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FRANKLIN v. DISTRICT OF COLUMBIA

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


April 16, 1997

ROBERT FRANKLIN, et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA, Defendant.

The opinion of the court was delivered by: GREEN

MEMORANDUM OPINION AND ORDER

 The plaintiffs represent a class of Hispanic prisoners who are or who will be incarcerated in District of Columbia correctional institutions. In this suit, they seek injunctive and a declaratory relief for alleged violations of the First, Fifth and Eighth Amendments to the Constitution under 42 U.S.C. § 1983, of 42 U.S.C. §§ 2000d, 2000bb, and of D.C. law pendent to the constitutional violations. *fn1"

 The plaintiffs allege that the defendant's failure to provide Spanish-speaking staff, interpreters and translators has violated their constitutional rights, because it effectively denies them adequate medical and mental health care and interferes with their right to privacy, obstructs their constitutional right to practice their religion, undermines their right to fair hearings and denies them access to vocational, educational and drug treatment programs. They also aver that the defendant has violated their rights by failing to offer religious, vocational and educational programs in the Spanish-language. And, the plaintiffs contend that the District of Columbia has discriminated against Hispanic prisoners by failing to protect them from racial violence and a racially hostile environment. *fn2"

  The plaintiffs have met their burden to prove that the defendant has violated the plaintiff class' constitutional rights under the Eighth and Fifth Amendments, as alleged in Counts One through Four of the Amended Complaint, and, notwithstanding the "flurry of activity" on the eve of trial, the defendant has not taken meaningful action to remedy those violations. Accordingly, for the reasons stated below, upon considering all of the evidence introduced at trial and the testimony of the witnesses, including an evaluation of the credibility and demeanor of each witness, the Court will enter judgment in favor of the plaintiffs on Counts One (in part), Two, Three and Four of the Amended Complaint and in favor of the defendant on Counts One (in part), Five, Seven and Eight. *fn3"

 I. Introduction

 The five-day bench trial in this matter involved approximately 30 hours of trial time, evenly divided between both sides. *fn4" In its case-in-chief, the plaintiffs presented five Limited-English-Proficient ("LEP") Hispanic inmate witnesses (William Alexander Lazo, Jose Mejia, Jose Bonilla, Martin Nunez, and Jose el Carmen Sandoval); Sister Maria Lapazaran (a Carmelite nun serving as a full-time volunteer with the Department of Corrections); Ottoniel Perez (a pastoral volunteer of the Catholic Archdiocese); Rosalyn Overstreet-Gonzalez (a staff attorney with the D.C. Public Defenders Service Prisoners' Rights Program); E. Eugene Miller (an expert on correctional issues); Sonia Oquendo, M.D. (an expert on correctional mental health issues); Joseph Fowlkes, M.D. (an expert on correctional medical issues); Vilma Iraheta-Oliva ("Iraheta") (a bilingual case manager with the Department of Corrections); and Laura Colon (the coordinator for the Limited-English-Proficient Program at the Department of Corrections). The plaintiffs also offered deposition designations and counterdesignations pursuant to Fed.R.Civ.P. 32, *fn5" and they introduced 296 exhibits at trial. *fn6"

 In its case, the defendants offered trial testimony from three fact witnesses and from one expert: Bernard Braxton (Deputy Director of the Department of Corrections); Laura Colon (see supra); Michael Green (Director for the Division of Parole Determination Services); and Dr. John Clark (expert witness). *fn7" The defendant offered deposition designations and counterdesignations, *fn8" and it offered 381 exhibits. *fn9"

 II. Findings of Fact

 The District of Columbia Department of Corrections currently operates eight correctional facilities which house approximately 9,000 inmates. *fn10" These institutions are:

 

D.C. Detention Facility ("D.C. Jail") - a high security facility that primarily holds inmates awaiting trial or transfer to one of the defendant's other correctional facilities. At the time of trial, there were 63 Hispanic inmates at the D.C. Jail.

 

Correctional Treatment Facility ("CTF") - a reception, diagnostic and treatment assessment center that is immediately adjacent to the D.C. Jail. At the time of trial, there were nine Hispanic inmates at CTF.

 

Central Facility ("Central") - a medium-security facility, which typically houses inmates within five years of release. At the time of trial, Central had 16 Hispanic inmates.

 

Maximum Facility ("Maximum") - a maximum-security facility. At the time of trial, Maximum held nine Hispanic inmates.

 

Medium Facility ("Medium") - a medium-security facility that normally houses inmates within five years of their release. At the time of trial, Medium had approximately 700 inmates, ten of which were Hispanic.

 

Minimum Facility ("Minimum") - the least restrictive of the facilities at Lorton, which at the time of trial, had seven Hispanic inmates.

 

Occoquan Facility ("Occoquan") - a high/medium-security facility. At the time of trial, Occoquan held 43 Hispanic inmates.

 

The Youth Center ("Youth Center") - a facility for Youth Rehabilitation Act offenders and other less violent young adults. At the time of trial, 30 Hispanic inmates were incarcerated at the Youth Center.

