U.S. Department of Justice

United States Attorney Southern District of New York

86 Chambers Street

New York, New York 10007

July 6, 2016

BY EMAIL AND REGULAR MAIL

Nadene M. Pinnock

Deputy General Counsel

New York City Department of Corrections

75-20 Astoria Boulevard

East Elmhurst, NY 11370

Re: / Americans with Disabilities Act Investigation of
New York City Department of Correction

Dear Ms. Pinnock:

As you are aware, the United States Attorney’s Office for the Southern District of New York (the “SDNY”) has been conducting an investigation into whether the New York City Department of Correction (“DOC” or the “Department”) complies with Title II of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12131 etseq., and the Department of Justice’s implementing regulation, 28 C.F.R. Part 35. We write to provide you with a reportsetting forth our findings with respect to (i) the accessibility of the area of Rose M. Singer Center (“RMSC”) where DOC houses female inmates with mobility impairments and RMSC common areas used by these inmates; and (ii) the manner in which DOC responds to accommodation requests submitted by or on behalf of disabled inmates. We have previously provided you with reports setting forth our findings with respect to the accessibility of the North Infirmary Command (“NIC”) Annex and the visiting areas of each of DOC’s jails.

  1. RMSC Accessibility

It is our understanding that the project to expand and renovate RMSC was completed in 2011, and that this project included the renovation of the area used to house female inmates with mobility impairments. Under the ADA, new construction or alterations commenced after July 26, 1992, but before September 15, 2010, must comply with either UFAS or the 1991 ADA Standards of Accessible Design (“1991 ADA Standards”), 28 C.F.R. Part 36, Appendix D. 28 C.F.R. § 35.151(c)(1). New construction or alterations commenced on or after September 15, 2010, but before March 15, 2012, must comply with either UFAS, the 1991 ADA Standards, or the 2010 ADA Standards for Accessible Design (“2010 ADA Standards”). 28 C.F.R. § 35.151(c)(2). New construction or alterations commenced on or after March 15, 2012, must comply with the 2010 ADA Standards. 28 C.F.R. § 35.151(c)(3). Finally, a correctional facility must provide accessibility mobility features in at least 3% of its newly constructed or altered cells. 28 C.F.R. § 35.151(k).

The findings with respect to the accessibility of RMSC are based on the on-site inspection conducted by Mark J. Mazz, an architect specializing in ADA accessibility. Exhibit A to this letter sets forth the barriers that were identified during the inspection, as well as the minimum steps that DOC must take to meet its legal obligations and remedy the violations the SDNY has identified. The 1991 ADA Standards were used to determine the accessibility of RMSC. Elements that are identified as not complying with the requirements of the 1991 ADA Standards shall be modified to comply with the corresponding provision of the 2010 ADA Standards, which are also included in
Exhibit A. All of the standards and regulations are available at

If you have difficulty identifying the location of a specific barrier referenced, please let us know and we can provide the corresponding photograph taken by Mr. Mazz.

  1. Requests for Accommodations and Access to Services, Programs, and Activities

Title IIof the ADA and its regulations impose a broad nondiscrimination mandate that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by a public entity.
42 U.S.C. § 12132; 28 C.F.R. § 35.130(a). The Title II regulations specifically prohibit public entities that operate or manage jails from discriminating against individuals with disabilities. 28 C.F.R. § 35.152. Public entitiesare required to afford individuals with disabilitiesequal access to benefits and services provided, including at jails and correctional facilities. 28 C.F.R. §§ 35.130(b)(1)(i),35.152(b). The Supreme Court has expressly held that the ADA’s broad requirements apply to prisons and jails. Pennsylvania Dep’t of Corrections v. Yeskey, 524 U.S. 206 (1998). The ADA imposes an affirmative obligation on public entities to “make reasonable modifications in policies, practices, or procedures when modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modification would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.1530(b)(7). Public entities must “furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities . . . an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity.” 28 C.F.R. § 35.160(b)(1). In addition, public entities must “adopt and publish grievance procedures providing for prompt and equitable resolution” of complaints alleging violations of Title II of the ADA and its implementing regulations. 28 C.F.R.
§ 35.107(b).

