SIM LAKE, District Judge.
Plaintiff, Jeremy Joseph Durrenberger, brings this action against defendant, Texas Department of Criminal Justice (TDCJ), under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12181, and
Summary judgment is authorized if the movant establishes that there is no genuine dispute about any material fact and the law entitles it to judgment. Fed.R.Civ.P. 56(c). Disputes about material facts are "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The Supreme Court has interpreted the plain language of Rule 56(c) to mandate the entry of summary judgment "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A party moving for summary judgment "must `demonstrate the absence of a genuine issue of material fact,' but need not negate the elements of the nonmovant's case." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc) (quoting Celotex, 106 S.Ct. at 2553-2554). If the moving party meets this burden, Rule 56(c) requires the nonmovant to go beyond the pleadings and show by affidavits, depositions, answers to interrogatories, admissions on file, or other admissible evidence that specific facts exist over which there is a genuine issue for trial. Id. (citing Celotex, 106 S.Ct. at 2553-2554). In reviewing the evidence "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 2110, 147 L.Ed.2d 105 (2000). Factual controversies are to be resolved in favor of the nonmovant, "but only when . . . both parties have submitted evidence of contradictory facts." Little, 37 F.3d at 1075.
Jeremy Bryson is serving a sentence at TDCJ for an aggravated assault on plaintiff, Jeremy Durrenberger.
Durrenberger is hearing impaired. Durrenberger's hearing impairment makes it difficult for him to hear when a speaker is not in close proximity to him, when there is more than one person speaking, and/or when background noise is present. In 2004 Durrenberger asked his employer to install a new handset equipped with an amplifying volume control on his office telephone.
On February 22, 2009, Durrenberger went to visit Bryson at the Hughes Unit. Upon arrival at the visitation room Durrenberger told the commanding officer that he has a hearing impairment and asked to be placed in a handicapped booth. The commanding officer told Durrenberger that the Hughes Unit was not equipped with handicapped booths. Durrenberger was placed in a standard visitation booth and was not able to hear Bryson over the telephone.
On February 23, 2009, Durrenberger contacted the warden's office and TDCJ's main office to request an accommodation for his hearing impairment. On February 27, 2009, Warden Dawn Grounds called Durrenberger but was not able to offer him an accommodation.
On March 8, 2009, Durrenberger went to the Hughes Unit to visit Bryson and
On April 4, 2009, Durrenberger again went to the Hughes Unit to visit Bryson. Upon arrival Durrenberger spoke with Major Fred Tadlock who refused his request for a contact visit because TDCJ policy does not allow contact visits for non-family members. Instead, Tadlock placed Durrenberger in an end booth (Booth # 1) because it was located as far away from other visitors as possible. Even though he was placed in Booth # 1, Durrenberger still could not hear Bryson over the telephone.
On April 12, 2009, Durrenberger was again allowed a contact visit with Bryson.
On April 19, 2009, and on June 21, 2009, Durrenberger was placed in Booth # 1 because it was farthest away from other visitors, but he still could not hear Bryson over the telephone.
On June 7, 2009, Durrenberger asked to be seated in Booth # 1 but was, instead, seated in Booth # 5, which was only about four feet away from a family with children. The background noise prevented Durrenberger from hearing Bryson over the telephone.
Durrenberger has not always been allowed to visit with Bryson in Booth # 1 because the booths are assigned randomly to prevent contraband drops.
Durrenberger has sued TDCJ for compensatory damages, declaratory and injunctive relief, and attorney's fees pursuant to the ADA and the RA for failure to provide reasonable accommodation for his hearing disability so that he is able to participate in the inmate visitation program at TDCJ's Alfred Hughes Unit in
TDCJ contends that it is entitled to summary judgment on Durrenberger's RA claim because Durrenberger has failed to present any evidence that TDCJ has waived its sovereign immunity and consented to suit under the RA by accepting federal financial assistance. TDCJ contends that it is entitled to summary judgment on Durrenberger's ADA claim because Congress has not properly and validly abrogated its Eleventh Amendment immunity for such claims. Durrenberger responds that TDCJ is not entitled to sovereign immunity from his RA claim because TDCJ receives federal financial assistance, and that TDCJ is not entitled to sovereign immunity from his ADA claim because Title II of the ADA abrogated Eleventh Amendment immunity for such claims. Alternatively, Durrenberger argues that TDCJ's immunity under the ADA is irrelevant because the rights and remedies under the ADA and the RA are the same.