 Through the testimony of the plaintiffs' correctional expert, Mr. Eugene Miller, *fn11" the plaintiffs established that, as of the date of trial, 188 Hispanic prisoners were incarcerated in the various institutions of the Department of Corrections, and that the number of Hispanic inmates was expected to increase in future years. *fn12" See Miller Direct Testimony ("Miller Test.") at 4-6. While this number represents approximately 2% of all inmates, it also represents a 33% increase in Hispanic inmates incarcerated within DCDC institutions since 1994. The majority of these Hispanic inmates are from Central America, which the evidence at trial established as significant: Unlike Hispanics from Puerto Rico, Hispanics from Central America typically have little or no exposure to English or the way of life in the United States. *fn13" Even more problematic, of the Hispanic inmates in the D.C. Department of Corrections institutions, approximately eighty (80) percent do not speak English sufficient to function effectively on a daily basis. *fn14" Miller Test. at 4 & 35; see also TR at 772 & 814 (testimony of Laura Colon).

 The defendant's awareness of issues in the Hispanic community generally and of Hispanic issues in its correctional institutions in particular was substantially heightened in May of 1991 as a result of a civil disturbance in the Adams Morgan and Mount Pleasant areas of the District of Columbia. Shortly thereafter, the Department of Corrections organized its Task Force on Ethnic Minority Population to address the services to the Latino population within the D.C. correctional institutions. On July 15, 1991, the DCDC Task Force issued its report, finding:

 

Recognizing the potential increase in the population that may exist, it is important to insure that programs are either expanded or new ones developed to meet the basic health, mental health, and educational needs.

 

Effective communications with each ethnic minority group, especially Latinos, is necessary to facilitate a rehabilitation process. The need for comprehensive and standardized language and cultural programming opportunities is evident. Appropriate programming will enhance staff and inmate sensitivity and minimize misrepresentation and the risk of confrontation based on misinterpretation. Thus, greater focus will be given to this group.

 DCDC Task Force Report at 2 (emphasis added).

 The Task Force recognized that "limited English speaking inmates are not afforded the opportunity to participate because of the language barrier and the lack of sensitivity to their needs by the system." Id. at 3. The major operational concerns identified in the DCDC Task Force Report included:

 

.the ability to fully participate in the Department's orientation program;

 

.the ability to identify the specific needs of the limited-English proficient inmate;

 

.the ability of the LEP inmate to seek appropriate mental health services because of the lack of bilingual psychiatric staff;

 

.the ability of the LEP to seek medical appropriate medical services because of the lack of bilingual medical personnel;

 

.the ability of the LEP inmate to participate in educational and vocational programs because of the lack of bilingual staff and materials;

 

.the ability of the LEP inmate to have their spiritual needs addressed; and

 

.the ability of the LEP inmate to participate fully in institutional and community-based programs due to language barriers.

 Id. at 3.

 Also in response to the Mount Pleasant disturbance, the defendant formed the D.C. Latino Civil Rights Task Force. In October of 1991, this task force issued its report and final recommendations, entitled "The Latino Blueprint for Act." See PE 26 ("Latino Blueprint"); TR at 787. In this report, the Latino Civil Rights Task Force identified the lack of services provided to the Latino community and specifically pointed out the failure to recruit and hire bilingual/Latino personnel in agencies of the D.C. government. See PE 26, Latino Blueprint at 12.

 Pursuant to the mayor's direction, each agency of the District of Columbia provided an assessment and a time line for implementing the relevant recommendations of the report. By cover memo of February 3, 1992, Director Walter B. Ridley provided DCDC's response and identified his point of contact as Vernon Hawkins, Chief, DCDC Special Needs Programs. See PE 35, Ridley memorandum with attachment, DCDC Latino Blueprint Report ("DCDC Latino Blueprint Report" or "Report"). The Report was authored by the defendant's principal witness and the DCDC representative at trial, Laura Colon, who in November of 1991, had been hired as the Coordinator for DCDC's Limited-English-Proficient Program ("LEP Program"). TR at 569. In the Report, the defendant acknowledged that "the need for comprehensive and standardized language, and cultural programming for Hispanics has been clearly documented." DCDC Latino Blueprint Report at 1, attached to PE 35 (Ridley memorandum).

 The United States Civil Rights Commission also issued a report after it conducted an investigation into the underlying causes of the Mount Pleasant disturbance, the continuing violations of the civil rights of Latinos, and the system-wide failure by the District to provide social services required by the Latino Community. See PE 68, "Racial and Ethnic Tensions in American Communities: Poverty, Inequality and Discrimination, Volume I: The Mount Pleasant Report," (January 1993) ("U.S. Commission on Civil Rights Report on Racial and Ethnic Tension" or "U.S. Civil Rights Commission Report"). The U.S. Civil Rights Commission Report stated that "neither the District's own limited political representation, nor the constraints placed on its ability to collect revenues and pay for the needs of its citizens should in any way hamper its ability to address the civil rights concerns of its Latino minority." Id. at iii (Preface).

