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Case Name Berke v. Federal Bureau of Prisons PC-DC-0032
Docket / Court 1:12-cv-1347-ESH ( D.D.C. )
State/Territory District of Columbia
Case Type(s) Prison Conditions
Attorney Organization Washington Lawyers' Committee
Case Summary
On August 14, 2012, a deaf individual awaiting his BOP surrender date filed this lawsuit in the United States District Court of the District of Columbia. The plaintiff sued the Federal Bureau of Prisons (“BOP”), and the Director of BOP under the Rehabilitation Act of 1973 and the First, Fifth, ... read more >
On August 14, 2012, a deaf individual awaiting his BOP surrender date filed this lawsuit in the United States District Court of the District of Columbia. The plaintiff sued the Federal Bureau of Prisons (“BOP”), and the Director of BOP under the Rehabilitation Act of 1973 and the First, Fifth, and Eighth Amendments. The plaintiff, represented by his attorney, sought a temporary restraining order to ensure he would have access to a qualified ASL interpreter, non-aural notification of emergencies, a videophone, and costs and fees.

The plaintiff claimed that the lack of accommodations would discriminatorily impair his ability to effectively communicate, violate his due process right to an interpreter at disciplinary hearings, deny his right to adequate medical treatment, right to informed consent to and privacy in medical treatment, his right to a reasonably safe environment, and deny his right to freedom of speech. Specifically, he claimed that the prison facility failed to provide qualified ASL interpreters and other meaningful auxiliary aids, which prevented adequate communication of disciplinary rules. He further alleged that the absence of qualified interpreters denied him the ability to communicate medical information, give informed consent, and receive mental health services. The plaintiff argued that the use of other inmates as interpreters during medical and mental health appointments violates the constitutional right to privacy in medical treatment. He claimed the defendants failed to provide his right to a reasonably safe environment by failing to provide adequate alarms, pagers, or message boards that would alert him to an emergency. Finally, the plaintiff alleged that the failure to provide him with appropriate telecommunication equipment impaired his ability to communicate with his family and friends outside the prison.

On August 17, 2012, District Judge Huvelle denied the motion for temporary restraining order as moot and converted it into a motion for a preliminary injunction. The defendants opposed the motion on September 4, 2012, because after the plaintiff filed, the BOP assigned him to a different federal detention center in order to provide him with access to the accommodations he sought and place him closer to his family.

The plaintiff responded on September 17 that auxiliary aids the defendants had offered were still insufficient under the Act. He alleged that the new facility in Tucson had no videophones, which he would need to communicate with his two youngest children who could communicate only through sign language, as they were too young to read or write fluently. His home had no telephone line, necessary to use the TTY telephone equipment the defendants offered. One of his children lived with his mother, the plaintiff’s wife, to care for her during her illness, and had access solely to VideoPhone.

The defendants submitted a supplemental declaration on September 25, 2012, outlining the prison’s plan to further accommodate the plaintiff. The parties stipulated to the plan, that included among other things, assigning an inmate to act as the plaintiff’s helper, assistance with the TTY system, providing live interpretation during medical and disciplinary-related activities, installing emergency lights as visual alarms, providing inmate email for public notices and messages, and providing the plaintiff a dry erase board and pens to communicate with staff. The only dispute that the parties were unable to settle was the videophone issue. That same day, Judge Huvelle heard testimony on this issue.

On September 27, 2012, Judge Huvelle ordered the defendants to complete an evaluation by May 25, 2013 to determine whether providing a videophone “would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens.” Judge Huvelle granted the plaintiff’s motion for preliminary injunction in part because the defendants had failed to meet their burden of proving the installation of a video system would result in undue financial and administrative burdens, but denied the motion insofar as it sought an order requiring the installation. Judge Huvelle approved the parties’ stipulation and administratively closed the matter but maintained jurisdiction in case the plaintiff amended his complaint based on the defendant’s videophone evaluation.

