Prison Phone Justice

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Pg ID 1

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

MARY ANN MCBRIDE; BRIAN
STANLEY WITTMAN; and RALPH
WILLIAMS, on behalf of themselves
and all others similarly situated,
PIa intiffs ,
v.

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

Case No. -------Hon.

_

CLASS ACTION COMPLAINT
FOR DECLARATORY AND
INJUNCTIVE RELIEF

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

Pg ID 2

Abraham Singer (P23601)
KITCH DRUTCHAS WAGNER
VALITUTTI & SHERBROOK

One Woodward Avenue, Suite 2400
Detroit, Michigan 48226-5485
Phone: (313) 965-7900
E-Mail: abraham.singer@kitch.com
Attorneys for Plaintiff

CLASS ACTION COMPLAINT
DECLARATORY

FOR
AND INJUNCTIVE RELIEF

Plaintiffs, through their counsel, state as follows:
1.

Plaintiffs Mary Ann McBride, Brian Stanley Wittman, and Ralph

Williams (collectively, "Plaintiffs") are deaf or hard of hearing inmates in the
custody of the Michigan Department of Corrections (the "Department" or
"MDOC"). While in MDOC custody, Plaintiffs have been denied the assistance
and accommodation that they require to effectively communicate and to
participate in MDOC programs, services, and activities, in violation of the
Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq.; the
Rehabilitation Act, 29 U.S.C. § 794 et seq.; the Religious Land Use and
Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc et seq.; and the
First and Fourteenth Amendments of the Constitution of the United States.

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Plaintiffs bring this action on behalf of themselves and all deaf or hard of hearing
persons who are or will be confined in Michigan's prisons.
2.

As a result of the above-captioned

Defendants'

("Defendants")

failure to provide the assistance required by prisoners who are deaf or hard of

hearing to effectively communicate, Plaintiffs have been excluded from a variety
of programs and activities offered by the Department, have been punished as a
result of their disabilities, and have otherwise suffered harm.
3.

Among the injuries suffered by Plaintiffs as a result of Defendants'

failure to provide for effective communication, and to provide other necessary
accommodations and assistance, Plaintiffs are unable to adequately maintain
contact with loved ones; have access to educational opportunities (including
academic classes, vocational training, and other programs) offered to prisoners;
access necessary medical care; participate in religious services; or access
telephone and television services. Because Defendants have failed to provide
them adequate assistance, Plaintiffs are forced to serve their time largely isolated
from, and unable to effectively communicate with, other individuals.
4.

For example, Defendants do not allow Plaintiffs to use videophones,

a standard method of telecommunication for speakers of American Sign Language
("ASL").

At some MDOC correctional facilities, Defendants provide

telecommunications devices for the deaf ("TDDs"), also known as teletypewriters

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("TTY s"), which are electronic devices for text communication via a telephone
line that attempt to enable people with hearing and speech disabilities to
communicate by telephone.

But TDDs and TTY s are archaic devices based on

fifty-year-old technology, cannot connect to videophones, and are not a viable
means to communicate for many ASL speakers for whom written English is a
second language.

Without access to a videophone,

Plaintiff McBride, for

example, is unable to communicate with her deaf friends and relatives outside of
prison, including her two brothers.
5.
services.

Defendants

have been denied access to interpreters

for critical

For example, Plaintiff Wittman's requests for an interpreter during

medical visits have been repeatedly denied, and he

IS,

therefore, unable to

communicate effectively with medical professionals.
6.

Defendants' failure to accommodate Plaintiffs' disabilities has

resulted in improper disciple being inflicted on Plaintiffs. For example, Plaintiffs
have been disciplined for not following orders that they could not hear. Plaintiffs
also have been unable to defend themselves in hearings or proceedings stemming
from disciplinary charges brought against them, because they could not effectively
communicate with hearing officers and investigators. Some prison officers even
single out deaf and hard of hearing inmates for unequal, abusive, and demeaning
treatment due to their disability.

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7.

Pg ID 5

On one occasion, Plaintiff Williams was not allowed use of his

hearing aid during a misconduct hearing.

As a result of this proceeding during

which he was unable to hear or communicate, Mr. Williams was forced to serve
40 days in solitary confinement, also without being permitted access to his hearing
aid.
8.

Defendants' failure to accommodate Plaintiffs' disabilities properly

has jeopardized Plaintiffs' safety. For example, Defendants have not ensured that
visual safety alerts, such as fire alarms and alarms signaling
lockdowns, are accessible to Plaintiffs.

emergency

Defendants' failure to provide Plaintiffs

the assistance they need means that Plaintiffs are forced to rely on other prisoners
on a daily basis, placing them in constant danger of exploitation and physical and
verbal abuse by those prisoners.
9.

Defendants'

systematic failure to provide deaf or hard of hearing

prisoners the assistance they require improperly infringes upon the rights of all
deaf or hard of hearing prisoners in MDOC custody.

Plaintiffs, therefore, seek

class-wide declaratory and injunctive relief requiring Defendants to provide the
assistance necessary for prisoners who are deaf or hard of hearing to adequately
participate in programs and services and to enjoy equal rights as hearing prisoners
while incarcerated, and enjoining Defendants from denying equal rights to deaf or

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hard of hearing pnsoners as a result of their disabilities, or punishing them
because of their disabilities.
JURISDICTION
10.

AND VENUE

This Court has jurisdiction over this action pursuant to 28 U.S.C. §

1331 because this action arises under the Constitution and laws of the United
States, and pursuant to 28 U.S.C. § 1343(a)(3) because this action seeks to redress
the deprivation, under color of state law, of Plaintiffs' civil rights.
11.

This Court has jurisdiction to grant declaratory relief pursuant to 28

U.S.C. §§ 2201 and 2202 and Fed. R. Civ. P. 57.
12.

This Court has jurisdiction to grant injunctive relief pursuant to Fed.

R. Civ. P. 65.
13.

This Court has personal jurisdiction over each of the Defendants.

MDOC is a Michigan state agency, and the other Defendants all reside and/or
work in Michigan.
14.

Venue of this action lies in this judicial district pursuant to 28 U.S.C.

§ 1391(b) because some of the Defendants live in the district, a substantial part of
the events giving rise to claims herein occurred within the district, and all
Defendants are residents of Michigan.

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PARTIES
A.

15.

Plaintiffs

Named Plaintiffs Mary Ann McBride, Brian Stanley Wittman, and

Ralph Williams are individuals with a hearing disability currently incarcerated at
facilities under MDOC's custody and control.
16.

Mary Ann McBride is a 51-year-old woman currently incarcerated at

the Women's Huron Valley Correctional Facility ("WHY"), an MDOC
correctional facility located at 3201 Bemis Road, Ypsilanti, Michigan 481970911. Ms. McBride has been at WHY for the past five years. She has been
completely deaf since birth. She communicates primarily through ASL. She also
can read and write in English.
17.

Brian Stanley Wittman is a 45-year-old male currently incarcerated at

the Carson City Correctional Facility ("DRF"), an MDOC correctional facility
located at 10274 Boyer Road, Carson City, Michigan 48811. Mr. Wittman has
been at DRF for four years. He became deaf at age 22 as a result of a surgery he
underwent in the United States Marines Corps. He suffered a bilateral, profound
loss of hearing, which has grown progressively worse over time. Mr. Wittman has
a cochlear implant. His ability to hear with the implant varies depending upon
environmental factors, such as the weather and ambient noise, and sound
frequency.

Mr. Wittman has a difficult time hearing women's voices.

7

Mr.

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Wittman is best able to understand oral communication when he is speaking with
someone face-to-face.

Under these conditions, Mr. Wittman can sometimes

comprehend speech by supplementing his compromised hearing abilities with lip
reading.

He has also learned basic ASL.