In August 2004, DOC and the SDNY entered into a three-year Voluntary Compliance Agreement (“VCA”) to resolve the SDNY’s prior investigation into the agency’s compliance with the ADA. The VCA required DOC to designate an employee who would be responsible for, among other things, processing, investigating, and promptly acting upon inmate requests for accommodations, ensuring that staff are adequately trained on ADA issues, and ensuring that inmates with disabilities are housed in facilities that are ADA-compliant and accommodate their disabilities. VCA at § I.2. This individual is referred to as the Department’s Disability Rights Coordinator for Inmates (“DRCI”). The VCA also required DOC to adopt procedures for the prompt and equitable resolution of requests for accommodations and ADA-related complaints. Id. at § III.8. Notwithstanding the VCA and resulting policy and procedure changes, our ongoing investigation has revealed that the Departmentstill fails to consistently ensure that qualifying inmates are not subject to unlawful discrimination on account of their disability.

As part of our investigation, we reviewed the Department’s current policies and training concerning the ADA, as well as records relating to requests for accommodations[1] submitted by or on behalf of inmates during the period 2012 through 2015. We also interviewed the DRCI, and reviewed information concerning the availability of programs and services at different Department facilities.

Set forth below are the SDNY’s findings of fact and conclusions of law under Title II of the ADA, as well as the minimum steps that DOC must take to meet its legal obligations and remedy the violations the SDNY has identified. In sum, we found that DOC fails toconsistently: (a) timely and adequately respond to accommodation requests; (b) place inmates with mobility and visual impairments in accessible housing areas;
(c) provide inmates with mobility impairments with access to appropriate mobility devices; and (d) ensure that hearing impaired inmates have equal access to telecommunications services.

  1. DOC Fails to Timely and Adequately Respond to Accommodation Requests.

DOC frequently fails to timely and adequately respond to requests for accommodation submitted by or on behalf of inmates with disabilities, and does not consistently comply with the requirements set forth in its own policies and procedures for evaluating and responding to ADA-related complaints. Pursuant to DOC Directive 3802, inmates may submit requests for accommodation by completing Inmate Reasonable Accommodation Request (“IRAR”) forms, which are to be made available in counseling service units and law libraries. Directive 3802, § V.C.1. DOC is required to respond to such requests within five business days by either granting, denying, or modifying the request. Id. § V. C.6. If the determination is delayed, DOC must notify the inmate of the delay and the reason for it. Id. § V.C.6. In the event that a request is denied or modified, DOC is required to notify the inmate of the decision in writing, and such written response must advise the inmate of his or her right to grieve the decision. DOC is also obligated to maintain a “copy of all requests for accommodations, determinations and acknowledgments of such determinations.” Id. § V.D.

DOC does not respond to inmate requests for accommodation in a prompt manner, and certainly not within the 5-business day timeframe set forth in Directive 3802. We identified numerous instances where the DRCI repeatedly forwarded disability-related complaints and inquiries to Deputy Wardens and other corrections staff without receiving any response. During her interview with our Office, the DRCI acknowledged that facility managers are sometimes unresponsive to her inquiries and that it can be challenging to ensure that appropriate accommodationsare provided because she does not have the authority to direct unformed staff to take specific actions. Inmates and their representatives also have complained about the Department’s unresponsiveness. Furthermore, the Department consistently fails to notify inmates or their representatives of the reasons for the delays, as is required by Directive 3802.

The Department also lacks an adequate system for recording and tracking accommodation requests, its responses to such requests, and the bases for its responses. We asked the Department to produce all IRAR forms and any “documentation concerning how each IRAR was addressed and/or resolved by DOC.” However, many of the files we received were sparse and contained no documentation reflecting the Department’s determination with respect to the inmate’s request. In addition, the Department’s production did not include any records whatsoever related to several requests that The Legal Aid Society had submitted on behalf of inmates, further demonstrating the Department’s noncompliance with its own internal record-keeping requirements. As a result, we frequently could not determine with certainty whether requests were ultimately granted or denied. In addition, the Department also does not consistently notify the inmate, or his or her representative, of its determination in writing, as is required by Directive 3802.

Moreover, it is unclear what, if any, remedies an inmate has if the Department denies or does not respond to his or her request for an accommodation. Directive 3802 states that an inmate has a right to file a grievance, Directive 3802, § V.C.14, but DOC’s Grievance Policy indicates that complaints of disability discrimination are considered “non-grievable.”

  1. DOC Fails to Consistently Place Inmates with Mobility and Visual Impairments in Accessible Housing Areas.

DOC has failed to consistently assess the needs of inmates with disabilities and promptly place them in accessible housing units with ready access to the programs, services, and activities that are available to other non-disabled inmates. Although Directive 3802 requires staff to notify the DRCI within 24 hours of the admission of any new inmate who has or claims to have a disability, the current DRCI acknowledged that such notification is not always provided to her. The Departmenthas failed to place some inmates with mobility and visual impairments in accessible housing upon their admission, and frequently does not grant their requests to be transferred to more accessible areas during their incarceration. As a result, these inmatesare denied equal access to programs and services.

