Prison Phone Justice

Case 3:18-cv-00223-BAJ-RLB

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
____________________________________
WILFRED GUY,
)
) CIVIL ACTION
Plaintiff,
)
v.
) No. 18-223-BAJ-RLB
)
JAMES LEBLANC, et al.,
)
)
Defendants.
)
Opposition to Defendants’ Motion for Partial Summary Judgment
I.

Introduction

Plaintiff Wilfred Guy is an inmate at the Louisiana State Penitentiary. He has a neurological
impairment that affects his ability to hear, although he is not deaf. The parties agree that as a result
of that impairment, Mr. Guy has been barred from any participation in sports, hobbycraft, and the
rodeo. They agree that for periods of months on end, Mr. Guy’s impairment prevented him from
receiving any incentive pay at all. And while he was given a “pocket talker” device for in-person
conversations, Mr. Guy has never been allowed to use Angola’s teletypewriter (TTY) phone.
Defendants have moved for summary judgment. R. Doc. 19. Their motion, however,
should be denied for the reasons detailed below.
II.
A.

Discussion

This Court should deny Defendants’ Motion because Defendants’ material facts are
internally contradictory and disputed by Plaintiff.
In order to prevail on summary judgment, the moving party must “demonstrate the absence

of any genuine issue of material fact.” Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2552 (1986).
Here, Defendants’ motion should be denied because their material facts are not even
internally consistent. Defendants’ material fact Number 32 contends that “LSP requires offenders
such as Plaintiff to request a job change.” But that is contradicted by Number 36, which contends

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that: “In May 2017, LSP staff requested Plaintiff for a janitorial position in the mattress factory
due to staffing being below quota.” (Emphasis added.)
It cannot simultaneously be true that inmates must make a request to obtain a job change,
and also that job changes can result from by staff request. According to Defendants’ testimony,
job changes can happen in a number of different ways. They can result from: “inmates making
requests, or sometimes security, or prison enterprises, which we have all the industries here, the
mattress factory, tag plant, the broom and mop. They may request inmates for their areas.” R. Doc.
19-4 at 162.1
Defendants’ material facts Numbers 9 and 59 are also contradictory. Number 9 says that
“The ‘no hobbycraft’ restriction, as written, prevents Plaintiff from participation in hobbycraft
activities.” But Number 59 says his “duty status does not prevent him from attending, selling hobby
shop items, or visiting with family.” Both cannot be true – his duty status cannot both bar from
“participation in hobbycraft activities” and also not bar him from selling hobby shop items. The
truth is that his no-hobbycraft duty status does bar him from selling hobbycraft items. See 22
L.A.C. § 313 (F)(7)(a) (“Funds may only be sent to the facility and processed for hobbycraft
purchases properly supported by a hobbycraft agreement in accordance with established policy
and procedures.”)
Plaintiff also disputes material fact Number 41, which suggests that Dr. Lavespere testified
that the question of whether an offender can participate in sports “boils down to what is safe for
the institution, and what is safe for the offender.” In his full testimony, Dr. Lavespere repeatedly

1

If, however, LSP does require inmates to request job changes as reasonable accommodations, it
would be a concession that LSP is violating the ADA. That is because the ADA holds that an
explicit request is not necessary when the need for an accommodation is obvious. See, e.g.,
Robertson v. Las Animas Cnty. Sheriffs Dep’t, 500 F.3d 1185, 1197 (10th Cir. 2007); Jankowski
Lee & Assocs. v. Cisneros, 91 F.3d 891 (7th Cir. 1996); Kiman v. N.H. Dep’t of Corr., 451 F.3d
274, 283 (1st Cir. 2006).
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referenced a factor apart from safety: institutional liability. E.g., id. at 68 (“Every duty status that
I do, I look at the safety of the offender, and the safety and liability on the institution.”)2
Thus, because Defendants’ material facts are neither internally consistent nor undisputed,
their Motion should be denied.
B.
Under Federal Law, Plaintiff’s Claims are Subject to a Four-Year Statute of
Limitations and Any Claims for Injunctive Relief Must be Analyzed Using the Repeated
Violations Doctrine.
In their motion, Defendants first argue that Plaintiff’s claims have prescribed. R. Doc. 191 at 6. But a determination of the applicable statute of limitations (prescription) period to this
action required a detailed analysis of federal law and accrual doctrines and an application of those
laws and doctrines to Plaintiff’s claims. First, the statute of limitation period for Mr. Guy’s claim
is four years, not one year. Second, Plaintiff’s claims must be analyzed under the Repeated
Violations Doctrine, which holds that each day an individual is denied access to a program, service,
or activity constitutes a separate and actionable claim for relief under the ADA/RA. Carefully
applying the four year statute of limitation and the Repeated Violation Doctrine to Plaintiff’s
claims, the Court should hold that the majority of Mr. Guy’s claims are not prescribed.

2

See also:
• “I try to keep the offender safe, and I try to keep the institution from having liability.” Ex R.
Doc. 19-4 at 58.
• “[W]e try to be fair to the offender keeping the liability off the penitentiary.” Id. at 60.
• “So he is not happy about it, but he understands the health risk involved, and the liability on
the institution.” Id. at 63-64.
• “You know, it's strictly keeping liability off this facility, what is safe for the inmate, and
what is best for the facility.” Id. at 70.
• “Well, because of, again, the possibility of putting him at risk for harm, and putting the
liability on the institution.” Id. at 89.
• “[Y]ou have to be cautious this day and time because it’s the liability of the institution, the
safety of the institution, and the safety of the inmate.” Id. at 90.
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1.

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Mr. Guy’s Claims are Subject to a Four-Year Statute of Limitations and Not a
One-Year Statute of Limitations Period.