During time periods in which his

implant is broken, Mr. Wittman's ability to communicate is minimal.
18.

Ralph Williams is a 59-year-old

male currently serving a life

sentence at the Chippewa Correctional Facility ("URF"), an MDOC correctional
facility located at 4269 W. M-80, Kincheloe, Michigan 49784. Mr. Williams has
been at URF for approximately two years. He lost most of his hearing in his left
ear in 1977 due to an injury he suffered in the United States Army. He currently
wears a hearing aid on his left ear.

More recently, Mr. Williams also has

developed substantial hearing loss in his right ear. Mr. Williams is learning basic
ASL from other inmates.

B.

Defendants
1.

19.
supervision

State Agency Defendant

Defendant MDOC is the Michigan state agency responsible for the
and custody of approximately

MDOC operates

33 correctional

individuals under MDOC's

43,000

incarcerated

facilities throughout

supervision

and custody.

Michigan

individuals.
that house

MDOC, through the

Correctional Facilities Administration ("CF A"), is responsible for the operations

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of Michigan's prison system and oversight of the State's 33 correctional facilities,
including,

inter alia, managing

and

coordinating

educational

and work

programming at MDOC facilities, and coordinating and monitoring healthcare
services for inmates of MDOC facilities.

MDOC's administrative offices are

located at 206 East Michigan Avenue, Grandview Plaza, Lansing, Michigan
48933.
2.
20.

Defendants Sued in Their Official Capacities

Defendant Daniel H. Heyns is the Director of MDOC.

Defendant

Heyns is responsible for directing the administration of Michigan's correctional
system, which includes MDOC. On information and belief, Defendant Heyns is
aware of MDOC' s treatment of deaf and hard of hearing individuals.
21.

Defendant Thomas Finco is MDOC's Deputy Director of CFA. As

the head of CFA, Defendant Finco is responsible for the operation and oversight
of MDOC correctional facilities, including the management and coordination of
the

facilities'

monitoring

educational
of

healthcare

and work
services

administering MDOC's policies.

programming,
for

inmates,

the coordination
and

promulgating

and
and

On information and belief, Defendant Finco is

aware of MDOC' s treatment of deaf and hard of hearing individuals.
22.

Defendant Randall Treacher is the Chief Deputy Director of MDOC.

Defendant Treacher is responsible for MDOC's day-to-day operations, including,

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inter alia, the direct supervision of Defendant Finco, and the operation and
oversight of MDOC's

Bureau of Health Care Services, which coordinates,

manages, and delivers healthcare services to individuals in MDOC's custody, and
responds

to healthcare-related

grievances

filed by such individuals.

information and belief, Defendant Treacher is aware ofMDOC's

On

treatment of deaf

and hard of hearing individuals.
23.

Defendant Anthony Stewart is the warden of WHY.

As Warden,

Defendant Stewart is the legal custodian of all individuals incarcerated at WHY,
and is responsible for their safe, secure, and humane treatment.

On information

and belief, Defendant Stewart is aware of WHY's treatment of deaf and hard of
hearing individuals at WHY, and he is aware of specific written grievances by
deaf and hard of hearing individuals at WHY regarding the violation of their
rights.
24.

Defendant Jeffrey Woods is the warden of URF.

As Warden,

Defendant Woods is the legal custodian of all individuals incarcerated at URF,
and is responsible for their safe, secure, and humane treatment.

On information

and belief, Defendant Woods is aware of URF's treatment of deaf and hard of
hearing individuals at URF, and he is aware of specific written grievances by deaf
and hard of hearing individuals at URF regarding the violation of their rights.

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25.

Pg ID 11

Defendant Cathleen Stoddard is the warden of DRF.

As Warden,

Defendant Stoddard is the legal custodian of all individuals incarcerated at DRF,
and is responsible for their safe, secure, and humane treatment.

On information

and belief, Defendant Stoddard is aware of DRF's treatment of deaf and hard of
hearing individuals at DRF, and she is aware of specific written grievances by
deaf and hard of hearing individuals at DRF regarding the violation of their rights.
26.

At all relevant times, Defendants were acting under color of state

law, pursuant to their authority as officials, agents, contractors, or employees of
the State of Michigan; within the scope of their employment as representatives of
public entities, as defined in 42 U.S.C. § 12131(1); and as representatives of a
"department, agency, special purpose district, or other instrumentality of a State"
under 29 U.S.C. § 794(b).
STATEMENT OF FACTS
27.

For years, MDOC has failed to provide the deaf and hard of hearing

inmates housed at its facilities the accommodations that are required by Title II of
the Americans

with Disabilities

Act ("ADA")

and

Section

504 of the

Rehabilitation Act of 1973 ("Section 504").
28.

Defendants

are aware of their obligations

under federal laws.

Nevertheless, Defendants have not remedied their past pattern and practice of
discrimination

and continue to discriminate against deaf and hard of hearing

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individuals.

On information

and belief, Defendants

detailed policies or procedures
the accommodations

Pg ID 12

have not implemented

any

specific to deaf and/or hard of hearing inmates and

they require at all MDOC facilities, nor have they issued any

manuals or other guidance

documents

on the subject within at least the last five

years.
29.

On

information

and

facilities that are not appropriate
nonetheless
example,

belief,

Defendants

have

identified

certain

for deaf and hard of hearing inmates, but have

housed some deaf and hard of hearing inmates at those facilities.
Mr. Williams

Defendants

themselves

resides at URF even though, on information
have not identified

URF as appropriate

For

and belief,

to house deaf or

hard of hearing inmates.
30.
different

Defendants
areas:

engage in disability-based

(i) inadequate

access

to telecommunications;

access to auxiliary aids and services; (iii) inadequate
alerts and announcements;
proceedings;

(iv) ineffective

and (v) unequal treatment

discrimination

in at least five
(ii) inadequate

visual notification

communication

during

of prison

disciplinary

of deaf and hard of hearing inmates by

prison officers.
A.

31.

Inadequate

Access to Telecommunications

The telecommunication services that MDOC provides deaf and hard

of hearing individuals in its custody in order for them to communicate with

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family, friends, and other individuals

outside of pnson

IS

Pg ID 13

inferior to the

telecommunication services provided to hearing inmates.
32.

Telecommunications

are very important to individuals in MDOC's

custody because they foster the family and community ties that are fundamental to
motivate inmates to improve themselves and to prepare them to make a positive
transition back to civilian life once their sentence is complete.
33.

The Federal Communications Commission ("FCC") has recognized

that inmate access to telephone services at fair, just, and reasonable rates "benefits
society by making it easier for inmates to stay connected to their families and
friends."

79 Fed. Reg. 69682 (Nov. 21, 2014). According to the FCC, "family

contact during incarceration
"[l]ower recidivism

is associated with lower recidivism rates," and

means fewer crimes, decreases the need for additional

correctional facilities, and reduces the overall costs to society." Id. Inmate access
to telephone services "also helps families and the estimated 2.7 million children of
incarcerated parents in our nation, an especially vulnerable part of our society. In
addition to coping with the anxiety associated with a parent who is not present on
a daily basis, these young people are often suffering severe economic and personal
hardships and are often doing poorly in school, all of which are exacerbated by the
inability to maintain contact with their incarcerated parent." Id.

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34.

Pg ID 14

Most deaf and hard of hearing MDOC inmates cannot use traditional

telephones to communicate with individuals outside of prison.
1.
35.

Telecommunications Devices for the Deaf

The only telecommunications

methods for deaf inmates available at

MDOC, which are provided on a limited basis and only by some MDOC facilities,
are telecommunications

devices for the deaf ("TDDs").

TDDs are electronic

devices for text communication via a telephone line to enable people with hearing
and speech disabilities to communicate by telephone.
teletypewriters

("TTY s").