The plaintiff moved for attorney fees on October 9, 2012. Judge Huvelle sent the attorney fees motion to Magistrate Judge John M. Facciola on November 2, 2012. The defendants opposed the plaintiff’s attorney fees motion because they argues he was not the prevailing party, the fees were unreasonably, and the costs were unjustified. On April 29, 2013, Judge Huvelle awarded attorneys fees but reduced what the plaintiff asked for by 40%, for a total of $69,291.60. Judge Huvelle awarded the plaintiff costs related to filing fees, photocopying, deposition transcripts, interpreter services, and the per diem rates for his expert witnesses, totaling $2,744.43, but reduced the amount based on the plaintiff’s level of success to $1,646.66. 942 F.Supp.2d 71.

On May 30, 2013, the defendants notified the Court that the plaintiff had received a written determination regarding his request of a video phone. The case is now closed.

Erica Lignell - 02/01/2019


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Issues and Causes of Action
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Issues
Affected Gender
Male
Constitutional Clause
Cruel and Unusual Punishment
Due Process
Freedom of speech/association
Content of Injunction
Monitoring
Preliminary relief granted
Defendant-type
Corrections
Disability
Hearing impairment
Discrimination-basis
Disability (inc. reasonable accommodations)
Language discrimination
General
Conditions of confinement
Confidentiality
Counseling
Disciplinary procedures
Effective Communication (ADA)
Fire safety
Informed consent/involuntary medication
Language/ethnic/minority needs
Phone
Staff (number, training, qualifications, wages)
TTY/Close Captioning/Videophone/etc.
Language
Other
Plaintiff Type
Non-DOJ federal government plaintiff
Causes of Action Section 504 (Rehabilitation Act), 29 U.S.C. § 701
Defendant(s) Federal Bureau of Prisons
Plaintiff Description The plaintiff was a deaf individual, awaiting his surrender date to the Federal Bureau of Prisons.
Indexed Lawyer Organizations Washington Lawyers' Committee
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Preliminary injunction / Temp. restraining order
Attorneys fees
Injunction / Injunctive-like Settlement
Source of Relief Litigation
Settlement
Form of Settlement Court Approved Settlement or Consent Decree
Conditional Dismissal
Filing Year 2012
Case Closing Year 2013
Case Ongoing No
Additional Resources
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  Civil Rights Injunctions Over Time: A Case Study of Jail and Prison Court Orders
N.Y.U. Law Review
Date: May 2006
By: Margo Schlanger (Washington University Faculty)
Citation: 81 N.Y.U. L. Rev. 550 (2006)
[ Detail ] [ PDF ] [ External Link ]

  Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons
Book
Date: Jan. 1, 1998
By: Malcolm M. Feeley & Edward Rubin (UC Berkeley Boalt Hall School of Law & Vanderbilt School of Law Faculty Faculty)
Citation: (1998)
[ Detail ]

Docket(s)
1:12-cv-1347-ESH (D.D.C.)
PC-DC-0032-9000.pdf | Detail
Date: 01/27/2019
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint [ECF# 1]
PC-DC-0032-0001.pdf | Detail
Date: 08/14/2012
Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion [ECF# 36] (942 F.Supp.2d 71) (D.D.C.)
PC-DC-0032-0003.pdf | WESTLAW| LEXIS | Detail
Date: 08/14/2012
Source: PACER [Public Access to Court Electronic Records]
Stipulation and Order [ECF# 16] (D.D.C.)
PC-DC-0032-0002.pdf | Detail
Date: 09/26/2012
Source: PACER [Public Access to Court Electronic Records]
Judges Huvelle, Ellen Segal (D.D.C.)
PC-DC-0032-0003 | PC-DC-0032-9000
Plaintiff's Lawyers Finkenstadt, Ivy (Virginia)
PC-DC-0032-0001 | PC-DC-0032-0002 | PC-DC-0032-9000
Fornaci, Phillip Jerome (District of Columbia)
PC-DC-0032-9000
Gardner, Elizabeth [Elaine] Elaine (District of Columbia)
PC-DC-0032-9000
Golden, Deborah Maxine (District of Columbia)
PC-DC-0032-9000
Panagopoulos, Constantinos G. (District of Columbia)
PC-DC-0032-0001 | PC-DC-0032-0002 | PC-DC-0032-9000
Defendant's Lawyers Francis, Tricia D. (District of Columbia)
PC-DC-0032-0002 | PC-DC-0032-9000
Guzman, Javier M (District of Columbia)
PC-DC-0032-9000

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