 12(d) may occur; the court “does not have an obligation to notify parties of the obvious.” Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998).
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that summary judgment was granted without discovery unless that party has made an attempt to oppose the motion on the grounds that more time was needed for discovery.’” Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002) (quoting Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996)). To raise adequately the issue that discovery is needed, the non-movant typically must file an affidavit or declaration pursuant to Rule 56(d) (formerly Rule 56(f)), explaining why, “for specified reasons, it cannot present facts essential to justify its opposition,” without needed discovery. Fed. R. Civ. P. 56(d); see Harrods, 302 F.3d at 244-45 (discussing affidavit requirement of former Rule 56(f)).
Notably, “‘Rule 56(d) affidavits cannot simply demand discovery for the sake of discovery.’” Hamilton v. Mayor & City Council of Baltimore, 807 F. Supp. 2d 331, 342 (D. Md. 2011) (quoting Young v. UPS, No. DKC-08-2586, 2011 WL 665321, at *20 (D. Md. Feb. 14, 2011)). “Rather, to justify a denial of summary judgment on the grounds that additional discovery is necessary, the facts identified in a Rule 56 affidavit must be ‘essential to [the] opposition.’” Scott v. Nuvell Fin. Servs., LLC, 789 F. Supp. 2d 637, 641 (D. Md. 2011) (alteration in original) (citation omitted). A non-moving party’s Rule 56(d) request for additional discovery is properly denied “where the additional evidence sought for discovery would not have by itself created a genuine issue of material fact sufficient to defeat summary judgment.” Strag v. Bd. of Trs., Craven Cmty. Coll., 55 F.3d 943, 954 (4th Cir. 1995); see Amirmokri v. Abraham, 437 F. Supp. 2d 414, 420 (D. Md. 2006), aff’d, 266 F. App’x 274 (4th Cir.), cert. denied, 555 U.S. 885 (2008).
In response to the DLLR Motion, plaintiffs have submitted an affidavit of their counsel Joseph D. Edmondson, Jr., pursuant to Rule 56(d), see ECF 30-1, arguing that summary
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judgment on the grounds advanced by the DLLR Defendants would be premature in advance of discovery. As I will explain, I agree. Moreover, even if the Court considers the affidavits submitted with the DLLR Motion, the DLLR Defendants have not established their entitlement to summary judgment. Thus, the DLLR Motion fails, regardless of whether it is considered under a Rule 12(b)(6) or Rule 56 standard.
2. Entitlement to Services The DLLR Defendants’ lead argument is a purely legal claim that does not depend on their affidavits for support. They contend that plaintiffs’ “mere allegations that [the DLLR] Defendants did not supply services cannot rise to the level of discrimination,” because plaintiffs “are not constitutionally entitled to participation in an educational or vocational program.” DLLR Motion at 4-5. Plaintiffs respond that the DLLR Defendants have missed the point: “The issue here is not whether the Plaintiffs are entitled to participate in these programs, but rather, whether they have been discriminatorily prohibited from participation in these programs due to their disabilities in violation of the ADA and the Rehabilitation Act.” DLLR Opposition at 15. By their plain text, the ADA and the Rehabilitation Act require that a qualified individual with a disability may not be “excluded from participation in or be denied the benefits of the services, programs, or activities of ” an entity subject to the statutes, “or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132 (provision of ADA applicable to “public entit[ies]”); see also 29 U.S.C. § 794(a) (provision of Rehabilitation Act, stating: “No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .”).
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There is no textual limitation requiring that a plaintiff must demonstrate some other source of legal entitlement to participation in the program or activity at issue in order to proceed under either statute. Rather, it is enough that the plaintiff is excluded from participation in or denied the benefits of the program on the basis of disability.
The Fourth Circuit’s recent decision in Seremeth, supra, 673 F.3d 333, aptly demonstrates this principle. In that case, the Court considered whether the requirements of Title II of the ADA and § 504 of the Rehabilitation Act “apply to police investigations and detentions,” such that a deaf police detainee would be entitled to reasonable accommodations to allow him to communicate effectively with the officers detaining him. Id. at 336. The Court answered in the affirmative, notwithstanding that the detainee could point to no other source of legal entitlement to communication (effective or otherwise) with the officers who detained him. The Seremeth Court said: “While the Supreme Court in the Miranda context has said that the Constitution does not require ‘that the police supply a suspect with a flow of information,’ Moran v. Burbine, 475 U.S. 412, 422 (1986), the ADA applied once the deputies attempted to question and obtain information from [the detainee].” Seremeth, 673 F.3d at 339 (emphasis added).22 Once a public entity or a recipient of federal financial assistance makes a “program” or “activity” available, within the meaning of the statutes, the ADA and the Rehabilitation Act prohibit discrimination on the basis of disability against an otherwise qualified individual with respect to that program or activity.
22 The Seremeth Court concluded that, although the detainee was entitled to reasonable accommodations under the ADA and the Rehabilitation Act, the accommodations he demanded were not “reasonable” within the meaning of the statutes, under the factual circumstances. See Seremeth, 673 F.3d at 339-41.
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Thus, to the extent that the DLLR Defendants make programs, activities, or services available to inmates generally, the ADA requires that such programs, activities, or services be made available to otherwise-qualified inmates with disabilities without discrimination, and that reasonable accommodations be provided to disabled inmates to enable them to benefit from the programs, activities, or services. Regardless of the precise scope of the terms “program” and “activity” under the ADA, it is clear that those terms apply to educational programs in state prisons. See Yeskey, supra, 524 U.S. at 210 (stating that Title II of ADA applies to “educational and vocational ‘programs’” provided to inmates by state prisons).23 Thus, the DLLR Defendants’ first argument lacks merit.
3. Proper Defendant The DLLR Defendants’ second argument relies, in part, upon the affidavits of Assistant Secretary Francois and Director Wirth. Those officials aver, inter alia, that “DLLR cannot assign an inmate to a correctional education program.” Francois Aff. at 1; Wirth Aff. at 1. They also assert: “While it is Correctional Education’s responsibility to develop curriculum and provide instruction, assignment of inmates to the instructional . . . program resides with DPSCS,” and “DPSCS Case management is responsible for assigning inmates to Correctional Educational or Vocational programs.” Id. Moreover, they state that it is “DLLR’s policy that if a deaf or hearing-impaired inmate is assigned to the correctional education program, DLLR works in conjunction with DPSCS to provide reasonable accommodation to allow the inmate to benefit
23 Indeed, the Seremeth Court observed that at least three other circuit courts of appeal and the Department of Justice by regulation have concluded that Title II of the ADA “‘applies to anything a public entity does,’” although the Fourth Circuit has not yet found it necessary to determine whether the definitions of “program” and “activity” under the ADA extend that far. Seremeth, 673 F.3d at 338 (citation omitted).
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from the educational program.” Both officials insist that they are unaware, during their tenure, of “any request by DPSCS for DLLR to provide any accommodations to deaf or hearingimpaired inmates to allow participation in the correctional education program,” or of any occasion on which DLLR has “denied [sign-language] interpreter services to an inmate for educational classes.” Francois Aff. at 1-2; Wirth Aff. at 1-2.
On the strength of these assertions, the DLLR Defendants contend that they “do not make [educational] services available to the general inmate population[;] they can only provide services to the individuals assigned by DSPCS.” DLLR Motion at 9. Therefore, as they see it, there “was no benefit or service that could even be offered by [the DLLR] Defendants if DPSCS did not place the Plaintiffs into the correctional education program.” Id. at 8. In sum, they claim that “DPSCS . . . provides access to correctional education programs, not DLLR.” Id. at 5.
Plaintiffs respond that summary judgment is premature because they lack discovery as to the underlying policies and allocation of responsibility between DPSCS and DLLR for educational programming for inmates. Moreover, they point out that they allege, in the Complaint, that Mr. Davis “must attend an Anger Management program and drug/narcotic abuse program in order to be eligible for parole, but is unable to effectively participate in or understand these programs without the provision” of a “Computer Assisted Real Time (CART)” system that provides speech-to-text conversion. Complaint ¶ 96; see also id. ¶ 87. They also state: “Deaf and hard of hearing inmates at WCI have . . . been denied educational opportunities, such as classes to achieve a General Educational Development (GED) degree, due to the lack of any system of providing them with effective communication,” and have been “denied interpreter services for classes such as Adult Basic Education,” a course provided by DLLR. Id. ¶¶ 85, 97.
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Ultimately, the DLLR Defendants’ position may prove to be correct. To the extent that DPSCS maintains exclusive control over the assignment of inmates to Correctional Education programs and has never assigned deaf inmates to such programs, it is hard to see how the DLLR Defendants would be liable. But, if DPSCS has assigned deaf inmates to Correctional Education programs, it is by no means clear that it would be DPSCS’s responsibility, rather than DLLR’s, to provide whatever reasonable accommodations that were necessary for those inmates. Indeed, the affidavits of Francois and Wirth indicate that such responsibility is shared between both DPSCS and DLLR.
In addition, the DLLR Defendants might arguably be able to demonstrate that they are not liable under the Rehabilitation Act or the ADA if they never received any requests for reasonable accommodations for inmates, because “‘the ADA’s reasonable accommodation requirement usually does not apply unless triggered by a request.’” Kiman v. New Hampshire Department of Corrections, 451 F.3d 274, 283 (1st Cir. 2006) (emphasis added) (citation omitted). However, the affidavits of Assistant Secretary Francois and Director Wirth do not establish that the DLLR Defendants never received such a request; the affiants made their statements only to the best of the their information and belief, rather than on personal knowledge or upon review of DLLR’s business records. Moreover, “sometimes [a] [person]’s need for an accommodation will be obvious,” and in those circumstances an explicit request for an accommodation is not required in order to establish the obligation to provide reasonable accommodations. Kiman, 451 F.3d at 283; accord Paulone, supra, 787 F. Supp. 2d at 403-04 (collecting cases).
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The affidavits presented by the DLLR Defendants are hardly comprehensive. In my view, it would be premature to make a determination as to the DLLR Defendants’ liability on the basis of the current state of the record. A full factual record, developed through discovery, will benefit the Court in resolving which entity or entities are responsible for the provision of reasonable accommodations to inmates with disabilities who take part in Correctional Education programs. Accordingly, I will deny the DLLR Motion, without prejudice to the DLLR Defendants’ right to reassert their arguments concerning the allocation of programmatic responsibility in another motion for summary judgment filed after at least some discovery has occurred.
Conclusion For the reasons discussed, I will deny both the Correctional Motion and the DLLR Motion. An Order implementing my rulings follows.

Date: March 13, 2013

/s/ Ellen Lipton Hollander United States District Judge

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 SETTLEMENT AGREEMENT
This Settlement Agreement (“Agreement”) pertains to the resolution of the case titled, Jarboe, et al v. Maryland Department of Public Safety and Correctional Services (DPSCS), et al, U.S. District Court of Maryland Case No. 1:12-cv-00572-ELH, and is entered into between Christopher Jarboe, Carroll Connelly, Vander Davis, Gary Denmark, and Garfield Redd (collectively, “Plaintiffs”), and Maryland Department of Public Safety and Correctional Services (“DPSCS”), Maryland Division of Correction (“DOC”), Maryland Department of Labor, Licensing and Regulation, Division of Workforce Development and Adult Learning (Correctional Education) (“DLLR”), Maryland Correctional Enterprises, DPSCS Secretary Gary D. Maynard, Stephen T. Moyer (as substitute for Gary Maynard pursuant to Fed. R. Civ. Pro. 25), J. Michael Stouffer, Wayne Webb (as substitute for J. Michael Stouffer pursuant to Fed. R. Civ. Pro. 25), Paulette Francois, Julie Squire (as substitute for Paulette Francois pursuant to Fed. R. Civ. Pro. 25), James Rzepkowski (as substitute for Julie Squire pursuant to Fed. R. Civ. Pro. 25), and Stephen M. Shiloh, Maryland Correctional Institution- Jessup (“MCI-J”), Western Correctional Institution (“WCI”), Dayena Corcoran, Carroll Parrish (as substitute for Dayena Corcoran pursuant to Fed. R. Civ. Pro. 25), J. Phillip Morgan, and Richard J. Graham (as substitute for J. Phillip Morgan pursuant to Fed. R. Civ. Pro. 25) (collectively, “Defendants”). The foregoing individuals and entities are each referred to as a “Party” and collectively as the “Parties.”
The Parties hereby stipulate and agree as follows:
RECITALS
WHEREAS, Plaintiffs are or were previously inmates in the custody of DPSCS who claim a disability by virtue of their being deaf and have filed a lawsuit against the Defendants in the United States District Court for the District of Maryland, styled Jarboe, et al. v. Maryland Dept. Pub. Safety and Corr. Svcs., et al., Civil No. ELH-12-00572 (the “Litigation”), claiming violations of the Americans with Disabilities Act of 1990, Pub. L. 101-336, codified at 42 U.S.C. §§ 12101-12213, and regulations promulgated thereunder (the “ADA”), the Rehabilitation Act of 1973, Pub. L. 930112, codified at 29 U.S.C. §§ 701-797b, and regulations promulgated thereunder (the “Rehabilitation Act”), and the U.S. Constitution, based upon Defendants’ alleged failures to provide technology, equipment, and services to accommodate Plaintiffs’ disabilities;
WHEREAS, Defendants have denied and continue to deny liability for such alleged 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.
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:

AGREEMENT
I. DEFINITIONS.
A. “Auxiliary Aids and Services” include, but are not limited to, “Interpreters,” “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, TTYs, videotext displays, written materials, 28 C.F.R. § 35.104, as well as “Videophones,” access to telephone relay services, and visual alert or alarm systems. For purposes of this Agreement, Auxiliary Aids and Services do not include vibrating clocks or in-line amplifiers meaning DPSCS will not automatically provide or pay for such devices. DPSCS will give “primary consideration” to the requests of the Deaf inmate in determining what type of auxiliary aid and service is necessary. 28 C.F.R. § 35.160(b)(2).
B. “Deaf” persons means individuals who are unable to hear well enough to rely on their hearing as a means of processing information and who rely on Auxiliary Aids and Services to effectively communicate and who qualify as individuals with disabilities under the Americans with Disabilities Act as amended by the ADA Amendments Act of 2008. See 42 U.S.C. § 12102(4); P.L. 110-325.
C. “Direct Threat” means a significant risk to the health or safety of the Deaf Inmate or others that cannot be eliminated by reasonable accommodation. A finding of Direct Threat will be based on and supported by objective evidence.
D. “DLLR” means the Maryland Department of Labor, Licensing and Regulation, and includes its Division of Workforce Development and Adult Learning and Department of Correctional Education.
E. “DLLR employees,” “DLLR staff,” and “DLLR personnel” include all employees, agents, and other staff of DLLR whose job responsibilities place them on a regular basis in contact with Deaf inmates and the immediate supervisors of those employees, agents, or other staff.
F. “DPSCS” means Maryland Department of Public Safety and Correctional Services.
G. A “DPSCS Activity” is any activity made available to inmates on a voluntary basis by DPSCS in which an inmate voluntarily participates, and is not assigned by case management in accordance with state law or COMAR 12.02.24.02.A.(10)-(11).
H. “DPSCS Correctional Facilities” means Baltimore City Correctional Center; Brockbridge Correctional Facility; Chesapeake Detention Facility; Central Maryland Correctional Facility; Correctional Mental Health Center-Jessup; Eastern Correctional Institution; Eastern Correctional Institution Annex; Jessup
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Correctional Institution; Maryland Correctional Institution-Hagerstown; Maryland Correctional Institution-Jessup; Maryland Correctional Institution for Women; Maryland Correctional Training Center, Maryland Reception, Diagnostic and Classification Center; Metropolitan Transition Center; North Branch Correctional Institution; Patuxent Institution; Roxbury Correctional Institution; and Western Correctional Institution.
I. “DPSCS employees,” “DPSCS staff,” and “DPSCS personnel” include all staff of the Maryland Department of Public Safety and Correctional Services (DPSCS) whose job responsibilities place them on a regular basis in contact with Deaf inmates and the immediate supervisors of those employees.
J. “DPSCS Prerelease Housing Units” mean all the pre-release housing units to which inmates confined in DPSCS Correctional Facilities set forth in section I(H) may be housed.
K. “Effective Communication” means communication with Deaf inmates that is as effective as communication with the general inmate population, 28 C.F.R. § 35.160(a), and will, when necessary, include the provision of appropriate Auxiliary Aids and Services, such as Qualified Interpreters.
L. “Effective Date” means the date that the Maryland Board of Public Works approves this Agreement.
M. “Hard of Hearing Inmate” means an inmate whose hearing is corrected by hearing aids so that he or she can understand the spoken word, communicate orally, and use a standard telephone. Hard of Hearing inmates are not covered by this Agreement, except the repair terms outlined in Section IX(E) for telecommunication devices and the maintenance terms of Section V(C) for Auxiliary Aids and Services will also apply to hearing aids for such individuals.
N. “Intake” means the process from the point in time at which an inmate is taken into the custody of DPSCS at a DPSCS Correctional Facility through the point in time at which the inmate is received at and assigned to a unit within a maintaining DPCSC Correctional Facility, including but not limited to: orientation, medical, psychological, education testing and evaluation, and assignment.
O. “Intake Form” means the form included in a Deaf inmate’s base file to be provided by DPSCS and completed by all deaf inmates to allow them to select which, if any, Auxiliary Aids and Services they would prefer for all programs, activities, medical appointments and procedures, disciplinary hearings, and all other complex or lengthy communication with prison staff. The name of the Intake Form will be determined upon the creation of an executive directive.
P. “Interpreter” means an interpreter who, via a video remote interpreting (VRI) service or an on-site appearance, is able to interpret effectively, accurately, and impartially, both receptively and expressly, using any necessary specialized vocabulary. Examples of Interpreters include, but are not limited to, sign
3

language interpreters, oral transliterators, and cued-language translitertators. See 28 C.F.R. § 36.104.
Q. “Litigation” means the action filed in U.S. District Court for the District of Maryland styled Christopher Jarboe, et al. v. MDPSCS, et al., Case No. ELH 1200572.
R. “Offsite Medical Care” means medical care that is provided at a location not owned, operated, or contracted by DPSCS.
S. “Onsite Medical Care” means medical care that is provided at a DPSCS Correctional Facility, including medical care provided by third parties in DPSCS Correctional Facilities owned or operated by DPSCS.
T. “Primary Consideration” means that in determining what type of Auxiliary Aids and Services are necessary to comply with the ADA and this Agreement, DPSCS agrees to give primary consideration to the expressed preference request for a particular Auxiliary Aid or Service by the individual with the disability, the Deaf inmate. See 28 C.F.R. § 35.160.
DPSCS will honor the Deaf inmate’s expressed request unless DPSCS can demonstrate that another effective means of communication exists or that use of the means chosen would not be required under 28 C.F.R. § 35.164. The decision that a particular request for Auxiliary Aids and Services would result in a fundamental alteration of DPSCS’ programs and services or in undue financial and administrative burdens must be made by the Secretary of DPSCS or his designee after considering all the resources available for use in the funding and operation of the agency’s programs and services and must be accompanied by a written statement of the reasons for reaching that conclusion. See 28 C.F.R. § 35.164.
U. “Qualified Interpreter” means a person who is able to interpret effectively, accurately, and impartially, both receptively and expressively, with the individual Deaf inmate using any necessary specialized vocabulary. A Qualified Interpreter depends on the needs of the inmate and could include an ASL interpreter, a sign language interpreter using more English based signs, an oral interpreter, a cued speech transliterator, or a tactile interpreter for a person who is Deaf and blind. For sign language interpreters, a Qualified Interpreter is one who holds one or more of the following current, valid certifications:
• Registry of Interpreters for the Deaf Certification as a CI/CT, CSC, MCSC, OTC, CDI, or RSC;
• National Association of the Deaf (NAD) Certification Level 3, 4, or 5;
• NAD/RID National Interpreter Certification NIC, NIC Advanced, or NIC Master; or
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• Any Maryland certification with the same or substantially equivalent proficiency standards.
A cued speech transliterator will be certified by the Cued Language Transliterator National Certification Examination.
The parties agree that future certifications that are the equivalent of these certifications will be considered valid minimum certification, so long as those certifications are kept current.
V. “TTYs” or “TDDs” means devices that are used with a telephone to communicate with persons who are Deaf by typing and reading communications.
W. “Video Remote Interpreting” (VRI) means video interpreting accomplished by use of video conference technology over high-speed internet lines.
X. “Videophone” means a telephone with a camera and screen for visual, real-time communications.
II. GENERAL POLICIES
A. Non-discrimination Based on Disability
DPSCS will ensure that Deaf inmates at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units have an equal opportunity to participate in and enjoy the benefits of services, programs, or activities as non-Deaf inmates similarly situated.
DPSCS will ensure that former Deaf inmates under post-release supervision by Parole and Probation have an equal opportunity to participate in and enjoy the benefits of services, programs, or activities as former non-Deaf inmates similarly situated.
DPSCS retains the discretion to determine that certain activities may present a Direct Threat to Deaf inmates or former Deaf inmates or others and may therefore choose not to provide such Deaf inmates or former Deaf inmates some of its services, programs, and activities. See 28 C.F.R. 35.104; 28 C.F.R. 35.139. DPSCS is not required to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burden. See 28 C.F.R. § 35.164.
B. ADA Coordinator and Auxiliary Aids and Services Designees
DPSCS has designated an ADA Coordinator and will maintain the ADA Coordinator position as required by this Agreement. DPSCS agrees that the ADA Coordinator will be trained and knowledgeable concerning the requirements of federal and state law regarding DPSCS’ obligations to provide full and equal enjoyment of its services, programs, and activities to Deaf inmates, and the contents of this Agreement.
DPSCS will notify counsel for the Plaintiffs of the ADA Coordinator designee assigned to DPSCS Headquarters. Thereafter, the name and contact information for the ADA
5

Coordinator will be kept updated in a prominent place on the DPSCS website. The ADA Coordinator’s name and contact information will also be posted in a secure area in any housing unit in which Deaf inmates are held.
Within thirty days of the Effective Date of this Agreement, DPSCS will designate an individual or individuals at each DPSCS Correctional Facility where Deaf inmates are held who will be responsible for coordinating and overseeing Auxiliary Aids and Services for Deaf inmates and for implementing this Agreement as applicable to such DPSCS Correctional Facility.
Within thirty days of the Effective Date of this Agreement, DPSCS will designate an individual who will be responsible for coordinating and overseeing Auxiliary Aids and Services for Deaf inmates held at a DPSCS Prerelease Housing Unit and for implementing this Agreement as applicable to DPSCS Prerelease Housing Units.
Within thirty days of the Effective Date of this Agreement, DPSCS will designate regional coordinators for any Probation and Parole Office where any Deaf former inmate is actively on post-release supervision. These designees will be responsible for coordinating and overseeing Auxiliary Aids and Services for Deaf former inmates consistent with and for implementing this Agreement. These designees will be familiar with and knowledgeable concerning the contents of this Agreement and assist in implementing this Agreement as applicable to such office.
DPSCS agrees to train all Shift Commanders at each DPSCS Correctional Facility and DPSCS Prerelease Housing Unit where Deaf inmates are held on the procedures necessary to satisfy this Agreement.
DPSCS agrees that Deaf inmates will be given the opportunity to meet with the Warden, Assistant Warden, or Facility Administrator at least quarterly at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units. At these meetings, Deaf inmates will have the opportunity to discuss issues of importance to the Deaf inmate community with the Warden, Assistant Warden, or Facility Administrator. A Qualified Interpreter and Auxiliary Aids and Services will be provided at these meetings as necessary.
III. INTAKE PROCEDURES AND SUBSEQUENT PROVISION OF AUXILIARY AIDS AND SERVICES
A. General Policy
At Intake, from the point that a Deaf inmate notifies DPSCS staff of his or her disability, the Deaf inmate will be provided with access to Qualified Interpreters or appropriate Auxiliary Aids and Services, as necessary, to afford the Deaf inmate Effective Communication. To achieve Effective Communication with respect to the Intake process, Qualified Interpreters or Auxiliary Aids and Services will be provided, upon request, to aid in the explanation of prison policies and procedures. After transfer to the maintaining facility, the Deaf inmate will participate in orientation and receive instruction on how to use the available telecommunications equipment and other Auxiliary Aids and Services at the facility. Within six months from the
6