In 1990, Congress enacted the Civil Justice Reform Act of 1990 (“CJRA”), Pub.L. No 101–
650, 104 Stat. 5089 (codified in scattered sections of 28 U.S.C.). In Section 313 of that Act,
Congress created a general, catch-all statute of limitations of four years for any “civil action arising
under an Act of Congress enacted after” December 1, 1990. CJRA § 313, 104 Stat. at 5115
(codified as amended at 28 U.S.C. § 1658); see Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369,
371, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004). In 2004, the Supreme Court considered whether a
federal cause of action for a violation of a federal statute that existed before December 1, 1990—
but was amended after December 1, 1990—gets the benefit of the four-year limitations period of
§ 1658. The Court unanimously held that “a cause of action arises “ ‘under an Act of Congress
enacted’ after December 1, 1990—and therefore is governed by § 1658 ‘s 4–year statute of
limitations—if the plaintiff’s claim against the defendant was made possible by a post–1990
enactment.” Jones, 541 U.S. at 382, 124 S.Ct. 1836.
In this case, both relevant acts of Congress were originally enacted before December 1,
1990. The ADA was originally enacted on July 26, 1990. Americans with Disabilities Act of 1990,
Pub.L. No. 101–336, 104 Stat. 327. The Rehabilitation Act was originally enacted on September
26, 1973. Rehabilitation Act of 1973, Pub.L. No. 93–112, 87 Stat. 355. But Congress amended
both of these acts after December 1, 1990. On September 25, 2008, Congress enacted the ADA
Amendments Act of 2008 (“ADAAA”), Pub.L. No. 110–325, 122 Stat. 3553. This act revised the
definition of “disability” for both the ADA and the Rehabilitation Act. See id. § 4, 122 Stat. at
3555; id. § 7, 122 Stat. at 3558 (redefining a person with a disability for Rehabilitation Act
purposes in terms of the revised definition of disability for the amended ADA).
Therefore, under Jones, the first step to determine the statute of limitations that applies
turns on whether Mr. Guy’s ADA and Rehabilitation Act claims were “made possible” by the

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ADAAA’s revised definition of disability. Jones, 541 U.S. at 382, 124 S.Ct. 1836. Before the ADA
was amended in 2008, it defined the disability of an individual, in relevant part, as “a physical or
mental impairment that substantially limits one or more of the major life activities of such
individual.” ADA § 3(2)(A), 104 Stat. at 329–30 (current version at 42 U.S.C. § 12102(1)(A)).
The act itself contained no further definition of “physical or mental impairment,” “substantially
limits,” or “major life activities.” See id.
Before the ADAAA’s enactment, the federal courts had interpreted these key terms of the
definition of disability. In 1999, the Supreme Court held that “a person whose physical or mental
impairment is corrected by mitigating measures still has an impairment, but if the impairment is
corrected it does not ‘substantially limi[t]’ a major life activity.” Sutton v. United Air Lines, Inc.,
527 U.S. 471, 483, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999), overturned by statute, ADAAA § 4,
122 Stat. at 3556 (codified at 42 U.S.C. § 12102(4)(E)). The following year, in 2002, the Supreme
Court held that “to be substantially limited in performing manual tasks, an individual must have
an impairment that prevents or severely restricts the individual from doing activities that are of
central importance to most people’s daily lives. The impairment’s impact must also be permanent
or long term.” Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 198, 122
S.Ct. 681, 151 L.Ed.2d 615 (2002), abrogated in part by ADAAA § 4, 122 Stat. at 3556 (codified
at 42 U.S.C. § 12102I-(D)).
After passage of the ADAAA, however, these cases no longer reflect current law. See
Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 573–74 (4th Cir.2015) (observing that
“[i]n enacting the ADAAA, Congress abrogated earlier inconsistent caselaw”). In passing the
ADAAA, Congress explicitly expressed, in its “purposes” section, its disagreement with the
Supreme Court’s interpretations of the ADA in Toyota and Sutton, and the applications of those
cases by the lower federal courts. ADAAA § 2(b)(2)-(5), 122 Stat. at 3554. Congress enacted
several “rules of construction” intended to overrule these cases:
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The definition of “disability” in paragraph (1) shall be construed in accordance with the
following:
(A) The definition of disability in this Act shall be construed in favor of broad coverage of
individuals under this Act, to the maximum extent permitted by the terms of this Act.
(B) The term “substantially limits” shall be interpreted consistently with the findings and
purposes of the ADA Amendments Act of 2008.
(C) An impairment that substantially limits one major life activity need not limit other
major life activities in order to be considered a disability.
(D) An impairment that is episodic or in remission is a disability if it would substantially
limit a major life activity when active.
(E)(i) The determination of whether an impairment substantially limits a major life activity
shall be made without regard to the ameliorative effects of mitigating measures such as....
Id. § 4, 122 Stat. at 3555–56 (codified at 42 U.S.C. § 12102(4)).
Defendants do not attempt to explain whether Mr. Guy’s claims were made plausible under the
ADA and Rehabilitation Act as they existed before the ADAAA or whether they were “made
possible” by the ADAAA’s revised definition of disability.
There can be little doubt, however, that Mr. Guy’s claims under the ADA and
Rehabilitation Act were “made possible” by the ADAAA’s revised definition of disability. First,
Mr. Guy has been provided a hearing aid or pocket talker at different times to aid his ability to
communicate. Under Sutton, these would be considered “mitigating measures” that would have
rendered Mr. Guy non-disabled. Further, Mr. Guy is hard of hearing, but with his pocket talker or
hearing aid, there is zero evidence that he is wholly “prevented” or “severely restricted” from doing
activities that are of central importance to most people’s daily lives. Under Toyota, Mr. Guy would
not have been “disabled enough” to qualify as a covered individual. Indeed, Mr. Guy is one of the
covered individuals Congress aimed to protect with the ADA Amendment Act: Those individuals
who have a limitation but are not wholly prevents from participating in -all- major life activities due
to their disability. Because Mr. Guy’s claims were “made possible” by the ADAAA’s revised
definition of disability, under Jones the statute of limitations period would be four (4) years, not

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one (1). Therefore, Mr. Guy can sue for discrimination encountered or experienced between July
12, 2013 and the present.
While this may seem like it is the end of the analysis, it is only the first step. The Court
must next analyze what constitutes a “prohibited act” and whether each encounter or experience
with discriminatory conduct is a separate “prohibited act.”
2.

