TDCJ: Hearing Loss Isn't A Disability
But a federal judge disagrees
By Jordan Smith,
1:04PM, Tue. Dec. 14, 2010
Federal Judge Sim Lake has ruled that the Texas Dept. of Criminal Justice must accommodate a hearing-impaired individual during prison visits.
Lake's Dec. 2 summary judgment ruling concludes that TDCJ failed to make a "reasonable accommodation" for Jeremy Durrenberger's disability during his visits to the Hughes Unit in Gatesville.
In the ruling, Lake seems unimpressed by the TDCJ argument that it didn't need to comply with provisions of the Americans With Disabilities Act or the Rehabilitation Act of 1973 because there was no evidence that it had "waived its sovereign immunity" from such suits, in part by having accepted federal financial assistance. (For example, the agency tried arguing that it did not have to comply with the RA because although TDCJ does receive federal funding, Durrenberger can't prove that any federal funds are used specifically to fund visitation at the Hughes Unit. "TDCJ has not cited any authority supporting its contention that a state entity that accepts federal funds does not waive its Eleventh Amendment immunity unless its receipt of federal funds is related to the particular program at issue," Lake wrote.)
According to Durrenberger, officials at the Hughes Unit failed to accommodate his hearing impairment on a number of visits starting in February 2009 – in fact, he says that on one visit, when he requested a disability accommodation he was told by a male correctional officer that "the facility was accessible to people with disabilities since the facility had wheelchair ramps; the officer also told [Durrenberger] that loss-of-hearing was not a physical disability," reads a court filing. Nonetheless, Durrenberger persisted, asking either to be allowed to use an attorney-client booth for his visits, or for the agency to install a sound amplifier to one of the handsets used for communication during non-contact visits. The agency did neither.
In short, says Texas Civil Rights Project attorney Scott Medlock, who represents Durrenberger, the agency would rather argue that it doesn't have to comply with federal law than to install a $15 sound amplifying unit. Indeed, according to TDCJ, "[v]isitation is inherently noisy as friends and family meet with inmates for a limited time once a week" and that creates "hearing difficulties during visits" even for "the average person."
In the end, Lake agreed that Durrenberger is disabled and is also entitled to summary judgement: "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."
The lunch money the state would not spend on the amplification device could now cost it thousands of dollars in damages to Durrenberger (including "reasonable travel expenses" for the trips he's already made from his home in New Caney to the Hughes Unit in Gatesville) and in attorneys fees paid to TCRP for having to file suit. Lake will hold a hearing in February to decide whether to grant Durrenberger request for damages and attorneys fees.