This is being provided in a rough-draft format. Communication Access Realtime Translation (CART) is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings
KYLE SMIDDIE: I feel like with an audience of four, we should just do a circle. You guys get one-on-one sessions.
MONICA BASCHE: We'll probably fill up. We'll see what happens.
KYLE SMIDDIE: I'm sure. I couldn't find this room.
MONICA BASCHE: You let me know. We're not in a rush.
WEST RESENDES: So maybe we should let the audience introduce themselves so we know who all is in the room.
MELLIE NELSON: That would be fun.
KYLE SMIDDIE: Could we start --
MONICA BASCHE: Now we're making the audience nervous.
KYLE SMIDDIE: She's saying no.
MONICA BASCHE: It's fine. We're not going to put anybody on the spot. But I think just because they run a tight ship here at the tenBroek --
KYLE SMIDDIE: Use the mic.
MONICA BASCHE: Is this on? There we go. Just because they run a tight ship here at tenBroek and at most NFB events, to make sure we stay on time, I'm going to start things. I'm sure that more people will trickle in as we get started.
So I'm just going to say like I'm Monica Basche with Brown, Goldstein & Levy, and I'm going to sort of pass the baton off to my respective panel members as we're proceeding today. And I will allow everyone to introduce themselves when they start talking.
But I did want to start with a brief introduction into maybe what it's like for a prisoner in daily life. Is anybody familiar with, you know, what it's like behind prison walls here? I mean... okay. So we have a few people. So I think a lot of people don't necessarily understand what it's like to be in prison and why litigating on behalf of prisoners with disabilities is so important.
So prisons oftentimes offer sort of first and foremost educational programming. If you don't have a GED, you're usually required to participate in GED programming before you can be eligible for any work programs or any other educational programs. So that's one place where accommodations can be necessary to make sure that there's equally effective communication.
Same thing with employment within prisons. Prisoners need accommodations in order to be able to perform the functions of the job, as well as just living within the confines of a prison. So in one of the cases where I'm litigating, I'm litigating on behalf of blind prisoners and at one of the facilities they live in a dorm-style setting with 100 inmates per room. It's like a Thunderdome, very loud, very chaotic, and there's constantly items in their path. So making sure that not only they have white canes but tactile tape on the floor and that there's not objects in the path they're attempting to navigate.
There's also issues with being able to access certain process procedures within the prison. Like the grievance process. If something happens to you, to be able to complete that paperwork, read the responses, as well as going through the disciplinary process, making sure that you understand the charges against you and are able to actually litigate those charges against you. And then for those who are here that deal with opioid use disorder, oftentimes prisons are not acknowledging that that is a disease and something that needs medical treatment. So there can be some serious consequences with that as a result if you let somebody who has opioid use disorder detox without necessary treatment or supervision.
And then there are many inmates who end up having to rely on staff to perform tasks that if they were given appropriate accommodations and training they would be able to do independently and privately. That's not to say that you have a whole bunch of privacy in prison, but we want to make sure that inmates with disabilities are put on equal footing with the inmates without disabilities. Not asking for special treatment, just that they have the same level of treatment as other prisoners. I think with that, I will hand it over to Smiddie to introduce himself. Sorry. Kyle Smiddie. He says to call him Smiddie and I am taking him at his word.
KYLE SMIDDIE: Thanks. So I am Kyle Smiddie. I work at the United States Department of Justice in the Civil Rights Division. And so the title of this is recent advocacy for prisoners with disabilities, and I'm going to talk about mental health as a disability in prisons. In the Civil Rights Division, I work in the special litigation section. I'm going to talk a little bit about what we do there and then tell you a story about a case that I'm working on.
I'm a white male in a blue suit with blond hair and a beard. I brought some, taking a page out of a book of my 8-year-old, I put together an art presentation on the way out of some pictures and newspapers of the case that I'm working on. It's kind of like CSI in my office of putting together kind of what's been happening in this case. So I'm going to be talking about that case and afterwards if people want to come up and ask me questions about it, we can have a little bit of a discussion one on one about that. Makes it a little more fun, like you're in class back in 4th grade like my 8-year-old.
So the Civil Rights Division in the special litigations section gets to investigate prisons and jails. We have 30 cases across the country. And we get to do investigations and then hopefully create settlement agreements or we can sue them and then we get to try to change their practices and make things better. We do that by trying to look at lots of different issues, like whether there's a failure to protect incarcerated people from harm, like physical and sexual abuse, areas around sole tarry confinement or medical care, healthcare. And we do that by looking at an investigation, writing a report about what's happening in those cases, and then negotiating and trying to come up with a settlement agreement. And then enforcing that settlement agreement and trying to change their practices.
Now, I come to this work with a little bit of a different hat. I started my career as a social worker. I have a master's in social work. So I think about this work not as trying to force the other side to change what they're doing but to try to help them see -- try to see what they are seeing. I try to look at the staff and the officers from their side and try to think about like what are they going through, what is it that they don't like about their job, and how do I help them see things differently or how do I see it from their side.
