Federal Judge Grants Class Action Certification to Hearing Impaired Prisoner under the Americans wit

Plaintiff was an inmate who suffered from hearing problems. He sued under the Americans with Disabilities Act ("ADA"), claiming that the correctional facility of which he was housed did not provide appropriate accomodations to prisoners suffering from hearing impairments.

Plaintiff moves for class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure. Rule 23(a) provides that a court may certify a class only if:

(1) the class is so numerous that joinder of all members is impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the interests of the class.

FED. R. CIV. P. 23(a). "The party seeking class certification bears the burden of establishing by a preponderance of the evidence that each of Rule 23's requirements have been met. Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010).

Plaintiff proposes a class of "all present and future deaf and hearing-impaired prisoners of the Onondaga County Justice Center who have been, are, or will be discriminated against, solely on the basis of their disability, in receiving the rights and privileges accorded to all other prisoners." Plaintiff's Brief at 4. Although the defendants opposed this, claiming that the amount of deaf and hearing impaired inmates are few if any, Plaintiff points to a "Sheriff's Office Annual Report" which states that more than 10,000 inmates were incarcerated at the Jail annually between 2009 and 2011," Affidavit of Joshua T. Cotter ("Cotter Affidavit"), dkt. # 12-2, at ¶4, and a 2002 Bureau of Justice Statistics report that indicates approximately six percent of the local jail population has a hearing impairment. Id. at ¶10. The Court finds that Plaintiff's estimates, that being hundreds of plaintiffs, is sufficient as determining numerosity depends on all the circumstances surrounding a case, not on mere number... See Demarco v. Evans, 390 F.2d 836, 845 (2d Cir. 1968)). "The class action device is particularly well-suited in actions brought by prisoners due to the 'fluid composition' of the prison population…[and] generally tend[s] to be the norm in actions such as this." Clarkson v. Coughlin, 783 F.Supp. 789, 797 (S.D.N.Y. 1992).

The Court finds numerosity and commonality. Plaintiff argued, and the Court agreed, that the commonality requirement is satisfied because "the common contention among the class [is] the jail's failure to [provide reasonable accommodations] to deaf and hard of hearing prisoners" violates federal law. See Plaintiff's Brief at 7-8. The Plaintiff, and presumably other hearing impaired inmates or inmates to be, suffer from the same issues to which the jail failed to reasonably accomdate under the ADA. Therefore, the claims or defenses of the representative parties are typical and, presumably, other inmates who suffer as the Plaintiff has can and will be redressed via this lawsuit.

The Court found that "[t]he jail's alleged failure to provide class members with services for the deaf and hearing-impaired provides the basis for the putative class members' claims." Pp. 11 Further, the fact that the Plaintiff is no longer an inmate does not bar the Plaintiff from respresenting the class. See Gerstein v. Pugh, 420 U.S. 103, 110 n. 11 (1975) ("This case belongs…to that narrow class of cases in which the termination of a class representative's claim does not moot the claims of the unnamed members of the class.").

In Gerstein, the United States Supreme Court offered guidance concerning class-action lawsuits brought by pre-trial detainees: Pretrial detention is by nature temporary, and it is most unlikely that any given individual could have his constitutional claim decided on appeal before he is either released or convicted. The individual could nonetheless suffer repeated deprivations, and it is certain that other persons similarly situated will be detained under the allegedly unconstitutional procedures. The claim, in short, is one that is distinctly "capable of repetition, yet evading review." 420 U.S. at 110 n. 11. Consistent with this reasoning, the Court finds that Plaintiff cna adequately represent the interests of the putative class of pre-trial detainees, who will likely face similar difficulties in communicating at the Jail and similar difficulties in resolving their complaints in a timely fashion given the short-term nature of their detention and the amount of time typically necessary to resolve cases.

The Court also finds that Plaintiff's attorneys are "qualified, experienced and able to conduct the litigation." Baffa, 222 F.3d at 60. The Court therefore finds that Plaintiff has met the requirements of Rule 23(a)(4).

Class Certification is granted: "all present and future deaf and hearing-impaired prisoners of the Onondaga County Justice Center who have been, are, or will be discriminated against, solely on the basis of their disability, in receiving the rights and privileges accorded to all other prisoners."

Read more: Williams v. Conway, 9:15-cv-427, NYLJ 1202746482154, at *1 (NDNY, Decided December 30, 2015)

#AmericanswithDisabilitiesAct #ADA #Prisonerlawsuit #Classactionlitigation #rule23 #numerosity #questionoflaworfactcommontotheclass #classactionrepresentative #CivilRights #ADAPirsoners

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