Opinion
06 Civ. 14420 (RWS).
September 17, 2007
MEMORANDUM OPINION ORDER
Plaintiff Michael Myers ("Plaintiff" or "Myers") has moved the Court to enter an order of contempt against non-party Glenn Goord, Commissioner of the New York State Department of Correctional Services ("DOCS"); defendant Ann Andzel ("Andzel"), correctional counselor for hearing impaired inmates at Wende Correctional Facility; non-party Joseph Gullo, contract audiologist for Wende Correctional Facility; and non-party T. Tracz, Special Needs Unit ("SNU") correctional counselor for violation of the Consent Decree entered into in Clarkson v. Goord, No. 91 Civ. 1792, on June 6, 1996 (the "Consent Decree"). Only Andzel is a defendant in this action.
Andzel has argued that Plaintiff's motion for contempt of the Consent Decree should be denied because Myers failed to follow required procedures prior to the filing of this action. Specifically, paragraph 52 of the Consent Decree or, alternatively, the order entered in Clarkson on October 23, 2003 (the "2003 Order"), requires that members of the Clarkson class notify an ombudsperson appointed by DOCS before filing motions for contempt.
Paragraph 52 of the Consent Decree states in relevant part:
In an effort to avoid motions for contempt and enforcement, defendants DOCS, OMH and Parole shall identify by title an ombudsperson responsible for handling requests for accommodations made by plaintiff class members through class counsel. Such requests shall be acted upon within fifteen days of receipt of a written request by plaintiff's counsel, unless more expeditious relief is required.
Consent Decree ¶ 52.
Paragraph 52 imposes upon DOCS the obligation of appointing and identifying an ombudsperson to receive requests for accommodation as an alternative to the grievance procedure set forth elsewhere in the Consent Decree. See Consent Decree ¶ 9; Clarkson, 2006 U.S. Dist. LEXIS 9676, at *11-*12. By its terms, paragraph 52 does not impose any reciprocal obligation upon class members to provide notice to the ombudsperson before filing a complaint. See Clarkson, 2006 U.S. Dist. LEXIS 9676, at *13 n. 1. Such obligation was created by an order in Clarkson dated October 23, 2003 (the "2003 Order"), which required class members "to first submit their complaints for resolution" to the ombudsperson for a determination whether the complainant was "a member of the class covered by the decree and whether a violation occurred" before filing a motion for contempt or enforcement. 2003 Order ¶ 3; see also Smith v. Masterson, 2006 U.S. Dist. LEXIS 70868 at *23 (S.D.N.Y. Sep. 29, 2006). The 2003 Order was motivated by a concern that prisoners were filing motions for contempt or enforcement of the Consent Decree without first addressing the issue with prison officials. See Smith, 2006 U.S. Dist. LEXIS 70868 at *23.
However, notice of the new requirement was not provided to class members until after this Court's March 6, 2006 opinion inClarkson, 2006 U.S. Dist. LEXIS 9676. See Smith, 2006 U.S. Dist. LEXIS 70868 at *23.
The instant motion was filed on November 27, 2006, well after the 2003 Order introduced the requirement of notice to the ombudsperson and notice was provided to class members in March 2006. Thus, to move for contempt of the Consent Decree, Myers was first required to raise his specific complaints with the DOCS ombudsperson in an attempt to resolve them without intervention of the Court.
Nancy Heywood ("Heywood"), the DOCS ombudsperson appointed to receive the complaints of class members pursuant to the Consent Decree and the 2003 Order, has declared that she received just one request for accommodation by or on behalf of Myers prior to the filing of this motion. Heywood Decl. ¶ 4, attached as Ex. A to Def. Mem. in Opp. The request came in the form of a letter sent on behalf of Myers by the Legal Aid Society, Clarkson class counsel, received by Heywood on July 3, 2006, (the "Ombudsperson Letter"), which is attached to the Heywood Decl. The Ombudsperson Letter raises the following issues: (1) harassment of Myers by corrections staff who had given Myers verbal commands which he did not hear; (2) wrongful charges applied against Myers for toll calls placed by other inmates on TTY phones; (3) limited hours of availability of the resource room for hearing impaired inmates (three hours per week); and (4) failure to respond to requests for unspecified accommodations and grievances filed by Myers.
Heywood replied to the Ombudsperson Letter on July 24, 1996, indicating that: (1) without a specific date or name, she could not investigate allegations of harassment by corrections staff; (2) Myers acknowledged using the TTY phone by signing the log book during the time the toll calls in question were made; (3) the resource room was open to hearing impaired inmates for six hours per week, not the three claimed by Myers; and (4) all reasonable accommodations requests made by Myers had been granted. See July 24, 2006 Letter from Heywood to Cynthia Pong, attached to the Heywood Decl.
Plaintiff's motion raises a number of issues, almost all of which are unrelated to those mentioned in the Ombudsperson Letter. Specifically, the instant motion is based upon: (1) examination of Plaintiff's confidential medical records by Andzel; (2) removal of Plaintiff's shake awake alarm clock and TTY/TDD phones; (3) the inclusion of hearing impaired and non-hearing impaired inmates in the same company as Plaintiff's; (4) discipline of Myers after refusing a verbal order that he did not hear; (5) improper training of corrections officers; (6) unreliable closed captioning decoder boxes and televisions; (7) lack of flashing lights in the prison yard to alert hearing impaired inmates of the need to return to their cells; (8) denial of permission to use the resource room; (9) denial of permission to enroll in sign-language classes; (10) denial of entry into the SNU program; (11) denial of reasonable accommodations to help understand medical instructions; (12) having to stand outside without his jacket for an hour during a fire drill; (13) failure to inform other correctional facilities of Plaintiff's hearing impaired status; (14) failure to inform Plaintiff of the proper person to contact to file complaints; (15) failure of DOCS officials to overrule Andzel's decisions; (16) failure to provide appeals forms for denials of accommodations; (17) denial of use of the TTY/TDD phone; (18) denial of vibrating watches to hearing impaired inmates; (19) denial of typewriters to hearing impaired inmates; and (20) denial of accommodations during tier hearings. Pl. Mem. (docket no. 3) at 2-5.
Myers contends that he was never informed that he was required to contact the DOCS ombudsperson prior to filing a motion for contempt. Pl. Reply Mem. (docket no. 15), ¶ 9-10. This argument is insufficient to prevent denial of his motion. First, the Ombudsperson Letter demonstrates that Plaintiff, or at least class counsel acting on Plaintiff's behalf, was aware of the need to contact Heywood in order to settle disputes over accommodations without the intervention of the Court. Second, any prejudice visited upon Plaintiff by the denial of the instant motion is mitigated by the fact that his action, as distinct from this motion, will remain intact, thus preserving the usefulnessof Plaintiff's discovery efforts undertaken to date. Finally, the purpose of the requirement to provide notice to the DOCS ombudsperson is to minimize needless litigation by providing DOCS the opportunity to remedy any alleged wrongs without the complicating and time-consuming involvement of the Court. Here, DOCS was provided no such opportunity.
Accordingly, Plaintiff's motion is dismissed because it is not ripe for review. Plaintiff may file a motion for contempt of the Consent Decree only by following the procedures identified by the Court the 2003 Order. See Smith, 2006 U.S. Dist. LEXIS 70868 at *23.
It is so ordered.