And so that's what's happening in this case in Virginia Beach that I'm going to tell you about. I want you to close your eyes and do a thought experiment with me for a second. So I want you to imagine that you work with me and we just wrote a report. No, seriously, close your eyes. Come on, guys. And I want you to imagine that you just wrote this report that was pretty awful. It described horrible things that happened. People have died in this jail because they had mental illness and they were being treated poorly and they lost 100 pounds in 40 days and died of starvation. That's a true case. Young man's name was Jeremiah Mitchell.
They died because they had a bleeding ulcer. His name was Henry Stewart. These are actually things that happened. We wrote this report and put it out publicly. Now you're in this room. You can open your eyes if you want to. You're in this room and there are officers sitting in front of you -- this happened to me. There are officers sitting in front of you confronting you about this report because they are angry that you now -- and they told me this -- that you now made their jobs harder because they can't go into Wawa and wear their uniforms because they will be spit on because they are now seen as trash because they now work in a place where they did terrible things to people.
You're in a tough situation, because that was true that people that we care about, incarcerated people, were treated badly there. But I also had to sit in front of these officers and think about what their lives were and they had to come to work here every day.
So I had to think about, how do I want to make their lives better and the incarcerated people better? So as a social worker, I started to work for the next 3 years on trying to make the staff understand that we could make their lives better and in turn we would make the people behind the doors better. So we worked for the next 3 years on trying to improve their lives, recognize the hard work that they were doing, and, in turn, help them understand that people have mental illness and their lives need to be thought of as humans and if we improve their lives, the lives of the prisoners, the incarcerated people, that the lives of the staff would get better too.
So I wanted to leave you with that story. We worked with them for 3 years, 3 and a half years now. And tomorrow the jail is now downsizing. They have made incredible progress. And they've determined because of a whole lot of reasons they are now closing that jail, which for some people that's a fantastic result. For other people, they have even a year ago, they have made such incredible changes that people with mental illness were getting out of their cell, they were no longer being kept in solitary confinement, they were getting mental healthcare in such different ways than they were before.
So I wanted to kind of give you an inkling of that success story and afterwards I'm willing to take questions and talk about how we were able to work with these staff and with the leadership to kind of change their culture, which is what I think this is really about when you're trying to impact not just force down the throats the kind of changes that you want to see around prisons and jails. I'll end my talk there.
MELLIE NELSON: There's so many of us, we're limited to 8 minutes. I feel like I'm speed dating. My name is Mellie Nelson. I'm a white elderly woman. And I have white to blond hair. And I've got on a bluish jacket. I work in the Disability Rights Section of the Civil Rights Division. I am a supervisory trial attorney. And I've held that position for 10 years. And before that time, I was in the special litigation section where C Kyle is. I started working on correctional matters when I was at special litigation and fabulous cases all over the United States and all the territories. So I'm well-traveled as a result of that.
And I came over to the Disability Rights Section in 2004 and they started emphasizing the Americans with Disabilities Act in correctional facilities. At that time people really didn't think that the ADA applied to correctional facilities, and so we were doing an awful lot of education early on. And it's been game changing to see the changes that finally have been made. We address four basic issues. During my 8 minutes of discussion, I'm going to be mentioning some settlement agreements and a findings letter.
If you want to look at those documents themselves, the ones before 2023 are in ADA.gov, and the more recent ones after that time can be found in DoJ.gov. The Disability Rights Section enforces the Americans with Disabilities Act, and I mainly do enforcement in correctional facilities. And we look at four major issues: Physical accessibility, program accessibility, disability-related medical care, and effective communication both for prisoners who are blind and prisoners who have visual -- excuse me, hearing disabilities.
With regard to physical disabilities, you can look at a settlement agreement for the South Dakota Department of Corrections. And this was a weird investigation. We work exactly like the special litigation section does. We conduct our own investigations, get experts, go into the facilities, talk to staff, ask questions, talk to the residents there, and then do a letter of findings which summarizes what we found and what we believe to be violations of the law.
And then we try to negotiate a settlement agreement. And if we can't do that, we sue. The last time I sued anybody was the state of South Carolina, and that was for segregating their HIV inmates and it was the last prison system in the United States that had a totally segregated inmate system, and HIV inmates were just out there and couldn't do anything. It was sad.
But fortunately most matters settle and it makes life easier for everybody and I think we get quicker resolutions that way. Physical accessibility involves simple things like can someone get into the cell door. Sometimes the cell doors are very narrow and a wheelchair can't get through. Can they use the toilet. Are there accessible toilet facilities. Are there accessible drinking fountains. Can you get to the classroom. Can you get to the shower.
In South Dakota state penitentiary, the part of the prison that housed most of the people with disabilities and the elderly population had individual showers and you had to walk up two steep steps to get into the shower. No guardrails, no handles, no nothing. This was built in 18 something or other and totally inaccessible. But that's a good agreement to look at.