 A particular section of the U.S. Commission on Civil Rights Report on Racial and Ethnic Tension was dedicated to the D.C. Department of Corrections, see id. at 73-75, and specific emphasis was placed on the lack of interpreters in DCDC correctional institutions. Id. at 74. As reflected in this report, the Department of Corrections acknowledged the language barriers for Spanish-speaking inmates and identified its concern that this barrier prevented Hispanic inmates from acquiring good time credits. Id. And, contrary to evidence developed at this trial, but consistent with the District's claim, the U.S. Civil Rights Commission Report states that "there has been an active recruitment process to hire additional Spanish-speaking staff for positions as psychologists, chaplains/chaplain assistants, medical personnel, correctional supervisors, and correctional officers to meet the needs of the limited-English population as it continues to increase." Id. at 75.

 Ms. Colon, her supervisors and other DCDC staff, as well as volunteers at the correctional institutions, were keenly aware of the problems facing LEP Hispanic inmates within the DCDC system. In January of 1992, Colon met with approximately 30 DCDC staff members, who told her that when they had to help or work with inmates, they were unable to understand them or their needs. See TR at 577. At the meeting, Colon was advised that

 

there were comments on the quantity of bilingual staff available at the intake level and at the facility level. There was the clear perception of the need for bilingual staff at all levels to assist in the residents' adjustment.

 PE 32 ("ESL Program Meeting at Occoquan Facility," dated January 13, 1992) (this document was prepared by Mr. Oscar Colon, the DCDC Chapter I Coordinator and Laura Colon's husband); see also TR at 576.

 Colon communicated her concerns up the chain of command. In her memo of October 10, 1992, she advised Hawkins that "the language proficiency of the [Hispanic] residents [at Central] is such that the majority of the residents are need in of an interpreter." PE 58 at 1; see also id. at 2. ("Out of the total 24 Hispanic residents, 19 residents are in need of an interpreter."). Colon developed the very same conclusion regarding Hispanic inmates at D.C. Jail, Occoquan and Modular. TR at 581. She also advised her chain of command that Hispanic inmates believed that they were being mistreated or taken advantage of because of their inability to speak English. *fn15" See, e.g., PE 51 (Colon memo to Hawkins, dated July 1, 1992); see also PE 42 (Colon memo to Hawkins, dated March 1992) (reporting that Hispanic inmates at D.C. Jail "feel that they are being discriminated against.").

 Colon also advised Hawkins that "there is a desperate need for Spanish programs for the residents." PE 58 at 2. She explained that "the following programs are not only necessary but required in order for the resident to be considered for parole:

 

1. Substance Abuse Program

 

2. N.A. (Narcotics anonymous)

 

3. A.A. (Alcoholics anonymous)

 

4. Life Skills Programs

 

5. Mental Health Class

 

6. Counseling - Psychological/Psychiatric."

 Id.

 Colon requested an appointment with Hawkins to address these matters. Id. Nevertheless, as of the trial almost four years later, none of these programs was available at Central (16 Hispanic inmates), Minimum (seven Hispanic inmates), Maximum (nine Hispanic inmates), D.C. Jail (63 Hispanic inmates) or the Youth Center (30 Hispanic inmates). TR at 585-86 (testimony of Laura Colon). And, only Life skills, Narcotics Anonymous and Substance Abuse were offered at Occoquan. Id. at 586. Thus, as of the date of trial, of the programs for which Colon identified a desperate need, none was available to approximately 60 percent of the LEP Hispanics in DCDC correctional facilities. TR at 933-94 (testimony of Laura Colon). *fn16"

 Laura Colon was not the only person who advised DCDC of the problems faced by Hispanic inmates. Sister Maria Lapazaran ("Sister Maria"), *fn17" a nun with the Carmelite Sisters of Charity and full time volunteer at DCDC correctional institutions since 1989, repeatedly provided notice to the defendant regarding the lack of programs and bilingual staff and interpreters, as well as reports of inadequate medical care for Hispanic inmates. See, e.g., PE 13-21, 24, 29, 41, 43, 48, 63, 66, 69, 81, 88, 197, 217, 286 and 295. On April 24, 1991, Sister Maria wrote to Vernon Hawkins, Chief of Special Needs, Office of Programs, DCDC:

 

I would like to express to you my concerns about the lack of programs in Lorton for the Spanish-speaking residents.

 

As you can see in the copy of the testimony I gave in front of the Judiciary Committee, there is not [a] program in Occoquan except the ones that I have organized.

 

Some examples; considering how important it is for foreign people to learn English. One or two bilingual teachers for English and GED are a necessity.

 

Another important and mandatory program is D.A.A.T.P. (Drug Abuse Alcoholic Treatment Program) where it is imperative to have a bilingual counselor.

 

Many of the Spanish-speaking residents lack job skills. Thus, it is very important to also have vocational programs.

 

Bilingual Physical and Mental Health Professionals, Case Management, and Officers are also crucial for these inmates.

 

I feel comfortable in communicating my concerns to you. As you hold a position of leadership in special needs, you will appreciate my care of these men who have equal right[s] and needs as human beings.

