UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

_______________________________ 

MARY ANN MCBRIDE, et al., ) 

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

 Plaintiffs, ) 

 ) Hon. Sean F. Cox 

 v. ) Mag. David R. Grand 

 ) 

MICHIGAN DEPARTMENT ) 

OF CORRECTIONS, et al., ) 

 ) 

 Defendants. ) 

______________________________ ) 

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON COUNTS I & 

II OF THE COMPLAINT AND INCORPORATED 

MEMORANDUM OF LAW 

Abraham Singer (P23601) 

Kitch Drutchas Wagner 

Valitutti & Sherbrook 

One Woodward Avenue 

Ste 2400 

Detroit, MI 48226 

(313) 965-7445 

abraham.singer@kitch.com 

Deborah M. Golden (of counsel) 

Elliot M. Mincberg (of counsel) 

Washington Lawyers’ Committee for 

Civil Rights and Urban Affairs 

11 Dupont Circle, NW 

Suite 400 

Washington, DC 20036 

(202) 319-1000 

deborah_golden@washlaw.org 

elliot_mincberg@washlaw.org 

Andrew D. Lazerow 

Stephen C. Bartenstein 

Philip J. Levitz 

Covington & Burling LLP 

One CityCenter 

850 Tenth Street, NW 

Washington, DC 20001 

(202) 662-6000 

alazerow@cov.com 

sbartenstein@cov.com 

plevitz@cov.com 

Chris E. Davis (P52159) 

Mark A. Cody (P42695) 

Michigan Protection and 

Advocacy Service, Inc. 

4095 Legacy Parkway, Ste 500 

Lansing, MI 48911 

(517) 487-1755 

cdavis@mpas.org 

mcody@mpas.org 

Case 2:15-cv-11222-SFC-DRG ECF No. 76, PageID.2405 Filed 03/17/17 Page 1 of 35
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Claire O’Brien (of counsel)*

Covington & Burling LLP 

One CityCenter 

850 Tenth Street, NW 

Washington, DC 20001 

(202) 662-6000 

cobrien@cov.com 

Attorneys for Plaintiffs

 

*

 Ms. O’Brien is a member of the bar of North Carolina. She is supervised by 

principals of the firm in the District of Columbia. 

Case 2:15-cv-11222-SFC-DRG ECF No. 76, PageID.2406 Filed 03/17/17 Page 2 of 35
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PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 

Plaintiffs Mary Ann McBride and Ralph Williams (collectively, 

“Plaintiffs”), by and through their attorneys, respectfully move for summary 

judgment pursuant to FED. R. CIV. P. 56(a). For the reasons set forth in Plaintiffs’ 

accompanying memorandum of law, Plaintiffs are entitled to summary judgment, 

on behalf of themselves and all deaf and hard of hearing prisoners in the custody of 

the Michigan Department of Corrections (“MDOC”), on Counts I and II of the 

Complaint.1

 

There is no genuine dispute of material fact that Plaintiffs and other deaf and 

hard of hearing prisoners in MDOC’s custody have been excluded from 

participation in, denied benefits of, and subjected to discrimination in MDOC 

services, programs, and activities by reason of their disability. Accordingly, there 

is no genuine dispute that MDOC’s conduct has violated, and continues to violate, 

the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq. and the 

Rehabilitation Act, 29 U.S.C. § 794 et seq. Among other failings, Defendants have 

not provided consistent access to adequate telecommunication technology, 

auxiliary aids (such as sign language interpreters), or visual emergency notification 

and announcement systems for Plaintiffs to effectively communicate and 

 

1

 Plaintiffs’ motion for class certification pursuant to FED. R. CIV. P. 23(b)(2) is 

pending. Docket No. 61. 

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iv 

participate equally in MDOC services and programs. These deficiencies violate 

the ADA and the Rehabilitation Act as a matter of law. 

Pursuant to Local Rule 7.1, on March 8, 2017, Plaintiffs’ counsel 

participated in a telephone conference with Defendants’ counsel and explained the 

nature of this motion. Plaintiffs requested but did not obtain concurrence in the 

relief sought in this motion. 

Dated: March 17, 2017 Respectfully submitted, 

/s/ Andrew D. Lazerow 

Andrew D. Lazerow 

Stephen C. Bartenstein 

Philip J. Levitz 

Covington & Burling LLP 

One CityCenter 

850 Tenth Street, NW 

Washington, DC 20001 

Attorneys for Plaintiffs

 

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v 

PLAINTIFFS’ MEMORANDUM OF LAW 

 

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CONCISE STATEMENT OF ISSUES PRESENTED 

1. Whether there is any genuine issue of material fact that Plaintiffs have, by 

reason of their disabilities, been excluded from participation in, denied the 

benefits of, or subjected to discrimination in MDOC services, programs, or 

activities in violation of the Americans with Disabilities Act, 29 U.S.C. § 

12101 et seq. 

2. Whether there is any genuine issue of material fact that Plaintiffs have, 

solely by reason of their disabilities, been excluded from participation in, 

denied the benefits of, or subjected to discrimination in MDOC programs or 

activities in violation of the Rehabilitation Act, 29 U.S.C. § 794 et seq. 