The Repeated Violation Doctrine is Applicable to Mr. Guy’s Claims.

Mr. Guy’s claims are timely because they are subject to the Repeated Violation Doctrine.
In United States v. Luminant Generation Co., L.L.C., the Fifth Circuit outlined the contours
for determining when a violation of a statute accrues as a matter of law and whether subsequent
ongoing conduct is actionable or time barred.3 In Luminant Generation Co., the Fifth Circuit was
tasked with evaluating when a claim for alleged violation of § 7475(a) accrued as a matter of law.4
The parties did not dispute that the applicable statute of limitations for this environmental statute
was five years.5 The Fifth Circuit explained the difference between the parties’ positions as
follows:
The defendants contend that a facility modified without a preconstruction permit violates
§ 7475(a) as a one-time occurrence: the moment construction begins without a
preconstruction permit. The five-year clock then begins to tick away, never to be restarted
for a § 7475(a) claim related to that unpermitted construction period. The plaintiffs argue,
on the other hand, that a facility modified without a permit continuously violates § 7475(a)
anew each day it operates post-construction. Stated differently, a new five-year clock
begins to run each day a modified facility operates without a permit. Under the plaintiffs’
interpretation, the defendants could be held liable for civil penalties for each day their
modified facilities operated without a permit on or after August 16, 2008; on the other
hand, the defendants’ interpretation means that all of the claims for civil fines, penalties,
or forfeitures are time barred.6

3

905 F.3d 874, 881 (5th Cir. 2018).
Id.
5
Id.
6
Luminant Generation Co., L.L.C., 905 F.3d at 881 (emphasis original).
4

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To resolve the parties’ dispute, the Fifth Circuit stated, “We quite naturally begin with the text of
§ 7475(a).”7 In evaluating the language of the statute, the court determined that the statute imposed
“Preconstruction requirements” and did not “impose post-construction operational obligations.”8
Based on the Court’s determination that the text of the statute only imposed “preconstruction
requirements,” and that the statute did not impose any ongoing operational obligations, the Fifth
Circuit determined that “Section 7475(a) violations occur on the first day of construction.”9 While
the outcome in Luminant Generation Co. is specific to Section 7475, the test articulated by the
Court is universally applicable and illuminative. A district court must first look at the text of the
statute to determine when the statute of limitations begins to run and whether ongoing conduct is
actionable. Only after the Court has determined what is required or prohibited by the statute can
the Court then determine whether the statute of limitations “begins to tick away, never to be
restarted” or whether it “begins to run anew each day.”
Just recently, in Hamer v. City of Trinidad, the Tenth Circuit had occasion to perform this
precise analysis as it relates to a case brought under the ADA/RA.10 In Hamer, the plaintiff
encountered inaccessible sidewalks more than two years before the day he filed his lawsuit in a
state with a two-year statute of limitations. The district court concluded that the plaintiff’s claims
were untimely because the plaintiff was undoubtably “aware of the nature and extent of the City’s
discrimination” more than two years prior to filing suit. Id. at 1098. The district court denied the
plaintiff’s argument that claims remained timely because the City “violate[d] both statutes each
day” that it failed to remedy its non-compliant sidewalks and curb cuts. Id. at 1099.
On appeal, the Tenth Circuit Court of Appeals overturned the district court’s ruling,
holding that the plaintiff’s claims were timely under the repeated violation doctrine. The Tenth

7

Id. at 882
Id.
9
Id. at 884.
10
924 F.3d 1093 (10th Cir. 2019).
8

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Circuit explained that “[o]ur starting point is the plain language of Title II and section 504.” Id. at
1103. The Tenth Circuit explains it better than Plaintiff’s counsel could:
Title II mandates that “no qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by any such
entity.” 42 U.S.C. § 12132. Likewise, section 504 mandates in part that “[n]o otherwise
qualified individual with a disability in the United States ... shall, solely by reason of her
or his disability, be excluded from the participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving Federal financial
assistance.” 29 U.S.C. § 794(a).
Obviously, neither of these statutes state outright when or how often a public entity violates
them. They simply command that no qualified individual may “be excluded” from, “be
denied” the benefits of, or “be subjected” to discrimination under a service, program, or
activity. With that said, that language is phrased in the present tense (albeit in the passive
voice), which suggests that a qualified individual who currently experiences discrimination
under Title II or section 504 suffers an injury. And so the same language also suggests that
a qualified individual suffers new discrimination and a new injury each day that she cannot
utilize a non-compliant service, program, or activity—even if the barriers giving rise to her
claim were ones she encountered before. After all, if sidewalks and curb cuts actually do
constitute a service, program, or activity of a public entity—a question that we express no
opinion on today—a qualified individual with a disability would still “be excluded” from
utilizing any given sidewalk or curb cut each day that it remained noncompliant. Likewise,
that same individual would still “be denied” the benefits of that sidewalk or curb cut when
she encountered it a day ago just as much as when she first encountered it a year ago.
Id. at 1104 (emphasis original).
Based on this, the Tenth Circuit concluded that “a public entity does commit a ‘new violation’
each day that it fails to remedy a non-compliant service, program, or activity.” Id. at 1105
(emphasis original). The Court further held that the ADA imposes an affirmative obligation to
accommodate and that failure “to act in the face of an affirmative duty to do so axiomatically gives
rise to liability.” Id. The Court also explained that the repeated violations doctrine transforms what
would otherwise represent a single, time-based claim into an ongoing series of fresh claims.11 The