 PE 17 (emphasis added); see also TR at 48 (Sister Maria testified that she wrote Hawkins in order to explain the general needs of Hispanic inmate population); PE 13 (letter to Edmund Walsh, Assistant Administrator of Programs at Medium, dated Apr. 1, 1990) (identifying bilingual psychiatrist who was available); PE 14 (memo to Thomas Parker, Assistant Administrator at Occoquan, dated Nov. 15, 1990) (identifying bilingual counselor for Spanish-speaking DAATP); PE 16 (letter to Gwen Washington, Associate Director for Programs, dated March 3, 1991) (confirming that good time credits will be available for Spanish-speaking inmates who take ESL program at Occoquan); PE 18 (letter to Bernard Braxton, Administrator at Occoquan, dated April 30, 1991) (requesting meeting to describe complaints of Hispanic prisoners against officers and other prisoners); PE 19 (memo to Laplois Ashford, Principal of the Education Bldg., Occoquan, dated May 11, 1991) (explaining that volunteer ESL program was ending and describing hope that bilingual teacher will be hired); PE 20 (memo to Bernard Braxton, Administrator at Occoquan, dated May 11, 1991) (describing need for a bilingual counselor in the DAATP program); PE 24 (letter to Bernard Braxton, Administrator at Occoquan, dated July 24, 1991) (describing incident in which doctor directed medical attention but guard denied inmate access to medical care system); PE 29 (memo to Bernard Braxton, Administrator at Occoquan, dated Nov. 11, 1991) (regarding housing of majority of Hispanic prisoners in the "worst dorm" at Occoquan); PE 41 (memo to Walter Ridley, Director, DCDC, dated March 16, 1992) (identifying lack of bilingual psychologists, psychiatrists, doctors, case managers, counselors); PE 43 (letter to Lillie Parker, Assistant for Academic Programs at Lorton, dated April 15, 1992) (identifying Hispanic inmates' concerns with the ESL program and their difficulty in getting an ID card to attend class); PE 48 (letter to Bernard Braxton, Administrator at Occoquan, dated June 4, 1992) (confirming Spanish-speaking residents are in same condition as described in her memo of last November--a specific complaint was raised about Dorm # 6, "the worst in the Occoquan facility").

 Despite the fact that the defendant was placed on notice as described above (and as discussed in other portions of this opinion), the District of Columbia has failed to take meaningful action. Among other problems, the claims of deficient medical care, psychiatric and psychological treatment and counseling went unresolved, TR at 49, and the general treatment of Hispanic prisoners has remained the same or worsened. Id.

 This is not to say that, in light of the overwhelming record establishing notice of the constitutional violations of the rights of Hispanic inmates, the defendant did not react. Some steps were taken, and the defendant adopted some of the recommendations identified in the DCDC Task Force Report. See PE 23; TR at 575. *fn18" At trial, the defendant contended that the recommendations in the Report were accomplished by the end of 1992. TR at 788, 913. *fn19" However, the evidence at trial made clear that only a limited number of the recommendations were actually accomplished; the remainder were adopted on paper only and have not been implemented meaningfully or enforced regularly, if at all, by the Department of Corrections. For example, while it took over two years to even develop a written policy on providing interpreters, see PE 198, the evidence at trial firmly established that the policy is one on paper only--it seldom is followed. Other examples, include the defendant's reluctant embrace of its own programs to provide bilingual coordinators *fn20" and bilingual case managers, *fn21" and the inexplicable delays in translating documents into Spanish as well as the failure to even distribute documents that had been translated into Spanish years ago. The evidence also made clear that, contrary to the defendant's statements that were apparently offered for public consumption, recruiting bilingual staff has not been a priority. Similarly, the "policy" of concentrating Hispanic inmates at Occoquan and Central is a phantom policy--neither senior DCDC officials nor the bilingual case manager for Hispanic inmates at Occoquan were aware of its existence, and the actual distribution of Hispanic inmates indicates that this policy, too, is honored in the breach.

 While the defendant offered evidence regarding a flurry of activity within the Department of Corrections in the weeks prior to trial, the record as a whole establishes that these meager steps, taken five years after the District was placed on notice of the underlying problems, were nothing more than a weak attempt to shield its deliberate indifference from judicial scrutiny once it became clear that this case was going to trial. *fn22" In any event, the Court has no confidence that these actions, taken on the eve of trial, were sincere attempts to deal with the violations of LEP Hispanic inmates' constitutional rights.

 Long after the end of 1992, LEP Hispanic inmates were still being deprived of interpreters in hearings and at medical and mental health encounters. Where the record clearly establishes deliberate indifference or other constitutional violations, the defendant cannot hide behind a paper shield of departmental orders or program statements that are seldom, if ever, followed.