 

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CONTROLLING OR MOST IMPORTANT AUTHORITY 

Ability Ctr. of Greater Toledo v. City of Sandusky, 385 F.3d 901 (6th Cir. 2004) 

(Ex. YY) 

Alexander v. Choate, 469 U.S. 287 (1985) (Ex. ZZ) 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (Ex. AAA) 

Clarkson v. Coughlin, 898 F. Supp. 1019 (S.D.N.Y. 1995) (Ex. BBB) 

Heyer v. U.S. Bureau of Prisons, 849 F.3d 202 (4th Cir. 2017) (Ex. CCC) 

Karlik v. Colvin, 15 F. Supp. 3d 700 (E.D. Mich. 2014) (Ex. DDD) 

Keith v. Cty. of Oakland, 703 F.3d 918 (6th Cir. 2013) (Ex. EEE) 

Niece v. Fitzner, 922 F. Supp. 1208 (E.D. Mich. 1996) (Ex. FFF) 

Pierce v. D.C., 128 F. Supp. 3d 250 (D.C. Cir. 2015) (Ex. GGG) 

U.S. SEC v. Sierra Brokerage Services, Inc., 712 F.3d 321 (6th Cir. 2013) (Ex. 

HHH) 

 

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TABLE OF CONTENTS

Page 

CONCISE STATEMENT OF ISSUES PRESENTED ........................................... vi

CONTROLLING OR MOST IMPORTANT AUTHORITY................................. vii

INTRODUCTION .................................................................................................... 1

STATEMENT OF FACTS ....................................................................................... 3

I. Named Plaintiffs ............................................................................................. 3

II. Overview of MDOC’s Policies, Procedures, and Practices ........................... 3

A. Identification and Classification of Deaf and Hard of Hearing 

Prisoners ............................................................................................... 3

B. Telecommunications Services and Auxiliary Aids .............................. 5

C. Notification of Prison Warnings and Announcements ........................ 8

D. Training Related to Treatment and Accommodation of Deaf and 

Hard of Hearing Prisoners .................................................................... 9

III. Undisputed Expert Testimony ...................................................................... 10

LEGAL STANDARD ............................................................................................. 12

ARGUMENT .......................................................................................................... 12

I. Plaintiffs Have Been Denied Benefits of MDOC Services and 

Programs by Reason of Their Disability in Violation of the Americans 

with Disabilities Act ..................................................................................... 12

A. Insufficient Access to Telecommunications Services and 

Auxiliary Aids .................................................................................... 13

B. Inadequate Notification of Prison Warnings and 

Announcements .................................................................................. 19

C. Absence of Training Related to Treatment and Accommodation 

of Deaf and Hard of Hearing Prisoners .............................................. 20

Case 2:15-cv-11222-SFC-DRG ECF No. 76, PageID.2412 Filed 03/17/17 Page 8 of 35
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II. Plaintiffs Have Been Denied Benefits of MDOC Services and 

Programs by Reason of Their Disability in Violation of the 

Rehabilitation Act ......................................................................................... 22

III. Necessary Relief ........................................................................................... 24

CONCLUSION ....................................................................................................... 25

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INTRODUCTION 

 Before Plaintiffs filed this lawsuit, the Michigan Department of Corrections 

(“MDOC”) had not taken any steps to systematically identify or classify the 200 

deaf and hard of hearing prisoners in its custody, and provided only minimal 

accommodations to those prisoners. Now, nearly two years later, MDOC’s 

litigation-induced changes are welcome, but still fall well short of what is required 

under the law to remedy MDOC’s years-long neglect. 

 The fact and expert record developed by Plaintiffs demonstrates indisputably 

that Plaintiffs and other deaf and hard of hearing prisoners in MDOC’s custody 

have been, and continue to be, excluded from equal participation in and denied 

benefits of MDOC services, programs, and activities because of their disability, in 

violation of the law. MDOC has housed—and continues to house—numerous deaf 

and hard of hearing prisoners at facilities not designated for such prisoners, has 

failed to install videophones at any facility, has failed to provide consistent access 

to sign language interpreters, and has failed to ensure effective communication 

with deaf and hard of hearing prisoners in emergencies. Moreover, MDOC 

provides no system-wide training for its employees related to treatment of or 

accommodations for deaf and hard of hearing prisoners. Not surprisingly, such 

prisoners have complained about their mistreatment by prison staff. 

Case 2:15-cv-11222-SFC-DRG ECF No. 76, PageID.2414 Filed 03/17/17 Page 10 of 35
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Plaintiffs’ two nationally-renowned experts in accommodations for deaf and 

hard of hearing individuals relied, in large part, on facts that MDOC itself has 

admitted to conclude that MDOC fails to provide reasonable accommodations for 

deaf and hard of hearing prisoners. And MDOC’s response to the comprehensive 

reports from Plaintiffs’ two experts? Nothing. Defendants did not serve a single 

expert report to contradict anything in Plaintiffs’ reports. 

 Plaintiffs therefore are entitled to summary judgment on Counts I and II of 

the Complaint, on behalf of themselves and the class of deaf and hard of hearing 

prisoners for which they are seeking certification pursuant to FED. R. CIV. P. 

23(b)(2). Plaintiffs seek an order requiring that MDOC come into full compliance 

with the ADA and the Rehabilitation Act, including by ensuring videophone 

access, auxiliary aids including American Sign Language (“ASL”) interpreters for 

all high-stakes interactions, visual notification systems for emergencies and routine 

announcements, and training for correctional officers and other staff on how to 

identify and appropriately interact with deaf and hard of hearing prisoners. 

Case 2:15-cv-11222-SFC-DRG ECF No. 76, PageID.2415 Filed 03/17/17 Page 11 of 35
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STATEMENT OF FACTS 

I. Named Plaintiffs

 Plaintiffs are deaf or hard of hearing prisoners who are or were in the 

custody of MDOC. Statement of Material Facts Not in Dispute (“SMF”) ¶ 1.2

 

Plaintiffs filed this class action lawsuit on behalf of themselves and all deaf and 

hard of hearing individuals who are or will be in the custody of MDOC, seeking 

declaratory and injunctive relief requiring MDOC to provide the assistance 

necessary for deaf and hard of hearing prisoners to participate in MDOC programs 

and services on an equal basis with hearing prisoners. 