Our next area is program accessibility. And this is access to programs for which inmates are eligible. Arizona at one point would not let anyone with a disability have a job. They strictly prohibited people with disabilities from having a job. We fortunately were able to get that changed many years ago, but most recent program access case involves testing accommodations for inmates with disabilities, learning disabilities. This occurred in Minnesota, and there was a session on that right before this session. So if you didn't -- you would have been a good one to go to. But the complainant was a teacher, and she got in touch with us. And I was so glad to get this complaint because it was an area where we need to do something and we really needed a complaint to act. And she was frustrated because she had so many students who needed simple accommodations, like more time. It's a simple accommodation. But they had no mechanism to certify to the GED that, one, the person had a learning disability and needed this accommodation and should be accommodated. So we got a consent decree actually in that case some months ago.
The Nevada Department of Corrections has denied people with disabilities access to jobs, and there is a settlement agreement pertaining to that also within the past year or so. And that's on the website. Another area we look at is disability-related medical care. Do prisoners with disabilities have access to healthcare? Do they have access to medication? If they need them, do they get a sufficient number of catheters? Do they have access to wheelchairs? Do they get canes? Do they get trapeze bars if they need assistance in getting in and out of bed? Other areas in this disability-related medical care area is the provision to inmates with opioid use disorder of medication. There are two areas, two settlement agreements, and they're both from Pennsylvania. The first involves the unified judicial system of Pennsylvania. The court system was denying anyone who was taking any medication for an opioid use disorder access to any of its programs. And so if you were sentenced by them, you had to go cold turkey. And we recently got an agreement with them, and that's the unified judicial system of Pennsylvania. And we also got an agreement very recently with Allegheny County jail in Pennsylvania, and except for pregnant women, it wasn't letting anyone use methadone, and people coming into the jail had to go cold turkey. And fortunately that has ended and we have moved on.
Another area that we just did a letter of findings last Tuesday on March 12th to the Utah Department of Corrections involves gender dysphoria on behalf of a transgender inmate. And she did the things that we always caution about, and it was terrible. She cut off her own testicles. I mean, it was just horrible. We had interviewed her, and she was in complete depression, really bad state. And we were so glad to get this letter of findings out. We were wondering whether we would be back. We were. And we've got the support, and it is Utah, so we can speculate on what may happen, but we hope if we have to sue, we hope we can get in there quickly. The final area we work at and have done a lot of work on is effective communication. Effective communication for individuals who have hearing disabilities. And West is going to talk about a matter he's working on involving those issues with the Georgia Department of Corrections. We in the Civil Rights Division just got an agreement last month with the Arizona Department of Corrections involving effective communication for blind inmates. They were doing nothing for inmates who were blind. It was really pitiful. I interviewed one man, and he had not been blind very long, and he arrived at the prison and they just let him off the bus. He didn't know where he was, where he was going, no one guided him anywhere, I mean, it was just thrown to the wolves really. It was awful. But we do have that agreement with the Arizona Department of Corrections.
This is fabulous work. If you are interested in doing it, you will be well rewarded. And I've really enjoyed meeting the people on this panel and glad to be here.
MONICA BASCHE: Thanks, Mellie. So I'm next. I'm Monica Basche from Brown, Goldstein & Levy. I'm a white female with I guess blond hair and a black and white checkered sweater/blazer. Now I guess fortunately or unfortunately, I am in the world of, you know, private firm of representation of clients so I don't have the investigation power of the federal government behind me. And as my colleagues from the ACLU and ACLU of Virginia will acknowledge, one of the things that we run up against when we are working with prisoners is something called the Prison Litigation Reform Act. And that requires that you exhaust all administrative remedies with regard to your claims. So that is something that we have to consider when we are litigating that the federal government --
KYLE SMIDDIE: So the PLRA starts here.
MONICA BASCHE: Yeah. I generally litigate on behalf of blind prisoners, and I'm involved in a case against the Virginia Department of Corrections right now. And one of the ways that we're trying to be creative about getting around the exhaustion requirement with regard to making actual changes to the way the Virginia Department of Corrections does things is to include the National Federation of the Blind of Virginia as a plaintiff in the case. And we have somebody, a prisoner who was actually a member of the National Federation of the Blind of Virginia before he entered the prison system in Virginia and has maintained his membership since and got some other fellow inmates to drink the Kool-Aid to help them understand what the National Federation of the Blind is about, the integrationist philosophy and the fact that if you're given the appropriate accommodations and skills-based training for anything, you basically can do most everything that sighted people could do, right?
And so we're actively litigating that case. Samantha Westrum and I are going to trial in May, and we've seen some of the things that Mellie was talking about where especially if an inmate goes blind in prison, there's really no way for them to learn about what sort of resources are available, what accommodations are available, what they can do. And so they really are, as she said, thrown to the wolves. We've seen that blind inmates are dependent on sighted inmates in order to read and write critical documents and certain things that you wouldn't want to maybe disclose to other people that contains confidential and private information.
The Virginia Department of Corrections provides tablets where you can do secure messaging, and those tablets are not accessible. There are kiosks that you can plug the tablets into and also type an email and read emails, but there's no text to speech or speech to text software. So we are trying very hard to try to put the blind prisoners that are in the Virginia Department of Corrections on equal footing with their sighted peers. And I think for us in the private sphere, there's just different vehicles for advocacy. So I have represented blind inmates, individual blind inmates in Maryland. We achieved a successful resolution of a case, the Brown case in Maryland, and I've been able to use the settlement agreement in that case, which was only to a particular prison at which the blind inmates were housed, to negotiate with the Attorney General's office, the correctional litigation division, to make sure that those blind inmates were receiving accommodations.