The Eleventh Amendment provides that "[t]he judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign state." United States Constitution, amend. XI. Although by its express terms, the Eleventh Amendment bars only federal jurisdiction over suits brought against one state by citizens of another state or a foreign state, the Supreme Court has long held that the Eleventh Amendment also bars jurisdiction where, as here, a citizen brings suit against his own state in federal court. See Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 117 S.Ct. 2028, 2033, 138 L.Ed.2d 438 (1997) (citing Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890)). The Eleventh Amendment renders the states immune from any suit in law or equity brought by a state's own citizen unless one of two exceptions applies: (1) the state has consented to suit, or (2) Congress has clearly and validly abrogated the state's immunity pursuant to the enforcement power conferred by § 5 of the Fourteenth Amendment. Bennett-Nelson v. Louisiana Board of Regents, 431 F.3d 448, 451 (5th Cir.2005), cert. denied, 547 U.S. 1098, 126 S.Ct. 1888, 164 L.Ed.2d 568 (2006) (citing College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666, 119 S.Ct. 2219, 2223, 144 L.Ed.2d 605 (1999)). See also Tennessee v. Lane, 541 U.S. 509, 124 S.Ct. 1978, 1985, 158 L.Ed.2d 820 (2004). Moreover, the state's Eleventh Amendment immunity extends to any state agency or entity deemed an "alter ego" or "arm" of the state. See Perez v. Region 20 Education Service Center, 307 F.3d 318, 326 (5th Cir.2002). The parties do not dispute the fact that TDCJ is an "arm" of the State of Texas. See Harris v. Angelina,
Durrenberger contends that TDCJ has waived its Eleventh Amendment immunity from suit under § 504 of the RA by accepting federal financial assistance. Section 504 provides that:
29 U.S.C. § 794(a). Public entities that accept federal financial assistance expressly waive their Eleventh Amendment immunity from claims brought under § 504 of the RA. See 42 U.S.C. § 2000d-7(a)(1) ("A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973 [29 U.S.C. § 794], . . . or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance."). In Pace v. Bogalusa City School Board, 403 F.3d 272, 282 (5th Cir.) (en banc), cert. denied, 546 U.S. 126 S.Ct. 416, 163 L.Ed.2d 317 (2005), the Fifth Circuit observed that § 2000d-7 "clearly, unambiguously, and unequivocally conditions receipt of federal funds . . . on the State's waiver of Eleventh Amendment immunity" for suits brought under the RA, and held that the waiver condition set forth in § 2000d-7 is a constitutionally permissible exercise of Congress's spending power. Id. at 285. See also Bennett-Nelson, 431 F.3d at 453 (citing Pace, 403 F.3d at 280-87).
TDCJ admits that it accepts federal financial assistance and that the Hughes Unit where TDCJ houses inmate Bryson is a publicly funded state prison.
"For purposes of [§ 504 of the RA], the term `program or activity' means all of the operations of—. . . a department, agency,. . . or other instrumentality of a State . . . any part of which is extended Federal financial assistance." 29 U.S.C. § 794(b)(1)(A). In Miller v. Texas Tech University Health Sciences Center, 421 F.3d 342
Having determined that Eleventh Amendment immunity does not bar Durrenberger's RA claim, the court need not decide whether TDCJ is entitled to Eleventh Amendment immunity from Durrenberger's ADA claim because that claim duplicates his RA claim. In Bennett-Nelson, 431 F.3d at 455, the Fifth Circuit addressed a case where, as here, several plaintiffs brought claims under both the RA and ADA, alleging that the defendant, a state university, failed to provide them "reasonable accommodations" as required by both Acts. Id. After determining that the university had waived its immunity from suit under § 504 of the RA by accepting federal funding, the Fifth Circuit addressed the issue of whether Congress had validly abrogated the university's immunity under the ADA. Id. at 454-55. Observing that "[t]he only material difference between the two provisions lies in their respective causation requirements," id. at 454, the Fifth Circuit described the difference as "immaterial" because where—as here—"a defendant fails to meet this affirmative obligation, the cause of that failure is irrelevant." Id. at 454-55. The court explained that
Id. at 455. The court concluded that, "having already held that sovereign immunity does not bar the appellants' claim under § 504, we need not address at this
The conclusion reached by the Fifth Circuit in Bennett-Nelson applies with equal force to this case. As in Bennett-Nelson, Durrenberger is alleging that TDCJ violated the ADA and RA solely by refusing to provide a reasonable accommodation for his disability. Where a claim is based on the failure to provide reasonable accommodations, the ADA and RA are identical in scope. Accordingly, the court concludes that the question of whether Congress has appropriately abrogated TDCJ's immunity from the claim that Durrenberger has asserted under Title II of the ADA is moot.