II. Overview of MDOC’s Policies, Procedures, and Practices

 MDOC does not have adequate policies, procedures,3

 or practices to provide 

appropriate system-wide accommodation for deaf and hard of hearing prisoners. 

A. Identification and Classification of Deaf and Hard of Hearing 

Prisoners

Before this lawsuit was filed in March 2015, MDOC had no statewide policy 

even for identifying deaf and hard of hearing prisoners, no list of such prisoners, 

and had taken no systematic steps to transfer deaf and hard of hearing prisoners to 

facilities designated for housing them. SMF ¶¶ 3−5. A year after this lawsuit was 

 

2

 Plaintiff Brian Stanley Wittman has been released from MDOC custody and is 

currently on parole. SMF ¶ 1 n.1. 

3

 Plaintiffs use the term “policies and procedures” to refer both to statewide policy 

directives and facility-specific operating procedures. The term also includes other 

guidance materials, such as guidance memoranda. 

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filed, MDOC created a document which, for the first time, established MDOC 

guidelines for identifying deaf and hard of hearing prisoners and classifying their 

hearing loss. SMF ¶ 6. But aside from a single sentence specifying that one single 

hearing aid “will be issued for prisoners with deficit in both ears of 26 decibels or 

greater,” the document contains no detail describing appropriate accommodations 

for deaf and hard of hearing prisoners. SMF ¶ 7 & Ex. I (emphasis added). And 

MDOC has no other policy directive focused on accommodations for deaf and hard 

of hearing prisoners—even though MDOC’s designated 30(b)(6) witness 

understands that such a policy is “the only way we’re going to be consistent in 

applying different practices throughout the department.” SMF ¶¶ 13−14. 

 Although MDOC purports to have six facilities designated to house deaf and 

hard of hearing individuals, MDOC in fact has housed and continues to house 

numerous prisoners with “severe and profound” hearing loss at facilities not 

designated to house such prisoners. SMF ¶¶ 8−11. Indeed, MDOC’s current list 

of deaf and hard of hearing prisoners indicates that 84 of the 200 deaf and hard of 

hearing prisoners in its custody (42%) continue to be housed at non-designated 

facilities—including 32 of the 82 prisoners with the most severe hearing loss 

classification (39%). SMF ¶ 11. MDOC also has established no standards (or 

even guidelines) for what types of accommodations are necessary for an MDOC 

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facility to be considered capable of housing deaf and hard of hearing prisoners. 

SMF ¶ 12. 

B. Telecommunications Services and Auxiliary Aids

 Video-based communication is now the standard mode of remote 

communication for deaf and hard of hearing individuals who communicate through 

sign language. SMF ¶ 15. Video-based communication allows deaf and hard of 

hearing individuals to communicate with hearing individuals through the federal 

government-sponsored video relay service (“VRS”) at no cost. SMF ¶¶ 16, 20. 

Through this service, a deaf individual communicates via video to an interpreter 

using ASL, and the interpreter then interprets orally to the hearing individual on 

the call. SMF ¶ 17. Video-based communication also allows deaf and hard of 

hearing individuals to communicate directly with other deaf and hard of hearing 

individuals using ASL. SMF ¶ 18. Video-based communication may be 

monitored by prison staff for security purposes like any other telecommunications 

system. SMF ¶ 19. The MDOC official responsible for these issues has 

acknowledged that video-based communication and the VRS service can be made 

available at MDOC facilities at no cost, and that video-based communication can 

be monitored for security purposes. SMF ¶¶ 19−20. 

 Despite these admissions, MDOC has not installed videophones at any 

MDOC facilities. SMF ¶ 21. The only method of remote communication MDOC 

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offers to deaf and hard of hearing prisoners is the teletypewriter (“TTY”). SMF ¶¶ 

21−22. And 55 deaf and hard of hearing prisoners, including 21 deaf and hard of 

hearing prisoners with MDOC’s most severe hearing loss classification, are housed 

at MDOC facilities that do not even have a TTY. SMF ¶ 23. TTY, in any event, is 

a 60-year old, outdated technology that allows a deaf or hard of hearing individual 

to type a message that a deaf or hard of hearing recipient can view if, and only if, 

the recipient also has a TTY. SMF ¶ 24. Because TTYs are largely obsolete, 

many deaf and hard of hearing individuals do not have TTYs, and thus would not 

be able to communicate with prisoners like Plaintiffs via TTY. SMF ¶ 25. 

 MDOC’s responsible officials have admitted that TTYs are outdated. SMF 

¶ 31 & Ex. R, at 2, 4. As the MDOC official principally responsible for 

technology for deaf and hard of hearing prisoners has explained to others at 

MDOC in an internal email: “we are hearing . . . from the prisoners . . . that [TTY] 

is outdated and the family members and the community no longer have the 

machines. It would be comparable to sending someone a fax to their homes versus 

an email to communicate.” SMF ¶¶ 13, 31. 

 Moreover, because TTYs require typing and reading, they require 

proficiency in written English. SMF ¶ 26. Deaf and hard of hearing individuals 

often lack such proficiency because ASL has its own distinct structure, syntax, and 

grammar that does not easily translate to written English. SMF ¶¶ 27−29. 