So I did have one inmate who was out at North Branch and I got a successful resolution for his case, got him the accommodations he needed, the large print forms, everything like that. And I'm currently working on another case involving a female prisoner, and she's also a wheelchair user, so she's not only blind but she's experiencing physical accessibility barriers at the prison. They had a broken wheelchair lift for years and it took a demand letter to get it fixed. So it didn't take litigation, but it was very important to her because, you know, nobody thinks about it but like they would have family day events and religious services and fun things going on in this common area and the wheelchair lift was broken so she couldn't participate in any of those events. So it seems like a small thing, but it's a life changing thing for the individual people. Now, it is nice to have those successes, but I would love to see systemic change. So I think I'll hand it over to Sam to talk more about how us in the nongovernmental sphere are trying to make systemic change in Virginia.
SAMANTHA WESTRUM: Okay. Hi there. I'm Samantha Westrum. She/her. I'm a fellow at the ACLU of Virginia, white woman, long blond hair, Navy suit today and my nails are red. Special occasion. So like Monica said, for the last 18 months we've been lucky, unlucky for the circumstances but lucky enough to be litigating a case against the Department of Corrections for failing to accommodate the blind prisoners including our clients. I would like to talk today about some of the structural failures or total absence of structure that have actually led to the experiences that our clients have gone through. And what we see time and time again is that they can easily accommodate people like our clients. It's not that what they're asking for is too costly or because they haven't heard of the types of accommodations that our clients are asking for. But they put out these unnecessary barriers to provide those accommodations. In short, they know better but don't do better. So there's many reasons why but because I have 8 minutes and not 8 days, I will give you just three.
First off, there are some structural and policy issues that prevent a speedy and streamlined response to someone's request for an accommodation. So according to their policy, a prisoner with a disability is required to submit a written request for accommodation when they need something. I need a new white cane. I need accommodations to access education. However broad or narrow that request is, they have to write it down, which we could talk about that accessibility barrier. And they have to submit it to the ADA coordinator. Every prison at least in VDoC has a specific ADA coordinator or someone whose job it is to review these requests for accommodations. But that is where the clarity ends. We deposed the facility ADA coordinators, the statewide ADA coordinator, medical directors, wardens, correction officers, you name it, everyone had a different answer to "How does the accommodations process work? Who has final say as to whether it is granted or denied?"
When you don't have a clearance to that, you get things like what happened to our client. He submitted a request in November. An email was sent to the statewide coordinator saying should this person receive this accommodation? Nobody responded for months. She occasionally sends a follow-up. 6 months later the response is, I don't know, maybe. Eventually the facility ADA coordinator was like, what does the doctor say? So they just spend months and months passing the buck. It took 11 months for this accommodation to be denied. So this is inconsistencies and indifference that contribute to some of our clients' harms.
The second issue that we see often is that VDoC really brings to life the idiom of if you have a hammer, everything is a nail. Correctional officers sometimes state unnamed security reasons why they deny a request. Several of our clients' accommodations were denied, anything from appropriate housing accommodation to a flashlight, for security concerns. And similarly, if a prisoner submits an institutional grievance, I was unreasonably denied this accommodation request, oftentimes we see the person reviewing that grievance looks at it and says, oh, they're not complaining about something that's grievable; they are actually requesting services, write a request to the ADA coordinator. Just sending them back to the beginning of the process.
So they use both methods, these unreasonable denials of accommodations, and unsupported grievance denials, to stamp out any chance that people like our clients can actually get their needs met in prison. And it disincentivizes them from filing any requests or grievances at all, which conveniently blocks us from litigating under the PLRA. So lawsuits like ours seek to challenge these practices, among other things, so that we can get the accommodations needed and if they don't, they have more than a strawman system to go through to get their grievances heard.
The last thing I want to highlight, of course predictably, staff and administrators are so trained to see our clients as threats that they forget to see them as humans and you get this dehumanization on two levels. The first being that correctional staff see them as sort of this dangerous monolith because they're incarcerated. And then you get the second level with just this ableist "othering," where they have a disability and they might not understand it or understand they have a low expectation of what's possible. One of our clients requested a job, and the hiring officer looked at him and said, "Well, how is a blind guy supposed to do that?" Pretty direct example of this attitude.
So through this litigation, other than just to get the relief our clients seek, we want to remind the jury and VDoC and anyone else who will listen that our clients are people and deserve dignity and opportunity just like sighted individuals and everyone else do. Just like Monica said. They're not asking for special treatment; they're asking for fair treatment.
So by no means is this an exhaustive list of why prisons are evading or trying to explain away their obligation to comply with the ADA, but I do hope it gives you a beginning of the picture of why clients like ours are experiencing what they are and what we're up against. West?