Based on fifty-year-old

TDDs are also called
technology, the TDD is

basically a telephone equipped with a keyboard and a screen that displays text.
For two parties to have a direct TDD conversation, each party must have a TDD.
TDDs cannot connect to a videophone.
36.

The TDD is inferior, outdated technology

effective communication

that does not allow

for most deaf people, and most people in the deaf

community do not use or own one. Deaf individuals in the United States who use
ASL have abandoned TDD technology, and now primarily utilize videophones.
37.

Some deaf and hard of hearing inmates who do not know ASL still

require provision of TDDs in order to achieve access to telecommunication
services.

Not every facility has TDD services, and the ones that do are wholly

inadequate for named Plaintiffs and class members to communicate effectively.

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38.

Pg ID 15

For example, the TDD at WHY functions poorly. Ms. McBride has

never been able to place an outgoing phone call through the use of the device. But
even if the TDD functioned

properly, Ms. McBride

could not use it to

communicate with her deaf friends and relatives, including her two brothers. The
TDD direct-messaging system works only if both the caller and recipient have
access to a TDD device. Ms. McBride's friends and family, like most deaf and
hard of hearing persons, rely on the use of videophones instead of TDDs.

On

information and belief, communicating with friends and family outside WHY is
also difficult and frustrating for hard of hearing inmates who are unable to hear
voices over the telephone.
39.

Likewise, the TDD service at DRF is inadequate. The service is cost

prohibitive.

On information

and belief, use of the TDD costs an inmate

approximately five times the rate of a traditional telephone call, or roughly $23 for
a ten-minute

call.

Furthermore,

it takes approximately

twice as long to

communicate using a TDD than it does to communicate orally in a traditional
telephone call. Thus, it is approximately ten times as expensive for an inmate at
DRF to communicate via TDD rather than through a traditional telephone call.
TDD access is at DRF's discretion.
40.

It is very difficult for Mr. Wittman, for example, to communicate

through a traditional telephone.

Mr. Wittman must ask the other caller to repeat

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himself frequently; the process is "tedious."
DRF's TDD as a result of its high cost.

Pg ID 16

Further, Mr. Wittman does not use
As a result, Mr. Wittman essentially

cannot communicate with family members through oral communication, and is
instead confined to written correspondence.
41.

Mr. Williams, for example, cannot use a traditional telephone to

communicate with friends and family because he cannot hear the person on the
other end of the telephone line. On information and belief, URF currently has no
TDD device, no videophone, and no telephone amplifier.
2.
42.

Videophones

Videophones

and free or low-cost

internet-based

video

links

(collectively, "videophones") are replacing TDDs in the deaf and hard of hearing
community

because

they allow deaf and hard of hearing

individuals

to

communicate with one another directly in ASL, without having to communicate
through written English, a language in which it is difficult for some of them to
communicate.

When using a videophone, callers can see each other, usually over

an internet connection. As a result, many deaf households no longer own a TDD
and have no way to accept a TDD call, as they rely exclusively on videophones
for telecommunication.
43.

Deaf individuals usmg videophones can also call a Video Relay

Service ("VRS") to place calls to people who do not understand ASL or do not

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Pg ID 17

have a videophone. The mechanics of VRS are very similar to those of traditional
TDD relay service-the

caller is routed to an interpreter, the caller gives the

interpreter the number of the party he is trying to reach, and the interpreter then
interprets the conversation into spoken English.
44.

Videophones and VRS permit deaf people to use ASL instead of

having to carry out every telephone call in written English through a TDD. Due to
the fact that TDDs rely on written communications,

they are by nature an

unsatisfactory and ineffective means of communication for many deaf individuals.
Writing usually does not provide effective communication for a deaf individual.
English is generally considered a second language for most deaf persons who
became

deaf

before

acquiring

language-ASL

is their

native

language.

Additionally, many deaf people acquire English as their second language much
later in life. Therefore, the English reading and writing skill level of many deaf
individuals, including those incarcerated at MDOC institutions, is generally much
lower than that of hearing people.
45.

Provision of videophones would also ensure that deaf inmates could

place telephone calls to deaf family and friends, the vast majority of whom no
longer have TDD devices.
46.

Deaf individuals in Defendants' custody have repeatedly requested

videophone access, but have been denied this access.

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47.

Pg ID 18

On information and belief, Defendants do not provide access to

videophones at any of the MDOC facilities throughout Michigan.
48.

Videophone technology would enable Ms. McBride, Mr. Wittman,

Mr. Williams, and other class members to communicate with family, friends, and
other parties outside of the MDOC facilities in which they are housed.
3.
49.

Other Telecommunication Issues

Some inmates housed in Michigan prisons are hard of hearing but not

profoundly deaf. Certain of these hard of hearing inmates can use a traditional
telephone provided the telephone has either an internal or external amplification
speaker.
50.

For example, a telephone amplifier would allow Mr. Wittman to

communicate with his family by phone.
amplifier,

He has requested access to such an

but DRF denied the request, claiming that the technology

was

incompatible with existing telephone handsets.
B.

51.

Inadequate

Access to Auxiliary Aids and Services

Individuals in the custody of MDOC are wholly dependent on

MDOC and prison staff for all of their basic daily needs, including food, exercise,
and safety. Such individuals rely on MDOC for medical, dental, educational,
mental health, employment, and religious services, among other services. Deaf
and hard of hearing individuals in the custody of MDOC are also dependent on

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Pg ID 19

MDOC to provide hearing devices, interpreter services, and other auxiliary aids
and services to be able to hear prison alerts, participate in all aspects of prison life,
and avoid exploitation from other inmates.
1.
52.

Hearing Devices

MDOC has consistently failed to provide deaf and hard of hearing

individuals in its custody with individual hearing devices that would enable them
to hear prison alerts or participate in other aspects of prison life.
53.

On information and belief, MDOC has refused to provide individual

hearing aids to deaf and hard of hearing inmates that would benefit from them at
its facilities throughout Michigan.

For example, even though Mr. Williams has

developed substantial hearing loss in his right ear, URF has denied his requests to
have an audiologist examine his right ear, as well as his requests for a hearing aid
for that ear.
54.

MDOC also sometimes prevents individuals in its custody from

having access to hearing aids that they own. For example, on one occasion Mr.
Williams was made to serve 40 days in solitary confinement without being
permitted access to his hearing aid. During this time Mr. Williams's ability to
hear and communicate was minimal.
55.

Further, MDOC has prevented individuals in its custody from taking

steps necessary to fix broken hearing devices promptly.

19

For example, on one

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Pg ID 20

occasion when the battery in Mr. Williams's hearing aid failed, it took two weeks
for Mr. Williams to receive a new battery.
56.

More egregiously, in 2012, an inmate assaulted Mr. Wittman and

broke his cochlear implant, and it took approximately four months to get it fixed.
Mr. Wittman's

cochlear implant broke again in December 2013, and it took

approximately three months to get it fixed.

Both times Mr. Wittman received

resistance from DRF staff when he requested that staff ship the implant out to be
fixed by its manufacturer, Cochlear Americas.

Initially, DRF took the position

that the implant was a personal device, not a medical one, and that DRF had no
responsibility

to facilitate its repair.

On information

and belief, the U.S.

Department of Veterans Affairs ("VA"), not DRF, has covered all costs for the
repair of Mr. Wittman's implant.
57.

In another instance, in July 2014, Mr. Wittman sent out the FM

transmitter/receiver

used with his cochlear implant for repairs by the VA. Even

after this medical equipment was repaired by the VA and returned to MDOC's
custody, Mr. Wittman did not receive the equipment for 53 days, despite making
repeated requests to MDOC officials for their help in locating it. Mr. Wittman
was told that prison officials were waiting for the equipment to be cleared by
superiors in MDOC.