Effective Date of this Agreement, DPSCS will implement a written policy governing the Intake process for Deaf inmates that includes, at a minimum, the following terms:
1. The assessment, and if necessary testing, for Deafness or hearing impairments by Medical staff of all inmates who demonstrate difficulty hearing or notify the proper officials of difficulty in hearing at any point during the Intake process.
2. The creation of a form to be used at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units appended to the policy, by which a Deaf inmate will indicate his or her preferences for Auxiliary Aids and Services for various prison services, programs, and activities in which an inmate would reasonably be expected to be involved while incarcerated, whether mandatory or voluntary, including all situations as to which Auxiliary Aids and Services are to be provided to Deaf inmates pursuant to this Agreement. The form is referred to herein as the “Intake Form.” DPSCS will give primary consideration to the type of Auxiliary Aid or Service that is indicated on the inmate’s Intake Form. This form will include, but is not limited to, the options for the following activities and programs to which DPSCS has agreed to provide Qualified Interpreters and/or interpreters as necessary that satisfy, at a minimum, the requirements of 28 C.F.R. § 36.104 under this Agreement:
• For medical care and appointments, including dental, vision, audiological and mental health care for Deaf inmates
• For disciplinary hearings in which Deaf inmates may participate
• For transfer and classification meetings and interviews that impact Deaf inmates
• For transitional programming for Deaf inmates
• For educational programming for Deaf inmates
• For work programming for Deaf inmates
• For any other programs that require complex or lengthy communications between staff and Deaf inmates.
3. A procedure for administration of the Intake Form will be established. The Intake Form will be administered to any inmate who is deemed by the Medical Staff to be Deaf at the time that the inmate is received by their first maintaining DPSCS Correctional Facility for orientation. The Intake Form will be administered at the earliest practical opportunity during orientation.
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4. DPSCS will provide access to a Qualified Interpreter or other Auxiliary Aids and Services, upon request, for the Deaf inmate to understand and complete the Intake Form.
5. DPSCS will provide written notification on initial Intake and orientation materials that the Deaf inmate may request a Qualified Interpreter or other Auxiliary Aids and Services for assistance in understanding any written materials provided and/or the Intake Form.
6. A procedure for Deaf inmates to make amendments to the Intake Form will be established. A Deaf inmate may change his or her preferences indicated in the Intake Form, including changing, adding, or waiving services, absent an objective showing of abuse. If a determination is made by DPSCS that the inmate has abused the Intake Form process, the inmate may appeal the decision through the administrative remedy procedure. A Deaf inmate may complete an Intake Form, upon request, at any time during his or her incarceration even if he or she had previously declined services.
7. The Intake Form is to be maintained in the inmate’s base file and will be consulted and used by DPSCS and/or DLLR staff that performs services at DPSCS Correctional Facilities or DPSCS Prerelease Housing Units for the entire duration of the inmate’s incarceration.
B. Provision of Auxiliary Aids and Services Specified in the Intake Form
After Medical staff determines that an inmate is Deaf and the Intake Form has been completed, DPSCS will make best efforts and give primary consideration to providing the types of Auxiliary Aids and Services requested on the Intake Form and continue to provide such services consistent with this Agreement, unless the Deaf inmate affirmatively indicates he or she does not want such services. Accordingly, additional requests for Auxiliary Aids and Services by the inmate are not required, unless the inmate wishes to request Auxiliary Aids or Services other than those previously requested and provided; however, in the event that Auxiliary Aids and Services are not present or malfunctioning, the inmate has an affirmative duty to notify DPSCS staff. The purpose of the Intake Form, however, is to be an administrative convenience for DPSCS and does not limit the obligation of DPSCS to provide Auxiliary Aids and Services to all Deaf inmates who have requested and qualify for such services as set forth in this Agreement or by law.
C. Ensuring Staff Awareness Through Identification Cards
DPSCS will take appropriate steps to ensure that all DPSCS personnel at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units having regular contact with a Deaf inmate are made aware of such person’s need for Auxiliary Aids and Services so that Effective Communication with such person and the safety of the person will be ensured. Upon identifying an inmate as Deaf during the Intake process, the inmate will be offered a distinct identification (“ID”) card that clearly identifies him or her as Deaf. This ID card will use the term “Deaf” and
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will not use the terms “Hearing Impaired.” The inmate can accept this card or decline it in favor of a standard issue identification. If a Deaf inmate declines the distinct ID card, he or she will sign a Waiver and that document will be kept in the inmate’s base file. The Waiver under this section does not waive the Deaf inmate’s right and/or access to eligible services and is limited only to the inmate’s option to accept the distinct ID card. The inmate will not be precluded from changing his or her preference during his or her period of incarceration to remove the waiver. The distinct ID card will be provided within a reasonable period of time.
The ID card will signify to DPSCS personnel that the inmate is Deaf, might not respond to oral commands, and may require Auxiliary Aids and Services. When DPSCS staff takes a Deaf inmate's ID card, the Deaf inmate will be given another item by DPSCS staff that will identify the inmate as Deaf.
All staff having regular contact with a Deaf inmate in a DPSCS Correctional Facilities or DPSCS Prerelease Housing Units will be trained on the meaning of the distinct ID cards.
D. Interpretation of Written Materials
As of the Effective Date of this Agreement, and upon a Deaf inmate’s request at the DPSCS Correctional Facility or DPSCS Prerelease Housing Unit where the inmate is incarcerated, DPSCS will provide the Deaf inmate written materials it provides to all inmates, and upon request, provide a Qualified Interpreter to permit the Deaf inmate to understand the contents of the written materials.
At the request of the Deaf inmate, DPSCS will promptly and within a reasonable period of time provide that Deaf inmate with the opportunity to meet with a DPSCS staff member and a Qualified Interpreter to ask any further questions regarding the written or interpreted materials.
E. Creation of Jarboe Settlement Materials
Within six months of the Effective Date of this Agreement, DPSCS will create written materials outlining the services available to Deaf Inmates at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units. These written materials are referred to herein as “Jarboe Settlement Agreement Materials.” The Jarboe Settlement Materials are intended to outline the services available pursuant to DPSCS’ obligations under this Agreement. Immediately upon creation of the Jarboe Settlement Agreement Materials, and promptly upon any amendments thereto, DPSCS will provide the Jarboe Settlement Agreement Materials to all currently incarcerated Deaf inmates at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units and to Deaf former inmates supervised by the Department of Parole and Probation. DPSCS will create the Jarboe Settlement Agreement Materials using language designed to be accessible to Deaf inmates. DPSCS will provide the Jarboe Settlement Agreement Materials promptly to any other inmate housed at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units who is determined by Medical staff to be Deaf. During the Intake process, such Jarboe Settlement Materials will be provided to Deaf inmates with the orientation materials provided to all other inmates. Upon request, DPSCS will promptly and
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within a reasonable period of time provide any Deaf inmate at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units with a Qualified Interpreter to interpret the Jarboe Settlement Agreement Materials and ask any questions regarding the Jarboe Settlement Agreement Materials.
Upon request, DPSCS will promptly and within a reasonable period of time provide any former Deaf inmate with a Qualified Interpreter to interpret the Jarboe Settlement Agreement Materials and ask any questions regarding the Jarboe Settlement Agreement Materials.
F. Subsequent Need for Accommodations
If an inmate at a DPSCS Correctional Facility or a DPSCS Prerelease Housing Unit is not found to be Deaf at his or her Initial Classification, initially refuses, or does not request Auxiliary Aids and Services, but later believes that Auxiliary Aids and Services are necessary to ensure Effective Communication, he or she will have the opportunity to request these services through completing or amending his or her Intake Form. DPSCS will provide an inmate who was initially not found to be Deaf with a hearing assessment if so requested by Medical staff. If that individual is found to be Deaf, DPSCS will follow its policy implemented pursuant to Section III.A of this Agreement, as if the inmate were subject to the initial Intake process, and otherwise treat such inmate as a Deaf inmate under this Agreement.
IV. HOUSING
A. General Policy
DPSCS has the discretion to house Deaf inmates at whatever DPSCS Correctional Facility or DPSCS Prerelease Housing Unit it deems appropriate.
B. Schedule of Accommodations
Regardless of which DPSCS Correctional Facility or DPSCS Prerelease Housing Unit is a Deaf inmate’s place of incarceration, personnel at those DPSCS Correctional Facilities and DPSCS Prerelease Housing Units will provide the Deaf inmate with a schedule showing when Qualified Interpreters and/or other Auxiliary Aids and Services are available. This schedule will be provided to currently incarcerated inmates at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units within three months of the Effective Date of this Agreement.
V. PROVISION OF AUXILIARY AIDS AND SERVICES
A. General Policy
In order to ensure equal opportunity to participate in and enjoy the benefits of a service, program, or activity of DPSCS, DPSCS will provide appropriate Auxiliary Aids and Services, as required by this Agreement, the U.S. Constitution, the ADA, and the Rehabilitation Act. This will include programs or services to Deaf inmates provided by third party vendors, contractors, or state funded entities such as community colleges.
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Appropriate Auxiliary Aids and Services, including Qualified Interpreters, will be made available so that Deaf inmates housed at DPSCS’ Correctional Facilities and DPSCS Prerelease Housing Units may have an equal opportunity to participate in all services, programs, and activities offered to other inmates housed at DPSCS’ Correctional Facilities and DPSCS Prerelease Housing Units.
These services, programs, and activities will include, but are not be limited to: orientation; medical evaluations and treatments; disciplinary proceedings; and during any other programs including, but not limited to, rehabilitative, educational, or transitional programs offered to other similarly situated incarcerated individuals.
In those instances where DPSCS permits volunteers to provide DPSCS Activities, and religious services, and religious meetings to inmates, DPSCS will notify the volunteer organization or individual volunteer, if it is aware, that the DPSCS Activity, religious services, and religious meetings will be attended by one or more Deaf inmates. The parties agree that the Interpreter for DPSCS Activities, religious services, and religious meetings does not need to be a “Qualified Interpreter” as defined in this Agreement. If the volunteer organization or individual volunteer has an interpreter for the DPSCS Activities, religious services, and religious meetings, DPSCS will ensure that the interpreter, at a minimum, satisfies the requirements of 28 C.F.R. § 36.104. If, however, the volunteer organization or individual volunteer does not provide an interpreter for the DPSCS Activities, religious services, and religious meetings, DPSCS will provide for those DPSCS Activities, religious services, and religious meetings that involve complex or lengthy communication an interpreter who satisfies, at a minimum, the requirements of 28 C.F.R. § 36.104. This provision does not alter DPSCS’ obligation to provide other appropriate Auxiliary Aids and Services for DPSCS Activities, religious services, and religious meetings that involve complex or lengthy communication so that there is Effective Communication with the Deaf inmate. When providing any Auxiliary Aids and Services, DPSCS will give primary consideration to the Deaf inmate’s preferred Auxiliary Aid or Service as indicated on the Intake Form referenced in section I(O) of this Agreement for the DPSCS Activities, religious services, and religious meetings.
DPSCS retains the discretion to determine that certain services, programs, or activities present a Direct Threat to Deaf inmates or others and may therefore choose not to provide such Deaf inmates some of its services, programs, and activities.
DPSCS is not required to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burden. 28 C.F.R. § 35.164.
DPSCS will provide and maintain written instructions for the use of all Auxiliary Aids and Services. These instructions will cover, though not necessarily be limited to, use of TTYs and Videophones when installed and implemented.
B. Medical Devices
All Auxiliary Aids and Services required by this Agreement, the ADA, and Section 504 of the Rehabilitation Act, which are deemed by DPSCS or its medical provider to be
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medically necessary, will be provided promptly upon request and free of charge to Deaf inmates at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units. Hearing aids are included in this subsection and will also be promptly provided upon request and free of charge to inmates who have been determined by DPSCS or its medical provider to require such devices, but are otherwise excluded from the remainder of this Agreement, pursuant to Section I(M) herein, because their hearing is corrected by hearing aids so that they can understand the spoken word, communicate orally, and use a standard telephone.
C. Maintenance of Auxiliary Aids and Services
DPSCS will maintain all Auxiliary Aids and Services for Deaf inmates at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units in working condition at all times or promptly repair them. Hearing aids are included in this subsection and will be maintained in working conditions at all times or promptly repaired for all inmates who have been determined by DPSCS or its medical provider to require such devices, regardless of whether the inmate is otherwise excluded from the remainder of this Agreement, pursuant to Section I(M) herein, because his or her hearing is corrected by hearing aids so that they can understand the spoken word, communicate orally, and use a standard telephone. DPSCS staff will attempt to resolve complaints about any malfunctioning equipment within one week of receiving that complaint and no later than one month after receiving the complaint. DPSCS will initiate a work order or other applicable mechanism for resolving the issue within a week of the complaint. DPSCS will not be considered in breach of this provision if the delay is caused by third party vendors, delivery errors, or any other issue caused by third parties or circumstances outside of DPSCS control.
VI. QUALIFIED SIGN LANGUAGE INTERPRETERS AND OTHER AUXILIARY AIDS AND SERVICES
A. Contracts
In accordance with and subject to applicable procurement laws and regulations, DPSCS will enter into one or more written contracts with Interpreter Service Providers (“IS Providers”), to provide Qualified Interpreters at the events and intervals, set forth in this Agreement. The contracts with the IS Providers will specifically state that only “Qualified Interpreters,” as defined in this Agreement, will be used by DPSCS and the IS Providers agree to provide only such interpreters to DPSCS. If DPSCS is currently bound by an IS Provider contract it will add this requirement at the next opportunity, to the extent feasible and permitted by applicable procurement laws and regulations.
B. General Policy
DPSCS will provide an in-person Qualified Interpreter five days per week for seven hours per day at MCI-J. If there is a material change in the number or needs of Deaf inmates at MCI-J, DPSCS will re-evaluate the number and/or frequency of in-person Qualified Interpreters. The number of in-person Qualified Interpreters to be retained and the hours during which those interpreters shall be available to ensure compliance with this Agreement, shall be determined solely by the DPSCS.
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DPSCS will provide an in-person Qualified Interpreter at other DPSCS Correctional Facilities and DPSCS Prerelease Housing Units where deaf inmates are incarcerated as necessary.
DPSCS will be responsible for scheduling and overseeing the provision of Qualified Interpreters. With the exception of DPSCS Activities, religious services, and religious meetings where such volunteers provide an interpreter for the DPSCS Activities, religious services, and religious meetings, all interpreters provided as accommodations to Deaf inmates will be Qualified Interpreters.
C. Other Means of Communication
1. General Policy
DPSCS agrees that at all times DPSCS employees will continue to attempt to communicate with Deaf inmates at its DPSCS Correctional Facilities and DPSCS Prerelease Housing Units for such purposes and to the same extent, as they would communicate with the individuals but for their disability, using all available means of communication. This provision in no way lessens DPSCS’ obligation to provide Qualified Interpreters or other Auxiliary Aids and Services in certain situations and in a timely manner to the extent required by this Agreement.
2. Video Remote Interpreting (VRI)
DPSCS will provide access to and have available for, emergency situations and otherwise as deemed necessary by DPSCS, on-demand video remote interpreting which comports with the following standards at all DPSCS Correctional Facilities at which Deaf inmates are incarcerated:
• high quality, clear, delay-free full-motion video and audio over a highspeed Internet connection;
• a clear, sufficiently large, and sharply delineated picture of the interpreter’s and the Deaf individual’s heads, arms, hands, and fingers, regardless of the body position of the Deaf inmate, unless rendered impracticable by an emergency situation;
• voices being transmitted are clear and easily understood, and
• operation is uncomplicated and easily accomplished by non-technicians.
DPSCS will implement VRI no later than twelve months of the Effective Date of this Agreement. In procuring VRI services, DPSCS will require that the VRI provider(s) selected will utilize only Qualified Interpreters. DPSCS will ensure that at least one of the VRI systems is housed in the medical unit of DPSCS Correctional Facility at which Deaf inmates are incarcerated.
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3. Written Notes
DPSCS employees at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units will receive training with respect to communication difficulties Deaf inmates have. The training will include advising the DPSCS employees that note writing may be the only immediate form of communication available to a Deaf inmate and that DPSCS employees are expected to respond to a Deaf inmate in writing where that is the best present means of communication, to the same extent they would make a verbal response in a similar situation involving a non-Deaf inmate. Where circumstances make a written response impractical at the time, training will instruct that the DPSCS employee should attempt to follow up with the Deaf inmate as time later permits. This training will be coordinated by the ADA coordinator for the institution in conjunction with the statewide ADA coordinator.
D. Onsite Medical Care
1. General Policy
DPSCS will provide Auxiliary Aids and Services, including Qualified Interpreters, for scheduled appointments between Deaf inmates and medical personnel at DPSCS Correctional Facilities, including, but not limited to, review of medical history, medical appointments, follow up meetings or appointments, and treatment meetings. DPSCS will give primary consideration to the type of Auxiliary Aid or Service that is indicated on the inmate’s Intake Form.
2. Informing Appropriate Medical Staff
DPSCS staff responsible for coordinating Auxiliary Aids and Services for Deaf inmates at the DPSCS Correctional Facility at which a Deaf inmate is incarcerated will ensure that Medical staff is aware that the inmate is deaf and notify Medical staff of the inmate’s preferences as outlined on the Intake Form, if such classification has not already been performed by the Medical staff at that DPSCS Correctional Facility. DPSCS staff responsible for coordinating Auxiliary Aids and Services for Deaf inmates housed in DPSCS Prerelease Housing Units will ensure that Medical staff is aware that the inmate is deaf and notify Medical staff of the inmate’s preferences as outlined on the Intake Form, if such classification has not already been performed by the Medical staff at that DPSCS Prerelease Housing Unit.
3. Scheduling Medical Appointments with Interpreters
DPSCS staff at each DPSCS Correctional Facility, or their designee, shall be responsible for ensuring that Qualified Interpreters are scheduled for all medical appointments requiring them or that other appropriate Auxiliary Aids and Services are provided in conjunction with such appointments. Appointments for Deaf inmates will be scheduled within the same time period from the initial request as those for other inmates.
4. Emergency Events
After VRI is implemented pursuant to this Agreement, DPSCS will make best efforts to provide VRI at DPSCS Correctional Facilities for use in unscheduled medical
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emergencies. If remote interpreting services are not appropriate in the situation, DPSCS personnel will work in conjunction with Medical staff to attempt to secure an in-person Qualified Interpreter or other Auxiliary Aids or Services as soon as possible. Life saving and other emergency medical care should never be delayed because no interpretation services are available.
For the following categories of Deaf inmates, VRI may not provide Effective Communication, and an in-person Qualified Interpreter or other Auxiliary Aids or Services may be the most appropriate auxiliary aid or interpretive service. In such circumstances, DPSCS shall make best efforts to provide an in-person Qualified Interpreter
• Deaf inmates who have limited ability to move their heads, hands, or arms; vision problems; cognitive or consciousness issues; or pain issues;
• Deaf inmates who must be moved to areas of the DPSCS Correctional Facility that do not have a designated high speed Internet line; and
• Deaf inmates who will be treated in rooms where space considerations mitigate against using the service.
• Deaf inmates who have psychiatric or mental health issues that complicate communications through VRI.
E. Offsite Medical Care
DPSCS or its designee will inform all offsite medical providers that a Deaf inmate at a DPSCS Correctional Facility or DPSCS Prerelease Housing Units requiring a Qualified Interpreter or other Auxiliary Aid or Service will be seeking medical care offsite as soon as possible.
In the case of an emergency, DPSCS will inform an offsite medical provider that a Deaf inmate at a DPSCS Correctional Facility or DPSCS Prerelease Housing Units requiring an in-person Qualified Interpreter or other Auxiliary Aid or Service is being transported to the offsite care provider. DPSCS will notify the offsite medical care provider as soon as possible. Notification will include the estimated time of arrival.
This Agreement may not be construed to require the DPSCS to provide Qualified Interpreters or other Auxiliary Aids or Services to inmates receiving offsite medical care. Provision of Qualified Interpreters or other Auxiliary Aids or Services to inmates in such circumstances by DPSCS shall be at the DPSCS’ discretion in accordance with applicable law.
F. Educational, Vocational, and Programming Instruction
DPSCS will provide appropriate Auxiliary Aids and Services for all programs offered at DPSCS Correctional Facilities in which Deaf inmates are qualified, admitted into, and actively participating. DPSCS, in determining the appropriate Auxiliary Aids and Services to be provided, will consider the request by the Deaf inmate on the inmate’s Intake Form and any input by the Instructors or staff. Pursuant to 28 C.F.R. 35.160(b)(2), the Deaf inmate’s preferred
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form of Auxiliary Aid and Services as indicated on the inmate’s Intake Form will receive primary consideration.
A “DPSCS Program” is any programs defined in COMAR 12.02.24.01 et seq. into which an inmate is placed by case management in accordance with State law or COMAR 12.02.24.02(A)(10)-(11).
When the Schedule of Accommodations referenced in Section IV.B changes, including when a Qualified Interpreter will be available, an updated Schedule of Accommodations will be given to all Deaf inmates at DPSCS Correctional Facilities and Prerelease Housing Units.
When a DPSCS inmate at a DPSCS Correctional facility has been found eligible to participate in a DPSCS program, DPSCS will provide a Qualified Interpreter or Auxiliary Aids or Services. In the event there is a delay in providing the service, DPSCS will make best efforts to as promptly as reasonably practicable resolve the delay and provide the service. DPSCS will make efforts to allow the Deaf inmate to continue to participate in the program.
Appropriate Auxiliary Aids and Services will be provided in the following programs:
1. Correctional Educational and Workforce Skills Training provided by DLLR
DPSCS will provide Deaf inmates at DPSCS Correctional Facilities with written materials and open or closed-captioned material, where available. In addition, DPSCS will provide a Qualified Interpreter and other Auxiliary Aids and Services for correctional educational and workforce skills training at DPSCS Correctional Facilities as necessary. DPSCS, in determining the appropriate Auxiliary Aids and Services to be provided, will consider the request by the Deaf inmate on the inmate’s Intake Form and any input by the Instructor of the class. Pursuant to 28 C.F.R. 35.160(b)(2), the Deaf inmate’s preferred form of Auxiliary Aids and Services as indicated on the inmate’s Intake Form will receive primary consideration.
2. College Courses at DPSCS
DPSCS will provide Deaf inmates at DPSCS Correctional Facilities with written materials and open or closed captioned material, where available. In addition, DPSCS will provide a Qualified Interpreter and other Auxiliary Aids and Services for classes at DPSCS Correctional Facilities as necessary. DPSCS, in determining the appropriate Auxiliary Aids and Services to be provided, will consider the request by the Deaf inmate on the inmate’s Intake Form and any input by the Instructor of the class. Pursuant to 28 C.F.R. 35.160(b)(2), the Deaf inmate’s preferred form of Auxiliary Aids and Services as indicated on the inmate’s Intake Form will receive primary consideration.
3. Vocational Programs at DPSCS Correctional Facilities
DPSCS will provide Deaf inmates at DPSCS Correctional Facilities with written materials and open or closed captioned material, where available. In addition, DPSCS will
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provide a Qualified Interpreter and other Auxiliary Aids and Services for vocational programs at DPSCS Correctional Facilities as necessary. DPSCS, in determining the appropriate Auxiliary Aids and Services to be provided, will consider the request by the Deaf inmate on the inmate’s Intake Form and any input by the Instructor of the class. Pursuant to 28 C.F.R. 35.160(b)(2), the Deaf inmate’s preferred form of Auxiliary Aids and Services as indicated on the inmate’s Intake Form will receive primary consideration.
4. DPSCS’ Maryland Correctional Enterprises Programs (“MCE”)
DPSCS will provide Deaf inmates at DPSCS Correctional Facilities with written materials and open or closed-captioned material, where available. In addition, DPSCS will provide a Qualified Interpreter and other Auxiliary Aids and Services for programs at DPSCS Correctional Facilities as necessary. DPSCS, in determining the appropriate Auxiliary Aids and Services to be provided, will consider the request by the Deaf inmate on the inmate’s Intake Form and any input by the Instructor of the class. Pursuant to 28 C.F.R. 35.160(b)(2), the Deaf inmate’s preferred form of Auxiliary Aids and Services as indicated on the inmate’s Intake Form will receive primary consideration.
5. DPSCS Programs
DPSCS will provide Deaf inmates at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units with written materials and open or closed-captioned material, where available. In addition, DPSCS will provide a Qualified Interpreter and other Auxiliary Aids and Services for DPSCS programs at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units as necessary. DPSCS, in determining the appropriate Auxiliary Aids and Services to be provided, will consider the request by the Deaf inmate on the inmate’s Intake Form and any input by the Instructor of the class. Pursuant to 28 C.F.R. 35.160(b)(2), the Deaf inmate’s preferred form of Auxiliary Aids and Services as indicated on the inmate’s Intake Form will receive primary consideration.
6. DPSCS Activities
A DPSCS Activity may be provided by volunteers and may or may not include a fee that is paid by inmates to support the Activity. DPSCS Activities do not include religious services provided to inmates.
DPSCS will provide Deaf inmates at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units with written materials and open or closed captioned material, where available. In those instances where DPSCS permits volunteers to provide DPSCS Activities to inmates, DPSCS will notify the volunteer organization or individual volunteer if the DPSCS Activity will be attended by one or more Deaf inmates. The parties agree that the interpreter at these volunteer activities does not need to be a “Qualified Interpreter” as defined in this Agreement. If the volunteer organization or individual volunteer provides an interpreter, DPSCS should ensure that the interpreter satisfies, at a minimum, the requirements of 28 C.F.R. § 36.104.
If, however, the volunteer organization or individual volunteer does not provide an “Interpreter” for the DPSCS Activity, and if that DPSCS Activity involves lengthy or
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complex communication, DPSCS will provide an Interpreter for who satisfies, at a minimum, the requirements of 28 C.F.R. § 36.104. This provision does not alter DPSCS’ obligation to provide other appropriate Auxiliary Aids and Services for the DPSCS Activity that involves lengthy or complex communication. DPSCS in determining the appropriate Auxiliary Aids and Services will consider the request by the Deaf inmate on the inmate’s Intake Form and any input by the volunteer conducting the DPSCS Activity or DPSCS staff. Pursuant to 28 C.F.R. 35.160(b)(2), the Deaf inmate’s preferred form of Auxiliary Aids and Services as indicated on the inmate’s Intake Form will receive primary consideration.
To ensure that an Interpreter or other appropriate Auxiliary Aids and Services are available at an activity attended by Deaf inmates, DPSCS may require a Deaf inmate to provide advance notification of his or her intent to attend whenever DPSCS provides in writing to the Deaf inmates the requirement for advance notification of attendance. The Deaf inmate will provide advance notification to DPSCS of his or her intent to attend consistent with DPSCS’ directives in the written notification of the scheduled activity.
DPSCS will allow and encourage outside volunteers to provide activities accessible to Deaf inmates without regard to a volunteer’s hearing ability as long as the volunteer meets the same security requirements that are imposed on all other outside volunteers.
DPSCS will offer sign-language instruction to any inmate at a DPSCS Correctional Facility or DPSCS Prerelease Housing Unit who becomes deaf after incarceration if such instruction is ordered by a medical professional employed by the DPSCS’ contractual medical provider or an expert employed or retained by DPSCS.
G. Work Assignments at DPSCS Correctional Facilities and Prerelease Housing Units
DPSCS will provide opportunities for institutional work assignments for Deaf inmates at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units that are consistent with the opportunities for the same assignments given to similarly situated non-Deaf inmates. DPSCS retains the discretion to determine that certain work assignments present a Direct Threat to Deaf inmates and may therefore choose not to provide Deaf inmates those work assignments.
H. Religious Services
DPSCS will allow and encourage outside volunteers to provide religious services accessible to Deaf inmates at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units without regard to a volunteer’s hearing ability as long as the volunteer meets the same security requirements that are imposed on all other outside volunteers. DPSCS will notify the religious service provider if the activity will be attended by one or more Deaf inmates at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units. The parties agree that the Interpreter provided by the religious service provider does not need to be a “Qualified Interpreter” as defined in this Agreement. If the religious service provider provides an Interpreter, DPSCS should ensure that the Interpreter satisfies, at a minimum, the requirements of 28 C.F.R. § 35.104. If, however, the religious service provider does not provide an interpreter
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for the activity, DPSCS will provide for that activity an interpreter who satisfies, at a minimum, the requirements of 28 C.F.R. § 35.104. This provision does not alter DPSCS’ obligation to provide other appropriate Auxiliary Aids and Services, as indicated on the inmate’s Intake Form, for the activity. In determining the appropriate Auxiliary Aids and Services, DPSCS will consider the request by the Deaf inmate on the inmate’s Intake Form and any input by the religious service provider conducting the activity. Pursuant to 28 C.F.R. 35.160(b)(2), the Deaf inmate’s preferred form of Auxiliary Aids and Services as indicated on the inmate’s Intake Form will receive primary consideration.
To ensure that an Interpreter or other appropriate Auxiliary Aids and Services are available at religious services attended by Deaf inmates at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units, DPSCS may require a Deaf inmate to provide advance notification of his or her intent to attend whenever DPSCS provides in writing to the Deaf inmates the requirement for advance notification of attendance. The Deaf inmate will provide advance notification to DPSCS of his or her intent to attend religious services consistent with DPSCS’ directives in the written notification of the religious services. A Deaf inmate may provide advance notification of his or her intent to attend weekly religious services on the Intake Form.
I. Transfer and Classification Matters
DPSCS will provide a Qualified Interpreter or Auxiliary Aids and Services for any meetings or interviews with DPSCS personnel relating to an inmate’s transfer to another DPSCS Correctional Facility or change in security classification involving the exchange of information between the Deaf inmate at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units and DPSCS personnel. DPSCS, in determining the appropriate Auxiliary Aids and Services to be provided, will consider the request by the Deaf inmate on the inmate’s Intake Form and any input by appropriate DPSCS personnel. Pursuant to 28 C.F.R. 35.160(b)(2), the Deaf inmate’s preferred form of Auxiliary Aids and Services as indicated on the inmate’s Intake Form will receive primary consideration.
In the event there is a delay in providing the Qualified Interpreters or Auxiliary Aids and Services for meetings or interviews with DPSCS personnel relating to an inmate’s transfer to another DPSCS Correctional Facility or change in security classification involving the exchange of information between the Deaf inmate at DPSCS Correctional Facilities or DPSCS Prerelease Housing Units and DPSCS personnel, DPSCS will make best efforts to resolve the delay as promptly as reasonably practicable. DPSCS will schedule the meeting or interview within thirty days of the previously scheduled meeting or interview. DPSCS will not be considered in breach of this provision if there is a delay beyond thirty days that is caused by circumstances outside of DPSCS control.
J. Post-Release Supervision
DPSCS will provide Effective Communication between DPSCS staff and a Deaf former inmate supervised by the Division of Parole and Probation. DPSCS will provide a Qualified Interpreter or Auxiliary Aids and Services for all meetings involving significant and complex communication with a former Deaf inmate in the offices of the DPSCS Department of Parole and
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Probation after an initial request for a Qualified Interpreter or Auxiliary Aids and Services is received from the former Deaf inmate by DPSCS Department of Parole and Probation staff; more than one request for an Interpreter or Auxiliary Aids and Services will not be necessary. In determining the appropriate Auxiliary Aid and Service, DPSCS will consider the request by the Deaf former inmate. Pursuant to 28 C.F.R. 35.160(b)(2), the Deaf former inmate’s preferred form of Auxiliary Aid and Service will receive primary consideration.
VII. DISCIPLINARY MATTERS
A. Qualified Interpreters for Disciplinary Proceedings at DPSCS Correctional Facilities and Prerelease Housing Units
DPSCS will provide Deaf inmates at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units with a Qualified Interpreter or other Auxiliary Aids and Services in any disciplinary proceedings in which Deaf inmate is a victim, witness, suspect, or charged, where there occurs the exchange of information between the Deaf inmate and DPSCS personnel. DPSCS, in determining the appropriate Auxiliary Aids and Services, will consider the request by the Deaf inmate on the inmate’s Intake Form. Pursuant to 28 C.F.R. 35.160(b)(2), the Deaf inmate’s preferred form of Auxiliary Aids and Services as indicated on the inmate’s Intake Form will receive primary consideration. A Qualified Interpreter will be available to the Deaf Inmate at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units at any time there is to be the exchange of information between the Deaf inmate suspect and DPSCS personnel, including the following situations:
• Investigative interviews that involve the exchange of information between a Deaf inmate and DPSCS personnel (such as when an adverse party is interviewed);
• Preparation of the Disciplinary Offense Report by the Reporting Officer if it involves the exchange of information between the Deaf Inmate suspect and DPSCS personnel;
• Supervisory Review of the Disciplinary Offense Report if it involves the exchange of information between the Deaf Inmate suspect and DPSCS personnel;
• During the Advisement of Rights/Service of the Disciplinary Report/Waiver of Hearing/Penalty Offer Process or equivalent proceedings, to the extent that they involve the exchange of information between the charged Deaf inmate and DPSCS personnel;
• During the Hearing, or any Re-Hearing, which involves the exchange of information between the charged Deaf inmate and DPSCS personnel.
Inmate representatives will be provided to charged Deaf inmates on the same terms as they are provided when requested by charged hearing inmates. Access to the inmate representative shall be the same for charged Deaf inmates as charged non-Deaf inmates. To the
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extent that a Deaf inmate has access to his inmate representative, a Qualified Interpreter shall be made available to the Deaf inmate for any exchange of information between the Deaf inmate and his inmate representative.
B. Disciplinary Offense Reports
The supervisor will meet with the Deaf inmate in the presence of a Qualified Interpreter to discuss the Notice of Inmate Rule Violation (“NOIRV”) no less than 24 hours prior to when a Disciplinary Hearing has been scheduled if a NOIRV was filed against a Deaf inmate at a DPSCS Correctional Facility or DPSCS Prerelease Housing Unit, and no Qualified Interpreter or appropriate Auxiliary Aids and Services was provided to the inmate at the time of the pre-Report investigation to afford the Deaf inmate Effective Communication.
C. Miscellaneous
If a Deaf inmate is a witness at a disciplinary hearing, DPSCS will provide Auxiliary Aids and Services at the hearing, while the witness is a participant. DPSCS, in determining the appropriate Auxiliary Aids and Services, will consider the request by the Deaf inmate on the inmate’s Intake Form. Pursuant to 28 C.F.R. 35.160(b)(2), the Deaf inmate’s preferred Form of Auxiliary Aids and Services as indicated on the inmate’s Intake Form will receive primary consideration.
DPSCS will schedule disciplinary hearings for Deaf inmates within the same time frame as it schedules disciplinary hearings for non-Deaf inmates. DPSCS may postpone and reschedule disciplinary hearings for a Deaf inmate in need of a Qualified Interpreter pursuant to COMAR 12.02.27.18(C) and COMAR 12.02.27.12.
In the event there is a delay in providing the Qualified Interpreter or Auxiliary Aids and Services, DPSCS will make best efforts as promptly as reasonably practicable to resolve the delay and reschedule the disciplinary hearing pursuant to COMAR 12.02.27.18(C) and 12.02.27.12. DPSCS will schedule the disciplinary hearing date within thirty days of the previously scheduled disciplinary hearing date. DPSCS will not be considered in breach of this provision if there is a delay beyond thirty days if the delay is caused by unavailability of a hearing officer, witnesses, or any other issue caused by third parties or circumstances outside of DPSCS control.
Nothing precludes a Deaf inmate at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units who is a suspect or charged with a disciplinary offense from voluntarily waiving his right to a Qualified Interpreter or Auxiliary Aids and Services and to proceed through any stage of a disciplinary proceeding without the benefits of a Qualified Interpreter or Auxiliary Aids and Services. Nor will failure of DPSCS to provide a Qualified Interpreter in and of itself constitute a sufficient basis for the charged Deaf inmate to reverse or overturn any disciplinary finding or sanction. However, if a Deaf inmate did not waive his right to a Qualified Interpreter or Auxiliary Aids and Services, the disciplinary hearing will be rescheduled to a time that a “Qualified Interpreter” can be present or the Auxiliary Aids and Services can be available.
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Except to the extent specifically provided herein, all provisions of the DPSCS’ regulations addressing the rules and procedures for the discipline of inmates shall apply with equal force to the discipline of Deaf Inmates.
VIII. VISUAL ALERT NOTIFICATIONS
A. General Policy
Deaf inmates incarcerated at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units should not miss announcements, alarms, or any other auditory information from DPSCS staff to the general inmate population solely because of their disability.
B. Relaying Information
DPSCS will provide an effective visual notification system that will notify Deaf inmates at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units of prison wide events and events specific to Deaf inmates. This visual notification system will include notification of daily prison activities, such as wake-up calls, meal times, recreational time, and other announcements in the inmate’s cell. DPSCS has the discretion as to which type of notification system it will employ and to change that system, as it deems necessary.
C. Visual Alarms and Emergency Evacuation
DPSCS will provide Deaf Inmates at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units with an effective visual notification system, which will advise them of an emergency evacuation or other emergency. DPSCS has the discretion as to which type of notification system it will employ and the discretion to change that system, as it deems necessary.
D. Personal Pagers
DPSCS will provide functional personal pagers, which include visual as well as vibrating functions, in those DPSCS Correctional Facilities and DPSCS Prerelease Housing Units where these aids are currently utilized. Any alarm functions or other auditory function of the pagers that are disruptive to hearing inmates and unnecessary for Deaf inmates will be turned off if that function is available. Pagers will be used as supplemental notification systems to aid in daily notification of consistent announcements and protocols, including wake-up calls, meal times, recreational times, and other normal and customary notifications.
DPSCS personnel will be responsible for operating the pagers and will be properly trained in how to effectively use the technology.
IX. TELECOMMUNICATION DEVICES
A. General Policy
DPSCS will provide Deaf inmates at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units with telecommunication devices so that they will have access to
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communication with people outside of DPSCS that is substantially on the same basis as the access to telecommunication DPSCS provides inmates who are not Deaf and consistent with this Agreement.
B. Monitoring Communications
DPSCS may provide for the monitoring of communications between Deaf inmates at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units and individuals outside of DPSCS to the same extent and with the same discretion applied to the monitoring of communications between non-Deaf inmates and individuals outside of DPSCS.
C. Additional Time for Communication
DPSCS agrees that “equal access” may necessitate access that sometimes appears to be greater access. Within six months of the Effective Date of this Agreement, DPSCS will implement a written policy that allows Deaf inmates at its DPSCS Correctional Facilities and DPSCS Prerelease Housing Units at least twice as many minutes to complete a TTY call as the number of minutes afforded to non-Deaf inmates to make regular phone calls.
D. Technology DPSCS Will Provide
DPSCS will make the following communication technologies available at its DPSCS Correctional Facilities and DPSCS Prerelease Housing Units where Deaf inmates are incarcerated to facilitate communication between Deaf inmates and people outside of DPSCS Correctional Facilities and DPSCS Prerelease Housing Unit.
This list of technological equipment is not exhaustive. DPSCS agrees to keep abreast of evolving technology and to consider adding additional equipment to reflect technological advances, as it deems appropriate.
DPSCS Correctional Facilities and DPSCS Prerelease Housing Units housing Deaf inmates will share a list of communications equipment available to Deaf inmates upon their arrival at the DPSCS Correctional Facility or DPSCS Prerelease Housing Unit.
1. TTY (teletypewriter)
At every DPSCS Correctional Facility and DPSCS Prerelease Housing Units at which a Deaf inmate is incarcerated, DPSCS will provide at least one TTY which will be available and readily accessible during the same hours as the standard telephone is available for non-Deaf inmates. At each DPSCS Correctional Facilities and DPSCS Prerelease Housing Units where a Deaf inmate is incarcerated, DPSCS will keep an additional portable TTY unit for use when the regular TTY is broken or otherwise unavailable.
2. Relay Services
DPSCS will enable all TTYs to access publicly available relay service phone numbers such as 711 and local 1-800 numbers. A Deaf inmate at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units using relay services may not be charged any more than
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inmates not using relay services and will be charged the per minute rate established by the DPSCS’ contract with its inmate telephone service provider, consistent with applicable law.
DPSCS will also afford Deaf inmates at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units the same or substantially similar payment options for personal fees as is allowed non-Deaf inmates, including but not limited to, the use of credit cards and the ability for family and friends to contribute funds to those credit cards.
3. Videophones
As long as a Deaf inmate is incarcerated at Maryland Correctional InstitutionJessup (MCI-J), DPSCS will make videophone technology available at MCI-J for use by Deaf inmates no later than twelve months from the Effective Date of this agreement.
As long as a Deaf inmate is incarcerated at Maryland Correctional InstitutionWomen (MCI-W), DPSCS will make videophone technology available at MCI-W for use by Deaf inmates no later than twelve months from the Effective Date of this agreement.
For any other DPSCS Correctional Facility where a Deaf inmate is incarcerated, DPSCS will make videophone technology available by way of a portable videophone for use by Deaf inmates at the particular DPSCS Correctional Facility no later than twelve months from the Effective Date of this Agreement. For any other DPSCS Correctional Facility, DPSCS will make videophone technology available by way of a portable videophone for use by Deaf inmates who use sign language or are unable to read the communication from TDD or TTY equipment. After videophone technology is implemented by way of a portable videophone pursuant to this Agreement, when a Deaf inmate subsequently becomes eligible for use of the portable videophone or is transferred to a DPSCS Correctional Facility other than MCI-J or MCI-W, DPSCS will make best efforts to make available videophone technology by way of a portable videophone for the inmate’s use within one week of the inmate’s eligibility or transfer.
Access to the videophones at MCI-J and MCI-W will be made available during the same time as standard telephones and TTYs. Videophones will allow voice carry over relay.
E. Responsibility for Maintaining Equipment and Training Staff
DPSCS will ensure that the technology used to permit communication between Deaf inmates at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units and people outside of DPSCS at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units is in working order. DPSCS staff will attempt to resolve complaints about any malfunctioning equipment within one week of receiving that complaint. DPSCS will also ensure that designated staff members are adequately trained in the operation of the technology.
X. MEDIA
DPSCS will ensure that all audio-visual media purchased for inmate use in DPSCS Correctional Facilities and DPSCS Prerelease Housing Units housing Deaf inmates includes open or closed captioning.
24