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 Defendants also have failed to provide auxiliary aids in the form of 

consistent access to certified sign language interpreters. Until July 1, 2015, 

MDOC contracted with a single vendor, Linguistica International (“Linguistica”), 

to provide ASL interpreter services at all MDOC prison facilities. SMF ¶ 32. 

Linguistica failed to consistently provide interpreters when they were requested by 

MDOC. SMF ¶ 33. MDOC terminated the contract with Linguistica on July 1, 

2015, and MDOC has not secured the services of a single, statewide provider of 

interpreter services to replace Linguistica. SMF ¶¶ 34−35. Rather, MDOC 

instructed individual facilities to retain their own interpreter service providers via 

purchase order. SMF ¶ 36. This resulted in gaps—in one case for eight months—

during which certain MDOC facilities had not retained any replacement providers 

of interpreter services. SMF ¶ 37. Such gaps have left MDOC to rely on untrained 

and uncertified fellow inmates as de facto interpreters, as well as ineffective lipreading and “pen and paper.” SMF ¶¶ 38−40. 

 A one-page MDOC memo, issued shortly after this case was filed, listed 

certain situations when ASL and foreign language interpretation services should be 

provided. SMF ¶ 41. But the memo does not require that MDOC provide 

interpreters in connection with important activities such as religious services, and 

does not establish any specific procedures to ensure that interpreters are available, 

including in high-stakes situations like unexpected medical emergencies and 

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hospital visits. SMF ¶¶ 42, 45−47 & Ex. BB. Nor has MDOC taken any steps to 

monitor or verify whether its facilities are complying with the memo. SMF ¶ 43. 

Accordingly, in many cases, ASL interpreters have not been available for activities 

for which they are theoretically required, like medical appointments. SMF ¶ 48. 

 MDOC also does not provide access to video remote interpreting (“VRI”), 

i.e., remote interpreters accessible by video that are especially beneficial in 

emergency situations. SMF ¶¶ 49−51. MDOC discontinued VRI after completing 

a pilot program. SMF ¶ 51. 

 Such sporadic access to ASL interpreters precludes deaf and hard of hearing 

prisoners who use ASL from consistent and effective participation in MDOC 

programs and services. See generally SMF ¶¶ 42−48.

C. Notification of Prison Warnings and Announcements

 MDOC does not ensure effective communication with deaf and hard of 

hearing prisoners for emergencies or routine announcements on a system-wide 

basis. SMF ¶ 52. Thus, MDOC does not provide adequate visual notification of 

announcements and safety alerts (such as fire alarms or alarms signaling 

emergency lockdowns) at every MDOC facility where such prisoners are housed, 

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SMF ¶ 52−54, or adequate systems of visual notification for daily activities such as 

meal time and count time. SMF ¶ 55.4

 

D. Training Related to Treatment and Accommodation of Deaf and 

Hard of Hearing Prisoners

 MDOC lacks any system-wide policies or procedures addressing training 

related to the treatment of or accommodations for deaf and hard of hearing 

prisoners. SMF ¶ 64. Nor does MDOC provide or have any plans to provide such 

training. SMF ¶¶ 65−71. Thus, MDOC does not provide any training on: 

• issues related to identification and classification of deaf and hard of hearing 

prisoners, SMF ¶ 66; 

• use and maintenance of TTYs, SMF ¶ 67; 

• access to ASL interpreters, SMF ¶ 68; 

• visual systems of notification for alarms and announcements, SMF ¶ 69; or 

• the needs of deaf and hard of hearing prisoners in emergencies, SMF ¶ 70. 

 Notably, MDOC has received multiple complaints related to the 

mistreatment of deaf and hard of hearing prisoners by prison staff, demonstrating 

the urgent need for such training. SMF ¶ 58. In one instance, Plaintiff McBride 

filed a grievance explaining that she was degraded and humiliated by an MDOC 

officer who mocked her manner of speaking, despite being informed by other 

 

4

 MDOC implemented a pilot program at one facility involving a one-way 

communication system (known as the Page Alert Broadcast System) that allows 

MDOC employees to send messages to pagers issued to deaf and hard of hearing 

prisoners. SMF ¶ 56. MDOC is in the process of rolling out this system at other 

facilities designated to house deaf and hard of hearing prisoners. Id. But the 

pagers have not worked consistently at the pilot facility, resulting in crucial 

information gaps, and are not available at any non-designated facilities. SMF ¶¶ 

56−57. 

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prisoners that Ms. McBride was deaf. SMF ¶¶ 59−60. Ms. McBride’s grievance 

against the offending officer included supporting statements from eight 

eyewitnesses. SMF ¶ 61. These eyewitnesses reported that a senior officer 

observed the exchange, but did not intervene. SMF ¶ 62. Yet MDOC dismissed 

Ms. McBride’s grievance because “[McBride] is unaware of what comments and 

statements [were] being made due to there was no interpreter present. There fore 

(sic) grievance is denied due to insufficient evidence.” SMF ¶ 63. In other words, 

the grievance was denied because Ms. McBride is deaf—and because MDOC 

failed to provide an interpreter. 

III. Undisputed Expert Testimony

Plaintiffs have presented expert reports from two of the foremost authorities 

on accommodations for deaf and hard of hearing individuals, who have thoroughly 

reviewed the record in this case. Dr. Dennis Cokely is a tenured professor of ASL 

and Modern Languages at Northeastern University, and has 48 years of experience 

with deaf individuals. SMF ¶ 72. Mr. Richard Ray, who is deaf, has been 

employed by the City of Los Angeles Department of Disability for the past 23 

years to assess, monitor, and ensure the city’s compliance with the ADA, 

Rehabilitation Act, and other disability laws. SMF ¶ 73. 