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58.

Mr.

transmitter/receiver

Wittman

has

made

repeated

requests

Pg ID 21

to

have

the

for his cochlear implant listed along with his other property

on his property card to avoid similar situations in the future, but these requests
have been ignored. Mr. Wittman also wrote a letter to Defendant Finco requesting
that a policy be put in place to cover the repair and return of medical equipment
like his cochlear implant and its transmitter/receiver.

Mr. Wittman received a

response stating that MDOC was not interested in enacting such a policy because
Mr. Wittman's case was a rare instance.
59.

During time periods in which his implant and/or its related equipment

are broken, Mr. Wittman's ability to communicate is minimal. He has to observe
other inmates closely, and follow them to ensure he is in the right place at the
right time. This increases the danger that Mr. Wittman faces of exploitation and
verbal and physical abuse from other inmates.

In fact, on one occasion, Mr.

Wittman was "jumped" from behind by another inmate due to his inability to hear
the approach of his assaulter.
2.
60.

Sign Language Interpreter Services

For deaf or hard of hearing individuals who rely on ASL as their

primary form of communication, use of a qualified ASL interpreter is necessary to
ensure effective communication between a deaf or hard of hearing individual and
an individual who does not use ASL to communicate.

21

2:15-cv-11222-SFC-DRG Doc # 1 Filed 03/31/15 Pg 22 of 51

61.

Pg ID 22

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

is not simply English in hand signals. It has its

language distinct from English-it

own vocabulary, and its own rules for grammar and syntax.
62.

As noted

above,

writing

communication for a deaf individual.

usually

does not provide

effective

English is generally considered a second

language for most deaf persons who became deaf before acquiring languageASL is their native language. Also, several deaf people acquire English as their
second language later in life-past

the critical period of language acquisition.

Therefore, the English reading and writing skill level of many deaf individuals,
including those incarcerated at MDOC, is generally much lower than that of
hearing people.
63.

Lip-reading usually does not provide effective communication for a

deaf individual and is generally far less effective than written communication.

It

is extremely difficult to lip-read English because only a small fraction of the
sounds used in the language are clearly visible on the mouth, and many sounds
that are visible look identical on the lips. In addition to these difficulties in lipreading, the ability to accurately lip-read is affected by the speaker's facial bone
structure, facial musculature, facial hair, lighting, and other external factors.

22

2:15-cv-11222-SFC-DRG Doc # 1 Filed 03/31/15 Pg 23 of 51

Pg ID 23

Moreover, even if an ASL user were able to understand the sounds appearing on a
speaker's

lips, for the reasons discussed above, he would not necessarily

understand the English language or the vocabulary the speaker was using.
64.

Thus, provision of qualified sign language interpreter services IS

necessary to allow deaf individuals who use ASL in MDOC's custody and under
MDOC's supervision to communicate effectively with MDOC officials, MDOC
employees, and medical personnel.
65.

Defendants

fail to provide

adequate

interpreters for deaf individuals m MDOC's

access to SIgn language

custody and control and under

MDOC's supervision.
66.

On information and belief, Defendants do not provide adequate

access to sign language interpreters at MDOC facilities throughout Michigan.

a)
67.

Interpretersfor Access to Medical Services

Defendants are responsible for the medical care of all individuals

incarcerated by MDOC.
68.

Deaf individuals who rely on ASL require sign language interpreters

to communicate effectively with medical staff.
69.

Deaf and hard of hearing inmates at WHY purportedly share access

to an ASL interpreter for two hours each Wednesday and Friday, but this is an
inadequate amount of time. Further, on information and belief, weeks can go by

23

2:15-cv-11222-SFC-DRG Doc # 1 Filed 03/31/15 Pg 24 of 51

Pg ID 24

when there are no ASL interpreters at all. In addition, this limited schedule of
ASL services does nothing in cases of medical emergencies. For example, for one
medical emergency, Ms. McBride had to communicate with medical staff by
pointing at a diagram of the human body and scrawling out messages.
70.

DRF provides no ASL interpreters in at least the unit of the facility

where Mr. Wittman is housed, the (security) Level I unit.

Mr. Wittman has

specifically requested an interpreter for meetings with prison staff and medical
visits, but DRF has denied the requests. For example, no interpreter was present
at a recent medical visit by Mr. Wittman, and Mr. Wittman therefore had to
communicate about his health by passing notes back and forth. Likewise, DRF
denied Mr. Wittman's requests for access to an interpreter when his cochlear
implant was broken, and his ability to communicate was therefore minimal.
71.

On information

and belief,

other MDOC

facilities

throughout

Michigan also do not provide adequate access to interpreters for inmates' medical
appointments.

b)
72.

Interpretersfor Access to Prison Programs

Defendants

provide

educational,

mental health, and counseling

programs for individuals in MDOC's custody.
73.

WHY

programming,

frequently

fails

to

provide

an interpreter

for

inmate

such as career workshops, unit meetings, and educational and

24

2:15-cv-11222-SFC-DRG Doc # 1 Filed 03/31/15 Pg 25 of 51

business courses.

Pg ID 25

For example, pnson staff have instructed Ms. McBride to

request an interpreter for these programs, but the programs are often announced
only days ahead of time. This leaves Ms. McBride insufficient time to request and
obtain approval for an interpreter.

Even when Ms. McBride requests an

interpreter for an event, these requests often are not granted. In the rare case that a
request is granted, Ms. McBride often is not made aware that the interpreter will
be at the event prior to its start, and thus may not know to attend.
74.

On information

and belief,

other MDOC

facilities

throughout

Michigan also do not provide adequate access to interpreters for educational and
business courses, and other inmate programming.

c)
75.

Interpretersfor Religious Services

WHY does not provide an interpreter for religious services which, for

example, Ms. McBride would like to attend but cannot understand without an
interpreter. There are volunteer interpreters at religious services for some (but not
all) faiths. For example, there are sometimes volunteer interpreters at Jehovah's
Witnesses services held at WHY.

However, there are typically no volunteer

interpreters at Protestant services held at WHV, which Ms. McBride would like to
attend but does not because she cannot understand them.

25

2:15-cv-11222-SFC-DRG Doc # 1 Filed 03/31/15 Pg 26 of 51

76.

Pg ID 26

DRF also does not provide interpreters for religious services, which

Mr. Wittman, for example, would like to attend but has difficulty understanding
without an interpreter.
77.

On information

and belief, other MDOC

facilities

throughout

Michigan also do not provide adequate access to interpreters for religious services.
3.
78.

Other Auxiliary Aids

Other auxiliary aids and services are also necessary to ensure the

effective participation of deaf and hard of hearing inmates in all aspects of prison
life.
79.

For example, television programming available to inmates at MDOC

facilities can be made accessible to those with hearing impairments through
captioning.

Captioning can be either open (viewable by all viewers) or closed

(viewable only by those who opt to activate the caption chip within every
television).
80.

On information and belief, officers at MDOC facilities frequently

refuse to tum on captioning for deaf or hard of hearing inmates that request it. For
example, officers at DRF regularly refuse to turn on closed captioning for Mr.
Wittman when he requests it because they believe, mistakenly, that Mr. Wittman
can hear everything with his cochlear implant. At WHY closed captioning is left
on for some televisions, but not the television in the facility's fitness area.

26

2:15-cv-11222-SFC-DRG Doc # 1 Filed 03/31/15 Pg 27 of 51

Pg ID 27

Officers at WHY have told Ms. McBride that it is not their job to ensure that there
is closed captioning.

c.
81.

Access to Visual Notification of Alerts and Announcements
MDOC institutions do not have effective systems for public address

or audio alerts and announcements for deaf and hard of hearing inmates, thereby
creating serious safety risks and other harms.
82.