Durrenberger argues (1) that he is entitled to summary judgment on his RA claim because the undisputed evidence establishes that he is a qualified individual with a disability, and (2) that TDCJ has discriminated against him solely by reason of his disability by failing to provide reasonable accommodations for his known disability. TDCJ does not dispute that Durrenberger is qualified to participate in the inmate visitation program. Instead, TDCJ contends that Durrenberger is not disabled, and that TDCJ has provided reasonable accommodations for any disability he may have.
For purposes of § 504 of the RA, "the term `individual with a disability' means. . . any person who has a disability as defined in Section 12102 of Title 42 [i.e., the ADA]." 29 U.S.C. § 705(20)(B). Section 12102 of Title 42 provides that "[t]he term `disability' means, with respect to an individual—(A) a physical or mental impairment that substantially limits one or more major life activities of such individual." 42 U.S.C. § 12102(1)(A). "[M]ajor life activities include, but are not limited to. . . hearing . . . [and] communicating." 42 U.S.C. § 12102(2)(A). The ADA does not define the term "substantially limits," but regulations promulgated by the Equal Employment Opportunity Commission (EEOC) define that term to mean:
29 C.F.R. § 1630.2(j)(1). In 2008 Congress amended § 12102 to provide the following "rules of construction regarding the definition of disability:"
42 U.S.C. § 12102(4). The 2008 amendments did not alter the judicially established requirement that plaintiffs claiming protection under the RA must have more than a diagnosis of an impairment to prove a disability, and must "prove a disability by offering evidence that the extent of the limitation in terms of their own experience. . . is substantial." Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 119 S.Ct. 2162, 2169, 144 L.Ed.2d 518 (1999).
As evidence that he is disabled, Durrenberger submits sworn statements that he has a hearing impairment that makes it difficult for him to hear when a speaker is not in close proximity to him or when background noise is present,
Asserting that "[v]isitation is inherently noisy as friends and family meet with inmates for a limited time once a week,"
In support of its argument that Durrenberger is not disabled, TDCJ cites Amyette v. Providence Health System, 388 Fed.Appx. 606 (9th Cir.2010). In Amyette the Ninth Circuit reaffirmed the principle recognized in Albertson's, 119 S.Ct. at 2169, that "`disability' is a carefully defined term of art, which is measured by reference to limitations on major life activities, not by reference to doctors' past assessments of the plaintiff's condition." 388 Fed.Appx. at 606-07 (citing Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 691, 151 L.Ed.2d 615 (2002), superseded by statute, Americans With Disabilities Amendments Act of 2008, Pub.L. No. 110-325 (2008)).
Durrenberger's sworn statements that he has difficulty hearing when a speaker is not in close proximity to him or when background noise is present,
Durrenberger argues that he is entitled to summary judgment because TDCJ has not presented any evidence from which a reasonable fact-finder could conclude that his hearing impairment does not substantially limit his ability to hear and communicate. TDCJ contends that Durrenburger is not disabled because noisy conditions in the visitation room make it difficult even for non-hearing impaired individuals to hear and communicate, but TDCJ has not presented any evidence that non-hearing impaired individuals are unable to hear and/or communicate over the telephones provided in the visitation booths. Moreover, both Major Tadlock and Warden Grounds testified that non-hearing impaired individuals have never complained about the inability to hear and/or communicate over the telephones in the visitation booths.
