Judge reverses awarding damages to deaf inmate

• Superior Court Judge T. Henley Graves has reversed a decision from the Delaware State Human Relations Commission.
• Panel found that deaf inmate wasn't given proper accommodations while incarcerated.
• Question is whether prisons are places of public accommodation.

A deaf former inmate of the Delaware Department of Correction was denied compensation for his claims the needs of his disability weren't met in prison.

Superior Court Judge T. Henley Graves on Monday reversed a decision from the Delaware State Human Relations Commission that awarded Robert Ovens damages over claims his jailers didn't meet his needs under the state's equal accommodation law. Graves ruled — in agreement with a previous case — prisons are not places of public accommodation under that law.

That doesn't sit right with Debra Patkin, an attorney with the National Association for the Deaf who reviewed this week's ruling.

"Once a member of the general public becomes incarcerated, while her/his ability to participate in society may be limited, s/he does not cease to be a member of the public," Patkin wrote in an email. "Just like other civil rights, a person with disability's right to access services offered to others do not terminate once he enters prison or jail."

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Ovens was incarcerated three times in the Sussex Correctional Institution in Georgetown between 2010 and 2013.

Ovens claimed he was not granted a qualified interpreter for his anger management classes, hearings and medical appointments; did not receive telephone service equal to that of inmates who can hear; and was not granted video conferencing with his attorneys.

DOC facilities are equipped to accommodate deaf inmates, according to spokeswoman Chelsea Hicks. That includes offering hearing aids, interpreter services and access to telecommunication devices designed for the deaf, she said.

"Mr. Ovens received adequate services," Hicks said.

State accommodation law provides all people regardless of sex, race, creed or disability should treated equally in "any establishment which caters to or offers goods or services or facilities to, or solicits patronage from, the general public." The commission is tasked with hearing cases and ordering relief.

Ovens first filed his complaint in 2010, but determining the commission's jurisdiction in the matter meant he was not heard until late 2012. The commission ruled then-DOC Commissioner Carl Danberg, Sussex Correctional Institution warden G.R. Johnson and the medical services administrators had violated Ovens' rights under the Delaware Equal Accommodations Act.

They shouldn't have, Graves ruled, because after the Commission conducted Ovens' hearing but before a decision was made the Superior Court issued a decision on the case Short versus Delaware, which specifically detailed prisons are not places of public accommodation because they keep inmates locked in and the general public locked out.

The commission knew about Short versus Delaware, but dismissed it citing the court's "legal conclusion is not based upon a full and in-depth analysis of the issue" and because the case was pending appeal at the time, according to the ruling.

"The commission erred in declining to follow the leading authority on the issue of whether a prison constitutes a place of public accommodation," Graves wrote. "In this case, the commission elected to reject not only the opinion of the Delaware courts, but also, as it acknowledged, that of the majority of other state courts."

The court did not address the validity of Ovens' claims, stating there was no need considering the Commission didn't have jurisdiction in the first place.

Commission Chairman Calvin Christopher was not on the panel that heard Ovens' case, but said he trusts the members who were came to the correct conclusion: Ovens was not granted correct accommodations for his disability under the rules of DEAL. But, he said, if a judge has ruled prisons are not under the auspices of DEAL, the Commission has no power to do anything in this case.

Though a state court ruling on a state law, Patkin said the decision runs afoul of a similar issue decided by the U.S. Supreme Court in Pennsylvania Department of Corrections versus Yeskley. That case found correctional facilities do fall within reach of provisions of the Americans with Disabilities Act.

"By saying that DEAL does not apply to prisons and jails, this opinion is giving Delaware correctional facilities a free pass to trump deaf and hard of hearing inmates' civil rights," Patkin wrote. "That's unacceptable."

Ovens, 47, is currently on community supervision probation with DOC. He was arrested and found guilty of second-degree burglary and theft from a senior in 2010; of theft of less than $1 in 2013; and four counts of theft of less than $150 in 2014.

Contact Adam Duvernay at aduvernay@delawareonline.com or (302) 324-2785.​

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