MDOC facilities lack effective visual systems for notifying deaf and

hard of hearing inmates about alarms and announcements, and the systems they do
have function poorly or are used only sporadically.
83.

For example, WHY lacks an effective system of notification lights or

signs for notifying Ms. McBride and other deaf and hard of hearing inmates.
WHY has a single, red notification light outside the officer's station m the
facility's Gladwin Housing Unit B. This light is sometimes used to announce
inmate "count time"-officers

sometimes tum the light on when count starts and

off when count is over. The light is not used for any other purpose. In addition,
officers sometimes use signs to instruct inmates to form lines for medicine or
food, or to notify inmates of an emergency or lockdown. But they use these visual
cues only occasionally, and the signs are only visible in certain parts of the
facility. Ms. McBride cannot see the signs or the single, red notification light in
her cell or in the television room, for example.

27

2:15-cv-11222-SFC-DRG Doc # 1 Filed 03/31/15 Pg 28 of 51

84.

Pg ID 28

On information and belief, WHY has issued pagers to approximately

six deaf and hard of hearing inmates, including Ms. McBride, to help the facility
notify these inmates of alarms and announcements.
sporadically, however.

WHY uses the pagers only

Although officers are supposed to send pages during

emergencies, Ms. McBride has not received pages for emergencies or alarms such
as fire drills. For example, there were at least two fire drills held in December
2014, and Ms. McBride did not receive any page for either fire drill.

On

information and belief, other inmates have similarly not been sent pages for
alarms or mobilizations.

In addition, pages have often arrived too late to be of

benefit. On information and belief, this is because the officers sending them fail
to account for the time lapse between the moment they send the page and the
moment the page arrives at the inmate's pager.
85.

Because WHY has not instituted an effective system of visual

notification for alarms or announcements, Ms. McBride, for example, must try to
rely on other inmates to show her where to go and when, or observe other inmates
and follow them around the facility in an attempt to comply with instructions she
cannot hear.
86.

Problems suffered by Mr. Wittman relating to his cochlear implant

provide another example.

When Mr. Wittman's cochlear implant is working

properly, he can hear alarms and announcements

28

at DRF.

But the noisy

2:15-cv-11222-SFC-DRG Doc # 1 Filed 03/31/15 Pg 29 of 51

environments

common within DRF interfere frequently

functioning-a

fact the officers do not understand or acknowledge.

87.

Pg ID 29

with the implant's

Mr. Wittman could not hear alarms or announcements at DRF when

his implant was broken in 2012 (for approximately four months) and 2013 (for
approximately three months).

Furthermore, Mr. Wittman removes the implant

when he goes to sleep, which makes him unable to hear. Because the unit of DRF
in which Mr. Wittman resides does not have any system of visual notification to
notify him of an alarm or announcement, he must try to rely upon his bunkmate to
inform him of emergencies and announcements when he is in his bunk and his
implant is removed and/or broken, which is clearly inadequate.
88.

Mr. Williams' hearing disability, for example, severely impairs his

ability to communicate within URF. He removes his hearing aid when he goes to
sleep, which makes him unable to hear. URF does not have any system of visual
notification to alert deaf or hard of hearing inmates of alarms or announcements.
Mr. Williams must therefore try to rely upon his bunkmates to inform him of
instructions from officers or messages broadcast over the prison's speaker system,
which is clearly inadequate.
89.

In the two-week period that Mr. Williams' hearing aid did not have a

functioning battery, Mr. Williams had to rely on other inmates to alert him to
where he was supposed to be and when, exposing him to an increased risk of

29

2:15-cv-11222-SFC-DRG Doc # 1 Filed 03/31/15 Pg 30 of 51

exploitation and verbal and physical abuse from other inmates.

Pg ID 30

URF has no

system of signage, posters, or monitors to provide visual displays of warnings or
other announcements.
D.
90.

Failure to Provide Effective
Disciplinary Proceedings

Communication

at Parole

and

Deaf and hard of hearing inmates are subjected to disciplinary

proceedings and parole hearings without effective communication.
91.

For example, on information and belief, at least one hard of hearing

inmate was not provided an interpreter for her recent parole hearing. The hearing
was held by an examiner via teleconference.

This inmate agreed to proceed with

the hearing despite not being able to communicate
interpreter.

effectively without an

Although this inmate believes that the hearing examiner may have

been willing to postpone her hearing if she demanded it, such a postponement
could have delayed her release date from prison because parole hearings can take
a long time to schedule.
92.

When inmates violate the rules and regulations of MDOC facilities,

they undergo disciplinary proceedings conducted by hearing officers.

Inmates

have an opportunity to defend themselves, to learn the allegations against them,
and to understand the parameters of their punishment.
93.

During these proceedings, deaf and hard of hearing inmates may be

punished even when they do not understand the charges against them or the

30

2:15-cv-11222-SFC-DRG Doc # 1 Filed 03/31/15 Pg 31 of 51

Pg ID 31

parameters of their punishment, as a result of their disability. Moreover, inmates
are denied the ability to defend themselves when they cannot hear what is
happening during the hearings.
94.

When they are denied interpreters and/or assistive listening devices

or other auxiliary aids or services, deaf and hard of hearing inmates are unable to
hear the officer conducting the proceeding, the allegations against them, or any of
the results of the proceeding.

They are disciplined without complete knowledge

of the claims against them or the length of their punishment.
95.

On one occasion, for example, officers at URF took Mr. Williams

from his cell at night, and placed him in solitary confinement.

Mr. Williams

requested his hearing aid, which he was not wearing at the time officers removed
him from his cell. The officers did not honor his request, and Mr. Williams was
forced to appear at a misconduct hearing without the hearing aid. As a result of
the proceeding-during
communicate-URF

which Mr. Williams was completely unable to hear or
ordered that Mr. Williams

serve 40 days in solitary

confinement.
96.

Furthermore, DRF did not allow Mr. Wittman access to an interpreter

when he appeared in front of a hearing officer to contest a ticket issued to him for
a disciplinary infraction.

31

2:15-cv-11222-SFC-DRG Doc # 1 Filed 03/31/15 Pg 32 of 51

E.
97.
recognize

Unequal and Improper

Treatment

by Officers

Officers at MDOC facilities throughout
the

difficulty

that

deaf

and

Pg ID 32

hard

of

Michigan often do not
hearing

inmates

have

communicating, and refuse to interact with such inmates in a way that makes it
possible to communicate.

Some officers even single out deaf and hard of hearing

inmates for abusive treatment due to their disability.
98.

On information and belief, MDOC facilities throughout Michigan

typically do not train officers on how to interact with deaf and hard of hearing
individuals, nor do they adequately notify new officers of which inmates suffer
from such impairments.
99.

Officers at WHY are often insensitive to Ms. McBride's disability,

and some are cruel.

In the past they have mocked her inability to hear, and

attempted to humiliate her in front of other inmates.

Others do not realize or

acknowledge Ms. McBride's deafness. Officers occasionally yell at her or cite her
for misconduct when she fails to respond to instructions that she did not hear.
100.
McBride.

Communication

within

WHY

None of the officers know ASL.

is extremely

difficult

for Ms.

To communicate with them, Ms.

McBride attempts to write messages on a notepad. Many of the officers refuse to
write back, however. They insist that Ms. McBride read their lips, which is often
impossible.