Id. at 1101 (“As shown below, the repeated violations doctrine ‘transforms what would
otherwise represent a single, time-barred claim A into a series of fresh claims, identified as claims
B, C, D, etc.’ ”)
11

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Court further articulated, however, that a covered entity does not face unlimited liability for
damages, explaining that the repeated violations doctrine “nonetheless limits the plaintiff’s ability
to recover damages to only those injuries incurred during the limitations period immediately
preceding suit (the plaintiff, of course, can also recover damages for any injuries incurred after
filing suit).” Id. at 1108.
In conducting its analysis, the Tenth Circuit also cleared up another loose end: the Fifth
Circuit case of Frame v. City of Arlington. The Tenth Circuit analyzed this case and identified that
it does not conflict with the repeated violations doctrine:
we also note that the Fifth Circuit’s decision in Frame v. City of Arlington, 657 F.3d 215
(5th Cir. 2011) (en banc), does not bear on Plaintiff’s present appeal. The Frame court held
that a single cause of action accrues under Title II and section 504 when the plaintiff “has
sufficient information to know that he has been denied the benefits of a service, program,
or activity of a public entity.” Id. at 238. One may think that holding amounts to a rejection
of the repeated violations doctrine. But the question whether the repeated violations
doctrine applies to Title II claims was not before the court in Frame. Indeed, Frame only
considered whether a Title II cause of action accrues when the plaintiff discovers he has
been injured or when the public entity engaged in the wrongful act that caused the injury.
Id. at 238–40. Nothing in its holding rejects or is inconsistent with the repeated violations
doctrine. Thus, for our purposes today, Frame is of limited value.
Id. at 1103 n. 6.

Sult Flied

VI

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Limitation. Period

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Where does all of this leave this Court?
Here, Mr. Guy brings claims asserting that Defendants have illegal policies and procedures
and that they have applied those policies and procedures to Mr. Guy. Utilizing Hamer, the proper
outcome is thus: under the Repeated Violation Doctrine, Mr. Guy’s claims for injunctive and
declaratory relief are viable and are not barred by the statute of limitations. Further, to the extent
Mr. Guy has suffered damages, his damages are limited to within the four (4) years prior to filing
suit (and during the ARP tolling period and after filing suit). Using a four-year statute of limitation
period, Mr. Guy can recover damages incurred between July 12, 2013 and the present.
Indeed, the inapplicability of the statute of limitations to Mr. Guy’s claims is best
evidenced by Mr. Guy’s written request for accommodation/modification. On March 8, 2017
Mr. Guy made a written request for accommodation/modification specifically for access to “sports,
hobbycraft, and rodeo, three programs that my hearing disability does not prevent me from being
able to participate in.” Ex. K (ARP) at 4. In his written request Mr. Guy identified his disability
and his needed accommodation. On July 14, 2017 the DOC denied Mr. Guy’s request. Id. at 5.
The State of Louisiana made an intentional choice to deny Mr. Guy a reasonable
accommodation. The State of Louisiana’s employees had more than four months to review,
consider, and draft a response to Mr. Guy’s request for accommodation. Defendants’ ADA
coordinator admitted that he did not even speak to Dr. Lavespere prior to denying Mr. Guy’s
request for reasonable accommodation.12 The State of Louisiana made no attempt to determine the
risks of hobbycraft or sports, accommodations or auxiliary aids that would help alleviate these
unidentified risks, or otherwise ensure that Mr. Guy was not being subjected to discrimination. In
fact, the decision to exclude Mr. Guy was made, in part, as a result of a self-serving interest of

12

R. Doc. 19-4 at 72.
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avoiding personal or institutional liability. As is set forth by the Fifth Circuit, this self-serving
interest sounds in animus-based discrimination. Shaikh, 739 F. App’x at 223 at n. 9.
Indeed, Mr. Guy’s claim for relief related to the “No Sports, No Hobbycraft, No Rodeo”
restriction from pre-March 8, 2017 is markedly different from his claim after
- - he submitted the
March 8, 2017 written request for modification. The Jury may conclude that, prior to March 8,
2017, the State of Louisiana did not have “notice” of Mr. Guy’s need for an accommodation. In
contrast, once Mr. Guy submitted his March 8, 2017 request for accommodation and the State
denied this request without an individualized inquiry, all doubt regarding the State’s discriminatory
intent was erased. The State of Louisiana’s denial of Mr. Guy’s request for disability
accommodation constituted a discrete act of discrimination, triggering the statute of limitations
anew. Thus, a new “discrete act of discrimination” was committed on July 14, 2017. For these
reasons, Mr. Guy’s claims are timely.
C.

Plaintiff’s “No Sports, No Hobbycraft, No Rodeo” Claims are Timely Because
Defendants Committed Discrimination Between July 12, 2013 and Present, Including
Denying a Written Request for Modification on July 14, 2017.
Mr. Guy has been under a “duty status” that includes “No Sports, No Hobbycraft, No

Rodeo” since September of 2012. Just as with the plaintiff in Hamer, the State of Louisiana
committed a “new violation” each day that it failed to remedy its non-complaint policy that
discriminates against disabled persons such as Mr. Guy. Mr. Guy encountered this discriminatory
policy each time he wanted to participate in sports between July 12, 2013 and the present because
Mr. Guy has been under the restriction the entire time. The State had an affirmative obligation to
accommodate Mr. Guy. The State of Louisiana took no steps to affirmatively accommodate Mr.
Guy and, instead, has let him languish. By failing to act in the face of an affirmative obligation to
accommodate, the State of Louisiana has “axiomatically give[n] rise to liability.” Hamer at 1105.
Notably, however, Mr. Guy’s recovery of damages is limited to the time period of July 12,
2013 and the present. Mr. Guy cannot recover damages between September 2012 and the July 12,
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2013 because those damages are beyond the four-year statute of limitations. Nor are any damages
incurred by Mr. Guy between September 2012 and the July 12, 2013 saved by the Repeated
Violations Doctrine, for the reasons discussed above.
D.