Televisions which are purchased by DPSCS for inmate use at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units will support open or closed captioning and that captioning may be turned on at a Deaf inmate’s request.
DPSCS will permit Deaf inmates at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units to purchase TVs which reliably support open or closed captioning with their own funds.
XI. HAND RESTRAINTS
A. Off-site Medical Care
DPSCS will implement an operating procedure relating to the handcuffing of Deaf inmates at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units that will, whenever possible, permit Deaf inmates to use their hands for Effective Communication. That procedure will permit DPSCS personnel to consider the needs of a Deaf inmate to use his or her hands for Effective Communication purposes. That procedure will also permit DPSCS to consider the use of alternative restraints, such as a stun-belt, in lieu of handcuffs that restrain the hands in a way that prevents Effective Communication. DPSCS will have the ultimate authority relating to decisions about the use/non-use of hand restraints, and whether, and in what manner, to keep a Deaf inmate handcuffed.
B. On-site Medical Care
If a Deaf inmate at a DPSCS Correctional Facility is permitted to see medical personnel for behavioral reasons and his or her hands have been restrained, DPSCS personnel will consider the needs of the Deaf inmate to use his or her hands for Effective Communication purposes. DPSCS personnel will also consider the use of alternative restraints, such as a stunbelt, in lieu of handcuffs that restrain the hands in a way that prevents Effective Communication. DPSCS will have the ultimate authority relating to decisions about the use/non-use of hand restraints, and whether, and in what manner, to keep a Deaf inmate handcuffed.
C. On-site Other Circumstances
If a Deaf inmate is being moved about at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units for any purpose other than for behavioral reasons, and his or her hands have been restrained, DPSCS personnel will consider the needs of the Deaf inmate to use his or her hands for Effective Communication purposes. DPSCS personnel will also consider the use of alternative restraints, such as a stun-belt, in lieu of handcuffs that restrain the hands in a way that prevents Effective Communication. DPSCS will have the ultimate authority relating to decisions about the use/non-use of hand restraints, and whether, and in what manner, to keep a Deaf inmate handcuffed.
XII. MISCELLANEOUS AUXILIARY DEVICES
Where devices such as vibrating clocks and in-line amplifiers are not deemed medically necessary, DPSCS agrees to consider on a case-by-case basis, whether it will allow a particular Deaf inmate at its at DPSCS Correctional Facilities and DPSCS Prerelease Housing
25