32

2:15-cv-11222-SFC-DRG Doc # 1 Filed 03/31/15 Pg 33 of 51

Pg ID 33

101. On information and belief, officers at WHY also will sometimes
scream at deaf and hard of hearing inmates in an attempt to communicate with
them because they do not understand the limitations on their hearing abilities.
CLASS ACTION ALLEGATIONS
102. Plaintiffs McBride, Wittman, and Williams bring this Complaint on
their own behalves and on behalf of a class of persons similarly situated (the
"Class"), pursuant to the provisions of Fed. R. Civ. P. 23(b)(2).
103. Plaintiffs seek to certify a class of all deaf or hard of hearing inmates
who currently are or will in the future be within the custody or supervision of
MDOC, and who primarily rely on ASL and/or require hearing devices, auxiliary
aids, or other services for in-person communication, and/or to hear or understand
telephone communications or loudspeaker system announcements or alarms.
104. The Class is so numerous, and membership so fluid, that joinder of
all members is impracticable.

On information and belief, there are currently over

110 deaf and hard of hearing inmates in the Class. Further, the Class is readily
identifiable from information and records in the possession of Defendants.
105. Numerous common questions of law and fact exist as to all members
of the Class. These common questions include, but are not limited to: whether
Defendants systematically fail to provide adequate access to telecommunications
services,

individual

hearing

devices,

sign language

33

interpreters,

and other

2:15-cv-11222-SFC-DRG Doc # 1 Filed 03/31/15 Pg 34 of 51

Pg ID 34

auxiliary aids and services to individuals who are deaf or hard of hearing; whether
Defendants' conduct has resulted in harm, and may result in serious future harm,
to deaf or hard of hearing individuals by denying them effective communication
with medical personnel; whether Defendants have caused harm, and may cause
serious future harm, to deaf or hard of hearing individuals by failing to provide
notification

to them of prison warnings

and announcements

in a manner

comparable to that provided to hearing individuals in MDOC's custody; whether
Defendants systematically fail to provide individuals who are deaf or hard of
hearing with access to services, programs, or privileges comparable to access
provided to hearing individuals in MDOC's custody; whether MDOC and named
Defendants Heyns, Finco, Treacher, Stewart, Woods, and Stoddard impose a
substantial burden on individuals' religious exercise who are deaf or hard of
hearing; and whether MDOC and named Defendants Heyns, Finco, Treacher,
Stewart, Woods, and Stoddard fail to provide adequate means for deaf or hard of
hearing individuals to communicate with individuals outside of MDOC facilities.
106. Plaintiffs' claims are typical of the claims of the members of the
Class.

The policies and practices described in this Complaint, or lack thereof,

apply equally to the named Plaintiffs and to all the other members of the Class,
and the injuries suffered by the named Plaintiffs stem from the same policies and
practices that affect all members of the Class.

34

2:15-cv-11222-SFC-DRG Doc # 1 Filed 03/31/15 Pg 35 of 51

Pg ID 35

107. Plaintiffs and Plaintiffs' counsel will fairly and adequately protect
and represent the interests of the Class. Plaintiffs' interests are consistent with,
and are not antagonistic to, the interests of the Class as a whole.

Plaintiffs'

counsel are experienced in the protection and enforcement of the statutory and
constitutional rights of incarcerated individuals, including deaf individuals.
108. Class action treatment is a fair and efficient method to adjudicate the
controversy.

Among other things, class treatment will permit a large number of

similarly situated persons to prosecute their common claims in a single forum
simultaneously, efficiently, and without the duplication of evidence, effort, and
expense that multiple individual actions would engender.
109. Defendants have acted and refused to act on grounds generally
applicable

to the Class, thereby

making

appropriate

final injunctive

and

declaratory relief with respect to the Class as a whole.
CLAIMS FOR RELIEF
COUNT I
Discrimination

on the Basis of a Disability in Violation of the
Americans with Disabilities Act
(42 U.S.C. § 12101 et seq.)
(Against all Defendants by the Plaintiffs on behalf of themselves and
a class of similarly situated individuals)
110. Plaintiffs

hereby

incorporate

paragraph as though fully set forth herein.

35

each

preceding

and

succeeding

2:15-cv-11222-SFC-DRG Doc # 1 Filed 03/31/15 Pg 36 of 51

Ill.

Pg ID 36

The purpose of the Americans with Disabilities Act ("ADA") is "to

provide a clear and comprehensive

national mandate for the elimination of

discrimination against individuals with disabilities."

42 U.S.C. § 12IOI(b)(1).

Title II of the ADA states that "no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied the
benefits of services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity." 42 U.S.C. § 12132.
112. The claims under the ADA are brought against Defendant MDOC as
a department, agency, or instrumentality of the State of Michigan, as well as
against Defendants Heyns, Finco, Treacher, Stewart, Woods, and Stoddard in their
official capacities as employees of MDOC.
113. Defendant MDOC is a "public entity" within the meaning of 42
U.S.C. § 1213 1( 1)(B).
114. Plaintiffs are each a "qualified individual with a disability" within the
meaning of Title II of the ADA, 42 U.S.C. § 12131(2).
115. By the actions of the Defendants described above, Plaintiffs have, by
reason of such disability, been "excluded from participation in or be[ en] denied
the benefits of the services, programs, or activities of' public entities and have
been subjected to discrimination by public entities, in violation of Title II of the
ADA, 42 U.S.C. § 12132.

36

2:15-cv-11222-SFC-DRG Doc # 1 Filed 03/31/15 Pg 37 of 51

Pg ID 37

116. At all times relevant to this action, the ADA was in full force and
effect in the United States and Plaintiffs had a right not to be subjected to
discrimination on the basis of their disability by Defendants. 42 U.S.C. § 12132.
117. The U.S. Department of Justice ("DOJ") regulation implementing
Title II of the ADA clearly requires the provision of effective communication as
part of its nondiscrimination mandate. 28 C.F.R. § 35.160. This regulation states:
"A public entity shall take appropriate steps to ensure that communications with
applicants,

participants,

and members of the public, and companions

disabilities are as effective as communications

with others."

with

28 C.F.R. §

35.160(a).
118.

In order to ensure effective communication, the ADA requires that

"a public entity" furnish "appropriate auxiliary aids and services where necessary
to afford individuals with disabilities ... an equal opportunity to participate in,
and enjoy the benefits of, a service, program, or activity conducted by a public
entity." 28 C.F.R. § 35.160(b)(l).
119. Auxiliary aids and services include, but are not limited to, "qualified
interpreters or other effective methods of making aurally delivered materials
available to individuals with hearing impairments," 42 U.S.C. § 12103, such as
computer-aided transcription services, assistive listening systems, closed caption

37

2:15-cv-11222-SFC-DRG Doc # 1 Filed 03/31/15 Pg 38 of 51

decoders, open and closed captioning, telecommunications

Pg ID 38

devices for deaf

persons (TDDs), videophones, and videotext displays. 28 C.F.R. § 35.104.
120. In determining what type of auxiliary aid and service is necessary, "a
public entity shall give primary consideration to the requests of individuals with
disabilities." 28 C.F.R. § 35.160(b)(2).
121. Defendants'

failure

to

provide

effective

communication

for

individuals with hearing disabilities denied and continues to deny, on the basis of
their disability, Plaintiffs the same access to Defendants'

services, benefits,

activities, programs, or privileges as the access provided to hearing individuals.
122. Defendants subjected Plaintiffs to discrimination solely on the basis
of their disability by not ensuring that adequate access to qualified sign language
interpreter services, individual hearing devices, and other auxiliary aids and
services are made available to individuals with hearing impairments in MDOC's
custody or under MDOC supervision.
123. Plaintiffs have been unable to communicate effectively by telephone
with individuals outside of prison, unable to participate in educational, mental
health, employment, disciplinary, and other MDOC services, and unable to learn
of daily life and safety alerts and other notifications as effectively as hearing
individuals in MDOC's custody.