 A. Medical and Mental Health Care.

 The evidence at trial established that LEP Hispanic inmates have difficulty accessing the medical and mental health care system. Moreover, if and when they are able to do so, the treatment that they receive is inadequate and, at times, unsafe. See, e.g., TR at 110-11 (testimony of William Alexander Lazo). Since at least 1991, Hispanic inmates, defendant's employees and volunteers have complained about the inability of LEP Hispanic inmates to access the DCDC medical care system. See, e.g., TR at 44 (testimony of Sister Maria); PE 42 (Laura Colon memo to Vernon Hawkins, dated March 1992) ("There are no medical staff who are bilingual."); PE 67 (inmate grievance); PE 71 (inmate grievance); PE 88 (Sister Maria letter to Dr. Marzbou, Chief, Occoquan Medical Unit, dated May 17, 1993); PE 115 (inmate grievance); PE 141 (Iraheta memo to Robert Reeder, Assistant Administrator for Programs at Occoquan, dated May 12, 1994) ("Some residents had problems getting medical care, medication or medical supplies."); Deposition of Martha Gaviria (October 21, 1994), Dep. TR at 10-11 (difficulties obtaining prenatal medical care while incarcerated at CTF); Deposition of Mario Vilche (January 11, 1995), Dep. TR at 66-70 (unable to obtain dialysis treatment on a regular basis). Even those who have been treated are not provided with adequate information (in a language they understand) regarding the diagnosis, the treatment plan, if any, and the possible side effects of medication that medical staff prescribe. Sadly lacking for LEP Hispanic inmates is continuity of care.

 This deficient medical care arises generally from the lack of bilingual staff and/or the staff's ignorance of or their repeated failure to follow DCDC's own directives on the provision of interpreters for medical encounters. *fn23" The plaintiffs' expert on the delivery of medical services, Dr. Joseph P. Fowlkes, *fn24" testified persuasively that the "medical care services available to Hispanic prisoners who are not fluent in English are severely inadequate. Hispanic prisoners are denied necessary medical treatment because there is no program in place to insure that they can communicate with their medical providers, which limits their ability to gain access to medical services throughout the period of incarceration." Fowlkes Direct Testimony ("Fowlkes Test.") at 2. *fn25" Dr. Fowlkes' opinion was based on evaluations of the medical care delivery system at all of the DCDC correctional facilities. Cf. Clark Test. at 8-10 (site visits limited); TR at 1095-97 (same). In February 1993, October 1994 and February 1996, he visited Minimum, Medium and the Youth Center, and, shortly before trial, Fowlkes toured all eight DCDC facilities. *fn26" See TR at 300.

  The evidence at trial clearly described the language barriers faced by LEP Hispanic inmates who seek medical care in the DCDC correctional institution health care facilities. Dr. Fowlkes testified persuasively and other evidence substantiated that

 

There are inadequate numbers of Spanish speaking staff, and those who do speak Spanish are not deployed to insure that there is bilingual staff coverage at critical sites. As a result, prisoners who cannot speak English cannot obtain care because they cannot communicate with a provider. See, e.g., Fowlkes Test. at 9; TR at 300-01 (cross-examination of Dr. Fowlkes); PE 256 (based on DCDC's April 1996 staff roster, only two medical staff members who provide direct care are bilingual); TR at 138-39 (Nunez testimony); TR at 167-68 (Sandoval testimony).

 

Although protocols for providing translators for medical encounters have been introduced, they have not been effectively implemented. The majority of the medical staff were unaware of the protocols. See, e.g., Fowlkes Test. at 9 & 16-17; TR at 304 & 311-12 (describing medical staff's failure to follow 1994 policy on providing interpreters during medical encounters) (redirect examination of Dr. Fowlkes); id. at 309-10 (describing medical staff's lack of awareness regarding identity of bilingual coordinators); Hall Dep. TR at 31 (unaware of protocol but some awareness of a list of Spanish-speaking personnel).

 

The confidentiality of Spanish speaking inmates is routinely violated by requiring other inmates or correctional staff to interpret medical encounters, and because medical staff are not sufficiently sensitive to the issue of confidentiality. See, e.g., Fowlkes Test. at 9 & 14-16; TR at 303-04 (use of correctional officers and other inmates as translators is common, but improper, except for emergencies; not only are patients' right to confidentiality needlessly breached but such patients often suppress sensitive information regarding diseases like tuberculosis, and HIV and other sexually transmitted diseases); Miller Test at 29 n.41 (same); Artola Dep. TR at 63-66; Gaviria Dep. TR at 29; Lugo Dep. TR at 51; Vazquez Dep. TR at 86-87 (Nov. 21, 1994).

 

There is a chronic and pervasive misperception on the part of medical staff that inmates who barely speak English are capable of negotiating medical encounters in English. See, e.g., Fowlkes Test. at 9; TR at 305-07 (testimony of Dr. Fowlkes); TR at 647-48 (testimony of Dr. Oquendo).

 

Hispanic inmates are not provided with an orientation to the correctional medical system at any of the DCDC facilities, and they are not informed adequately as to how they access the health care system. See, e.g., Fowlkes Test. at 9.

 

The medical staff fails to coordinate the activity of Hispanic inmates seeking medical treatment, particularly specialty clinics to insure that translators are available when the patient presents for treatment. See, e.g., Fowlkes Test. at 9; TR at 321 (testimony of Dr. Fowlkes).