WEST RESENDES: All right. Thank you, Sam. My name is West and I use he/him pronouns. I'm a staff attorney at the ACLU disability rights program. White man, short brown hair, early 30s, wearing a blue suit with a green and white striped tie. The voice that you hear now is that of my designated interpreter Andrea as I am communicating through American Sign Language. We now turn to the issue of Deaf incarcerated people. The goal of our work in this space is to change systems of incarceration so that incarcerated people with disabilities have an equal chance to succeed so to speak in prison, and by that we mean getting out of prison or to be in the least restrictive setting within prisons. Our work has aspects of both decarceration and conditions litigation. So we are bringing an ADA, 504, and constitutional injunctive case against the GDC this summer regarding their failure to provide reasonable accommodations and failure to provide effective communication. We represent a 23b2 class of people with hearing disabilities, not just culturally Deaf people who sign, but also hard of hearing people and people who age into hearing disabilities while in prison. These institutions completely control people's lives, which means that lack of access becomes a broad and encompassing impact on a person's life. So as such we are seeking equal aspects to all aspects of life in GDC which includes but is not limited to communication access in their classes, mental health and medical appointments, meetings with counselors and prison staff, access to written information, modifications to solitary confinement, and equal access to parole.
Access to these parts of prison life means advocating for ASL interpreters, hearing aids, telecom like captioned phones, amplified phones, and video phones. That's a lot and this is a big case. So Today I will focus on three aspects that are somewhat underlitigated and unique to our case to push the envelope on what a systemic Deaf and hard of hearing prison case could cover. In the first area. Deaf interpreters. We can't talk about Deaf interpreters without first understanding language deprivation, which involves not having adequate exposure to a language early in life, which has profound lifelong consequences. 95% of Deaf children are born to hearing parents who do not have the sign language needs to communicate with their children when they are born. The Deaf adults of today were Deaf children in past decades when our understanding of language acquisition was less complete and heavily biased towards spoken language, often inaccessible even with the use of hearing aids or cochlear implants.
Professionals often advised parents to withhold visual language stimulus, leaving these Deaf children starving for linguistic input. Deaf individuals clinically diagnosed with language deprivation experience a range of cognitive, social, and emotional issues, including functional delays in language and comprehension, which can significantly impact the success of an interpreted interaction. Language deprivation can manifest in incomplete acquisition of ASL and can also manifest in a lack of understanding about how things generally work in the world, such as needing to follow rules. This is also known as an impoverished fund of knowledge. Hearing sign language interpreters can struggle to effectively accommodate individuals with language deprivation.
They don't have the experience of navigating the world as a Deaf person, and sometimes it is simply about knowing what you don't know. When the facilities rely only on hearing interpreters, whether in person or through VRI, video remote interpreting, for Deaf people with language deprivation, this can create an illusion of an accommodation that provides effective communication but it does not. One of the solutions for this is Deaf interpreters, specialists who provide translation services in ASL and other visual and tactile communication forms used by Deaf and hard of hearing people. DIs are Deaf themselves, and they must have a deep understanding of Deaf culture and have the ability to interpret the message linguistically and culturally in the language most readily understood by the Deaf interlock ewer.
Several of our clients experience confusion about their health conditions even after having access to VRI which usually only involves hearing interpreters during their appointments. So the requested relief we're asking for here is that the prison systems must assess whether sign language users in their custody require Deaf interpreters, and if so, in what situations. That determination should be made by a trained professional familiar with the communication needs of Deaf people as part of a communication assessment.
In the second area, we would look at written materials. So language deprivation has another cost in that many class members are not given the opportunity to acquire English at a level that is useful. Other Deaf and hard of hearing people may have limited literacy for other reasons, but in either case, they cannot ask clarifying questions of prison staff because of the lack of effective communication or reasonable accommodations. And that effective communication obligation extends to documents that Deaf incarcerated people receive both from the prison system and the state parole board. Just as Monica was discussing that blind people need access to documents, Deaf people also need access. Without translation assistance, Deaf people often can't respond appropriately to these documents. For example, Deaf and hard of hearing people struggle with filing grievances and appealing grievance denials which I will happen.
There are Deaf incarcerated people who have never filed a grievance before we started litigating because they had no assistance to translate their concerns from ASL to written English. Deaf and hard of hearing people are also deprived of the information necessary to effectively participate in the parole and reentry process which is largely communicated through inaccessible letters. They often do not understand their sentences, their parole eligibility dates, how to maximize their eligibility, or how to prepare for relief. So the requested relief that we have here is that we're asking for both of these systems to make their documents accessible, which might entail having ASL videos of standard documents that Deaf and hard of hearing people can access on their personal devices or in the law library, providing ASL interpreters, whether hearing or Deaf, to provide sight translation of letters from ASL to written English, and plain language documents, easier for everyone to understand, especially those with limited English. And I'm going a little faster than my voice can keep up with so I'm going to try to slow myself down a little.
But the third area is around solitary confinement, which for Deaf and hard of hearing class members who already have an underlying sensory disability, they're disproportion fa will the affected by solitary confinement. They're likely to experience isolation more because they cannot access the communication information that hearing people have in the same circumstances. Hearing people can shout or listen through the doors or walls to communicate information or get information while Deaf and hard of hearing cannot.