Plaintiff’s Claims for Damages Unrelated to Mental or Emotional Injury Are Not
Barred by the PLRA.
Plaintiff validly seeks compensatory damages under the ADA/RA for lost wages and

underpayment of wages. Plaintiff also seeks an award of nominal damages. Defendants raise the
issue of whether Mr. Guy can recover these types of damages. R. Doc. 19-1 at 16-18. The Prison
Litigation Reform Act states that “No federal civil action may be brought by a prisoner confined
to a jail, prison, or other correctional facility, for mental or emotional injury suffered while in
custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e) (emphasis added).
Numerous courts of appeals have held that the 1997e(e) bar does not apply to claims for
damages unrelated to “mental or emotional injury,” such as other compensatory damages, nominal
damages, and punitive damages. See Munn v. Toney, 433 F.3d 1087,1089 (8th Cir. 2006); Hubbard
v. Taylor, 399 F.3d 150,167 (3rd Cir.2005); Calhoun v. DeTella, 319 F.3d 936, 940 (7th Cir. 2003);
Searles v. Van Bebber, 251 F.3d 869, 879-81 (10th Cir.2001) (nominal and punitive damages for
First Amendment violation not barred); Allah v. Al-Hafeez, 226 F.3d 247,252 (3rd Cir. 2000)
(same); Canell v. Lightner, 143 F.3d 1210, 1213 (9th Cir.1998) (any form of relief for First
Amendment violations available, if not for mental or emotional injury); Thompson v. Carter, 284
F.3d 411, 418 (2nd Cir. 2002) (nominal and punitive damages available for deprivation-ofproperty claim).
Here, Mr. Guy’s counsel readily recognizes that Mr. Guy, a current prisoner, is not entitled
to mental or emotional injury suffered while in custody because he has not suffered a “physical
injury.” However, nothing in 42 U.S.C. § 1997e(e) prohibits Mr. Guy for suing for lost wages,
underpayment of wages, and nominal damages. These are the precise types of damages Mr. Guy

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will seek to recover at the trial of this matter. Additionally, in the Complaint Mr. Guy alleges “it
is Wilfred’s position that an award of nominal damages would confer significant civil rights to the
public, as a judgment in his favor against the State of Louisiana, regardless of the amount, would
deter the State from discriminating against disabled individuals in the future.”13
E.

Under Louisiana law and a consent decree with the U.S. Department of Justice, the
DOC must provide TTY access to “all” hearing-impaired inmates. But the DOC
admits it only provides access to those with “profound hearing loss” – a screening
criteria that violates the Administrative Code, the DOJ consent decree, and the ADA.
Under the ADA, it is illegal for a prison to “impose or apply eligibility criteria that screen

out or tend to screen out an individual with a disability or any class of individuals with disabilities”
from any service. 28 C.F.R. § 35.130(b)(8). Similarly, prisons are forbidden from providing
“different or separate aids, benefits, or services” to “any class of individuals with disabilities than
is provided to others” unless necessary to provide equally effective services. 28 C.F.R.
§35.130(b)(1).
Here, Wilfred Guy requested as an accommodation access to the teletypewriter (“TTY”)
phone at Angola. His access to the TTY phone should have been automatic: pursuant to a consent
decree with the U.S. Department of Justice, the DOC was required to “promptly provide TTY units
to all deaf and hard of hearing inmates residing in residential units.” Ex. A at Section VIII(2)
(emphasis added). That requirement was written into Louisiana law, which states that “Each unit
shall provide a TDD/TTY to all deaf or hearing-impaired offenders residing in housing areas to
the extent that pay telephones are available to other offenders.” 22 L.A.C. § 312 (H)(1)(b)
(emphasis added). And it is undisputed that Mr. Guy is hearing-impaired. R. Doc. 21-11 at RFA
No. 4 (admitting that “Wilfred Guy has been identified as ‘hearing impaired’ since at least 2012”).
But in deposition, the DOC conceded that they do not provide TTY access to all hearingimpaired inmates, instead limiting it to only those inmates with “profound” hearing loss”:

13

See R. Doc. 1, ¶ 7.
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3

Q.

4

Gu y was not permi tted to u se t he TTY machine?

5

A.

6

c r i t er i a to use the TTY .

7

Q.

And what i s the criteria to use the TTY?

8

A.

It's going to be hearing l oss , profound hearing

9

loss that keeps him fro m u tiliz i ng a telephone wi th a n

10

What was the reason ultimately that Mr . Wi l f red

Hi s heari n g impa i rment was n ot such tha t he met

amplified headset , ha n dset.

The receiver amplif i ed .

R. Doc. 19-4 at 44.
This violates the Consent Decree and Administrative Code’s clear directive that TTY
access is mandatory for “all deaf or hearing-impaired offenders.”14 And it also does exactly what
the ADA forbids: creates an “eligibility criteria” of profound hearing loss that tends to “screen out
an individual with a disability or any class of individuals with disabilities” from any service. 28
C.F.R. § 35.130(b)(8).
With regard to Mr. Guy in particular, an audiologist determined that “amplified telephone
will be sufficient [for Mr. Guy] as long as there is little to no ambient noise present during
telephone calls.” R. Doc. 19-2 at Material Fact No. 22. But Defendants point to no evidence
whatsoever that Angola’s regular telephone system is an environment with “little to no ambient
noise.”15 (And as anyone who has had a telephone call with an Angola inmate knows, there is quite
a lot of ambient noise in the background.)