 Both experts conclude that MDOC has failed to provide reasonable 

accommodations to deaf and hard of hearing prisoners. Dr. Cokely found that 

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MDOC systematically denies meaningful and effective communicative access for 

deaf and hard of hearing prisoners, and denies them access to services, programs, 

and benefits that are afforded to other prisoners. SMF ¶ 74. Mr. Ray found that 

MDOC fails to provide deaf and hard of hearing prisoners with the means to 

communicate effectively with individuals both inside and outside of MDOC, to 

receive important announcements, and to have equal access to prison facilities, 

programs, services, and activities. SMF ¶ 75. 

 Both experts conclude that MDOC must, at minimum, provide the following 

accommodations to reasonably accommodate deaf and hard of hearing prisoners: 

(1) access to videophones; (2) consistent access to qualified sign language 

interpreters; (3) in-cell visual alarms and/or notification systems at all facilities that 

house deaf and hard of hearing prisoners; and (4) mandatory training to ensure 

MDOC staff understand how to interact appropriately with deaf and hard of 

hearing prisoners. SMF ¶ 76. Dr. Cokely further concludes that a review of all 

MDOC policies and procedures, with appropriate modifications where warranted, 

is necessary to ensure that deaf and hard of hearing prisoners are not systematically 

disadvantaged relative to prisoners who are not deaf or hard of hearing. SMF ¶ 77.

MDOC has offered no expert reports or testimony to contradict any of the 

conclusions of Dr. Cokely or Mr. Ray. 

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LEGAL STANDARD 

 “A court must 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.” U.S. SEC v. Sierra Brokerage Services, Inc., 712 F.3d 321, 326–27 

(6th Cir. 2013) (quoting FED. R. CIV. P. 56(a)). A fact is material only if it might 

affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

248 (1986). “[T]he mere existence of some alleged factual dispute between the 

parties will not defeat an otherwise properly supported motion for summary 

judgment.” Id. at 247–48. “If the evidence is merely colorable, or is not 

significantly probative, summary judgment may be granted.” Id. at 249–50 

(internal citations omitted). 

ARGUMENT 

I. Plaintiffs Have Been Denied Benefits of MDOC Services and Programs 

by Reason of Their Disability in Violation of the Americans with 

Disabilities Act

 Title II of the ADA provides that “no qualified individual with a disability 

shall, by reason of such disability, be excluded from participation in or be denied 

the benefits of services, programs, or activities of a public entity, or be subjected to 

discrimination by any such entity.” 42 U.S.C. § 12132. “By separately identifying 

as requirements of public entities that they not deny qualified disabled individuals 

the benefits of public services and that they not discriminate against such 

individuals, th[is] provision demands more of public entities than simply refraining 

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from intentionally discriminating against disabled individuals.” E.g., Ability Ctr. 

of Greater Toledo v. City of Sandusky, 385 F.3d 901, 909–10 (6th Cir. 2004). 

 Whatever a public entity’s intent, the ADA also requires affirmative steps to 

“make reasonable accommodations for disabled individuals so as not to deprive 

them of meaningful access to the benefits of the services such entities provide.” 

Id. at 907. This affirmative duty is “at its apex” in the context of the uneven power 

dynamics of a prison, where prison officials “have complete control over whether 

prison inmates . . . receive any programs or services at all.” Pierce v. D.C., 128 F. 

Supp. 3d 250, 269, 272 (D.D.C. 2015) (citing Brown v. Plata, 563 U.S. 493, 510 

(2011); Estelle v. Gamble, 429 U.S. 97, 104 (1976)). 

 MDOC’s treatment of deaf and hard of hearing prisoners does not come 

close to satisfying these standards. 

A. Insufficient Access to Telecommunications Services and Auxiliary 

Aids 

 Regulations promulgated under the ADA require that, to reasonably 

accommodate individuals with disabilities, “[a] public entity shall take appropriate 

steps to ensure that communications with applicants, participants, and members of 

the public, and companions with disabilities are as effective as communications 

with others.” 28 C.F.R § 35.160(a). A public entity also must “furnish appropriate 

auxiliary aids and services where necessary to afford individuals with disabilities 

. . . an equal opportunity to participate in, and enjoy the benefits of, a service, 

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program, or activity of a public entity.” Id. § 35.160(b)(1). “In order to be 

effective,” these “auxiliary aids and services must be provided in accessible 

formats [and] in a timely manner.” Id. § 35.160(b)(2). 

 MDOC has failed to take the necessary steps to ensure that deaf and hard of 

hearing prisoners’ communications are as effective as those of hearing prisoners, 

and to provide appropriate auxiliary aids to permit communication and 

participation on an equal basis. 

First, MDOC does not provide access to telecommunications services to 

permit deaf and hard of hearing prisoners to communicate with others outside the 

prison on an equal basis with hearing prisoners who can communicate by 

telephone. As this court has explained, if a public entity “does in fact provide a 

[telecommunications] service,” “it must use methods or criteria that do not have 

the purpose or effect of impairing its objectives with respect to individuals with 

disabilities.” Niece v. Fitzner, 922 F. Supp. 1208, 1218 (E.D. Mich. 1996) 

(citation omitted) (denying motion to dismiss prisoner’s ADA claim regarding 

failure to accommodate communication with deaf fiancé). MDOC has failed to 

satisfy that standard here. 