They're also less likely to be able to communicate with staff, putting them at higher risk of harm. They miss meals, showers, appointments, and medications because they are announced only with auditory cues. One class member we had was held in protective custody for 9 months and during that time he missed information and meals but also experienced severe sensory and social isolation that led to depression, anxiety, and disorientation. While hearing people could use phones every day, he could only use the TTY once in a while and not even a video phone. So the requested relief we have here is that we're asking for GDC to consider how to comply with their effective communication obligations while Deaf and hard of hearing class members are in solitary confinement. That could include having enough staff to take class members out of their cells during rounds if the communication through cell doors isn't possible, and it often isn't, so that they can communicate face-to-face with VRI. And if others have phone privileges, providing appropriate devices as necessary. So Monica, I'll turn it back over to you.
MONICA BASCHE: Yeah, I think at this point, we're actually doing really well on time. So I didn't know if anybody had anything to add, but if not, I'll ask if anybody else had anything to add. If not, I think we open the floor to questions for folks. Yeah, I think do we want to -- yeah. Because if you -- you need that. Do you need that microphone?
INTERPRETER: If he responds.
SPEAKER: Do you need a mic runner?
SPEAKER: I was curious about how bringing in the National Federation of the Blind on your particular case in getting around the exhaustion issue, if you could touch on that.
MONICA BASCHE: Sure. The Prison Litigation Reform Act only applies to any I guess I'm going to forget the exact language, but is it prisoner or inmate or detainee? And by definition, the National Federation of the Blind of Virginia is not a prisoner or inmate or detainee. So it would not apply to them, and that is how we're sort of getting around this requirement. And then we have individual inmates who are members of the National Federation of the Blind of Virginia in order to give them associational standing because I was going to say, I'm going to get a little bit super nerding out on the legal terms, but yeah. There's, for -- (microphone feedback) -- organizations, there's two different types of standing and my apologies if you already know this. But there's organizational standing which is like freestanding -- better?
Okay. There's freestanding, so standing is when you have sort of the legal right to sue, to be in court. There's different standing requirements, but usually you're looking at whether there's -- I'm going to distill it down to an injury. So it can be very difficult when you're trying to achieve standing as an organization in and of yourself to argue that you maybe have diverted resources in order to counteract the discrimination that's going on in the prison to
establish standing in your own right. But then there's associational standing where you have one member that's a member of your organization means you basically automatically have standing.
So here we actually have four inmates that are members which is, you know, very helpful. And it only takes -- and I should say that even if they wanted to argue that our members had to exhaust administrative remedies, we would disagree with that and also one of them that is a member has exhausted at least with regard to a couple of his different claims. So that would proceed forward. And I think it's also very important too because this case is for systemic and injunctive relief, we're trying to make the Virginia Department of Corrections make changes. And just in terms of having the National Federation of the Blind, because the National Federation of the Blind of Virginia is also not entitled to damages in this case. So it's helpful to have them there to push forward on the injunctive relief piece.
And obviously our individual plaintiffs are entitled to damages although I think we know in the post-Cummings landscape that the damages may be minimal, which is a hard pill to swallow but it's something that they're aware of.
We have somebody with the microphone back there.
SPEAKER: Thank you. My name is Mary Vargas, an attorney based in Washington, D.C. with Stein and Vargas. We're litigating against two large medical contractors in prisons, Wellpath and AFCARE. Very short list, I know, but it's kind of like the Death Star, maybe worse.
But what we're looking for guidance on and I would really appreciate any suggestions is how to find out where these kinds of large private medical contractors receive federal financial assistance when they are not motivated to comply with well the truth or basic discovery obligations or even court orders and we, for example, we know they get federal funding; we just have to be able to prove it and we won't be able to prove it from them. So where do we go to get those answers when we know they're taking a lot of federal dollars and they're lying about it.
MONICA BASCHE: Hmm. I guess that's interesting. I'm not sure if anybody has more thoughts on this. And again, this is my sort of hyper technical legal brain working. And we can talk more later, but I think if you're talking Section 504 of the Rehabilitation Act, at least in bringing a claim, I'm guessing that you already alleged that there was abuse of federal financial assistance and then in discovery they're not turning over anything?
SPEAKER: Correct.
MONICA BASCHE: Yeah. This might be a more behind the scenes question because I don't know that I have an answer right on this stage here. I don't know if anybody else has some creative...
WEST RESENDES: We actually share the same medical provider problem in the GDC system but unfortunately in the litigation system, they are not party. So we haven't been able to interrogate that question about whether or not the federal funding situation applies.
SPEAKER: Dan Goldstein. I'm an elderly white male with a ponytail that I didn't have when I practiced law.
Two questions. One, in terms of getting around the PLRA, would cocounseling with a protection and advocacy state entity get you around the PLRA question? But also facilitate your access to records? So that was one of my two questions. The other, Miss Nelson mentioned a state where most of the prisoners with disabilities were housed in a section of a particular institution, and Monica and the Brown case, well everybody was at Jessup who was blind. And if you're serving an 18-month sentence for a nonviolent offense, put in a medium or maximum prison because of your disability, there's certain program access you're going to miss out on. It was one bridge too far when I was involved in Brown, but I wonder has anyone considered approaching the integration mandate and saying to the system, no, no, no, no, no, you have to provide these services at all your institutions.