As the Department has conceded, the vast majority of its jails arenot accessible to persons with disabilities and have significant structural barriers, such as split-level designs, inaccessible program spaces, and inaccessible pathways to and from housing areas. The Department has designated Dorm 3 of the NIC Annex (“NIC Annex Dorm 3”) — a ground floor housing unit with approximately 40-45 beds — to be used for inmates with mobility and visual impairments. The Department has added accessible features to NIC Annex Dorm 3 in an effort to make it ADA-compliant.[2] Resources and services for inmates with visual impairments, including books on tape and screen readers, are also available in NIC Annex Dorm 3. According to DOC policy, male inmates who have a “mobility impairment and use wheelchairs, crutches, canes or walkers” and/or “have a visual impairment that restricts their vision or has resulted in blindness” are to be housed in NIC Annex Dorm 3, provided that they do not “need medical assistance for activities of daily living” and “can conduct personal bodily functions independently.” However, inmates meeting DOC’s criteria have not been consistently placed in NIC Annex Dorm 3, and instead have remained in non-accessible facilities for lengthy periods of time.

Based on our review of DOC records relating to accommodation requests, several inmates with disabilities have requested to be transferred to NIC Annex Dorm 3, or to be at least relocated to a floor in their assigned jail with ready access to programs and medical services, and have either had their requests denied with little explanation or received no response at all.[3] For example:

  • In January 2014, a representative for inmate XXXXXX, who was housed in the Anna M. Kross Center (“AMKC”), requested that Mr. XXX be hospitalized or transferred to the NIC infirmary due to multiple disabling conditions. Several similar requests had been made on behalf of Mr. XXX dating back to as early 2012. Mr. XXX reportedly suffers from Charcot-Marie-Tooth Disease (an inherited neurological disorder affecting motor and sensory nerves), left side paralysis, seizure disorder, incontinence, and asthma. He also reportedly requires crutches to walk and uses braces for his wrist, back, and feet. The DRCI forwarded the January 2014 request to a Captain and conveyed that she was “most concerned about mobility related difficulties of [Mr. XXX’s] leg and arms, and [the] stated need for assistance with basic daily living tasks.” The DRCI received no response for several months. In October 2014, the Department determined that Mr. XXX’s condition did not warrant placement in the infirmary or NIC Annex Dorm 3, notwithstanding his mobility impairment. Instead, Mr. XXX was moved to a lower-level dorm in another jail where he could not navigate stairs to access services. DOC transferred Mr. XXX back to AMKC in December 2014.
  • In April 2014, a representative for inmate XXX XXXrequested that Mr. XXX be transferred to NIC Annex Dorm 3 because he is legally blind. Mr. XXX’s left eye has been removed, and he suffers from degenerative conditions that significantly impair his vision in his right eye. A two-line email in the file states that Mr. XXX’s request to be transferred was denied after the inmate “was seen by an optometrist.” Despite several follow-up requests and Mr. XXX’s well-documented visual impairment, Mr. XXX was not placed in NIC Annex Dorm 3 until late 2015. Mr. XXXalso requested a cane and a visor for his photosensitivity, as well as other reasonable accommodations. He submitted an IRAR, which was returned to him in its original envelope, unopened, with a post-it stating “NO CAN DO.”
  • In May 2015, a representative for inmate XXXXXX, who reportedly suffered a torn meniscus in his right knee, requested that Mr. XXXbe transferred from an upper level housing area to a barrier-free ground floor unit. The inmate reported that his condition had been aggravated by several falls down stairs. The DRCI forwarded the email to the Deputy Warden of jail. The records provided include no indication that DOC responded to this inquiry or that the inmate was relocated.
  • Beginning in June 2015, representatives for inmate XXXXXX, who reportedly had sustained injuries that limited his ability ambulate after being attacked, repeatedly requested that Mr. XXX be provided with a wheelchair and transferred to NIC Annex Dorm 3. Mr. XXXclaimed that he had fallen, hit his head, and lost consciousness while trying to ambulate with crutches, and was not able to access program services, including medical treatment, visitation, and religious services, due to the many steps in his housing area. According to Mr. XXX,Bellevue Hospital had given him a prescription for a wheelchair. In September 2015, the DRCI met with Mr. XXX and observed that “he currently has great difficulties mobilizing, both short and longer distances, with the one crutch he is able to use.” The DRCI recommended that Mr. XXXbe furnished with a wheelchair and be considered for transfer to the NIC Annex. The Department neither provided Mr. XXX with the requested wheelchair nor transferred him to NIC Annex Dorm 3.
  • In November 2015, a representative for inmate XXX XXX, who reportedly has clubbed feet which cause extreme back pain and make it difficult for him to walk, complained that Mr. XXX had been improperly denied a wheelchair and requested that he be transferred from AMKC to NIC Annex Dorm 3. Mr. XXX had previously submitted a grievance requesting reasonable accommodations for his disability. Medical staff authorized the use of crutches, but did not provide Mr. XXX with a wheelchair. The Department did not transfer Mr. XXX to NIC Annex Dorm 3, despite his mobility impairment and the fact that he seemingly met the criteria for placement in that unit.
  1. DOC Fails to Consistently Provide Inmates with Mobility Impairments with Access to Appropriate Mobility Devices.