 

Prisoners who are prescribed medication do not receive instructions regarding the administration of that medication or about the potential side effects in Spanish. See, e.g., Fowlkes Test. at 9; TR at 108 (Lazo testimony); TR at 123 (Bonilla testimony); Direct Testimony of Dr. Oquendo ("Oquendo Test.") at 26-27 TR at 645 (Oquendo testimony).

 For medical care to be adequate, a doctor and a patient must be able to understand each other. See Deposition of Dr. William Henry Hall, Assistant Director for Health Services, Hall Dep. TR at 21 (Feb. 16, 1995)(defendant's Rule 30(b)(6) witness); Fowlkes Test. at 10; TR at 294-95 (cross-examination of Dr. Fowlkes). *fn27" A patient's inability to communicate with his or her doctor makes it almost impossible for a doctor to diagnose illnesses accurately or timely. Fowlkes Test. at 10. Moreover, the adequate provision of health care services requires that a patient be able to understand how his or her medical problems must be treated. Id.

 Dr. Hall, the defendant's Assistant Director for Health Services and designated Rule 30(b)(6) witness at the deposition of February 16, 1995, stated that effective treatment requires a full understanding of the patient's complaint. See Hall Dep. TR at 21. According to Dr. Hall, it would not be sufficient for a doctor to diagnose an illness based upon a patient pointing to his stomach or to his tooth, and then saying "ouch" or moaning. *fn28" Id. Despite these concessions by the defendant, the persuasive evidence at trial made clear that the delivery of medical services to LEP Hispanics within the DCDC facilities was often being provided on such a basis. E.g., Fowlkes Test. at 11 (describing LEP Hispanic inmate who used hand signals to communicate regarding a foot problem); Fowlkes Test. at 19 (describing an M.D. at Occoquan who said she could adequately treat Spanish-speaking inmates by having them point to the affected body part and say "dolor," meaning pain in Spanish); TR at 120 (after being stabbed, inmate testified he could only communicate with doctors by sign language); TR at 123-24 (medicine prescribed even though communication was based generally on sign language); TR at 165 (communication regarding foot injury based on sign language); Artola Dep. TR at 69 (health care provider communicated through sign language); Bonilla Dep. TR at 60 (LEP Hispanic inmate communicated by pointing to his tooth). Within the Department of Corrections, poor communication has led to inadequate treatment for LEP Hispanic inmates, deficiencies of which correctional officials knew or should have known.

 The defendant's medical staff, even at high levels, displayed a marked insensitivity toward the need for interpreters during medical encounters. Dr. Fowlkes opined "that a significant majority of the medical staff seemed to attribute an ability to function minimally in English as equivalent to being able to effectively communicate in a medical setting." Fowlkes Test. at 18-19. Dr. Fowlkes opinion was based, in part, on one instance in which the Chief Medical Officer at Central told Dr. Fowlkes that Hispanic inmates could "understand enough" English if, for example, they could understand "positivo" after undergoing a test for HIV. Id. at 19. While the evidence at trial established, and the defendant conceded, that 80% of the Hispanic inmates in its facilities were limited-English proficient, its medical staff for whatever reason believed the level of proficiency to be much higher. According to the Chief Medical Officer at the Youth Center, a specific Hispanic patient "can speak English whenever he wants." Fowlkes Test. at 18. Dr. Fowlkes' interview of that patient revealed that the patient was not capable of conducting an effective medical encounter. Id. Similarly, a Physician's Assistant at Maximum articulated his belief that Hispanic inmates are fluent in English because in the District of Columbia, Hispanics speak both English and Spanish. Id. at 19. Moreover, the medical staff failed to acknowledge the significance of language limitations in health encounters. Id. at 18-19. The medical staff's relaxed attitude translates to the denial of effective medical care for LEP Hispanic inmates in the DCDC system. *fn29"

 While the defendant first promulgated procedures for obtaining staff interpreters for LEP inmates in 1994, these procedures have not been effectively implemented. A significant proportion of the DCDC medical staff are unaware of these procedures. *fn30" Fowlkes Test. at 16. Other staff members, for whatever reason, choose to ignore the procedures. As a consequence, when it comes to finding interpreters for medical encounters, inmates are generally forced to fend for themselves. Because the defendant fails to provide interpreters, some LEP Hispanic inmates bring other inmates (whose bilingual abilities vary widely) to interpret at medical encounters. Sometimes, medical staff ask correctional officers (whose bilingual abilities also vary widely) to interpret on a non-emergency basis. Other times, a medical staff member will tell the inmate to bring his or her own interpreter. Despite the defendant's oft-repeated claim that bilingual staff are always available somewhere in the DCDC system, some inmates have never seen a bilingual staff member at medical encounters. While the defendant's procedures allow an inmate to execute a waiver of the right to an interpreter, the defendant has amended the waiver form by deleting the provision that advised an inmate that he or she is also waiving their right to medical confidentiality. *fn31"

 The evidence at trial established that the actual policy and practice regarding interpreters at medical encounters was not the same as the "policy" memorialized in the defendant's written instruction. The written policy, was seldom, if ever followed. When interpreters are provided for medical encounters, it is done on a haphazard basis, if at all. As a result, inmates are too frequently denied timely and effective medical treatment because there are no interpreters available. Sometimes, medical problems are described and medical treatment is prescribed through hand signals--an ineffective and dangerous way to diagnose a disease or treat a patient. Often, an inmate's communication with his or her doctor occurs only by using another inmate or a correctional officer as a lingual conduit, offering interpretation of questionable quality and needlessly abridging the LEP Hispanic inmate's medical confidentiality.

