United States District Court, M.D. Pennsylvania
Carlson, Magistrate Judge.
M. Munley, United States District Judge.
the court for disposition is Magistrate Judge Carlson's
report and recommendation (hereinafter “R&R”)
which proposes denying the defendant's motion for
judgment on the pleadings in regard to the assertion that the
court lacks jurisdiction to entertain this case under the
Rehabilitation Act of 1973 (hereinafter “RA”) and
deferring the motion in regard to the argument that the case
is moot. (Doc. 78). Plaintiff's action is brought under
§ 504 of the RA, 29 U.S.C. § 794. The matter is
fully briefed and ripe for disposition.
Yeh, the plaintiff in the instant action, is a deaf man whose
primary language is American Sign Language (hereinafter
“ASL”). (Doc. 1, Complaint, ¶¶6, 8). He
began serving a prison sentence on January 30, 2012 at
Federal Correctional Institution Schuylkill Satellite Camp
(hereinafter “FCI Schuylkill”). (Id.
¶17). FCI Schuylkill is controlled and operated by the
Bureau of Prisons (hereinafter “BOP”), and the
BOP Inmate Telephone Regulations allow all inmates the
opportunity to contact their family and community by granting
the inmates 300 minutes of telephone use per month.
(Id. ¶¶12, 21-22). FCI Schuylkill's
supplemental Telephone Regulations for Inmates further
specifies that inmates are allowed up to five calls per day
with the telephones typically being available from 6:00 a.m.
to 11:30 p.m. every day. (Id. ¶¶22-23).
the plaintiff is deaf, however, he could not use the
telephones the same way as a hearing person. (Id.
¶19). As a result, FCI Schuylkill provided the plaintiff
with text-telephone services (hereinafter “TTY”),
a telephone device equipped with a keyboard and a display
screen. (Id. ¶¶ 26, 34). In order for the
plaintiff to use the TTY, he was required to make prior
arrangements with the outside party and a member of the
staff. Due to the logistics of transferring the calls,
outside parties who lacked the ability to hear or speak,
including several of the plaintiff's family members,
could not call the plaintiff. (Id. ¶¶
result, the plaintiff filed a complaint with the Equal
Employment Opportunity Commission (hereinafter
“EEO”) to the Department of Justice Civil Rights
Division claiming that FCI Schuylkill violated Section 504 of
the RA when it failed to provide him with an effective
telecommunications device. (Id. ¶2). Section
504 of the RA is a federal law which prohibits discrimination
against people with disability in programs that receive
federal financial assistance. 29 U.S.C. § 701 et
Officer determined that the TTY FCI Schuylkill provided to
the plaintiff was appropriate to accommodate his disability.
(Id.) Afterwards, the plaintiff appealed the
decision to an Administrative Law Judge (hereinafter
“ALJ”) who sustained the EEO Officer's
finding. (Id.) Next, the plaintiff sent a Letter of
Exceptions to the Complaint Adjudication Officer (hereinafter
“CAO”). (Id.) The CAO issued his
decision on February 5, 2018, finding in favor of the
plaintiff. The CAO concluded that the plaintiff's access
to the TTY did not provide him with equal opportunities and
that the BOP failed to show the installation of a videophone
would create an undue hardship. (Id.) Thus, the CAO
ruled in the plaintiff's favor and directed the prison to
install a videophone. (Id.)
three months later, on May 3, 2018, the plaintiff filed the
instant complaint alleging that the BOP had violated the RA
by failing to comply with the CAO's decision and install
a videophone. (Id. ¶ 2-3); (Doc. 1-1, Civil
Cover Sheet at 1). On the same day, he moved for a
preliminary injunction, asking the court to mandate that the
defendants immediately install a videophone at FCI Schuylkill
for the plaintiff. (Doc. 2, Plaintiff's Motion for
Preliminary Injunction at 15). As a result, Magistrate Judge
Carlson issued a series of orders and held a hearing on the
motion to expedite the collection of information. (Docs. 15,
20, 28, 29). Because of the information that came to light,
Magistrate Judge Carlson instituted a reporting and case
management system to ensure the plaintiff's requested
relief was not delayed. (Docs. 34, 36, 39, 40, 41, 45, 48,
49, 50, 51).
on November 28, 2018, the plaintiff was able to make his
first call using a videophone installed at FCI Schuylkill.
(Doc. 54, Status Report Per the Court's Order of Nov. 27,
2018, ¶1). From November 28, 2018 to December 4, 2018,
the plaintiff made forty-four phone calls, using a total of
182 minutes of call time. (Id. ¶4). On April
18, 2019, the plaintiff was placed in a halfway house, later
being moved to home detention. (Doc. 77, Plaintiff's
Status Update at 1). The plaintiff's projected release
date is October 14, 2019. (Doc. 55, Joint Status Update, at
defendant's ¶ 2). It appears that the videophone was
available for the plaintiff's use at FCI Schuylkill up
until he was placed in the halfway house, but the BOP has not
guaranteed a videophone in the plaintiff's halfway house
or any other BOP facility. (Id. at defendant's
¶¶ 5, 8, 11).
defendants moved for judgment on the pleadings on February 5,
2019. (Doc. 59, Motion for Judgment of the Pleadings). Both
parties briefed their positions, and Magistrate Judge Carlson
filed his R&R on May 15, 2019. (Docs. 63, 69, 71, 78).
plaintiff alleges a violation of the RA, 29 U.S.C. §
794, claiming that the court has jurisdiction pursuant to 28
U.S.C. § 1331. (“The district courts shall have
original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United
States.”). The defendant argues that there is no
jurisdiction because the RA does not provide a cause of
action here. This issue is discussed more fully below.