Units the opportunity to purchase these devices at his or her own expense. DPSCS’ decision in this regard will also consider whether these devices pose a security risk. DPSCS will have the discretion to make the determination whether any of these devices, and the type of device, is permissible. DPSCS agrees to allow Deaf inmates at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units to purchase headphones, in-line amplifiers/equalizers, and televisions that meet the particular needs of their disability from an approved vendor so long as the items do not pose a security risk. DPSCS retains the discretion to limit purchases to devices available through the Commissary. Deaf inmates may submit a request in writing to the ADA Coordinator requesting devices not available from the Commissary. DPSCS will not deny a Deaf inmate at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units the right to purchase these devices except where they present a documentable security risk or as specified by DPSCS property policies and schedules. The ADA Institutional Coordinator and ADA Prerelease Housing Coordinator will maintain records of all Deaf inmate requests for these devices and the outcome of the request. These records will be maintained in accordance with DPSCS retention policies. These records will be inspected by the ADA Coordinator assigned to DPSCS headquarters as set forth in section II.B on a quarterly basis.
XIII. TRAINING
A. General Policy
DPSCS will provide training as defined in Section XIII.B below to all DPSCS employees as defined in Section I.(I), as defined in this Agreement. DPSCS will begin providing this training within six months of the Effective Date of this Agreement, and no less than annually thereafter. DPSCS will incorporate this training into its regularly scheduled training for new and existing employees. DPSCS may provide this training using in-person training, or via recorded training. DPSCS will update the training materials as required by law.
B. DPSCS Employees
Within six months of the Effective Date of this Agreement, DPSCS will begin training DPSCS employees at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units as that term is defined in this Agreement. Training will include the following topics:
• best practices in communicating with Deaf individuals;
• the unique needs and problems encountered by Deaf individuals;
• identification of communication needs of persons who are Deaf;
• the psychological implications of Deafness and its relationship to interaction with hearing corrections personnel;
• the proper use and role of Qualified Interpreters;
• directions about using TTYs, TDDs, Videophones, and other equipment currently available at the facility, which facilitates communication with Deaf people; and
26

• Disciplinary Matters, described in Section VII, and Inmate Complaints;, described in Section XIV.
XIV. INMATE COMPLAINTS
The ADA Coordinator will review all written complaints and appeals filed through the Administrative Remedy Procedure (“ARP”) concerning issues related to deafness submitted by Deaf inmates at DPSCS Correctional Facilities and DPSCS Prerelease Housing Units, and responses given to Deaf inmates, whether the request is terminated favorably, or unfavorably to the Deaf inmate, to ensure compliance with this Agreement.
The ADA Coordinator review under this section is not a part of the DPSCS inmate Administrative Remedy Procedure.
XV. MONITORING AND COMPLIANCE
A. Provision of Written Materials
DPSCS shall deliver to Plaintiffs’ Counsel, within thirty days of completion, copies of any written policies, notifications and/or other written materials created or called for under this Agreement.
B. Plaintiffs’ Counsel Investigation
To the extent Plaintiffs’ Counsel maintains a current attorney-client relationship with any Deaf inmate at a DPSCS Correctional Facility or DPSCS Prerelease Housing Unit, they will be provided the same access to that client and to the records relating to that client, as any other attorney with a similar relationship to another non-Deaf DPSCS inmate.
In addition, and regardless of whether an attorney-client relationship exists, on an annual basis during the term of this Agreement, Plaintiffs’ Counsel will have reasonable access to each DPSCS Correctional Facility or DPSCS Prerelease Housing Unit in which Plaintiffs still incarcerated are housed to conduct an investigation to determine DPSCS personnel’s treatment of Deaf inmates. During this investigation, DPSCS will permit Plaintiffs’ Counsel (1) access to Deaf inmates who are willing to meet with them; (2) access to the formal requests made by inmates for miscellaneous auxiliary devices and the subsequent records maintained by ADA Coordinator pursuant to Section XII of this Agreement; (3) access to documents available under the Maryland Public Information Act (“MPIA”), as set forth below; and (4) access to equipment provided to or for use by Deaf inmates. Requests for documents under (3) above shall be made by written request from Plaintiffs’ Counsel and shall pertain to a subject areas that may be available under the MPIA, including, but not limited to, one or more of the following: (i) DPSCS’ provider relationships for Auxiliary Aids and Services; (ii) written policies and procedures regarding Deaf inmates; and (iii) any contracts or Agreements related to Auxiliary Aids and Service. In response to such written request, DPSCS will provide documents available for inspection under the MPIA within 30 days of Plaintiffs’ Counsel’s request, except that DPSCS will be provided an additional thirty days to provide the requested documents upon notification of Plaintiffs’ counsel prior to the expiration of the first 30 days. Access to formal requests and records under (2) above, shall include the opportunity to inspect the formal requests
27

and records and the opportunity to copy or receive copies of them. Access to equipment under (4) above, except equipment issued to or owned by an individual inmate, shall include, upon request, the reasonable opportunity to inspect the equipment and take photographs of the equipment on a semi-annual basis. The cost of duplication of documents requested or provided under this Section XV shall be borne as provided under the MPIA. Any documents that are either privileged and/or confidential may be excluded from this provision solely at DPSCS’ determination.
Plaintiffs’ Counsel will not be entitled to any attorneys’ fees or costs associated with this monitoring provision.
XVI. NOTICE TO CURRENT INMATES OF AGREEMENT
Within 30 days of the Effective Date of this Agreement, DPSCS will notify each non-Plaintiff Deaf inmate in its custody at its DPSCS Correctional Facilities and DPSCS Prerelease Housing Units of its obligations under this Agreement.
XVII. RELEASE AND SETTLEMENT OF CLAIMS
A. Release
In consideration of the representations, promises and Agreements set forth herein, including the payments as set forth in this Agreement, the sufficiency of which is hereby acknowledged, each Plaintiff, by executing this Agreement on their behalf and on behalf of their representatives, assignees, heirs, executors, agents, family members, beneficiaries, administrators, successors, and anyone acting or claiming to act on their behalf, hereby releases and forever discharges the State of Maryland, its agencies, and their successors and assigns, departments, divisions, units, officers, servants, employees, agents, officials, representative and independent contractors, including, but not limited to, Defendants, from any and all claims, demands, damages, actions, causes of action, obligations, debts of whatsoever kind or nature, known and unknown, asserted and unasserted, direct and indirect and of any kind, nature or description whatsoever, which arise or may arise, or which arose or may have arisen, as a result of, or growing out of, injuries or damages alleged to have incurred as a result of facts alleged in the Litigation, whether or not such injuries or damages are contemplated at the present time or whether or not they arise following execution of this Agreement arising out of the facts set forth in the complaint and any amendments thereto filed with the U.S. District Court for the District of Maryland in civil action Jarboe, et al. v. MDPSCS, et al. ELH 12-0572.
B. Dismissal
Upon receipt of a fully-executed copy of this Agreement and the monetary payment required under Subsection C of this Section, Plaintiffs shall dismiss with prejudice the Litigation and all claims set forth therein, by filing in the Litigation within ten days of receipt of such monetary payment, a Stipulation of Dismissal with Prejudice, which counsel for Defendants shall approve and execute. The parties agree that the United States District Court for the District of Maryland will retain jurisdiction over this Agreement as set out in Subsection D of this Section.
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Also within ten days of receipt of such monetary payment, Plaintiffs will withdraw any grievances or administrative complaints and terminate any administrative proceedings related to the subject matter of the Litigation.
C. Attorneys’ Fees, Costs, Disbursements and Expenses, and Damages
This Agreement is contingent upon any necessary approvals, including the approval of the payment of any settlement funds by the Maryland Board of Public Works. Request for such approval shall be made to the Maryland Board of Public Works as soon as practicable after execution of this Agreement.
In settlement of all of Plaintiffs’ claims arising out of their encounters with DPSCS up to and including the Effective Date, including any claims for attorneys’ fees and costs, any disbursements and expenses, including experts fees incurred on behalf of Plaintiffs in this Litigation, and damages, the State of Maryland shall pay Plaintiffs the sum of $142,500.00 by check made payable to Foley & Lardner LLP, Client Trust Account within sixty days of Board of Public Works approval.
Counsel who brings an enforcement action on behalf of Plaintiffs pursuant to Subsection D of this Section and who obtains a judgment against DPSCS, will only be entitled to attorneys’ fees starting from the date of the filing of the enforcement action, and only at an hourly rate limited to 150% of the hourly rate established under 18 U.S.C. § 3006A, regardless of jurisdiction of the suit.
D. Enforcement Provisions
Pursuant to 18 U.S.C. § 3626(c)(2), during the term of the Agreement, Plaintiff(s) may move the court for reinstatement of the lawsuit solely for a claim for breach or specific performance of this Agreement subject to notification as set forth in paragraph 3 of this Subsection. An action to enforce this Agreement does not include any action for damages.
As an alternative to an action for breach of this Agreement, pursuant to 18 U.S.C. § 3626(c)(2), during the term of the Agreement, any Plaintiff(s) may move the court for reinstatement of the lawsuit solely for a claim for breach or specific performance of this Agreement subject to notification as set forth in paragraph 3 of this Subsection. Such an action to enforce this Agreement does not include any action for damages.
The lawsuit may not be reinstated, nor a claim for breach or specific performance of this Agreement brought, before such Plaintiff(s) first notifies DPSCS of the nature of the alleged material non-compliance in writing to the ADA Coordinator designee assigned to DPSCS Headquarters and DPSCS’ counsel, to be designated at a later date, and gives DPSCS 60 days to investigate and/or cure the alleged breach. In the event that the alleged breach is cured by DPSCS within the sixty day period, Plaintiff(s) may not move the court for reinstatement of the lawsuit or bring an action for breach or specific performance. Plaintiff is still obligated to comply with and exhaust all administrative remedies procedures prior to filing suit in the event the alleged breach is not cured within the time frame specified in this Agreement.
29