 The LEP Hispanic inmate's inability to access the medical care system was perhaps most striking with respect to HIV testing and counseling. HIV testing and education are particularly important in prisons where the rate of HIV infection is six times higher than in the community. TR at 312. However, despite this fact, Dr. Fowlkes opined that LEP Hispanics are not being provided with information on how to request HIV tests. Fowlkes Test. at 23-24; TR at 313-15. Those that do obtain tests are forced to compromise their confidentiality to do so. Fowlkes Test. at 23-24; TR at 313-15.

 Moreover, the HIV counseling that was being provided was inadequate. Fowlkes Test. at 24. Dr. Fowlkes' opinions were based largely upon interviews with the defendant's own medical staff. For example, neither of the two health educators responsible for HIV education spoke Spanish. In one instance, where one of these health educators gave an HIV test to an LEP Hispanic inmate, the inmate's chart reflected that the patient "appeared to understand" what he was told during the counseling session. Fowlkes Test. at 24. In another instance, the doctor who ran the chronic disease clinic at the Youth Center told Dr. Fowlkes that although she conducts HIV counseling, she did not know what she would do if a Spanish-speaking inmate requested an HIV test. Id. at 25. Not only does this doctor in a key medical staff position lack knowledge of the defendant's purported procedure for obtaining interpreter services, this statement is a persuasive indicator that LEP Hispanics are not accessing the health care system for HIV testing. Dr. Fowlkes opined that further evidence of LEP Hispanic inmates' ability to access the system is the statement to him by the health care staff member at Maximum, who conducts HIV tests and counseling, that she has never administered an HIV test to a Hispanic inmate. Failure to treat HIV proactively, particularly in a prison population, threatens not only the infected person's health, but endangers those to whom the infected inmate will be exposed.

 In the area of mental health care, the plaintiffs offered the testimony of Dr. Sonia I. Oquendo, M.D., who concluded that the provision of psychological and psychiatric services to Hispanic prisoners in the DCDC institutions was "grossly inadequate and dangerous." *fn32" Dr. Oquendo based her opinion on tours conducted of DCDC facilities in 1993, 1995 and 1996 (immediately prior to trial), document and deposition review, as well as interviews with prisoners, medical staff and mental health staff. Oquendo Test. at 3; TR at 639 (redirect testimony of Dr. Oquendo). She stated that she conducted her site visit in May 1996 to update her opinion and to learn whether the problems that previously existed had been cured. After touring the District's correctional system, interviewing critical staff members *fn33" and fourteen prisoners, she concluded that

 

the situation had not improved. The problems that I had seen during my previous tour and review of documents continue to exist. In one critical way, the situation had in fact worsened. Several policy changes had been made, but not implemented, thus giving the illusion that the problems had been resolved when in fact they had not. Thus, for example, although there is a formal policy to use translators, they are not used, the testing of prisoners for English language ability is grossly inadequate, and treatment other than medication, as a practical matter is unavailable. These cosmetic changes concealed real problems and interfere with real solutions. I was also greatly disturbed by the apparent indifference by many of the mental health staff to the needs of this population.

 Oquendo Test. at 4; see also TR at 640 (no meaningful changes implemented).

 The evidence at trial, including Dr. Oquendo's expert testimony, established that the defendant has failed to provide adequate mental health care in the following areas:

 

. A failure to identify Hispanic prisoners in need of mental health services;

 

. A failure to make necessary and appropriate treatment available;

 

. A failure to monitor or ensure continuity of care for those Hispanic prisoners who do receive treatment;

 

. A failure to obtain informed consent prior to the administration of psychiatric medications; and

 

. The violation of medical confidentiality through the improper use of prisoners and correctional officers to translate mental health encounters.

 The Court finds, based in large measure upon the testimony of Dr. Fowlkes and Dr. Oquendo as well as statements by inmates and the defendant's staff, that there is a "great gulf between official policy and actual practice." Oquendo Test. at 8. Dr. Oquendo testified that while she reviewed documents that described a number of programs, "as [she] made her site visit, it became clear that these programs existed on paper only." Id. For example, the psychologist whom the defendant designated as the Hispanic Coordinator for mental health services since the beginning of 1996, stated to Dr. Oquendo on May 13, 1996, that he had never been advised of his responsibilities, duties, role or authority. Id. Dr. Oquendo cited other examples of initiatives that she was told existed, but in fact did not, such as "the failure to utilize forms that have been translated into Spanish, the failure to make therapies other than medication available [to] non-English speakers, the failure to utilize the ATT language line, and the failure to adequately test Hispanic prisoners for language ability." Id. at 8-9.