 MDOC does not provide deaf and hard of hearing prisoners with access to 

video-based communication in any form. SMF ¶ 21. Yet undisputed expert 

evidence confirms that video-based communication is the only way many deaf and 

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15 

hard of hearing prisoners can communicate with others outside the prison as 

effectively as hearing prisoners. SMF ¶¶ 15, 24−27, 76; Ex. P at 6–12, 26 (Ray 

Expert Report); Ex. Q at 4–5, 45–48 (Cokely Expert Report).5

 And MDOC has 

admitted, consistent with undisputed expert evidence, that video-based 

communication is available at no cost, and that such communication can be 

monitored for security purposes. SMF ¶¶ 19−20. 

 Nor do MDOC’s TTYs provide an alternative mode of communication 

nearly “as effective” as that afforded to hearing prisoners. 28 C.F.R § 35.160(a). 

As an initial matter, many deaf and hard of hearing prisoners in MDOC custody 

are housed at facilities that do not even have a TTY. SMF ¶ 23. Moreover, to 

comply with the ADA, public entities must “operate each service, program, or 

activity so that the service, program, or activity, when viewed in its entirety, is 

readily accessible to and usable by, people with disabilities.” 28 C.F.R. § 35.150. 

The record is undisputed that TTYs are not as readily usable for deaf and hard of 

hearing prisoners as telephones are for other prisoners. SMF ¶¶ 24−29, 31. In 

fact, undisputed expert evidence confirms that TTYs are useless to the many deaf 

and hard of hearing individuals who are not proficient in written English, or who 

 

5

 “Where experts present unequivocal, uncontradicted, unimpeached testimony,” “a 

court cannot lightly disregard the experts’ conclusions.” United States v. Larkins, 657 F. Supp. 76, 82 (W.D. Ky. 1987), aff’d, 852 F.2d 189 (6th Cir. 1988). 

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wish to communicate with the large—and rapidly growing—ranks of deaf 

individuals that no longer have TTYs. Id.

 Moreover, even if TTYs could serve as a viable alternative to video-based 

communications, providing only this option despite the reasonable requests of deaf 

and hard of hearing prisoners for a video-based alternative (SMF ¶ 30) would not 

satisfy the ADA. ADA regulations require that, “[i]n determining what type of 

auxiliary aid and service is necessary, a public entity shall give primary 

consideration to the requests of individuals with disabilities.” 28 C.F.R. § 

25.160(b)(2). 

 Other courts have recognized that TTYs are outdated and ineffective, and 

that video-based technology is necessary to reasonably accommodate deaf and 

hard of hearing prisoners. See, e.g., Pierce, 128 F. Supp. 3d at 261 & n.7, 284 

(D.D.C. 2015) (finding TTY is “outmoded” and “[t]wo deaf individuals cannot 

communicate via TTY unless both parties have a TTY device and can type in 

English effectively” and granting summary judgment to deaf prisoner seeking 

videophone access and other accommodations under the ADA); see also Heyer v. 

U.S. Bureau of Prisons, 849 F.3d 202, 207 (4th Cir. 2017) (“TTY is old technology 

that is fast becoming obsolete. . . . Because a TTY device is required on both ends 

of the call, the abandonment of TTY technology means there are fewer and fewer 

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people with whom Heyer can communicate.”); id. (“Effective communication over 

a TTY device requires proficiency in written English.”). 

 Accordingly, MDOC’s failure to provide equal telecommunications access 

to deaf and hard of hearing prisoners violates the ADA as a matter of law. 

Second, MDOC does not provide sufficient access to auxiliary aids for deaf 

and hard of hearing prisoners to communicate and participate in programs and 

activities inside the prison on an equal basis with hearing prisoners. For instance, 

MDOC does not provide reliable access to certified sign language interpreters, 

even for important activities such as religious services. SMF ¶¶ 33, 37−39, 42−48. 

Undisputed expert evidence confirms that reasonable accommodation of deaf and 

hard of hearing prisoners requires that certified ASL interpreters be available for 

prison activities like religious services. SMF ¶ 76; Ex. P, at 21–23 (Ray Expert 

Report); Ex. Q, at 4, 50 (Cokely Expert Report). And MDOC does not provide 

video remote interpreting in any circumstance, despite undisputed expert evidence 

that the service is necessary at a minimum for emergency situations. SMF ¶¶ 

50−51; Ex. P, at 23–24 (Ray Expert Report); Ex. Q, at 51−52 (Cokely Expert 

Report). 

 Because sign language interpreters are often unavailable, MDOC has created 

a situation in which deaf and hard of hearing prisoners have had to rely on 

untrained and uncertified fellow inmates as de facto interpreters. SMF ¶ 38. But 

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ADA regulations are clear that “[a] public entity shall not require an individual 

with a disability to bring another individual to interpret for him or her.” 28 C.F.R. 

§ 35.160(c)(1).6

 Undisputed expert evidence also confirms that uncertified “social 

signers” cannot substitute for certified interpreters. SMF ¶ 76; Ex. Q, at 41–43 

(Cokely Expert Report). Nor can other makeshift methods on which MDOC has 

relied, like lip-reading and “pen and paper.” Undisputed expert evidence confirms 

that the best lip readers can recognize only approximately 10−30% of words. SMF 

¶ 40. And pen and paper, like TTYs, requires proficiency in written English that 

deaf and hard of hearing individuals often lack. SMF ¶¶ 27−29. 

 The law confirms that such ad hoc efforts do not permit equal and effective 

communication access, and do not satisfy the ADA. See, e.g., Pierce, 128 F. Supp. 