XVIII. MISCELLANEOUS PROVISIONS
A. Non-Admission
It is understood and agreed that this Agreement is a compromise of disputed claims, facts, and allegations. Nothing in this Agreement constitutes an admission of any liability, wrongdoing, or violation of any law, or the admission of the validity of any defense.
B. Private Settlement Agreement
This Agreement is a private settlement Agreement within the meaning of 18 U.S.C. § 3626. It is the intent of the parties that this Agreement will not, under any circumstances, be considered a consent decree or its equivalent. Except as expressly provided in part XII, section C of this Agreement, nothing in this Agreement gives rise to any right to recover attorneys’ fees or cost of litigation.
C. Confidentiality
No part of this Agreement is or will be considered confidential by the parties. This Agreement will be made available under the terms of the Maryland Public Information Act.
D. Entire Agreement
This Agreement constitutes the entire Agreement between the parties. There were no inducements or representations leading to the execution of this Agreement, except as stated within the Agreement itself. The terms of this Agreement are contractual in nature.
E. Binding
This Agreement is final and binding on the Parties, including all principals, agents, executors, administrators, representatives, successors in interest, beneficiaries, assigns, heirs, and legal representatives thereof. Each Party has a duty to so inform any such successor in interest.
F. Non-Waiver
Failure by the Plaintiffs to seek enforcement of this Agreement pursuant to its terms with respect to any instance or provision will not be construed as a waiver to such enforcement with regard to other instances or provisions.
G. Severability
In the event that a court determines that any provision of this Agreement is unenforceable, such provision will be severed from this Agreement and all other provisions will remain valid and enforceable, provided; however, that if the severance of any such provision materially alters the rights or obligations of the Parties hereunder, the Parties will attempt, through reasonable, good faith negotiations, to agree upon such other amendments to this Agreement as may be necessary to restore the Parties as closely as possible to the relative rights and obligations initially intended by them hereunder.

 
 Case: 1:12-cv-00572-ELH As of: 04/07/2015 05:50 PM EDT 1 of 14
CASREF,CLOSED
U.S. District Court District of Maryland (Baltimore) CIVIL DOCKET FOR CASE #: 1:12−cv−00572−ELH

Jarboe et al v. Maryland Department of Public Safety and Correctional Services (DPSCS) et al Assigned to: Judge Ellen L. Hollander Referred to: Magistrate Judge Stephanie A Gallagher (Settlement) Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 02/23/2012 Date Terminated: 02/20/2015 Jury Demand: Plaintiff Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Christopher Jarboe on behalf of themselves and all others similarly situated

represented by Joseph Dowell Edmondson , Jr Foley and Lardner LLP 3000 K St NW Ste 600 Washington, DC 20007 12026725354 Fax: 12026725399 Email: jedmondson@foleylaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Megan Kathleen Whyte de Vasquez U.S. Department of Justice 950 Pennsylvania Ave., N.W. − NWB Washington, DC 20530 12023534142 Fax: 12025141116 Email: megan.whyte.de.vasquez@usdoj.gov TERMINATED: 10/27/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Deborah M Golden Washington Lawyers Cmte for Civil Rights and Urban Affairs 11 Dupont Cir NW Ste 400 Washington, DC 20036 12023191000 Fax: 12023191010 Email: deborah_golden@washlaw.org ATTORNEY TO BE NOTICED

Elizabeth Elaine Gardner Washington Lawyers Cmte for Civil Rights and Urban Affairs 11 Dupont Circle NW Ste 400 Washington, DC 20036 12023191000 ext 131 Fax: 12023191010 Email: elaine_gardner@washlaw.org TERMINATED: 02/19/2013 ATTORNEY TO BE NOTICED

Ivy Ann Finkenstadt Washington Lawyers Cmte for Civil Rights and Urban Affairs 11 Dupont Cir NW Ste 400 Washington, DC 20036 12023191000 Fax: 12023191010 Email: ivy_finkenstadt@washlaw.org

Case: 1:12-cv-00572-ELH As of: 04/07/2015 05:50 PM EDT 2 of 14

TERMINATED: 09/27/2012 ATTORNEY TO BE NOTICED

Lauren Champaign Foley and Lardner LLP 3000 K St NW Ste 600 Washington, DC 20007 12022954719 Fax: 12026725399 Email: lchampaign@foley.com ATTORNEY TO BE NOTICED

Plaintiff
Carroll Connelly on behalf of themselves and all others similarly situated

represented by Joseph Dowell Edmondson , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ivy Ann Finkenstadt (See above for address) TERMINATED: 09/27/2012 ATTORNEY TO BE NOTICED

Lauren Champaign (See above for address) ATTORNEY TO BE NOTICED

Megan Kathleen Whyte de Vasquez (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Vander Davis on behalf of themselves and all others similarly situated

represented by Joseph Dowell Edmondson , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ivy Ann Finkenstadt (See above for address) TERMINATED: 09/27/2012 ATTORNEY TO BE NOTICED

Lauren Champaign (See above for address) ATTORNEY TO BE NOTICED

Megan Kathleen Whyte de Vasquez (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Gary Denmark on behalf of themselves and all others similarly situated

represented by Joseph Dowell Edmondson , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ivy Ann Finkenstadt (See above for address) TERMINATED: 09/27/2012 ATTORNEY TO BE NOTICED

Lauren Champaign (See above for address)

Case: 1:12-cv-00572-ELH As of: 04/07/2015 05:50 PM EDT 3 of 14

ATTORNEY TO BE NOTICED

Megan Kathleen Whyte de Vasquez (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Garfield Redd on behalf of themselves and all others similarly situated

represented by Joseph Dowell Edmondson , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ivy Ann Finkenstadt (See above for address) TERMINATED: 09/27/2012 ATTORNEY TO BE NOTICED

Lauren Champaign (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Maryland Department of Public Safety and Correctional Services (DPSCS)

represented by Dorianne Avery Meloy Office of the Attorney General 200 St. Paul Place Baltimore, MD 21202 4105766429 Fax: 4105766880 Email: dmeloy@oag.state.md.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nichole' C Gatewood Maryland Office of the Attorney General Correctional Litigation Division 200 St. Paul Place 19th Floor Baltimore, MD 21202 14105766598 Fax: 14105766880 Email: ngatewood@oag.state.md.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rex Schultz Gordon Maryland Office of the Attorney General 200 St Paul Pl 19th Fl Baltimore, MD 21202 14105766424 Fax: 14105766880 Email: rgordon@oag.state.md.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephanie Judith Lane Weber State of Maryland Office of the Attorney General 200 Saint Paul Pl Baltimore, MD 21202 14105766300 Fax: 14105766880

Case: 1:12-cv-00572-ELH As of: 04/07/2015 05:50 PM EDT 4 of 14

Email: slaneweber@oag.state.md.us ATTORNEY TO BE NOTICED

Defendant Maryland Division of Corrections

represented by Dorianne Avery Meloy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nichole' C Gatewood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rex Schultz Gordon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie Judith Lane Weber (See above for address) ATTORNEY TO BE NOTICED

Defendant
Maryland Department of Labor, Licensing and Regulation, Division of Workforce Development and Adult Learning (Correctional Education)

represented by M Willis Gunther Maryland Office of the Attorney General Department of Labor Licensing and Regulation 500 N Calvert St Ste 406 Baltimore, MD 21202 14102306268 Fax: 14103336503 Email: willis.gunther@maryland.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Bowie Lord Office of the Attorney General Dept. of Labor, Licensing and Regulation 500 N. Calvert Street Suite 406 Baltimore, MD 21202 14102306123 Fax: 14103336503 Email: christopher.lord@maryland.gov ATTORNEY TO BE NOTICED

Defendant Maryland Correctional Enterprises

represented by Dorianne Avery Meloy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nichole' C Gatewood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rex Schultz Gordon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:12-cv-00572-ELH As of: 04/07/2015 05:50 PM EDT 5 of 14

Stephanie Judith Lane Weber (See above for address) ATTORNEY TO BE NOTICED

Defendant
Maryland Correctional Institution, Jessup (MCIJ)

represented by Dorianne Avery Meloy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nichole' C Gatewood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rex Schultz Gordon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie Judith Lane Weber (See above for address) ATTORNEY TO BE NOTICED

Defendant
Western Correctional Institution (WCI)

represented by Dorianne Avery Meloy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nichole' C Gatewood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rex Schultz Gordon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie Judith Lane Weber (See above for address) ATTORNEY TO BE NOTICED

Defendant
Gary D. Maynard Secretary, Maryland Department of Public Safety and Correctional Services

represented by Dorianne Avery Meloy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nichole' C Gatewood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rex Schultz Gordon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie Judith Lane Weber (See above for address) ATTORNEY TO BE NOTICED

Case: 1:12-cv-00572-ELH As of: 04/07/2015 05:50 PM EDT 6 of 14

Defendant J. Micheal Stouffer Maryland Commissioner of Corrections
Defendant Paulette Francois Assistant Secretary, Department of Labor, Licensing and Regulation Division of Workforce Development and Adult Learning Defendant Stephen M. Shiloh Chief Executive Officer Maryland Correctional Enterprises
Defendant Dayena Corcoran Warden Maryland Correctional Institution, Jessup

represented by Dorianne Avery Meloy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nichole' C Gatewood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rex Schultz Gordon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephanie Judith Lane Weber (See above for address) ATTORNEY TO BE NOTICED
represented by M Willis Gunther (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dorianne Avery Meloy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nichole' C Gatewood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rex Schultz Gordon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephanie Judith Lane Weber (See above for address) ATTORNEY TO BE NOTICED
represented by Dorianne Avery Meloy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nichole' C Gatewood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rex Schultz Gordon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:12-cv-00572-ELH As of: 04/07/2015 05:50 PM EDT 7 of 14

Defendant
J. Philip Morgan Warden Western Correctional Institution

represented by Dorianne Avery Meloy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nichole' C Gatewood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rex Schultz Gordon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephanie Judith Lane Weber (See above for address) ATTORNEY TO BE NOTICED

Date Filed 02/23/2012
02/23/2012 02/24/2012
03/07/2012 03/15/2012 03/15/2012 03/15/2012 03/21/2012

# Docket Text
1 COMPLAINT against Dayena Corcoran, Paulette Francois, Maryland Correctional Enterprises, Maryland Correctional Institution, Jessup (MCIJ), Maryland Department of Labor, Licensing and Regulation, Division of Workforce Development and Adult Learning (Correctional Education), Maryland Department of Public Safety and Correctional Services (DPSCS), Maryland Division of Corrections, Gary D. Maynard, J. Philip Morgan, Stephen M. Shiloh, J. Micheal Stouffer, Western Correctional Institution (WCI) (Filing fee $ 350 receipt number 84637018669.) filed by Gary Denmark, Christopher Jarboe, Carroll Connelly, Garfield Redd, Vander Davis. (Attachments: # 1 Civil Cover Sheet, # 2 Summons)(rss, Deputy Clerk) (Entered: 02/24/2012)
Jury Trial Demand by Carroll Connelly, Vander Davis, Gary Denmark, Christopher Jarboe, Garfield Redd. (rss, Deputy Clerk) (Entered: 02/24/2012)
2 Summons Issued 21 days as to Dayena Corcoran, Paulette Francois, Maryland Correctional Enterprises, Maryland Correctional Institution, Jessup (MCIJ), Maryland Department of Labor, Licensing and Regulation, Division of Workforce Development and Adult Learning (Correctional Education), Maryland Department of Public Safety and Correctional Services (DPSCS), Maryland Division of Corrections, Gary D. Maynard, J. Philip Morgan, Stephen M. Shiloh, J. Micheal Stouffer, Western Correctional Institution (WCI). (rss, Deputy Clerk) (Entered: 02/24/2012)
3 NOTICE of Appearance by Ivy Ann Finkenstadt on behalf of All Plaintiffs (Finkenstadt, Ivy) (Entered: 03/07/2012)
4 NOTICE of Appearance by M Willis Gunther on behalf of Paulette Francois, Maryland Department of Labor, Licensing and Regulation, Division of Workforce Development and Adult Learning (Correctional Education) (Gunther, M) (Entered: 03/15/2012)
5 MOTION for Extension of Time by Paulette Francois, Maryland Department of Labor, Licensing and Regulation, Division of Workforce Development and Adult Learning (Correctional Education) Responses due by 4/2/2012 (Attachments: # 1 Text of Proposed Order)(Gunther, M) (Entered: 03/15/2012)
6 ORDER granting 5 Motion for Extension of Time. Signed by Judge Ellen L. Hollander on 3/15/12. (bmhs, Deputy Clerk) (Entered: 03/16/2012)
7 NOTICE of Appearance by Rex Schultz Gordon on behalf of Dayena Corcoran, Maryland Correctional Institution, Jessup (MCIJ), Maryland Department of Public Safety and Correctional Services (DPSCS), Maryland Division of Corrections, Gary D. Maynard, J. Philip Morgan, J. Micheal Stouffer, Western Correctional Institution (WCI) (Gordon, Rex) (Entered: 03/21/2012)

