ALBANY – A partially deaf prison inmate’s civil rights suit against the state may proceed, despite an argument that his complaints were resolved when he transferred to a prison with accommodations for the hearing impaired, a judge has ruled.

Northern District Judge Mae D’Agostino (See Profile) decided in Rosales v. LaValley, 9:11-cv-0106, that a broader question remains unanswered in Luis Rosales’ action: whether the state’s refusal to formally classify Rosales and inmates like him as hearing impaired violated their rights under the Constitution and the Americans with Disabilities Act.

D’Agostino said she agreed with Rosales that if the inmate, who is serving a life sentence for murder and other charges, is transferred from Wende Correctional Facility to another prison without accommodations for the deaf, he could have problems communicating, thus limiting the help he can receive.

“Defendants argue … that possibility is too remote,” D’Agostino wrote, quoting Pugh v Goord, 571 F.Supp. 2d 477 (S.D.N.Y. 2008). “Courts have held, however, that such a challenge to an institutional policy is not too remote even after an inmate’s transfer to a non-offending prison ‘due to DOCS’ ability to freely transfer [the inmate] between facilities prior to full litigation of his claims.’”

The judge noted that since the prison system always reserves the right to assign any inmate to any institution, fairness dictates that prisoners be allowed to challenge the legality of system-wide policies such as the prisons’ classification policy in Rosales’ suit.

Quoting Pugh, D’Agostino wrote that “to find otherwise would mean that prison officials could simply transfer a prisoner from facility to facility in order to moot his claims, even where the same conditions that underlie the plaintiff’s litigation are present at the new facility.”

D’Agostino denied a state motion for summary judgment dismissing the Rosales suit. The ruling was in accord with a Jan. 11 report-recommendation from Magistrate Judge Christian Hummel (See Profile).

Under the prison system’s Directive No. 2612, inmates classified as being “hard of hearing” may obtain alarm clocks with vibrating mechanisms to “shake” them awake and alert them to warnings, amplifiers for telephones and access “as needed” to televisions with closed-captioning.

In 2009, a state prison audiologist found Rosales with a profound hearing loss in his left ear and prescribed a hearing aid to address a hearing deficiency in his right ear. Overall, Rosales was found to have a “nonsignificant hearing loss,” not the “hard of hearing” deficiency that the inmate said his disability warrants.

Rosales was denied access to a “Shake Awake” alarm clock based on the evaluation of his hearing ability, prompting the filing of his pro se suit in 2011.

In March 2013, D’Agostino issued an initial decision on Rosales’ action, holding that his requests for a Shake Awake clock and a telephone amplifier had not been granted and denying the state’s motion for summary judgment.

He was subsequently granted authorization to have the special vibrating clock in 2013 and also has since been given an amplification device for a telephone, according to the state’s Memorandum of Law.

In May 2013, the court authorized the state to file a second summary judgment motion that was the subject of D’Agostino’s most recent ruling.

In November 2013, Rosales notified the court that he had been transferred to the Wende Correctional Facility near Buffalo after being incarcerated since 2009 at Clinton Correctional Facility and at Sing Sing.

Wende is one of 16 prisons in the state system that has special equipment available for inmates with hearing and other sensory disabilities.

The state said the equipment Rosales was given access to, plus his transfer to Wende, should end the legal matter.

But Rosales contended for the first time in 2013 that he should have access to a closed-captioning television, despite his classification as having a “nonsignificant” hearing loss rather than being “hard of hearing.”

Rosales also continued his earlier argument for a reclassification of his hearing status and of the abolishment entirely of Directive No. 2612 because he said it denies inmates with serious hearing deficiencies access to the equipment that would help them communicate more easily while behind bars in violation of the Eighth and Fourteenth amendments and the ADA.

Rosales, 47, has been imprisoned since 1991 on a 25-year-to-life sentence in Manhattan for second-degree murder and weapons charges.

Assistant Attorney General Michael McCartin represented the state.

The state Department of Corrections and Community Service declined to comment on the ruling.