Durrenberger's evidence that he cannot hear over the telephone in general and over the telephones in TDCJ's visitation booths in particular, and TDCJ's failure to provide evidence showing that the average person in the general population experiences the same difficulties hearing over the telephone that Durrenberger experiences leads the court to conclude that Durrenberger is entitled to summary judgment that he is disabled because the only evidence before the court establishes that Durrenberger is unable to perform the major life activities of hearing and communicating that the average person in the general population can perform, and that Durrenberger is significantly restricted as to the manner under which he can perform the major life activities of hearing and communicating as compared to the manner under which the average person in the general population can perform those activities. See 29 C.F.R. § 1630.2(j)(1). See also Ivy, 192 F.3d at 516 (district court found as a matter of fact and concluded as a matter of law that plaintiff had an impairment that substantially limited the major life activity of hearing because without the assistance of hearing aids she was unable to hear people talking on a speaker telephone).
Asserting that his inability to hear and communicate over the telephones provided in TDCJ's visitation booths prevents him from participating in TDCJ's inmate visitation program, Durrenberger contends that he is entitled to summary judgment that TDCJ has discriminated against him solely on the basis of his disability by failing to provide a reasonable accommodation that would allow him to participate in the program.
Regulations implementing § 504 of the RA mandate that "each [federally assisted] program or activity" to which the provision applies must be "readily accessible to and useable by handicapped persons." 28 C.F.R. § 42.521(a). Covered entities may be required to facilitate access via the
28 C.F.R. § 42.521(b). See Bennett-Nelson, 431 F.3d at 455 n. 11.
When a disabled person shows that he is not able to participate in a public program, courts must consider whether any "reasonable accommodation" by the program provider would enable the disabled person to participate. "Accommodation is not reasonable if it either imposes `undue financial and administrative burdens' on a grantee,. . . or requires `a fundamental alteration in the nature of [the] program.'" School Board of Nassau County, Florida v. Arline, 480 U.S. 273, 107 S.Ct. 1123, 1131 n. 17, 94 L.Ed.2d 307 (1987) (quoting Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 2370, 60 L.Ed.2d 980 (1979), and citing 45 C.F.R. § 84.12(c) (listing factors to consider in determining whether accommodation would cause undue hardship)). "Where reasonable accommodation does not overcome the effects of a person's [disability], or where reasonable accommodation causes undue hardship . . . failure . . . [to accommodate] will not be considered discrimination." Id. Factors that courts consider in determining if an accommodation would impose an undue hardship on the operation of the recipient's program or activity include:
45 C.F.R. § 84.12(c)(1)-(3).
TDCJ does not dispute that Durrenberger cannot hear and/or communicate with Bryson over the telephones in the visitation booths. Instead, "TDCJ asserts [that] it reasonably accommodated Durrenberger by providing a booth with phones, sometimes arranging a less noisy end booth, pen and paper and by the guards trying to keep the general noise level down."
Durrenberger contends that TDCJ could reasonably accommodate his disability by allowing him to have contact visits with Bryson, by providing a volume amplification device for use with the visitation booth telephones, or by allowing him to conduct visits with Bryson in an attorney/client booth. TDCJ responds that contact visits are not a reasonable accommodation because they present an elevated security risk, but has not responded with any evidence from which a reasonable fact-finder could conclude that providing volume amplification devices for use with the visitation booth telephones or allowing Durrenberger to conduct visits with Bryson in an attorney/client booth would not reasonably accommodate Durrenberger's disability.
TDCJ policy allows contact visits with inmates for family members and other individuals with whom an inmate has a special relationship. TDCJ policy restricts contact visits with inmates because contact visits require increased vigilance for contraband and personal safety that requires additional staffing of security personnel. TDCJ argues that Durrenberger's request for a modification of this policy does not constitute a reasonable accommodation for his disability because Bryson is in prison for having violently assaulted Durrenberger. Because Durrenberger has previously been assaulted by Bryson, TDCJ argues that the possibility of another assault substantiates its denial of Durrenberger's request for contact visits with Bryson.
Durrenberger cites the report of Prison and Jail Consultant, Ron McAndrew, as evidence that the purchase of an inexpensive amplification device for the two-way telephone in the non-contact visitation area would neither cause an undue hardship on TDCJ nor interfere with the operation of TDCJ in any way or manner.
TDCJ has not submitted any evidence contradicting McAndrew's opinion. Instead, TDCJ argues that a factual dispute exists over whether Durrenberger asked the visitation officers for an auxiliary device, and, even assuming that Durrenberger did make such a request, TDCJ argues that it was not unreasonable for it to refuse that accommodation since Durrenberger has not had an auxiliary device in the past.
