As previously reported in PLN, hearing-impaired prisoner Ernest Trivette filed suit against the Tennessee Department of Corrections (DOC) in March 2020, accusing the prison system of failing to accommodate his disability. [See: PLN, Jan. 2024, p.17.] That suit has since become a class-action, in which on July 9, 2024, the federal court for the Middle District of Tennessee granted partial summary judgment to the Plaintiffs. A cross-motion for summary judgment by Defendant DOC officials was also granted in part.

Trivette’s suit accused the DOC of violations of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. ch. 126 § 12101 et seq., and § 504 of the Rehabilitation Act, 29 U.S.C. § 701 et seq. Other prisoners later joined in the suit, which alleged that prison officials failed to provide American Sign Language (ASL) interpreters for their medical visits, religious services, disciplinary and parole hearings, as well as other institutional programs, and failed to provide videophones to deaf prisoners. The Court granted Plaintiffs a preliminary injunction on May 24, 2023, requiring DOC officials to improve access to videophones or explain why it couldn’t.

Plaintiffs included Disability Rights Tennessee (DRT), part of the federal Protection & Advocacy system. The DOC acknowledged that ASL interpreters were not provided in 269 occasions between 2015 and 2023 in which a translator should have been supplied, particularly during medical visits. During the litigation, the DOC adopted a policy to ensure that hearing-impaired prisoners had access to effective communication services (though it acknowledged that only four state prisons had a videophone).

Defendants argued that most of the plaintiffs had failed to exhaust the grievance system as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e, even though no ASL interpreters or other accommodations were provided to help hearing-impaired prisoners understand the grievance process. The DOC also argued that some of the claims were time-barred and that monetary damages were mostly unavailable due to sovereign immunity.

Plaintiffs sought partial summary judgment on the DOC’s failure to adequately assess the communication needs of hearing-impaired prisoners during the intake process, as well as the failure to provide adequate access to ASL interpreters and videophones. The Court initially held that DRT had associational standing in the case, despite not being a membership organization, because it sued alongside several of its constituents—“specific individuals who have been subjected to alleged violations of their rights by [DOC],” the Court noted.

The Court also found that most of the claims in the case involved continuing violations that extended into Tennessee’s one-year statute of limitations, making them timely. Also, though the prisoners’ due-process claims could support an award of monetary damages, such damages were not available “for most of the plaintiffs’ accommodation-based claims” under Title II of the ADA, just as monetary damages for “emotional distress” were not permitted under § 504 of the Rehabilitation Act.

With respect to exhaustion of administrative remedies, DRT was not required to do so because it was not a “prisoner” within the definition of PLRA. While several of the Plaintiffs had failed to fully exhaust the DOC’s three-step grievance process, the Court found that process was not “available” to them in some cases because prison officials failed to provide accommodations, such as ASL interpreters, to explain the grievance procedure to hearing-impaired prisoners. For other claims, the complaints raised by plaintiffs were arguably exempt from the grievance system, the Court said.

Turning to the merits of Plaintiffs’ summary judgment motion, the Court provided its own summary of the scope and limitations of the ADA. The Court wrote that intake assessments to identify prisoners with hearing-related disabilities were necessary; however, the lack of such assessments did not constitute a constitutional injury by itself. Rather, it was “a purely theoretical injury,” and summary judgment was denied as to that claim.

Based on uncontested evidence, five of the plaintiffs, as well as two other DOC prisoners identified by DRT, required ASL interpreters, which prison officials failed to provide in hundreds of “high stakes” situations, such as medical visits, disciplinary and parole hearings, as well as religious services. Accordingly, summary judgment was granted as to liability on the lack-of-interpreter claims that did not involve exhaustion-related issues.

Lastly, with respect to videophones, the DOC’s improved efforts to provide such devices to hearing-impaired prisoners convinced the Court that “current compliance … is, at most, relevant to remedies, not the plaintiffs’ entitlement to summary judgment” in regard to past violations. Judgment was therefore granted to Plaintiffs on this claim.

The Court also addressed Plaintiffs’ motion to exclude the DOC’s two expert witnesses, Randall Atlas and Kevin Myers. Atlas, an architect with knowledge about ADA accessibility accommodations, was not proficient in ASL and had “very limited experience with deaf individuals,” the Court noted. Since he could therefore not testify about the effectiveness or reasonableness of the DOC’s efforts to comply with the ADA, his testimony was excluded.

Myers, a former warden and DOC official who retired in 2023, had formed a consulting company called 4Square Corrections, LLC. But the Court found that he also lacked expertise regarding hearing-impaired prisoners; while he was allowed to testify as an expert, his testimony was limited to exclude “any opinion regarding the actual sufficiency of any specific accommodation or whether any particular policy would bring [DOC] into compliance with the ADA,” the Court ruled.

The Court’s order granting the prisoners’ summary judgment motion in part “was a significant victory for deaf prisoners in Tennessee and set precedents on a number of issues that will be of value to all prisoners—deaf and hearing—around the country, and to the organizations that work with them,” stated Amy Robertson, one of the attorneys representing Plaintiffs.

Remaining claims in the case were scheduled to go to trial in January 2025, and PLN will report on developments as they occur. Plaintiffs are represented by attorneys with DRT, Disability Rights Advocates, Disability Law United and the Colorado-based firm of Fox & Robertson. See: Trivette v. Tenn. Dep’t of Corr., USDC (M.D. Tenn.), Case No. 3:20-cv-00276.  

Additional source: Disability Rights Tennessee

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