United States District Court, E.D. Virginia, Alexandria Division
O' Grady United States District Judge.
Wilson, a Virginia inmate proceeding pro se, has filed a
civil rights action, alleging violations of his rights under
the Americans with Disabilities Act ("ADA"),
Rehabilitation Act ("RA"), Religious Land Use and
Institutionalized Persons Act ("RLUIPA"), 42 U.S.C.
§ 2OOOcc, and United States Constitution. Defendants
filed a Motion for Summary Judgment, along with a supporting
brief, exhibits, and the notice required by Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975) and Local Rule
7K. Dkt. Nos. 18-20. Plaintiff filed an opposition to the
Motion for Summary Judgment as well as a Motion to Defer or
Deny Defendants' Motion for Summary Judgment. Dkt. Nos.
24-25. This matter is now ripe for adjudication. For the
reasons that follow, defendants' Motion for Summary
Judgment will be granted, in part, and denied, in part,
without prejudice to defendants filing a supplemental motion
for summary judgment, and plaintiffs Motion to Defer or Deny
will be denied, without prejudice to plaintiff filing a new
record on summary judgment establishes the following. During
the time period in question, plaintiff was incarcerated at
Greensville Correctional Center ("GRCC"), a
Virginia Department of Corrections ("VDOC")
facility. Compl. §I(A) ¶1. VDOC allows inmates to
order certain items from the commissary vendor. Id.
at Exs. Inmates who are hard of hearing can order items not
available to the general population, such as DVD players,
DVDs, and 15-inch televisions, as accommodations. Defs.'
MS J, Robertson Affidavit. Until recently, hard of hearing
inmates could order these items from an auxiliary
accommodation catalog; however, it now appears as though
inmates must order these items through the commissary vendor.
Compl. § IV ¶¶12; Defs.' MSJ, Talbott
current policy at GRCC limiting televisions to those that are
15-inches or smaller is due to security and space concerns.
Defs.' MSJ, Robertson Affidavit. Defendants assert that
inmates at GRCC who currently have 19-inch televisions
purchased those televisions at different facilities and were
allowed to keep them when they transferred to GRCC; however,
plaintiff asserts at least three hard of hearing inmates
living in plaintiffs housing pod have been allowed to
purchase 19-inch televisions between 2015 and 2017 while
housed at GRCC, and plaintiff is the only hard of hearing
inmate in his housing pod who has not been allowed to
purchase a 19-inch television. Id.; Pi's. Opp,
Richardson, Barbour, and Odinsson Affidavits. In fact,
plaintiff asserts, 31 of the inmates in plaintiffs housing
pod have some loss of either hearing or vision, and each of
them except for plaintiff has a 19-inch television. PI's.
Opp. ¶ 10.
March 25,2016, plaintiff was diagnosed by outside ear, nose,
and throat ("ENT") specialists with sensorineural
hearing loss, and he later received hearing aids. Compl.
§ IV ¶ 18. Therefore, plaintiff is hard of hearing.
Id. § IV ¶ 8; Defs.' MSJ, Robertson
and Talbott Affidavits. On April 21,2016, plaintiff requested
approval to order auxiliary accommodation equipment. Compl.
§ IV ¶ 22. Plaintiffs request was denied and he was
told that he needed the recommendation of a medical
professional to receive the equipment. Id. ¶
then met with Barry Marano, the ADA coordinator for VDOC, and
discussed (1) that other hard of hearing inmates had been
allowed accommodations, including 19-inch televisions with
large closed captioning and DVD players, and (2) that
plaintiff needed accommodations so that he could
"receive educational/religious instructional and
inspirational programs and services via the large caption
features of DVDs and [19-inch] televisions."
Id. ¶¶ 24-25. More specifically, plaintiff
stated he cannot attend large group worship services because
hearing aids cause distorted sounds in large group gatherings
and he is unable to interpret sign language; thus he is
unable to hear or use the sign language interpretation
services provided during the worship services. Pi's. Opp.
¶ 20. Plaintiff is also unable to view the daily worship
services on the four Christian channels provided though the
GRCC's television cable network because they do not
feature closed captioning. Compl. § V ¶ 47. Thus,
plaintiff is only able to participate in the same services by
watching DVDs of the programming, which are available from
the GRCC chaplain's library. Id; Pi's. Opp. ¶
22. Plaintiff is able to view these DVDs using the DVD player
in the chaplain's library. Defs.' MSJ, Robertson
Affidavit. Plaintiff states that Mr. Marano arbitrarily
denied plaintiffs request and informed plaintiff that hard of
hearing prisoners would no longer be allowed to purchase DVD
players. Compl. § IV ¶ 26.
10,2016, plaintiff filed another request to purchase
auxiliary accommodations, which was rejected for the stated
reason: "no medical accommodation." Pi's. Opp
at Ex. D. On July 5,2016, the ENT specialists wrote a letter
stating that "accommodations available for hearing
impaired offenders should be available and offered" to
plaintiff. Id. at Ex. B. On July 18,2016, plaintiff
filed another request to purchase auxiliary accommodations,
which was rejected because "more specific information
from provider" was needed. Id. at Ex. D.
November 7,2016, plaintiff submitted an informal complaint
stating that he needed a 19-inch television because it had
larger closed captioning and other hard of hearing inmates
had been allowed to purchase this item. Id. at Ex.
F. In response, plaintiff was told that he could submit a
special request for a 15-inch television with closed
captioning that had "been approved by [VDOC]" along
with a doctor's "recommendation" stating what
plaintiff "need[s] in addition to hearing aids."
Id. However, plaintiff asserts that 15-inch
televisions were unavailable for purchase prior to his filing
the instant complaint in December 2017. Id.
¶¶ 11, 37.
December 12,2016, plaintiff filed informal complaints stating
that his requests to purchase a DVD player and 15-inch
television were denied, but confusingly, the response was
that plaintiff could "place [his orders] through"
the commissary vendor. Id. at Ex. G. Plaintiff was
also informed that there was no longer an auxiliary
accommodations catalog. Id On January 25,2017, the ENT
specialists recommended that plaintiff be allowed to
purchase, among other items, a 15-inch television with large
closed captioning and a DVD player, as accommodations for his
hearing loss. Compl. at Exs.
October 18,2017, the ENT specialists stated that plaintiff
should have, among other items, a 19-inch television with
large closed captioning and a DVD player, to "help with
his communication due to hearing impaired diagnosis [sic] as
part of his treatment plan." Pi's. Opp. at Ex. C.
January 25,2018, plaintiffs requests to purchase noise
isolation headphones and an amplifier were approved.
Defs.' MSJ, Talbott Affidavit. On May 8, 2018, plaintiffs
request to purchase noise cancellation headphones was denied
because plaintiff already possessed headphones. Id.
Defendant Robertson asserts, in her affidavit attached to the
Motion for Summary Judgment, that plaintiff may submit a
request to purchase a 15-inch television and a DVD player,
however, plaintiff asserts that, on September 25,2018, Mr.
Marano told plaintiff that he would not approve plaintiffs
request for a DVD player. Id., Robertson Affidavit;
PPs. Opp. ¶¶ 46-48.
Standard of Review
"The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law." Fed. R. Civ. P. 56(a). The moving party bears the
burden of proving that judgment on the pleadings is
appropriate. See Celotex Corp. v. Citrate, 477 U.S.
317,323 (1986) (moving party bears the burden of persuasion
on all relevant issues). To meet that burden, the moving
party must demonstrate that no genuine issues of material
fact are present for resolution. Id. at 322. Once a
moving party has met its burden to show that it is entitled
to judgment as a matter of law, the burden ...