Finally, TDCJ objects to Durrenberger's request that amplification devices be provided because "beyond the monetary expense of the device it would need to be at each unit where Durrenberger visited along with record of the necessary exception requiring further diversion of resources."
Durrenberger contends that
TDCJ neither argues nor presents any evidence from which a reasonable fact-finder could conclude that this "[a]ccommodation is not reasonable [because] . . . it either imposes `undue financial and administrative burdens' on a grantee, . . . or requires `a fundamental alteration in the nature of [the] program.'" Arline, 107 S.Ct. at 1131 n. 17 (quoting Davis, 99 S.Ct. at 2370, and citing 45 C.F.R. § 84.12(c)). Accordingly, the court concludes that Durrenberger is entitled to summary judgment that allowing Durrenberger to conduct visits with Bryson in an attorney/client booth would reasonably accommodate his known disability.
The undisputed evidence shows that TDCJ discriminated against Durrenberger based on his disability by failing to provide simple, inexpensive accommodations, such as providing a volume amplification device for use with visitation booth telephones, or allowing Durrenberger to conduct visits in an attorney/client booth. TDCJ has failed to present any evidence from which a reasonable fact-finder could conclude that the provision of either of these "[a]ccommodation[s] is not reasonable [because] . . . it either imposes `undue financial and administrative burdens' on a grantee, . . . or requires `a fundamental alteration in the nature of [the] program.'" Arline, 107 S.Ct. at 1131 n. 17 (quoting Davis, 99 S.Ct. at 2370, and citing 45 C.F.R. § 84.12(c)). Accordingly, the court concludes that Durrenberger is entitled to summary judgment that providing a volume amplification device for use with visitation room telephones or allowing Durrenberger to use the attorney/client booth for visits with Bryson would reasonably accommodate his known disability.
Asserting that TDCJ intentionally discriminated against him by reason of disability, Durrenberger seeks compensatory damages under the RA for reasonable travel expenses from his residence in New Caney, Texas, to the Hughes Unit in Gatesville, Texas, including gas, mileage, and wear and tear on his vehicle, food, and lodging, for each of his visits to the Hughes Unit where he was not accommodated.
Although TDCJ has not directly responded to Durrenberger's Motion for Summary Judgment as to his claim for damages, TDCJ has argued that allowing Durrenberger "to be seated in the least noisy of the booths . . . belie discrimination as a motivating factor" when evaluated in light of the security concerns present in this case.
Asserting that TDCJ is likely to continue to refuse him accommodations, Durrenberger seeks an injunction permanently enjoining future violations of the RA. Citing City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), Durrenberger acknowledges that since he is seeking injunctive relief based on an alleged past wrong, he must show that there is a real or immediate threat that he will be wronged again. In support of his argument that there is a real or immediate threat that he will be wronged again, Durrenberger asserts that he has been denied reasonable accommodations for his disability in the past, that he is currently being denied such accommodations, and that TDCJ has made no indication that it will provide for him in the future. Durrenberger also argues that "[n]o-cost remedies exist as well, such as providing [him] an attorney visit booth to speak with his friend or allowing them to have a `contact' visit."
Asserting that § 505(b) of the RA provides that in an action or proceeding to enforce or charge a violation of a provision of this title, the prevailing party is allowed a reasonable attorney's fee as part of the costs, 29 U.S.C. § 794(a), Durrenberger requests a hearing on the amount of attorney's fee to which he is entitled.
For the reasons explained above, The Texas Department of Criminal Justice's Motion for Summary Judgment (Docket Entry No. 40) is
The Joint Pretrial Order will be filed by February 4, 2011, instead of January 7, 2011, and will be limited to Durrenberger's entitlement to compensatory damages under the RA and the amount of such damages and to any unresolved issues with respect to Durrenberger's request for attorney's fees. Docket Call will be held on February 11, 2011, at 4:00 p.m., in Court Room 9-B, 9th Floor, United States Courthouse, 515 Rusk Street, Houston, Texas 77002.
Second Declaration of Jeremy Durrenberger, Exhibit A attached to Durrenberger's Response, Docket Entry No. 42, ¶¶ 3, 5-6.