14

In their motion for partial summary judgment, Defendants attempt to disparage Plaintiff by
saying that “Plaintiff’s contention in this litigation is that he should have been provided access to
the TTY telephone simply because he has a hearing impairment.” R. Doc. 19-1. That is, of
course, a basic recitation of the law. 22 L.A.C. § 312 (H)(1)(b) (TTY access is mandatory for “all
deaf or hearing-impaired offenders.”) But it helps explain the DOC’s repeated ADA violations –
the DOC is so unfamiliar with its obligations towards inmates with disabilities that it thinks a
basic statement of the governing law is something ridiculous to disparage.
15

Once a plaintiff has established a prima facie case of a request for reasonable accommodation,
the burden shifts to Defendants to show why the accommodation should not be provided. 28 C.F.R.
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Thus, Defendants have violated the requirements of the Consent Decree and the Louisiana
Administrative Code. And their “profound hearing loss” eligibility requirement violates the ADA.
Accordingly, their Motion should be denied.
F.

Defendants’ motion should be denied because they agree that Mr. Guy went long
periods without any pay because of his disability.
Louisiana law requires that the DOC “shall provide employment opportunities and

vocational training for all inmates, regardless of gender, consistent with available resources,
physical custody, and appropriate classification criteria.” R.S. 15:832(A). At Angola, inmates are
paid for the work. R. Doc. 19-4 at 130. And
But Mr. Guy received no pay whatsoever for several months-long periods, even though the
parties agree that even “with his hearing impairment, Mr. Guy is capable of doing some of the paid
jobs at Angola.” R. Doc. 21-11 at RFA Nos. 10-13.
The parties also agree as to the reason why Mr. Guy received no incentive pay for these
periods. Due to the “classification decisions of the Department,” Mr. Guy was assigned to
“working cellblocks” which “automatically resulted in a field line job assignment.” R. Doc. 19-1
at 12. But Mr. Guy had an “out of field” duty status due to his hearing impairment. R. Doc. 19-2
at No. 7Therefore, Mr. Guy was “unable to work” the field line job assignment because of the duty
status. R. Doc. 19-1 at 12. Since he didn’t work his assignment, he would not be paid. As Plaintiff
described it, each day he would “go out by the gate and show my duty status, and then they [would]
turn me around.” R. Doc. 21-16 at 62:5 to 62:6. He would go back to the dorm, and was required
to do janitorial work without pay. Id. at Page 62:8 to 62:22.
The question is whether this violates the ADA. Defendants argue that because “the
classification of inmates is a matter left to the broad general discretion of prison officials,” there

§ 35.150 (“public entity has the burden of proving that compliance with § 35.150(a) of this part
would result in such alteration or burdens.”)
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is no ADA violation even through Plaintiff was “classified into housing dormitories where he
could not receive incentive pay” due to his hearing-impaired duty status. R. Doc. 19-1 at 13.
But this is a prototypical example of disability discrimination. See, e.g., Miraglia v. Bd. of
Supervisors of Louisiana State Museum, 901 F.3d 565, 574 (5th Cir. 2018) (illegal to deny a person
the benefits of a government activity by reason of their disability). The parties agree that Mr. Guy
was put in a working cellblock side-by-side with non-disabled inmates. Each day, the non-disabled
inmates would go out and work, and be paid for it. But Mr. Guy could not work and be paid for it,
solely because he had a duty status for his hearing impairment.16
In fact, the DOC’s 30(b)(6) representative testified that the only reason they could think of
that an inmate would “go months without pay” was because of “a duty status, like if they have out
of field, like I said before, no prolonged walking, squatting, standing, whatever the restrictions
may be, until that is lifted, they can’t go to work if that specific job they are assigned to requires
those things.” R. Doc. 19-4 at 144-145.17
Thus, the DOC’s only defense – that “the classification of inmates is a matter left to the
broad general discretion of prison officials” – is a total non-sequitur. It is certainly true that prisons
have broad discretion to assign jobs to inmates; but it is also true that the ADA and RA bar the
exercise of that discretion in a way that discriminates on the basis of disability. And letting nondisabled inmates in a cellblock work for money while making disabled inmates languish without
pay is the precise conduct prohibited by the ADA. Defendants’ motion should be denied.

Defendants concede that even “with his hearing impairment, Mr. Guy is capable of doing
some of the paid jobs at Angola,” such as working as a dorm orderly, tier walker, or office clerk.
R. Doc. 21-11 at RFA Nos. 10-13.
17
One point of disagreement is that the DOC argues in their brief that “it was Plaintiff’s
obligation to request a job change.” R. Doc. 19-1 at 12. But they also agree that would have been
a futile gesture. The DOC’s representative testified that “because of where he is housed . . . he
does not have the opportunity to request a new job.” R. Doc. 19-4 at 149; see also id. at 170-171
(if he had filled out a job change form “he would be given it back because of the fact of where
he’s housed, his job comes along with that housing.”)
16

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G.

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Defendants’ motion should be denied because they concede that disabled inmates are
barred from participation in all sports without an adjustment by a doctor, and the
Angola doctor testified that “I won't make an adjustment for sports.”
Defendants point out in their brief that a “public entity must ensure that its safety

requirements are based on actual risks, not on mere speculation, stereotypes, or generalizations
about individuals with disabilities.” R. Doc. 19-1 at 13, citing 28 C.F.R. §35.130.
Here, the DOC is doing precisely that – banning all disabled inmates from participating in
contact sports, based on speculation, stereotypes, and generalizations.
First, LSP’s policy is that no inmate “assigned restrictive duty” will be “allowed to
participate in sports and/or recreational activities, unless specified by the treating health care
provider.” R. Doc. 19-13 (LSP Directive No. 13.063) at 3. That caveat – “unless specified by the
treating health care provider” – sounds like an opportunity for an inmate to receive an
individualized assessment of their ability to play sports. But it is not. That is because Dr.
Lavespere, head of medical at LSP, testified categorically: “I won’t make an adjustment for
sports.” R. Doc. 19-4 at 69.
And it is clear that Dr. Lavespere’s decision about disabled inmates being banned from
sports is based on speculation. For example, he was quick to testify that Mr. Guy, with his hearing
impairment, would be at an “increased risk” of playing “pickle ball.” R. Doc. 19-4 at 71. But in
the same deposition, Dr. Lavespere confessed that he does not know what the sport of pickle ball
is. Id. at 90. (Pickleball is a “paddle sport created for all ages and skill level”18 that involves a
perforated plastic ball “similar to a wiffle ball, but slightly smaller.” The game “was designed to
be easy to learn and play whether you’re five, eighty-five or somewhere in between.”19)