38

2:15-cv-11222-SFC-DRG Doc # 1 Filed 03/31/15 Pg 39 of 51

Pg ID 39

124. Defendants have failed to give consideration to Plaintiffs' requests,
denying them their requests for videophone

services, for visual alert and

notification systems, for interpreter services, for individual hearing devices, and
for other auxiliary aids and services.
125. On information

and belief, Defendants

have failed to provide

effective communication or to provide comparable access to services, benefits,
activities, programs, or privileges, policies, regular practices, and/or customs.
These failures are ongoing and continue to this date.
126. Defendants' failure to provide appropriate auxiliary aids and services
has subjected Plaintiffs to discrimination

on the basis of their disability in

violation of their rights under the ADA, in ways that include, but are not limited
to, the following:
a.

inadequate access to sign language interpreters, individual
hearing devices, and other appropriate auxiliary aids and
services to enable them to participate in and benefit from
Defendants' programs;

b.

inadequate access to prison audio alerts and notifications; and

c.

inadequate access to telecommunications devices.

127. As a proximate result of Defendants' violations of Plaintiffs' rights
under

the

ADA,

discrimination,

Plaintiffs

unequal

have

treatment,

suffered

and continue

exclusion

(including

to

suffer

exclusion

from
from

Defendants' services, benefits, activities, programs, and privileges), violations of

39

2:15-cv-11222-SFC-DRG Doc # 1 Filed 03/31/15 Pg 40 of 51

Pg ID 40

their rights under the laws of the United States, financial loss, loss of dignity,
frustration,

humiliation,

embarrassment,

emotional

and unnecessary

pain

and

loss of rights

suffering,

anxiety,

and privileges,

trauma,
including

unnecessary disciplinary measures.
128. Defendants' failure to comply with the ADA has resulted, and will
continue to result, in harm to Plaintiffs, as Plaintiffs will continue to be in the
custody or under the supervision of MDOC, and will continue to attempt to use or
avail themselves of the services, benefits, activities, programs, and privileges of
the Defendants. This harm will continue unless and until Defendants are ordered
by this Court to make modifications to the policies, practices, and procedures of
MDOC pursuant to the ADA.

COUNT II
Discrimination

on the Basis of a Disability in Violation of the
Rehabilitation Act
(29 U.S.C. § 794 et seq.)
(Against all Defendants by the Plaintiffs on behalf of themselves and
a class of similarly situated individuals)
129. Plaintiffs

hereby

incorporate

each

preceding

and

succeeding

paragraph as though fully set forth herein.
130. The purpose of the Rehabilitation Act is to ensure that no "qualified
individual with a disability in the United States ... shall, solely by reason of his or
her disability, be excluded from the participation in, be denied the benefits of, or

40

2:15-cv-11222-SFC-DRG Doc # 1 Filed 03/31/15 Pg 41 of 51

be subjected

to discrimination

financial assistance
131.

The

under any program

Pg ID 41

or activity receiving

Federal

.... " 29 U.S.C. § 794(a).
claims

under

the

as a department,

Rehabilitation

Defendant

MDOC

agency,

Michigan,

as well as against Defendants

Act

are

or instrumentality

brought

against

of the State of

Heyns, Finco, Treacher, Stewart, Woods,

and Stoddard in their official capacities as employees of MDOC.
132.

Defendants

receive Federal financial

assistance

within the meaning

of 29 U.S.C. § 794(a).
133.

The operations

of Defendants

are programs

or activities

within the

with a disability"

within the

meaning of29 U.S.C. § 794(b).

134. Plaintiffs are each an "individual

meaning of the Rehabilitation Act, 29 U.S.C. § 705(20).
135. The DOl regulation implementing the Rehabilitation Act clarifies the
requirements
stating:

for Federal financial recipients, including correctional facilities,

"A recipient that employs fifteen or more persons shall provide

appropriate auxiliary aids to qualified handicapped persons with impaired sensory,
manual, or speaking skills where a refusal to make such provision would
discriminatorily impair or exclude the persons in the program receiving federal
financial assistance." 28 C.F.R. § 42.503(t).

41

2:15-cv-11222-SFC-DRG Doc # 1 Filed 03/31/15 Pg 42 of 51

Pg ID 42

136. Appropriate auxiliary aids include, but are not limited to, "qualified
interpreters ... and telephonic devices." 28 C.F.R. § 42.503(f).
137. Defendants

discriminatorily

impaired

Plaintiffs'

ability

to

communicate effectively with medical personnel, prison staff, and individuals
outside of prison and/or excluded Plaintiffs from educational, vocational, and
prison-wide

announcements.

They have done this by failing to provide

appropriate auxiliary aids in violation of the Rehabilitation Act.
138. Defendants' failure to provide appropriate auxiliary aids and services
for individuals with hearing disabilities denied and continues to deny, on the basis
of their disabilities, Plaintiffs the same access to Defendants' services, benefits,
activities, programs, or privileges as the access provided to hearing individuals.
139. On information and belief, the failure to provide appropriate auxiliary
aids and services, and the failure to provide comparable access to services,
benefits, activities, programs or privileges are policies, regular practices, and/or
customs of Defendants. These failures are ongoing and continue to this date.
140. Defendants' failure to provide appropriate auxiliary aids and services
has subjected Plaintiffs to discrimination

on the basis of their disability in

violation of their rights under the Rehabilitation Act, in ways that include, but are
not limited to, the following:
a.

inadequate access to sign language interpreters, individual
hearing devices, and other appropriate auxiliary aids and
42

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services to enable them to participate m and benefit from

Defendants' programs;
b.

inadequate access to prison audio alerts and notifications; and

c.

inadequate access to telecommunications devices.

141. Defendants have also violated the Rehabilitation Act by excluding
inmates who are deaf or hard of hearing from Defendants' employment and
vocational benefits and opportunities. 28 C.F.R. 42.503.
142. As a proximate result of Defendants' violations of Plaintiffs' rights
under the Rehabilitation Act, Plaintiffs have suffered, and continue to suffer, from
discrimination,

unequal

treatment,

exclusion

(including

exclusion

from

Defendants' services, benefits, activities, programs, and requirements), financial
loss, loss of dignity, frustration, humiliation, emotional pain and suffering,
anxiety, trauma, embarrassment, unnecessary loss of rights and privileges,
including unnecessary disciplinary measures, and injury to their health.
143. Defendants' failure to comply with the Rehabilitation Act has resulted
in harm to Plaintiffs, and Defendants are liable to Plaintiffs for harms suffered.
Defendants' failure to comply with the Rehabilitation Act will continue to result in
harm to Plaintiffs, as Plaintiffs will continue to be in the custody or under the
supervision of MDOC and will continue to attempt to use or avail themselves of
the services, benefits, activities, programs, and privileges of Defendants. This
harm will continue unless and until Defendants are ordered by this Court to make
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modifications

to their

policies,

practices

and procedures

Pg ID 44

pursuant

to the

Rehabilitation Act.

COUNT III
Violation of the Religious Land Use and Institutionalized Persons Act of 2000
"Substantial Burden on Religion Exercise"
(42 U.S.C. § 2000cc et seq.)
(Against all Defendants by the Plaintiffs on behalf of themselves and
a class of similarly situated individuals)
144. Plaintiffs

hereby

incorporate

each

preceding

and

succeeding

paragraph as though fully set forth herein.
145. Under the Religious Land Use and Institutionalized Persons Act of
2000 ("RLUIPA"),

Governments

may not impose substantial burdens on the

religious exercise of institutionalized persons "even if the burden results from a
rule of general applicability." 42 U.S.C. § 2000cc-l(a).
146. The claims under RLUIP A are brought against Defendant MDOC as a
department, agency, or instrumentality of the State of Michigan, as well as against
Defendants Heyns, Finco, Treacher, Stewart, Woods, and Stoddard in their official
capacities as employees ofMDOC.
147. As a department, agency, or instrumentality of the State of Michigan,
or officials of such entities, Defendants are each a "government"
meaning ofRLUIPA.