Case: 1:12-cv-00572-ELH As of: 04/07/2015 05:50 PM EDT 8 of 14

03/21/2012

8 MOTION for Extension of Time to File Response/Reply to and including April 23, 2012 by Dayena Corcoran, Maryland Correctional Institution, Jessup (MCIJ), Maryland Department of Public Safety and Correctional Services (DPSCS), Maryland Division of Corrections, Gary D. Maynard, J. Philip Morgan, J. Micheal Stouffer, Western Correctional Institution (WCI). Responses due by 4/9/2012 (Attachments: # 1 Text of Proposed Order)(Gordon, Rex) (Entered: 03/21/2012)

03/21/2012

9 ORDER denying 8 Motion for Extension of Time. Signed by Judge Ellen L. Hollander on 3/21/12. (bmhs, Deputy Clerk) (Entered: 03/21/2012)

03/21/2012

10 MOTION for Extension of Time to File Response/Reply to and including April 23, 2012 by Dayena Corcoran, Maryland Correctional Institution, Jessup (MCIJ), Maryland Department of Public Safety and Correctional Services (DPSCS), Maryland Division of Corrections, Gary D. Maynard, J. Philip Morgan, J. Micheal Stouffer, Western Correctional Institution (WCI). Responses due by 4/9/2012 (Attachments: # 1 Text of Proposed Order)(Gordon, Rex) (Entered: 03/21/2012)

03/21/2012

11 ORDER granting 10 Defendants' Motion for Extension of Time to 4/23/12. Signed by Judge Ellen L. Hollander on 3/21/12. (jmk, Deputy Clerk)(c/m 3/22/12) (Entered: 03/22/2012)

04/19/2012

12 SUMMONS Returned Executed by Gary Denmark, Christopher Jarboe, Carroll Connelly, Vander Davis. Paulette Francois served on 3/1/2012, answer due 3/22/2012. (Edmondson, Joseph) (Entered: 04/19/2012)

04/19/2012

13 SUMMONS Returned Executed by Gary Denmark, Christopher Jarboe, Carroll Connelly, Vander Davis. Dayena Corcoran served on 2/29/2012, answer due 3/21/2012. (Edmondson, Joseph) (Entered: 04/19/2012)

04/19/2012

14 SUMMONS Returned Executed by Gary Denmark, Christopher Jarboe, Carroll Connelly, Vander Davis. J. Micheal Stouffer served on 3/1/2012, answer due 3/22/2012. (Edmondson, Joseph) (Entered: 04/19/2012)

04/19/2012

15 SUMMONS Returned Executed by Gary Denmark, Christopher Jarboe, Carroll Connelly, Vander Davis. Gary D. Maynard served on 3/1/2012, answer due 3/22/2012. (Edmondson, Joseph) (Entered: 04/19/2012)

04/19/2012

16 SUMMONS Returned Executed by Gary Denmark, Christopher Jarboe, Carroll Connelly, Vander Davis. J. Philip Morgan served on 3/1/2012, answer due 3/22/2012. (Edmondson, Joseph) (Entered: 04/19/2012)

04/19/2012

17 SUMMONS Returned Executed by Gary Denmark, Christopher Jarboe, Carroll Connelly, Vander Davis. Maryland Correctional Institution, Jessup (MCIJ) served on 2/29/2012, answer due 3/21/2012. (Edmondson, Joseph) (Entered: 04/19/2012)

04/19/2012

18 SUMMONS Returned Executed by Gary Denmark, Christopher Jarboe, Carroll Connelly, Vander Davis. Maryland Correctional Enterprises served on 2/29/2012, answer due 3/21/2012. (Edmondson, Joseph) (Entered: 04/19/2012)

04/19/2012

19 SUMMONS Returned Executed by Gary Denmark, Christopher Jarboe, Carroll Connelly, Vander Davis. Maryland Department of Labor, Licensing and Regulation, Division of Workforce Development and Adult Learning (Correctional Education) served on 3/1/2012, answer due 3/22/2012. (Edmondson, Joseph) (Entered: 04/19/2012)

04/19/2012

20 SUMMONS Returned Executed by Gary Denmark, Christopher Jarboe, Carroll Connelly, Vander Davis. Maryland Department of Public Safety and Correctional Services (DPSCS) served on 3/1/2012, answer due 3/22/2012. (Edmondson, Joseph) (Entered: 04/19/2012)

04/19/2012

21 SUMMONS Returned Executed by Gary Denmark, Christopher Jarboe, Carroll Connelly, Vander Davis. Maryland Division of Corrections served on 3/1/2012, answer due 3/22/2012. (Edmondson, Joseph) (Entered: 04/19/2012)

04/19/2012

22 SUMMONS Returned Executed by Gary Denmark, Christopher Jarboe, Carroll Connelly, Vander Davis. Western Correctional Institution (WCI) served on 3/6/2012, answer due 3/27/2012. (Edmondson, Joseph) (Entered: 04/19/2012)

Case: 1:12-cv-00572-ELH As of: 04/07/2015 05:50 PM EDT 9 of 14

04/19/2012

23 SUMMONS Returned Executed by Gary Denmark, Christopher Jarboe, Carroll Connelly, Vander Davis. Stephen M. Shiloh served on 2/29/2012, answer due 3/21/2012. (Edmondson, Joseph) (Entered: 04/19/2012)

04/23/2012

24 MOTION for Extension of Time to File Response/Reply to and including May 18, 2012 by Dayena Corcoran, Maryland Correctional Institution, Jessup (MCIJ), Maryland Department of Public Safety and Correctional Services (DPSCS), Maryland Division of Corrections, Gary D. Maynard, J. Philip Morgan, J. Micheal Stouffer, Western Correctional Institution (WCI). Responses due by 5/10/2012 (Attachments: # 1 Text of Proposed Order)(Gordon, Rex) (Entered: 04/23/2012)

04/23/2012

25 MOTION to Dismiss for Failure to State a Claim or in the alternative, MOTION for Summary Judgment by Paulette Francois, Maryland Department of Labor, Licensing and Regulation, Division of Workforce Development and Adult Learning (Correctional Education) Responses due by 5/10/2012 (Attachments: # 1 Supplement Memorandum in Support, # 2 Affidavit Paulette Francois, # 3 Affidavit Alice Wirth)(Gunther, M) (Entered: 04/23/2012)

04/23/2012 26 ORDER granting 24 Motion for Extension of Time. Signed by Judge Ellen L. Hollander on 4/23/12. (bmhs, Deputy Clerk) (Entered: 04/24/2012)

05/04/2012

27 Consent MOTION for Extension of Time to File Response/Reply as to 25 MOTION to Dismiss for Failure to State a Claim or in the alternative MOTION for Summary Judgment to and including May 21, 2012 by Carroll Connelly, Vander Davis, Gary Denmark, Christopher Jarboe, Garfield Redd. Responses due by 5/21/2012 (Attachments: # 1 Text of Proposed Order)(Edmondson, Joseph) (Entered: 05/04/2012)

05/04/2012

28 ORDER granting 27 Consent Motion for Extension of Time to File Response re 25 MOTION to Dismiss for Failure to State a Claim or in the alternative MOTION for Summary Judgment; Responses due by 5/21/2012. Signed by Judge Ellen L. Hollander on 5/4/12. (Hollander, Ellen) (Entered: 05/04/2012)

05/08/2012

29 MOTION to Dismiss for Failure to Exhaust Administrative Remedies by Dayena Corcoran, Maryland Correctional Institution, Jessup (MCIJ), Maryland Department of Public Safety and Correctional Services (DPSCS), Maryland Division of Corrections, Gary D. Maynard, J. Philip Morgan, J. Micheal Stouffer, Western Correctional Institution (WCI) Responses due by 5/25/2012 (Attachments: # 1 Memorandum in Support, # 2 Exhibit A Declaration of SGT Selma Fulgham with documents attached, # 3 Exhibit B Declaration of Scott S. Oakley)(Gordon, Rex) (Entered: 05/08/2012)

05/21/2012

30 RESPONSE in Opposition re 25 MOTION to Dismiss for Failure to State a Claim or in the alternative MOTION for Summary Judgment filed by Carroll Connelly, Vander Davis, Gary Denmark, Christopher Jarboe, Garfield Redd. Replies due by 6/7/2012. (Attachments: # 1 Affidavit Rule 56(d) Affidavit of Joseph D. Edmondson, Jr., # 2 Exhibit DLLR Website Page, # 3 Exhibit DLLR Website Page, # 4 Exhibit DLLR Website Page, # 5 Text of Proposed Order)(Edmondson, Joseph) (Entered: 05/21/2012)

05/22/2012 31 ORDER to Counsel. Signed by Judge Ellen L. Hollander on 5/22/12. (bmhs, Deputy Clerk) (Entered: 05/22/2012)

05/23/2012 32 NOTICE of Appearance by Rex Schultz Gordon on behalf of Maryland Correctional Enterprises, Stephen M. Shiloh (Gordon, Rex) (Entered: 05/23/2012)

05/23/2012 33 Correspondence re: Joining of Maryland Correctional Enterprises and Stephen M. Shiloh to Document 29 filed on May 8, 2012 (Gordon, Rex) (Entered: 05/23/2012)

05/23/2012

34 Consent MOTION for Extension of Time to File Response/Reply as to 29 MOTION to Dismiss for Failure to Exhaust Administrative Remedies by Carroll Connelly, Vander Davis, Gary Denmark, Christopher Jarboe, Garfield Redd. Responses due by 6/11/2012 (Attachments: # 1 Text of Proposed Order)(Edmondson, Joseph) (Entered: 05/23/2012)

05/23/2012

35 ORDER granting 34 Motion for Enlargement of Time for Plaintiffs to Respond to Motion to Dismiss Filed by Maryland Department of Public Safety and Correctional Services, et al. Signed by Judge Ellen L. Hollander on 5/23/12. (bmhs, Deputy Clerk) (Entered: 05/23/2012)

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06/01/2012 36 Correspondence re: Status of Defendants Maryland Correctional Enterprises and Shiloh (Edmondson, Joseph) (Entered: 06/01/2012)

06/04/2012

37 REPLY to Response to Motion re 25 MOTION to Dismiss for Failure to State a Claim or in the alternative MOTION for Summary Judgment filed by Paulette Francois, Maryland Department of Labor, Licensing and Regulation, Division of Workforce Development and Adult Learning (Correctional Education). (Gunther, M) (Entered: 06/04/2012)

06/04/2012

38 RESPONSE in Opposition re 29 MOTION to Dismiss for Failure to Exhaust Administrative Remedies filed by Carroll Connelly, Vander Davis, Gary Denmark, Christopher Jarboe, Garfield Redd. Replies due by 6/21/2012. (Edmondson, Joseph) (Entered: 06/04/2012)

06/19/2012

39 Consent MOTION for Extension of Time to File Response/Reply re 38 to and including June 25, 2012 by Dayena Corcoran, Maryland Correctional Enterprises, Maryland Correctional Institution, Jessup (MCIJ), Maryland Department of Public Safety and Correctional Services (DPSCS), Maryland Division of Corrections, Gary D. Maynard, J. Philip Morgan, Stephen M. Shiloh, J. Micheal Stouffer, Western Correctional Institution (WCI). Responses due by 7/6/2012 (Attachments: # 1 Text of Proposed Order)(Gordon, Rex) (Entered: 06/19/2012)

06/19/2012 40 ORDER granting 39 Motion for Extension of Time. Signed by Judge Ellen L. Hollander on 6/19/12. (bmhs, Deputy Clerk) (Entered: 06/20/2012)

06/25/2012

41 (FILED IN ERROR) RESPONSE re 38 Response in Opposition to Motion, Defendants' Response to Plaintiffs' Opposition to Defendants' Motion to Dismiss for Failure to Exhaust Administrative Remedies filed by Dayena Corcoran, Maryland Correctional Enterprises, Maryland Correctional Institution, Jessup (MCIJ), Maryland Department of Public Safety and Correctional Services (DPSCS), Maryland Division of Corrections, Gary D. Maynard, J. Philip Morgan, Stephen M. Shiloh, J. Micheal Stouffer, Western Correctional Institution (WCI). (Gordon, Rex) Modified on 6/28/2012 (bmhs, Deputy Clerk). (Entered: 06/25/2012)

06/28/2012

42 QC NOTICE: 41 Response filed by J. Philip Morgan, Maryland Correctional Enterprises, Dayena Corcoran, Maryland Department of Public Safety and Correctional Services (DPSCS), J. Micheal Stouffer, Maryland Division of Corrections, Maryland Correctional Institution, Jessup (MCIJ), Stephen M. Shiloh, Western Correctional Institution (WCI), Gary D. Maynard was filed incorrectly. **Please refile this document under category "Responses and Replies" using the event "Reply to Response to Motion". It has been noted as FILED IN ERROR, and the document link has been disabled. (bmhs, Deputy Clerk) (Entered: 06/28/2012)

06/28/2012

43 REPLY to Response to Motion re 29 MOTION to Dismiss for Failure to Exhaust Administrative Remedies Defendants' Response to Plaintiffs; Opposition to Defendants' Motion to Dismiss for Failure to Exhaust Administrative Remedies filed by Dayena Corcoran, Maryland Correctional Enterprises, Maryland Correctional Institution, Jessup (MCIJ), Maryland Department of Public Safety and Correctional Services (DPSCS), Maryland Division of Corrections, Gary D. Maynard, J. Philip Morgan, Stephen M. Shiloh, J. Micheal Stouffer, Western Correctional Institution (WCI). (Gordon, Rex) (Entered: 06/28/2012)

09/27/2012 44 NOTICE by Carroll Connelly, Vander Davis, Gary Denmark, Christopher Jarboe, Garfield Redd of Attorney Withdrawal (Finkenstadt, Ivy) (Entered: 09/27/2012)

09/27/2012 45 NOTICE of Appearance by Elizabeth Elaine Gardner on behalf of Christopher Jarboe (Gardner, Elizabeth) (Entered: 09/27/2012)

09/27/2012

46 ORDER withdrawing Ivy Finkenstadt as counsel for Plaintiffs Jarboe, Connelly, Davis, Denmark and Redd. Signed by Judge Ellen L. Hollander on 9/27/12. (bmhs, Deputy Clerk) (Entered: 09/28/2012)

02/15/2013 47 NOTICE to Substitute Attorney Megan Whyte (Gardner, Elizabeth) (Entered: 02/15/2013)

02/19/2013 48 NOTICE of Appearance by Megan Kathleen Whyte on behalf of Christopher Jarboe (Whyte, Megan) (Entered: 02/19/2013)

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03/13/2013 49 MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 3/13/13. (bmhs, Deputy Clerk) (Entered: 03/13/2013)

03/13/2013

50 ORDER denying 25 Motion to Dismiss or, In the Alternative, for Summary Judgment; and denying 29 Motion to Dismiss for Failure to Exhause Administrative Remedies;. Signed by Judge Ellen L. Hollander on 3/13/13. (bmhs, Deputy Clerk) (Entered: 03/13/2013)

03/18/2013 51 MEMORANDUM to Counsel. Signed by Judge Ellen L. Hollander on 3/18/13. (bmhs, Deputy Clerk) (Entered: 03/18/2013)