18
19

https://www.usapa.org/what-is-pickleball/ (last accessed 2019/6/17).
https://www.pickleball.com/what-is-pickle-ball-s/118.htm (last accessed 2019/6/17).
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Thus, the DPS&C is banning Mr. Guy and other inmates with disabilities from sports they
cannot even identify or describe with no opportunity for an “adjustment,” even when those sports
are low-intensity whiffle-ball-like games designed for children and the elderly.
Indeed, the Angola ADA coordinator conceded that he denied Mr. Guy’s request to
participate in sports using a packet of information, despite the fact that nothing in the packet
“explains how sports, hobby craft or rodeo would be dangerous for Mr. Wilfred Guy.” R. Doc. 194 at 42. And it was admitted at deposition that the Angola ADA coordinator and Dr. Lavespere
have never met to discuss the ADA or Rehabilitation Act. Id. at 72. Nor can Dr. Lavespere explain
how much additional risk Mr. Guy is at by playing sports such as baseball, basketball, or pickleball.
Id. at 69-71. In fact, when pressed as to the specific percentage risk for Mr. Guy, Dr. Lavespere
admitted that he couldn’t state a percentage because doing so would be “just pure speculation.” Id.
at 70.
This practice violates the ADA/RA’s requirement of individualized assessments of an
activity’s risks and a person’s needs, including in the sports context. See Anderson v. Little League
Baseball, Inc., 794 F. Supp. 342, 345 (D. Az. 1992) (“Defendants’ policy amounts to an absolute
ban on coaches in wheelchairs in the coachers box, regardless of the coach’s disability or the field
or game conditions involved. Regrettably, such a policy — implemented without public discourse
— falls markedly short of the requirements enunciated in the Americans with Disabilities Act and
its implementing regulations.”); Shultz v. Hemet Youth Pony League, 943 F. Supp. 1222, 12251226 (C.D. Cal. 1996) (failure of a baseball league to “make necessary and reasonable attempts to
ascertain what modifications, if any, were plausible in order to accommodate Plaintiff's disability”
violated ADA). Accordingly, Defendants’ motion should be denied.

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Defendants’ motion should be denied because they concede that Plaintiff has been
actually excluded from participation in hobbycraft due to his disability, which
violates the ADA.
Defendants’ agree that Plaintiff has had a “no hobby craft” duty status for at least the last

seven years, and that the no hobbycraft restriction, “as written, prevents Plaintiff from participation
in hobbycraft activities.” R. Doc. 19-2 at Material Facts No. 6, 9, 12. They do not dispute that
Plaintiff made an explicit, written request for accommodation for access to hobbycraft. R. Doc.
19-7 at 4. Nor do Defendants dispute that they denied Plaintiff’s request. Id. at 5.
Their defense, however, is that despite being actually prevented from participation in
hobbycraft, Plaintiff is somehow not hypothetically prevented because “Dr. Lavespere testified
that he would potentially allow Plaintiff to engage in certain hobbycraft activities such as leatherworking, jewelry making, and painting upon request to him.” R. Doc. 19-1 at 15.
What defense is this? The Americans With Disabilities Act has no “we denied your request
for accommodation, but if you ask again and this time go outside the accommodation process, we
might potentially give you a different answer” defense to a claim. Cf. 42 USC § 12113 (listing
defenses to an ADA claim).
Nor would such a concept be consistent with the law. First, Louisiana law is explicit that
“The ADA does not require that a request for accommodation be provided in any particular
manner; therefore, the department is charged with having knowledge, or deemed with having
knowledge, of the request regardless of the form of the request.” 22 L.A.C. § 308(E)(1)(c). And
the law explicitly puts the burden on the prison’s ADA coordinator to reach out to medical director
if their input is needed. 22 L.A.C. § 308(E)(2)(a) (“the unit ADA coordinator shall seek to
determine . . .if additional medical information is needed. At this point of the process, the unit
ADA coordinator may request that the unit medical director” provide information.).
Second, even if Dr. Lavespere were willing to “potentially allow” Plaintiff to participate in
hobbycraft in the future, that would be no defense to Plaintiff’s claim about current and past
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exclusion. Under the ADA, the exclusion itself violates the law. 42 USC § 12132 (“no qualified
individual with a disability shall, by reason of such disability, be excluded from participation” in
programs.) And Defendants concede that Mr. Guy’s current no-hobbycraft duty status, “as written,
prevents Plaintiff from participation in hobbycraft activities.” R. Doc. 19-2 at Material Facts No.
6, 9, 12. At best, an appeal to Dr. Lavespere might only remedy future exclusion; it cannot change
the present or past.
Third, it is not clear that Dr. Lavespere would actually overrule the ADA coordinator’s
denial of hobbycraft to Mr. Guy. That is because he also testified that: “[T]he ADA coordinator is
in charge of making those final decisions” (R. Doc. 19-4 at 73) and “Whenever he makes those
ADA recommendations, I sign off on them” (id. at 82).
As a result, the facts remain:
(1) Mr. Guy made a request for accommodation to do hobbycraft activities;20
(2) His request was denied.21
(4) He is therefore prevented from participation in hobbycraft activities;22
(4) Yet everyone agrees he can safely do certain hobby craft activities.23
No more is needed to prove Mr. Guy’s ADA claim. Defendants’ motion should be denied.
G.