3d at 277 (granting summary judgment to deaf prisoner on ADA claim based in 

substantial part on failure to provide ASL interpreters for “significant aspects of 

[the prisoner’s] incarceration experience”); id. at 259, 275−77, 284 (finding use of 

fellow inmate as interpreter and reliance on lip-reading and written notes 

insufficient); Clarkson v. Coughlin, 898 F. Supp. 1019, 1038, 1047 (S.D.N.Y. 

1995) (granting summary judgment to deaf prisoners on ADA claim based in 

 

6

 ADA regulations further require that “auxiliary aids and services must be 

provided . . . in such a way as to protect the privacy and independence of the 

individual with a disability,” which is difficult if not impossible when using fellow 

inmates as interpreters. 28 C.F.R. § 35.160(b)(2); see also Ex. P, at 22 (Ray 

Expert Report); Ex. Q, at 42 (Cokely Expert Report). 

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substantial part on failure to provide consistent access to qualified interpreters); 

Taylor v. City of Mason, 970 F. Supp. 2d 776, 782 (S.D. Ohio 2013) (use of 

uncertified ASL interpreter does not provide “opportunity to communicate as 

effectively as a non-disabled person under the circumstances”). Cf. Heyer, 849 

F.3d 202, 210 (finding that defendants’ failure to provide ASL interpreters for a 

deaf prisoner’s medical interactions led to constitutionally inadequate treatment for 

the prisoner’s serious medical needs, and amounted to deliberate indifference).

B. Inadequate Notification of Prison Warnings and Announcements

 In addition to its failure to provide effective communication methods for 

deaf and hard of hearing prisoners to participate equally in prison services and 

programs, MDOC also has failed to ensure that deaf and hard of hearing prisoners 

are consistently notified of emergency and other announcements. ADA regulations 

require that “[p]ublic entities shall implement reasonable policies . . . so as to 

ensure that each inmate with a disability is housed in a cell with the accessible 

elements necessary to afford the inmate access to safe, appropriate housing.” 28 

C.F.R. § 35.152(b)(3). MDOC has not satisfied that standard. 

 Undisputed expert evidence confirms that deaf and hard of hearing prisoners 

require visual notification systems for emergencies and for routine announcements 

in order to participate safely and effectively in prison life, and that MDOC has not 

sufficiently provided such systems. SMF ¶¶ 54, 74−76. Courts have found ADA 

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violations in similar circumstances. See Clarkson, 898 F. Supp. at 1047 (S.D.N.Y. 

1995) (granting summary judgment to deaf prisoners on ADA claim in part 

because the prisoners were “completely at risk in the event of fire” when there 

were no visual alarms); see also Heyer, 849 F.3d at 220 (finding genuine issue as 

to constitutional adequacy of accommodation for deaf prisoner, even when in-cell 

alarm was provided, when “BOP cannot guarantee that [the prisoner] will always 

be assigned to one of the four cells where the strobe lights were installed”). 

C. Absence of Training Related to Treatment and Accommodation of 

Deaf and Hard of Hearing Prisoners

 Defendants admit that they have no system-wide policy of providing training 

of any form on how to properly identify, communicate, and interact with deaf and 

hard of hearing prisoners. SMF ¶¶ 64−66. ADA guidance makes clear that lack of 

training “in many cases” leads to discriminatory practices, and it is therefore 

“appropriate for public entities to evaluate training efforts.” See Appendix B, 1991 

Section-by-Section Analysis on 28 C.F.R. § 35.105, at 192 (attached as Ex. III); 

see also H.R. Rep. No. 101–485, pt. III, at 490 (1990) (attached as Ex. JJJ) (“[T]o 

comply with the [ADA’s] non-discrimination mandate, it is often necessary to 

provide training to public employees about disability. . . . [D]iscriminatory 

treatment based on disability can be avoided by proper training”). 

 Undisputed expert evidence confirms that MDOC’s lack of training on 

issues related to deaf and hard of hearing prisoners prevents MDOC from 

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reasonably accommodating such prisoners, and treating them appropriately. SMF 

¶ 76; Ex. Q, at 6, 31–32, 34, 36–37, 53–54 (Cokely Expert Report); Ex. P, at 25 

(Ray Expert Report). And courts have agreed that evidence of a prison system’s 

failure to adequately train on such issues is relevant to an ADA claim—even when 

the prison system does provide substantial training. See Holmes v. Godinez, 311 

F.R.D. 177, 194, 226 (N.D. Ill. 2015) (evidence of training inadequacy relevant “to 

the extent such inaction contributed to a widespread denial of access to the 

programs, activities, and services that Plaintiffs . . . challenge”). 

 MDOC’s undisputed lack of training thus further supports summary 

judgment here. 

* * * 

 Any one of MDOC’s failures to appropriately accommodate Plaintiffs is 

sufficient to grant summary judgment for Plaintiffs. So too is MDOC’s admission 

that there are numerous deaf and hard of hearing prisoners housed at facilities not 

designated to house them, and thus likely lacking even the limited 

accommodations available at designated facilities. SMF ¶¶ 10−11, 23; Clarkson, 

898 F. Supp. at 1050–51 (placing certain deaf and hard of hearing prisoners at 

facilities not designated for accommodations, even for “disciplinary, safety and/or 

medical reasons,” renders the prison system’s “accommodations conditional and is 

therefore violative of the ADA”). 

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 Even if there were some failure described above that did not alone justify 

summary judgment, however, MDOC’s collective failings surely do. MDOC’s 

overall conduct has systematically failed to provide the reasonable 

accommodations necessary to ensure that deaf and hard of hearing prisoners have 

equal access to a wide range of MDOC programs and services. SMF ¶¶ 74−76. 

