by Matthew T. Clarke

A federal district court in California has approved a sweeping settlement of hearing impaired prisoners' claims in a civil rights, Americans with Disabilities Act (ADA), and Rehabilitation Act (RA) class-action suit against the Santa Clara County (California) Department of Corrections (DOC). In doing so, the court approved a settlement award of $72,000 for the named prisoner plaintiffs, $196,455 in attorney fees, and $9,841 for costs.

Anthony Padilla, Criss Brown, Jill Brown, and Bruce Lambart are hearing impaired prisoners who filed a class-

action lawsuit against the DOC alleging violations of Title 11 of the ADA, 42 U.S.C. § 12131, et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, as well as state claims under the California Unruh Civil Rights Act, Cal. Civil Code § 51, and the California Public Accommodations Law, Cal. Civil Code §§ 54 and 54.2, et seq., and a variety of other federal and state claims not specified in the settlement. Amanda K. Wilson of the Public Interest Law Firm in San Jose, CA, Linda D. Kilb and Arlene B. Meyerson of the Disability Rights Education and Defense Fund, Inc. in Berkeley, CA, and John W. Fowler, Susan K. Hoerger, and Katherine L West of McCutchen, Doyle, Brown, and Emerson in Palo Alto, CA, represented the plaintiffs. The case was assigned to Chief Magistrate Judge Edward A. Infante.

The parties engaged in nine settlement hearings before the magistrate judge and three additional settlement meetings. As a result of the settlement negotiations, the parties entered into a sweeping twenty-two page settlement agreement detailing the following changes at DOC facilities:

The DOC must provide writing materials for hearing impaired prisoners during and after the booking process. DOC staff must communicate with hearing impaired prisoners via writing materials upon request by the prisoner. The writing materials may be confiscated only if detrimental to the safety of the prisoner or institution and must then be restored to the prisoner as soon as possible.

Upon request of a hearing impaired prisoner, the DOC must provide qualified interpreters for all complex, important or confidential communication, including booking interviews, medical appointments, classification interviews, disciplinary interviews and hearings, pretrial booking interviews and programs. Programs includes all programs, classes, and other group activities for prisoners such as Alcoholics Anonymous and Substance Abuse classes, Anger Management, GED, computer classes, art classes, Industries Program and Day Release Programs. The DOC may not use some of its employees who have rudimentary sign language skills as interpreters, but must hire or contract qualified interpreters.

In addition to the interpreter service, the DOC must make Assistive Listening Devices (ALD) and Computer Assisted Transcription (CAT) services available for hearing impaired prisoners who request them for any program or service the DOC provides. The DOC must provide for equivalent participation of hearing impaired prisoners in all programs and services. When a hearing impaired prisoner requests a specific auxiliary aid to participate in a program, the DOC must give primary consideration to the request of the prisoner.

The DOC must maintain multiple permanent TTY/TTD telecommunication devices at various locations in the jail, similar to those where telephones are kept. The DOC must also keep portable TTY/TDD devices at various jail locations and must provide access to TTY/TDD devices for hearing impaired prisoners at jail locations without permanent TTY/TDD devices. The access to TTY/TDD devices must be at least as often as hearing prisoners have access to telephones; however, the time per call on TTY/TDD devices may not be limited except in case of emergency. The TTY/TTD devices shall provide the following services: Relay TTY; Relay Voice; and Operator Services for the Deaf.

The DOC must maintain at various jail locations permanent amplified telephones which allow the user to control the volume and must provide access to such an amplified telephone to each hearing impaired prisoner upon request.

The DOC must ensure effective telephone access to the DOC by hearing impaired callers making calls to the DOC through the California Relay Service or other similar services by offering to immediately transfer all such calls to a live operator.

The DOC must identify all hearing impaired prisoners and make them known to the classification medical services and officer assigned to housing units in which hearing impaired prisoners are incarcerated. The DOC must determine what kind of battery a hearing impaired prisoner's hearing aid uses and must maintain a supply of that type of battery at the jail and issue the battery to the prisoner upon request for as long as the prisoner is incarcerated there. The DOC must also provide repair services for prisoners' hearing aids and provide prisoners with detailed written information on the type of repair and repair vendor used.

The DOC must inform courts in advance of court hearing that a hearing impaired prisoner is scheduled for the hearing so that the court can arrange for qualified interpreters or other aids or services to ensure effective communication.

The DOC shall post written notification of the rights of hearing impaired prisoners in multiple areas of the jail, including the booking area and each housing unit. Video tapes developed by the DOC for prisoner use shall be captioned and have a sign language window.

The DOC shall identify hearing impaired prisoners using color coded wrist bands. Visual alarms must be installed in various parts of the jail and in all locations where visitors have free access. A plan must be implemented to ensure the safe evacuation of hearing impaired prisoners in the event of an emergency.

The DOC must provide hearing impaired prisoners with prompt and effective notice of court appearances,

appointments, interviews, meals, medical assessment and medication times and other similar announcements provided to the prisoner population.

The DOC shall establish housing area with special services for hearing impaired prisoners the sole purpose of which is to facilitate equivalent access to auxiliary aids and services. Prisoners in such housing areas shall have equal access to DOC programs and services. The special services housing area shall include both hearing impaired and hearing prisoners. The special services housing shall include the following services: TTY/TDD units; amplified telephone equipment; visual alarms; closed captioned televisions; and officers trained to deal with hearing impaired prisoners.

The named prisoner plaintiffs were awarded $72,000 in settlement of their individual claims. The court also awarded plaintiffs $196,455 in attorney fees and $9,841 for costs. In doing so, District Judge Ronald M. Whyte held that the PLRA attorney fees cap applies only to attorney fees sought pursuant to 42 U.S.C. § 1988 for civil rights violations and did not apply to suits in which the attorney fees request is made under 42 U.S.C. § 12213 and 29 U.S.C. § 794a for violations of the ADA and RA. Because the ADA and RA were the heart of the case, attorney fees awards pursuant to those statutes were appropriate and the PLRA attorney fees cap did not apply.

The DOC agreed to waive any defense to the settlement under the PLRA, including the requirement for additional findings. The DOC also agreed that, should the agreement be overturned in federal court for any reason, it would remain enforcable in state court. See: Padilla v. Ryan, No. C 98-20309 RMW (U.S.D.C.-N.D.CA, San Jose 1999).

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