03/27/2013

52 ANSWER to 1 Complaint,, by Paulette Francois, Maryland Department of Labor, Licensing and Regulation, Division of Workforce Development and Adult Learning (Correctional Education).(Gunther, M) (Entered: 03/27/2013)

03/27/2013

53 ANSWER to 1 Complaint,, by Dayena Corcoran, Maryland Correctional Enterprises, Maryland Correctional Institution, Jessup (MCIJ), Maryland Department of Public Safety and Correctional Services (DPSCS), Maryland Division of Corrections, Gary D. Maynard, J. Philip Morgan, Stephen M. Shiloh, J. Micheal Stouffer, Western Correctional Institution (WCI).(Gordon, Rex) (Entered: 03/27/2013)

04/12/2013

Telephone Status Conference held on 4/12/2013 before Judge Ellen L. Hollander. (bmhs, Deputy Clerk) (Entered: 04/15/2013)

04/12/2013

54 SCHEDULING ORDER: Status Report due by 11/12/2013. Signed by Judge Ellen L. Hollander on 4/12/13. (Attachments: # 1 Standing Memorandum to Counsel Concerning Discovery)(bmhs, Deputy Clerk) (Entered: 04/15/2013)

04/15/2013

55 ORDER REFERRING CASE to Magistrate Judge Stephanie A Gallagher for Settlement. Signed by Judge Ellen L. Hollander on 4/15/13 (cags, Deputy Clerk) (Entered: 04/15/2013)

04/16/2013 56 ORDER Scheduling Settlement Conference. Signed by Magistrate Judge Stephanie A Gallagher on 4/16/13. (bmhs, Deputy Clerk) (Entered: 04/17/2013)

05/09/2013

57 PAPERLESS ORDER NOTIFYING Counsel that, as requested, the settlement conference previously set for June 14, 2013 has been RESCHEDULED to Wednesday, July 10, 2013 at 9:30 a.m. Ex parte letters are now due Wednesday, June 26, 2013. Counsel are advised to follow the instructions as set forth in the original Order Scheduling Settlement dated April 16, 2013. Signed by Magistrate Judge Stephanie A Gallagher on 5/9/13. (vals, Chambers) (Entered: 05/09/2013)

05/13/2013

58 MOTION to Amend/Correct 54 Scheduling Order to Extend Time for Conference Regarding Electronically Stored Information by Carroll Connelly, Vander Davis, Gary Denmark, Christopher Jarboe Responses due by 5/31/2013 (Attachments: # 1 Text of Proposed Order)(Edmondson, Joseph) (Entered: 05/13/2013)

05/13/2013

59 ORDER granting 58 Plaintiffs' Motion to Revise Scheduling Order to Extend Time for Conference Regarding Electronically Stored Information. Signed by Judge Ellen L. Hollander on 5/13/13. (bmhs, Deputy Clerk) (Entered: 05/14/2013)

06/14/2013 60 NOTICE of Appearance by Deborah M Golden on behalf of Christopher Jarboe (Golden, Deborah) (Entered: 06/14/2013)

06/20/2013 61 NOTICE of Appearance by Lauren Champaign on behalf of All Plaintiffs (Champaign, Lauren) (Entered: 06/20/2013)

07/08/2013

62 PAPERLESS ORDER NOTIFYING Counsel that the settlement conference previously set for July 10, 2013 has been RESCHEDULED to Monday, September 16, 2013 at 9:30 a.m. Ex parte letters or any supplements are due Tuesday, September 03, 2013. Counsel are advised to follow the instructions as set forth in the original Order Scheduling Settlement dated April 16, 2013. Signed by Magistrate Judge Stephanie A Gallagher on 7/8/13. (vals, Chambers) (Entered: 07/08/2013)

07/31/2013

63 MOTION for Writ of Habeas Corpus ad testificandum by Carroll Connelly, Vander Davis, Gary Denmark, Christopher Jarboe, Garfield Redd Responses due by 8/19/2013 (Attachments: # 1 Text of Proposed Writ, # 2 Text of Proposed Writ)(Champaign, Lauren) (Entered: 07/31/2013)

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08/05/2013 64 WRIT of Habeas Corpus ad testificandum issued (jnls, Deputy Clerk) (Entered: 08/05/2013)

08/05/2013 65 WRIT of Habeas Corpus ad testificandum issued (jnls, Deputy Clerk) (Entered: 08/05/2013)

08/19/2013

66 Corrected MOTION for Writ of Habeas Corpus ad testificandum by Vander Davis, Gary Denmark, Christopher Jarboe Responses due by 9/6/2013 (Attachments: # 1 Text of Proposed Order, # 2 Text of Proposed Order, # 3 Text of Proposed Order)(Champaign, Lauren) (Entered: 08/19/2013)

09/03/2013

68 MOTION for Extension of Time to File Ex Parte Letters to and including September 6, 2013 by Dayena Corcoran, Maryland Correctional Institution, Jessup (MCIJ), Maryland Department of Public Safety and Correctional Services (DPSCS), Maryland Division of Corrections, Gary D. Maynard, J. Philip Morgan, J. Micheal Stouffer, Western Correctional Institution (WCI) Responses due by 9/20/2013 (Attachments: # 1 Text of Proposed Order)(Gordon, Rex) (Entered: 09/03/2013)

09/03/2013

69 PAPERLESS ORDER granting 68 Consent Motion for Extension of Time. Signed by Magistrate Judge Stephanie A Gallagher on 9/3/13. (vals, Chambers) (Entered: 09/03/2013)

09/09/2013

Telephone Conference held on 9/9/2013 before Magistrate Judge Stephanie A Gallagher. (bmhs, Deputy Clerk) (Entered: 09/16/2013)

09/16/2013

Settlement Conference held on 9/16/2013 before Magistrate Judge Stephanie A Gallagher. (bmhs, Deputy Clerk) (Entered: 09/16/2013)

09/24/2013

70 PAPERLESS ORDER CONFIRMING that a second settlement conference has been set for December 2, 2013 at 9:30 a.m. Counsel may submit, if necessary, brief supplemental ex parte letters by November 18, 2013. Signed by Magistrate Judge Stephanie A Gallagher on 9/24/13. (vals, Chambers) (Entered: 09/24/2013)

09/27/2013

71 Consent MOTION to Stay Scheduling Order Deadlines by Dayena Corcoran, Maryland Correctional Institution, Jessup (MCIJ), Maryland Department of Public Safety and Correctional Services (DPSCS), Maryland Division of Corrections, Gary D. Maynard, J. Philip Morgan, J. Micheal Stouffer, Western Correctional Institution (WCI) Responses due by 10/15/2013 (Gordon, Rex) (Entered: 09/27/2013)

09/27/2013 72 ORDER approving 71 Motion to Stay Scheduling Order Deadlines. Signed by Judge Ellen L. Hollander on 9/27/13. (apls, Deputy Clerk) (Entered: 09/30/2013)

12/02/2013

Second Settlement Conference held on 12/2/2013 before Magistrate Judge Stephanie A Gallagher. (bmhs, Deputy Clerk) (Entered: 12/02/2013)

12/02/2013 73 ORDER to Counsel. Signed by Judge Ellen L. Hollander on 12/3/13. (bmhs, Deputy Clerk) (Entered: 12/04/2013)

12/12/2013 74 Correspondence re: Joint Proposed Modified Scheduling Order (Champaign, Lauren) (Entered: 12/12/2013)

12/13/2013

75 MOTION for Extension of Time to submit a status report to Tuesday, December 17, 2013 by Dayena Corcoran, Maryland Correctional Institution, Jessup (MCIJ), Maryland Department of Public Safety and Correctional Services (DPSCS), Maryland Division of Corrections, Gary D. Maynard, J. Philip Morgan, J. Micheal Stouffer, Western Correctional Institution (WCI) Responses due by 12/30/2013 (Gordon, Rex) (Entered: 12/13/2013)

12/13/2013 76 MARGINAL ORDER granting 75 Motion for Extension of Time. Signed by Judge Ellen L. Hollander on 12/13/13. (bmhs, Deputy Clerk) (Entered: 12/13/2013)

12/17/2013 77 MODIFIED SCHEDULING ORDER: Status Report due by 4/12/2014. Signed by Judge Ellen L. Hollander on 12/17/13. (bmhs, Deputy Clerk) (Entered: 12/17/2013)

03/19/2014

78 NOTICE of Appearance by Dorianne Avery Meloy on behalf of Dayena Corcoran, Maryland Correctional Enterprises, Maryland Correctional Institution, Jessup (MCIJ), Maryland Department of Public Safety and Correctional Services (DPSCS), Maryland Division of Corrections, Gary D. Maynard, J. Philip Morgan, Stephen M. Shiloh, J. Micheal Stouffer, Western Correctional Institution (WCI) (Meloy, Dorianne) (Entered:

Case: 1:12-cv-00572-ELH As of: 04/07/2015 05:50 PM EDT 13 of 14

03/19/2014
03/19/2014 04/14/2014 04/18/2014
04/18/2014 05/22/2014 05/27/2014 05/28/2014 05/29/2014
06/04/2014 06/10/2014 07/17/2014 10/27/2014 10/27/2014 02/10/2015 02/18/2015

03/19/2014)
79 MOTION for Extension of Time to Complete Discovery Consent Motion to Modify Scheduling Order by Dayena Corcoran, Maryland Correctional Enterprises, Maryland Correctional Institution, Jessup (MCIJ), Maryland Department of Public Safety and Correctional Services (DPSCS), Maryland Division of Corrections, Gary D. Maynard, J. Philip Morgan, Stephen M. Shiloh, J. Micheal Stouffer, Western Correctional Institution (WCI) Responses due by 4/7/2014 (Attachments: # 1 Text of Proposed Order)(Meloy, Dorianne) (Entered: 03/19/2014)
80 Modified Scheduling Order. Signed by Judge Ellen L. Hollander on 3/19/14. (bmhs, Deputy Clerk) (Entered: 03/19/2014)
81 PAPERLESS ORDER CONFIRMING that a third settlement conference has been scheduled for May 28, 2014 at 9:30 a.m. in room 8C. Counsel may submit by May 14, 2014, brief supplemental ex parte letters. Signed by Magistrate Judge Stephanie A Gallagher on 4/14/14. (vals, Chambers) (Entered: 04/14/2014)
82 Joint MOTION to Stay Discovery and Scheduling Order Deadlines by Maryland Correctional Enterprises, Maryland Correctional Institution, Jessup (MCIJ), Maryland Department of Public Safety and Correctional Services (DPSCS), Maryland Division of Corrections, Gary D. Maynard, J. Philip Morgan, Stephen M. Shiloh, J. Micheal Stouffer, Western Correctional Institution (WCI) Responses due by 5/5/2014 (Lane Weber, Stephanie) (Entered: 04/18/2014)
83 MARGINAL ORDER approving 82 Joint Motion to Stay Discovery and Scheduling Order Deadlines. Signed by Judge Ellen L. Hollander on 4/18/14. (bmhs, Deputy Clerk) (Entered: 04/21/2014)
84 NOTICE of Appearance by Christopher Bowie Lord on behalf of Maryland Department of Labor, Licensing and Regulation, Division of Workforce Development and Adult Learning (Correctional Education) (Lord, Christopher) (Entered: 05/22/2014)
Telephone Conference held on 5/27/2014 before Magistrate Judge Stephanie A Gallagher. (bmhs, Deputy Clerk) (Entered: 05/29/2014)
Settlement Conference held on 5/28/2014 before Magistrate Judge Stephanie A Gallagher. (bmhs, Deputy Clerk) (Entered: 05/29/2014)
85 PAPERLESS ORDER CONFIRMING that a follow up settlement conference has been scheduled for June 10, 2014 at 9:30 a.m. in room 8C, and that a conference call has been set for June 4, 2014 at 1:00 p.m. I ask that Plaintiffs' counsel please initiate the call. Signed by Magistrate Judge Stephanie A Gallagher on 5/29/14. (vals, Chambers) (Entered: 05/29/2014)
Telephone Conference held on 6/4/2014 before Magistrate Judge Stephanie A Gallagher. (bmhs, Deputy Clerk) (Entered: 06/04/2014)
Settlement Conference held on 6/10/2014 before Magistrate Judge Stephanie A Gallagher. (bmhs, Deputy Clerk) (Entered: 06/11/2014)
Telephone Conference held on 7/17/2014 before Magistrate Judge Stephanie A Gallagher. (bmhs, Deputy Clerk) (Entered: 07/17/2014)
86 MOTION to Withdraw as Attorney by Carroll Connelly, Vander Davis, Gary Denmark, Christopher Jarboe Responses due by 11/13/2014 (Whyte de Vasquez, Megan) (Entered: 10/27/2014)
87 MARGINAL ORDER granting 86 Motion to Withdraw as Attorney. Attorney Megan Kathleen Whyte de Vasquez terminated. Signed by Judge Ellen L. Hollander on 10/24/2014. (ko, Deputy Clerk) (Entered: 10/28/2014)
88 ORDER to Counsel. Signed by Judge Ellen L. Hollander on 2/10/2015. (Attachments: # 1 Instructions to Counsel Re Trial Procedure and Conduct)(bmhs, Deputy Clerk) (Entered: 02/10/2015)
89 Joint MOTION to Continue Trial Date by Carroll Connelly, Vander Davis, Gary Denmark, Christopher Jarboe, Garfield Redd Responses due by 3/9/2015 (Champaign,

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02/18/2015 02/19/2015
02/19/2015 02/20/2015 02/20/2015 03/09/2015

Lauren) (Entered: 02/18/2015)
90 PAPERLESS ORDER. A telephone conference has been scheduled for February 19, 2015, at 5:00 p.m. Plaintiffs' counsel at Foley & Lardner are to initiate the call to those counsel who are able to participate, and then to chambers. Signed by Judge Ellen L. Hollander on 2/18/2015. (kw, Chambers) (Entered: 02/18/2015)
91 NOTICE of Appearance by Nichole' C Gatewood on behalf of Dayena Corcoran, Maryland Correctional Enterprises, Maryland Correctional Institution, Jessup (MCIJ), Maryland Department of Public Safety and Correctional Services (DPSCS), Maryland Division of Corrections, Gary D. Maynard, J. Philip Morgan, Stephen M. Shiloh, J. Micheal Stouffer, Western Correctional Institution (WCI) (Gatewood, Nichole') (Entered: 02/19/2015)
92 PAPERLESS ORDER. A telephone status conference was held on February 19, 2015. Plaintiffs have authorized the Court to issue a 90 day Rule 111 Order. Signed by Judge Ellen L. Hollander on 2/19/2015. (kw, Chambers) (Entered: 02/19/2015)
93 REVISED PAPERLESS ORDER. A telephone status conference was held on February 19, 2015. Counsel for all parties have authorized the Court to issue a 90 day Rule 111 Order. Signed by Judge Ellen L. Hollander on 2/20/2015. (kw, Chambers) (Entered: 02/20/2015)
94 ORDER DISMISSING case with each party to bear its own costs unless otherwise agreed without prejudice to the right of a party to move for good cause to reopen this action if settlement is not consummated. Signed by Judge Ellen L. Hollander on 2/20/2015. (ca2s, Deputy Clerk) (Entered: 02/20/2015)
95 Correspondence from Frankie McCoy to intervene. (Attachments: # 1 Exhibit)(ko, Deputy Clerk) (Entered: 03/10/2015)