So those were my two questions.
MONICA BASCHE: Yeah. So I think in Virginia, from what we have experienced, there was actually a prior lawsuit for Deaf and hard of hearing inmates called the Minis case and they ended up putting all of those inmates in a, quote/unquote, pod at a prison. I was having this conversation earlier with somebody else. I do think it's difficult because it can be intentioned with what your clients want because if they want -- so for example, and this is just a hypothetical, but if you are Deaf and ASL is your primary mode of communication, I can imagine wanting to be in a housing unit where you're with fellow Deaf ASL speakers so that you're able to actually, you know, engage in regular every day conversation with people and communicate.
So in a sense, sometimes the integrationist mandate doesn't necessarily work out with the practicalities of what a client may want. And I think also in Virginia we have an issue of clustering with our blind guys at a facility, and unfortunately like that facility is a lower security designation but it is dorm-style housing which is really not actually appropriate for the blind guys. So I think in that situation, we would want to approach more of sort of an integrationist approach to try to get those accommodations, whatever they need, provided wherever they are, but we run the risk there of them being put at a higher security level facility which is also something that they don't want.
But then they would be able to be housed in a cell and have fewer people in the pod which makes it easier for them to navigate.
So there's just so many different complicating issues with trying to apply I guess the integrationist approach. Which I just think it runs up against your sort of legal ethical responsibility to your client and what your client wants. And sometimes the client actually wants to be, I don't know, segregated.
WEST RESENDES: And we're taking this position as well, just to respond directly on that. All of the facilities have to be ADA compliant, but we do see that there are systems where they have these legal obligations but they want them together for efficiency, cost savings, and that means that they only have a few facilities designated in this way that are accessible for services. We have Deaf sign language interpreters that do actually prefer to be housed with other signers because otherwise they are effectively in solitary confinement within the gen population. But we see in Georgia problems when they do punitive transfers. So they take a Deaf person, punitively transfer them to another facility without any accommodations or services available to them, and that's been a real problem there as well.
So one of the things that we've been pushing for is trying to have facilities that have, at each level, low, medium, and high, close securities and whatnot, that they have the accommodations available at all of those and it's up to the system to decide exactly how many they have available as an ADA facility because they ultimately have the control over where they house people.
MONICA BASCHE: One quick follow-up question for you, West. Have you experienced the issue where the Georgia Department of Corrections is just, when there's a transfer, the new facility is completely unaware of the person's disability and that they need accommodations?
WEST RESENDES: Oh, absolutely. Yeah. We actually just had that problem happen a couple weeks ago.
SPEAKER: I'm a white male with a beard and blue vest. My name is Al. We're involved in litigation in Tennessee with respect to Deaf prisoners and their failure to receive effective communication. And one of the things that we're facing is that even though we do have the P&A involved as an associational plaintiff, the Tennessee department of corrections is pushing back to say, well, you can only seek to have injunctive relief at the facilities where you have identified Deaf prisoners. And I'm wondering whether or not you have faced that in the cases that you've been dealing with in Virginia or elsewhere and how you've gotten around that to achieve full systemic relief so that if a blind person shows up to your prison where there wasn't previously a blind person or prisoner with another disability, that the wheel doesn't need to be reinvented at that facility. Thank you.
MONICA BASCHE: I'm going to let Sam answer this because I've been talking a lot about the Virginia blind prisoners case, but I will say we do have the P&A in our case but we haven't done any background inspection or anything of that sort. And that is entirely a possibility that we could explore moving forward. But I'll turn this over to Sam to answer about the issues we've experienced.
SAMANTHA WESTRUM: And I'll just clarify that the P&A in our case is co-counsel, not an organizational plaintiff. That's just a distinction there I want to make clear. Yeah, I mean, they are very adamant that we can only ask for any type of relief related to the two facilities where our clients are housed. And, you know, it is nonsensical. Especially when they have a high rate of people who are transferred between facilities. I mean, each of our plaintiffs has been at least three facilities during their entire tenure with the Department of Corrections so it's not as if they don't know. And they'll be the first to say, oh, we have so many accommodations across all of our facilities! But don't actually admit there are people with disabilities at those other facilities. So I mean all that to say, we would love to settle this case instead of going to trial, and we have -- speaking for myself, I suppose. But yeah, I mean, that's one of the ways where we've said, this has to be a system-wide change, not just related to these two facilities, even though they do have a disproportionate number of Deaf and blind people in VDoC custody. By involving National Federation of the Blind, trying to use them as larger means to secure larger injunctive relief for sure. I know I'm forgetting things.
MONICA BASCHE: I was going to say, they've attempted to parse it out even further to make it about each of our individual plaintiffs and their each individual need to like request accommodations. So to the point where one of our clients was, you know, filed a grievance that his tablet was not accessible but because I guess the grievance didn't say that I want text to speech software on my tablet, that he hadn't exhausted administrative remedies, which is just wild, right? You can't say that they didn't have notice that these tablets were not accessible.