DOC has failed to consistently and timely provide inmates with mobility impairments with access to appropriate devices to meet their needs, such as wheelchairs, canes, crutches, walkers, supportive footwear, braces, and other medically necessary equipment. In addition, corrections staff confiscate mobility devices without verifying with medical staff whether inmates have a legitimate medical need for the devices.[4] For example:

  • In January 2014, a representative for inmate XXX XXX, who reportedly has epileptic seizures and a degenerative hip condition resulting in osteoarthritis, complained that Mr. XXX’s cane had been taken away and requested that it be returned. The records provided include no indication that DOC responded to this inquiry or that the cane was returned.
  • In January 2014, a representative for inmate XXX XXX, who reportedly has back deformities, complained that staff had refused to provide Mr. XXX with a walker, a cane, and a back brace. The records provided include no indication that the inmate was evaluated in response to this inquiry to determine whether he needed an assistive device.
  • In February 2014, a representative for inmate XXX XXX, who reportedly has nerve damage to his ankle, claimed that Mr. XXX’s cane had been improperly seized. The records provided include no indication that DOC responded to this inquiry or that the cane was returned.
  • In March 2015, a friend of inmate XXX XXX, who reportedly used a wheelchair and had been housed in the NIC infirmary since sustaining bilateral ankle fractures in March 2014, complained that Mr. XXX was transferred to the George R. Vierno Center (“GRVC”) and denied a wheelchair in retaliation for filing a complaint regarding his medical treatment. At GRVC, Mr. XXX reportedly was forced to drag himself across the floor using his hands and arms and was denied access to various programs, including social and religious services. The DRCI was advised not to take any action upon receipt of the complaint. The records provided indicate that Mr. XXX was ultimately transferred to the West Facility as opposed to the NIC Annex, and there is no indication that the inmate was furnished with a wheelchair.
  • In October 2015, inmate XXX XXX, who reportedly is a paraplegic and paralyzed from his waist down due to a gunshot wound to his spinal cord, was discharged from the NIC infirmary. According to his wife and representative, DOC placed Mr. XXX in upper tier housing at the Otis Bantum Correctional Center (“OBCC”)and confiscated his wheelchair. Mr. XXX claimed that it was extremely difficult to walk with the cane he was given and that he needed to climb several sets of stairs to access programs. Mr. XXXalso claimed that he was handcuffed to a gurney and placed in isolation for four days shortly after his arrival at OBCC. On November 9, 2015, the DRCI emailed a Deputy Warden to inquire why Mr. XXX was transferred to OBCC “where wheelchairs are not feasible.” The records provided include no indication that DOC transferred Mr. XXX to an accessible housing area or replaced his wheelchair, despite requests from Mr. XXX’s representatives.
  • In November 2015, The Legal Aid Society advised DOC of a report that staff had confiscated the canes of all inmates in a housing area used for elderly inmates at the Robert D. Davoren Center (“RNDC”). During her interview with our Office in late January 2016, the DRCI advised us that she forwarded this email to her supervisor but was unaware of what steps had been taken in response to this report.
  1. DOCFails to Consistently Ensure that Hearing Impaired Inmates Have Equal Access to Telecommunication Services.

DOC has failed to ensure that all hearing impaired inmates have ready access to telecommunication devices that afford them the ability to communicate with their counsel, friends, and family during their incarceration. AlthoughmultipleTTY devices are supposed to be available in each jail, this appears to not always be the case. For instance, in a June 2014 email to DOC staff, the DRCI noted the failure to install a sufficient number of TTY devices in the George Motchan Detention Center (“GMDC”) and acknowledged that DOC “has been out of compliance with the ADA regarding TTY provisions for far too long[.]” In addition, the Department does not furnish video relay services, which are now the more common telecommunications method used by individuals with hearing impairments.[5]