  The evidence at trial painted a picture of inadequate mental health services provided to LEP Hispanic inmates. For example, one inmate who had been sexually assaulted in prison was not receiving proper mental health care. Another inmate for whom the institution's medical staff had prescribed medication was transferred to another facility, but was not receiving treatment at that receiving facility. Dr. Oquendo based her expert opinion, in part, on her encounters during her tour with fourteen different Hispanic inmates suffering from mental health problems. Oquendo Test. at 14. *fn34" Many of these problems were exacerbated by the isolation that LEP Hispanic inmates experience due in part to the language barriers they face in the DCDC correctional institutions. Id. (relying in part on a conversation with Dr. Word, DCDC's Hispanic Coordinator for mental health services).

 As with medical care in general, LEP Hispanic inmates are not adequately screened by bilingual medical staff upon entry into the DCDC system. LEP Hispanic inmate Nunez testified at trial that he received a diagnostic evaluation in English, even though he only spoke limited slang-English at the time. TR at 145-46. Similarly, one LEP Hispanic inmate testified that when he received his diagnostic screening, he spoke no English. TR at 160. The "language assessment test," which Laura Colon described as a modification of the widely accepted Brigance test, *fn35" does not adequately evaluate whether a prisoner can communicate in English sufficiently to participate meaningfully in a medical or a mental health encounter. Oquendo Test. at 10. Dr. Oquendo opined that the "system for prisoners to access mental health care was casual and relies heavily on referrals from correctional officers, case managers and medical staff." Id. at 22. *fn36" In part due to inadequate screening, LEP Hispanics, are not receiving adequate mental health care. *fn37"

  LEP Hispanic inmates who do access the system receive mental health care that is deficient, because effective treatment can only be provided by a bilingual mental health care provider. Oquendo Test., passim. Due to the significance of linguistic and cultural nuances in psychiatric diagnoses, the translation of mental health encounters, even through a qualified interpreter, is inadequate. Oquendo Test. at 18. The defendant, however, has only two bilingual clinicians to provide mental health services, and the common practice is to use correctional officers, other inmates or staff to serve as interpreters for mental health care encounters. *fn38" See e.g.,TR at 57-59 (Sister Maria testifying that DCDC psychologists asked her to translate mental health encounters); TR at 78-79 (same; request made 2-3 months before trial). TR at 211-14 (inmate used to translate); Oquendo Test. at 21 (use of maintenance worker). While the quality of the translation varies widely in these circumstances, the effectiveness of any diagnosis or treatment is compromised and the LEP Hispanic inmate is forced to surrender his or her privacy (to the extent he or she even decides to speak freely through the ad hoc interpreter). Oquendo Test. at 18-19.

  Even more so than with physical medical practices, verbal encounters with mental health patients are necessary to diagnose mental health problems or prescribe medication. However, the evidence at trial established that few, if any, LEP Hispanic inmates in DCDC correctional institutions engage in meaningful verbal encounters with psychologists or psychiatrists in the DCDC mental health care system. Medication has been prescribed without a full understanding of the nature of the underlying problem, and inmates do not understand the treatment plan or the potential side effects of the medication prescribed. *fn39" See Oquendo Test. at 29-30. Information regarding medicine is printed in English only, and Dr. Oquendo stated that DCDC pharmacy staff at Occoquan "were unaware of any program to ensure that information regarding prescription medications was translated for non-English speaking prisoners." Id.40 While an informed consent form has been used by the defendant at least once, *fn41" Dr. Oquendo opined that in that instance, it was used improperly because the LEP Hispanic inmate who signed the form (which is written in English) did not understand English and was not counseled regarding the form or his medication in Spanish. Id. at 30. According to Laura Colon, the LEP Coordinator, DCDC policy requires that interpreters be provided to ensure Spanish-speaking inmates know how to take their medication and understand the side effects. However, even Laura Colon, the DCDC LEP Program coordinator, did not know whether interpreters were assigned to perform that function or whether any forms were available in Spanish. TR at 948.

  The follow-up mental health care provided to LEP Hispanic inmates, if any, is similarly deficient. Dr. Oquendo opined, and other evidence supported, that "the mechanisms in the Department of Corrections to ensure uninterrupted treatment of non-English speaking Hispanic prisoners [are] haphazard at best." Oquendo Test. at 26. For example, inmates transferred between institutions are not always identified to the mental health care provider at the receiving institution. *fn42"

  B. Access to Educational and Vocational Programs.

  The evidence at trial established that programs available for LEP Hispanic inmates were limited. The Department of Corrections presently offers 351 programs to inmates. PE 294. While every program is available to every inmate, only twenty-seven are conducted in Spanish or are specifically tailored for LEP Hispanic inmates. n43 However, this constitutes approximately seven percent of all of DCDC's programs, even though Hispanic prisoners comprise less than two percent of the prison population. PE 294. n43 Excluding religious programs, the breakdown is as follows: Facility # programs in English # programs in Spanish-language Central 29 1 CTF 38 1 DC Jail 9 1 Maximum 16 0 Medium 19 1 Minimum 17 0 Occoquan 19 7 Youth Center 24 0

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