And I think even when we were talking more big picture about there not being any sort of system for noting that somebody has a disability and what their approved accommodations were, we had a client who had approved accommodations for his disability, was transferred to a new prison, and never got his accommodations when he was transferred to the new prison. Even though we have the documentary evidence that he was approved for accommodations, actually had letters from like a vision specialist saying this is what he needs. The previous facility approved it and then moved to a new facility and I mean struggled. Submitted his written reasonable accommodation request forms which got routed to medical and medical was just like, I don't know, I think he needs to get a low vision exam to see if he actually needs these accommodations. Even though the letter saying that he needed those accommodations was already in his medical file.
So yeah. I mean, we have to laugh so that we don't cry I feel like at a certain point. But it's pretty kind of ridiculous. I know we're a little over time. Did you have one more thing to add?
KYLE SMIDDIE: Sure. I was going to respond to a point that Dan raised. This is a little bit sidestepping on the integration mandate. I was thinking about something that wasn't brought up because we've been talking a lot about a different thing that I do around solitary confinement.
When I first started in Civil Rights Division, we wrote a findings report about a prison in Pennsylvania called Cresson and we wrote about the integration mandate, the first time it was used in the solitary confinement space, and really hasn't gotten much leg since. But I still think -- this was 10 years ago -- it's an interesting idea. And the way we used it since has not been as progressive as we tried to use it then. The way we used it since is that if you put somebody in solitary confinement because of their disability, kind of a direct discrimination, then that violates the ADA. And that's a pretty easy way to go after them.
And we did that in the Hampton Roads case that I talked about at the beginning which I have some stuff up on your way out you can look at. And that's been easy to say you can't put someone segregated from programs and put them in isolation because of their disability. They were doing that in jails. They do that because they think it's, you know, might be protective custody, might be because you're protecting them or whatever. But you cannot do it. They were doing Hampton Roads, putting them in solitary confinement with a dash that said "mental deficiency." So that was a very clear documentation that they were putting them in. But going back to the Pennsylvania thing, we were saying there was an indirect way that created the mandate. It's a fascinating argument that we as trying to push the envelope on using the ADA to talk about segregation should still be trying to push, but it's a difficult one to push.
I just wanted to put that in as the solitary confinement sort of aspect so we didn't lose that thread.
MONICA BASCHE: I think we have one more question.
SPEAKER: This is actually directly to the point. I'm a professor at St. John's university. Brown haired male with a gray suit. What about failure to accommodate cause of action for that purpose? So what if a person is placed in solitary confinement for behavior that is a manifestation of their disability, right? So the question is, are they a direct threat to the health and safety of others? If they are, you still have to see if you can eliminate the threat through the provision of reasonable accommodations. So there could be behavioral accommodations that they could get that schools, for example, do all the time. Behavioral intervention programs that could help a person with a disability manage their -- not manage. I don't want to use the word "manage" -- but could address some of the behaviors that might get them placed in a more restrictive setting. So you have that as well as the failure to accommodate cause of action. Are those successful?
MONICA BASCHE: I think it's great but it can be challenging. Another example, we have a client who has like ADHD. And I'm not going to say that that's necessarily going to manifest itself in behaviors that will get you in disciplinary confinement, but they will not medicate his ADHD because it's a controlled substance. And they're also just not providing any other sort of behavioral interventions, so I don't know what you would do. It can be really challenging when you have a lens, like when you're viewing it through I guess like prison security and administration lens where they are so used to denying everything.
KYLE SMIDDIE: Yeah. So I'm going to give you an optimistic view but it's not a legal optimistic view. Maybe this is because I'm an optimist. I have not seen good case law that has allowed us to do that, to move that envelope. So I think if I was fighting with a jail or a prison system that didn't want to do that, I would probably think we have a really uphill battle.
I have had cases in Pennsylvania, a case in Virginia, Massachusetts, and a small juvenile detention center in Virginia. In all of those cases, we did not bring this idea of a manifestation of their behavior, or the reason they got in solitary confinement was because of their behavior which is because of their mental illness. We did not get there to acknowledge that in the settlement agreement, but once we got in the settlement agreement, inside working with the mental health clinicians who definitely agree with us on that, then we did training with the officers, we got them to change their practices on it later down the road. So what I have sort of found, and maybe this is because I'm an optimist, once you can get in the door, you can find reasonable people to agree this is the best way to do things.
That means you've got to get in the door and you've got to get through it. And maybe I can be an optimist because I work at the DoJ and we have a lot of power and I have to understand that and that's the difference between the PLRA and the private people and the DoJ.
So I think there is still truth in that is what I've realized. There's a lot of truth in that. And the people on the ground know there's truth in that. They know that the reason the person threw the water at the officer is because of mental illness, not because they wanted to do the thing because they're trying to get the attention they want to get. So yeah. I don't know. I'll end with that. Thank you for bringing that up.
MONICA BASCHE: Thank you, everyone. Happy to talk further with any or all of you afterwards. This is a righteous cause and I'm looking forward to moving the ball forward and seeing you either next year or in a few more years to give you an optimistic resolution. Thank you.
[Applause]