Courts have repeatedly granted summary judgment on deaf and hard of hearing 

prisoners’ ADA claims when the holistic picture of a prison’s accommodations is 

similarly inadequate. See, e.g., Pierce, 128 F. Supp. 3d at 254, 284 (granting 

summary judgment, despite “vehement disagree[ment] about many of the facts 

related to the case,” where enough facts made clear a holistic failure to provide for 

prisoner’s equal participation in prison programs); Clarkson, 898 F. Supp. at 1027, 

1038 (granting summary judgment where prison system failed to provide “the 

complete range of auxiliary aids and assistive devices required to permit class 

members to participate fully in and benefit from [prison] programs, services, and 

activities . . . in each of the facilities in which class members are incarcerated”). 

 Just as in these cases, summary judgment on Plaintiffs’ ADA claim is 

appropriate here too. 

II. Plaintiffs Have Been Denied Benefits of MDOC Services and Programs 

by Reason of Their Disability in Violation of the Rehabilitation Act 

 Because MDOC receives federal funds for a variety of its programs (SMF ¶ 

2), the Rehabilitation Act applies here. 29 U.S.C. § 794(a). The Rehabilitation 

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Act is “reviewed under the same standards that govern ADA claims,” Keith v. Cty. 

of Oakland, 703 F.3d 918, 923 (6th Cir. 2013), and provides that no “qualified 

individual with a disability in the United States . . . shall, solely by reason of her 

or his disability, be excluded from the participation in, be denied the benefits of, 

or be subjected to discrimination under any program or activity receiving Federal 

financial assistance.” 29 U.S.C. § 794(a). 

 Like the ADA, the Rehabilitation Act prohibits not only intentional 

discrimination, but any exclusion from equal participation on the basis of a 

disability. As the Supreme Court has noted, the legislative history of the 

Rehabilitation Act makes clear that Congress was responding to its determination 

that “[d]iscrimination against the handicapped was . . . most often the product, not 

of invidious animus, but rather of thoughtlessness and indifference—of benign 

neglect.” Alexander v. Choate, 469 U.S. 287, 295 (1985). 

 Because “[c]laims brought pursuant to the Rehabilitation Act are analyzed in 

essentially the same way as claims under the Americans with Disabilities Act,” 

Karlik v. Colvin, 15 F. Supp. 3d 700, 708 n.2 (E.D. Mich. 2014), summary 

judgment is appropriate on Plaintiffs’ Rehabilitation Act claim for the same 

reasons as for the ADA claim discussed in Part I above. There is no genuine issue 

of fact that Defendants have violated the Rehabilitation Act in excluding deaf and 

hard of hearing prisoners from equal participation in MDOC programs solely by 

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reason of their disability. Other courts have granted summary judgment for deaf 

and hard of hearing prisoners on Rehabilitation Act claims under similar 

circumstances. See, e.g., Clarkson, 898 F. Supp. at 1032; Pierce, 128 F. Supp. 3d 

at 284. This Court should do the same here. 

III. Necessary Relief

 Because there is no genuine issue of material fact that Defendants have 

violated the ADA and the Rehabilitation Act, the Court should award relief in the 

form of an order requiring MDOC to implement the full range of accommodations 

necessary for deaf and hard of hearing prisoners’ equal participation in MDOC 

services and programs. Accordingly, Plaintiffs seek an order: 

1. Entering summary judgment in favor of Plaintiffs on Counts I and II of the 

Complaint; 

2. Mandating that, at a minimum, MDOC: 

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

b) Provide necessary auxiliary aids for all deaf and hard of hearing 

prisoners to participate equally in prison programs and services, 

including consistent access to ASL interpreters for all high-stakes7

interactions and programs; 

 

7

 Including, but not limited to, unexpected medical emergencies, hospital visits, 

psychological evaluations, offender treatment programs, disciplinary/investigative 

proceedings, religious activities, and educational courses and evaluations. See Ex. 

Q, at 4 (Cokely Expert Report). 

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c) Implement in-cell visual notification systems for emergencies and 

routine announcements in all facilities housing deaf and hard of 

hearing prisoners; 

d) Institute mandatory training for MDOC’s correctional officers and 

other staff on how to identify and appropriately interact with deaf and 

hard of hearing prisoners; 

e) Adopt effective and comprehensive policies and procedures in each 

of the above areas; and 

f) Utilize an independent monitor to monitor compliance; and 

3. Requiring the parties to meet and confer in an attempt to agree on an 

appropriate consent order implementing the relief specified in No. 2 above, 

and to file such a proposed order (or, if necessary, Plaintiffs’ proposed order 

and Defendants’ objections) for this Court’s review and approval, within 60 

days of the Court’s granting this motion. 

CONCLUSION 

 For the foregoing reasons, Plaintiffs respectfully request that this Court grant 

their Motion for Summary Judgment on Counts I & II of the Complaint, and enter 

an order reflecting the relief specified in Part III above. 

Dated: March 17, 2017 Respectfully submitted 

/s/ Andrew D. Lazerow 

Andrew D. Lazerow 

Stephen C. Bartenstein 

Philip J. Levitz 

Covington & Burling LLP 

One CityCenter 

850 Tenth Street, NW 

Washington, DC 20001 

(202) 662-6000 

Attorneys for Plaintiffs 

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CERTIFICATE OF SERVICE 

I hereby certify that on March 17, 2017, I caused a true and correct copy of 

the foregoing Motion for Summary Judgment on Counts I & II and 

Incorporated Memorandum of Law to be served on all counsel of record via 

ECF. 

/s/ Andrew D. Lazerow 

 Attorney for Plaintiffs

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