42 U.S.C. § 2000cc-5(4)

44

within the

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148. Plaintiffs

are "institutionalized

persons"

Pg ID 45

within the meanmg

of

RLUIPA. 42 U.S.C. § 2000cc-l.
149. Defendants have deprived and continue to deprive Plaintiffs of their
right to the free exercise of religion, as secured by RLUIPA, by unlawfully
imposing a substantial burden on Plaintiffs' religious exercise. They have done so
by failing to provide interpreters
effectively communicate

or other means for enabling Plaintiffs to

at weekly worship services.

The substantial burden

Defendants have imposed on Plaintiffs' religious exercise affects programs or
activities that receive Federal financial assistance.
150. Defendants' failure to comply with RLUIPA has resulted in harm to
Plaintiffs, and will continue to result in harm to Plaintiffs, as Plaintiffs will
continue to be in MDOC's custody and continue to attempt to participate in weekly
worship services unless and until Defendants are ordered by this Court to make
modifications to MDOC policies, practices, and procedures pursuant to RLUIPA.

COUNT IV
Violation of Free Exercise Rights under First and Fourteenth Amendments of
the United States Constitution
(42 U.S.C. § 1983)
(Against Defendants Heyns, Finco, Treacher, Stewart, Woods, and Stoddard
by the Plaintiffs on behalf of themselves and a class of similarly situated
individuals)
151. Plaintiffs

hereby

incorporate

paragraph as though fully set forth herein.

45

each

preceding

and

succeeding

2:15-cv-11222-SFC-DRG Doc # 1 Filed 03/31/15 Pg 46 of 51

Pg ID 46

152. Under the First Amendment of the United States Constitution, as
made applicable to States through the Fourteenth Amendment, States "shall make
no law respecting an establishment of religion, or prohibiting the free exercise
thereof." U.S. Const. Amend. I.
153. 42 U.S.C. § 1983 creates a cause of action when a "person who under
color of any statute, ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the Constitution
and laws."
154. Defendants Heyns, Finco, Treacher, Stewart, Woods, and Stoddard,
acting under color of Michigan statutes and regulations, deprived and continue to
deprive Plaintiffs of their free exercise of religion, as secured by the First
Amendment to the United States Constitution and made applicable to the States by
the Fourteenth Amendment, by discriminating against Plaintiffs because of their
mode of speech and by substantially burdening their religious exercise.
155. Defendants Heyns, Finco, Treacher, Stewart, Woods, and Stoddard's
failure to comply with the First and Fourteenth Amendments of the United States
Constitution has resulted in harm to Plaintiffs, and will continue to result in harm
to Plaintiffs, as Plaintiffs will remain in the custody of MDOC or under the

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Pg ID 47

supervision of MDOC and continue to attempt to participate in weekly worship
services unless and until Defendants

are ordered by this Court to make

modifications to their policies, practices, and procedures pursuant to the First and
Fourteenth Amendments of the United States Constitution.
COUNTV
Violation of Free Speech Rights Under the First and Fourteenth Amendments
of the United States Constitution
(42 U.S.C. § 1983)
(Against Defendants Heyns, Finco, Treacher, Stewart, Woods, and Stoddard
by the Plaintiffs on behalf of themselves and a class of similarly situated
individuals)
156. Plaintiffs

hereby

incorporate

each

preceding

and

succeeding

paragraph as though fully set forth herein.
157. Under the First Amendment of the United States Constitution, as
made applicable to States through the Fourteenth Amendment, States "shall make
no law ... abridging the freedom of speech." U.S. Const. Amend. I.
158. 42 U.S.C. § 1983 creates a cause of action when a "person who under
color of any statute, ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the Constitution
and laws."

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Pg ID 48

159. Defendants Heyns, Finco, Treacher, Stewart, Woods, and Stoddard,
acting under color of Michigan statutes and regulations, deprived and continue to
deprive Plaintiffs of their freedom of speech, as secured by the First Amendment
to the United States Constitution and made applicable to the States by the
Fourteenth Amendment, by preventing Plaintiffs from communicating with people
outside of the prison.
MDOC-through

Despite multiple complaints

in writing to MDOC,

the official actions of Defendants Heyns, Finco, Treacher,

Stewart, Woods, and Stoddard-has
access to telecommunications

denied and continues to deny Plaintiffs

devices that would give them the ability and

opportunity to communicate with people outside of prison.
160. Defendants Heyns, Finco, Treacher, Stewart, Woods, and Stoddard's
failure to comply with the First and Fourteenth Amendments of the United States
Constitution has resulted in harm to Plaintiffs, and will continue to result in harm
to Plaintiffs as Plaintiffs will remain in the custody of MDOC or under the
supervision of MDOC and continue to attempt to communicate with people
outside prison, unless and until all Defendants are ordered by this Court to make
modifications to their policies, practices, and procedures pursuant to the First and
Fourteenth Amendments of the United States Constitution.

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Pg ID 49

PRAYER FOR RELIEF
WHEREFORE, Plaintiffs prays that the Court:
a. Certify this case as a Plaintiff class action pursuant to Fed. R. Civ.
P. 23 (b)(2), certify that named Plaintiffs Mary Ann McBride,
Brian

Stanley

Wittman,

and

Ralph

Williams

are

proper

representatives of the class, and appoint the undersigned as class
counsel;
b. Adjudge

and decree that Defendants,

by the organizations,

systems, policies, practices, and conditions described above, have
violated and continue to violate Title II of the ADA, Section 504 of
the

Rehabilitation

Act,

the

Religious

Land

Use

and

Institutionalized Persons Act, and the Constitution of the United
States;
c. Enjoin the Defendants
interpretative

from refusing

to provide the proper

services, TOO, videophones,

and other hearing

devices that are required for deaf and hard of hearing inmates to
fully participate in and benefit from the programs offered by these
public entities, and required to ensure their physical safety;
d. Enjoin the Defendants from depriving Plaintiffs and Plaintiff Class
members

of the

protections

49

of the

First

and

Fourteenth

2:15-cv-11222-SFC-DRG Doc # 1 Filed 03/31/15 Pg 50 of 51

Amendments

Pg ID 50

of the United States Constitution pursuant to 42

U.S.C. § 1983;
e. Award reasonable attorneys' fees and costs; and
f. Award Plaintiffs such other and further relief as the Court deems
just and proper.
Dated: March 31, 2015

Respectfully submitted,

lsi Chris E. Davis
MICHIGAN PROTECTION &
ADVOCACY SERVICE, INC.
4905 Legacy Parkway, Suite 500
Lansing, MI 48911-4264
(517) 487-1755 (Tel.)
cdavis@mpas.org
P52159

lsi Abraham Singer
KITCH DRUTCHAS WAGNER
VALITUTTI & SHERBROOK
One Woodward Avenue, Suite 2400
Detroit, MI 48226-5485
(313) 965-7900 (Tel.)
abraham. singer@kitch.com
P23601
Andrew D. Lazerow (of counsel)
Stephen C. Bartenstein (of counsel)
Matthew J. Hegreness (of counsel)
COVINGTON & BURLING LLP
One CityCenter
850 Tenth Street, NW
Washington, DC 20001-4956
(202) 662-6000 (Tel.)
(202) 778-6000 (Fax)
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alazerow@cov.com
sbartenstein@cov.com
mhegreness@cov.com
Deborah M. Golden (of counsel)
Elliot M. Mincberg (of counsel)
WASHINGTON LA WYERS'
COMMITTEE FOR CIVIL RIGHTS
AND URBAN AFFAIRS
11 Dupont Circle, NW
Suite 400
Washington, DC 20036
(202) 319-1000 (Tel.)
(202) 319-1010 (Fax)
deborah _golden@washlaw.org
elliot_ mincberg@washlaw.org
Attorneys for Plaintiffs

51