Defendants’ “No Rodeo” duty status practice violates the ADA, but is moot here
because Plaintiff is not asking for rodeo access.
Defendant’s “no rodeo” duty status system violates the ADA. At Angola, the general

practice is to add a “no rodeo” restriction to any inmate with a medical duty status.24 And Dr.

20

R. Doc. 19-7 at 4 (ARP).
R. Doc. 19-7 at 5 (ARP denial).
22
R. Doc. 19-2 at Material Fact No. 9 (“The “no hobbycraft” restriction, as written, prevents
Plaintiff from participation in hobbycraft activities.”)
23
R. Doc. 19-4 at 69 (“Now, leather work, painting, there's no inherent danger to him. He can do
that all day.”)
24
R. Doc. 19-4 at 51 (30(b)(6) witness could not identify a single inmate “having a duty status
but nonetheless having the ability to participate in sports, hobby craft, or rodeo”); Reeves v.
LeBlanc, 13-cv-586 (M.D. La., Oct. 23, 2014) (inmate with flat feet had “no sports, no hobby
21

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Lavespere testified “I won’t make an adjustment for rodeo.” R. Doc. 19-4 at 69. This violates the
requirement of a “individualized assessment mandated by the ADA.” Kapche v. City of San
Antonio, 304 F.3d 493, 499 (5th Cir. 2002). But as Defendants point out, Plaintiff does not
currently wish to participate in the rodeo. As a result, the point is moot.
H.

Injunctive relief is needed to remedy Defendants’ facially illegal policies, and to allow
Plaintiff to participate in hobbycraft, sports, and TTY access.
Injunctive relief is appropriate when defendants have a facially illegal policy. See, e.g.,

Oxford House, Inc. v. City of Baton Rouge, 932 F.Supp.2d 683, 703 (M.D. La., 2013). Here,
injunctive relief is needed because Plaintiff has identified three of Defendants’ policies that are
facially illegal:
•

LSP’s Directive 9.036’s that bars all hobbyshop for inmates “under medical
care and/or treatment, requiring a duty status”;25

•

LSP’s Directive 19.001’s that caps the pay for inmates with Limited Duty
statuses to four cents per hour, while non-disabled inmates can make a dollar or
more per hour;26

•

LSP’s criteria limiting use of the TTY phone to those with “profound hearing
loss”.27

Plaintiff agrees with Defendants that no injunction is needed with regard to his job duties
or his rodeo access. But Plaintiff continues to be barred from participating in hobbycraft,28 even
though the State of Louisiana concedes he can safely participate in hobbycraft activities.29 An
injunction is thus needed to remedy Defendants’ failure to provide Mr. Guy with access to
craft, [and] no rodeo” added to duty status); Plaintiff’s Undisputed Fact No. 10 (inmate with
genital warts had “no sports, no hobby craft, [and] no rodeo” added to duty status).
25
See discussion at R. Doc. 21-1 at 9-12.
26
See discussion at R. Doc. 21-1 at 12-13.
27
Cf. 22 L.A.C. § 312 (H)(1)(b) (“Each unit shall provide a TDD/TTY to all deaf or hearingimpaired offenders residing in housing areas to the extent that pay telephones are available to
other offenders.”) (emphasis added).
28
Defendants’ Statement of Material Facts at No. 9 (“The ‘no hobbycraft’ restriction, as written,
prevents Plaintiff from participation in hobbycraft activities.”)
29
R. Doc. 19-4 at 69 (“Now, leather work, painting, there's no inherent danger to him. He can do
that all day.”)
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hobbycraft. With regard to sports, the Court can evaluate Mr. Guy in person at the time of trial to
determine whether he has completed physical therapy and can participate in sports or is reasonably
anticipated to be able to participate in sports in the near future.30
With regard to the TTY phone, Dr. Sherry Mouton determined that an “amplified telephone
will be sufficient [for Mr. Guy] as long as there is little to no ambient noise present during
telephone calls.” R. Doc. 19-2 at Material Fact No. 22. But since Defendants have presented no
evidence nor made any argument whatsoever that Angola’s regular phones are in an environment
with “little to no ambient noise.” Accordingly, they should be required to comply with the
Louisiana Administrative Code and provide Mr. Guy with TTY access.31
Accordingly, Defendants’ motion should be denied.
III.

CONCLUSION

For the reasons set forth above, Defendants’ motion for partial summary judgment should
be denied.
Respectfully submitted,
/s/ Garret S. DeReus
BIZER & DEREUS, LLC
Garret S. DeReus (LA # 35105)
gdereus@bizerlaw.com
Andrew D. Bizer (LA # 30396)
andrew@bizerlaw.com
Marc Florman (LA # 35128)
jhammack@bizerlaw.com
3319 St. Claude Ave.
New Orleans, LA 70117
T: 504-619-9999; F: 504-948-9996

30

/s/ William Most
LAW OFFICE OF WILLIAM MOST, L.L.C.
Louisiana Bar No. 36914
201 St. Charles Ave., Ste. 114 #101
New Orleans, LA 70170
Tel: (650) 465-5023
Email: williammost@gmail.com

R. Doc. 19-3 at 84-85 (As of May 2019, Mr. Guy had two more physical therapy sessions
remaining, and testified that he wanted to “go back to playing sports” once he gets better from
physical therapy).
31
“Each unit shall provide a TDD/TTY to all deaf or hearing-impaired offenders residing in
housing areas to the extent that pay telephones are available to other offenders.” 22 L.A.C. § 312
(H)(1)(b) (emphasis added).
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CERTIFICATE OF SERVICE
I hereby certify that on July 7, 2019, a copy of the Plaintiffs’ Opposition to Defendants’
Motion for Summary Judgment was transmitted to counsel for defendants, James “Gary” Evans,
by operation of ECF.
_/s/William Most
William Most

24