Full opinion text
OPINION SWEET, District Judge. In this class action brought by deaf and hearing-impaired inmates in the custody of New York’s Department of Corrections, plaintiffs move for declaratory judgment as to the existence of the statutory and constitutional rights they assert, for summary judgment on all their claims pursuant to Rule 56, Fed.R.Civ.P., and for preliminary and permanent injunctive relief. The claims asserted by the plaintiffs are: (i) discrimination based on disability in violation of § 504 of the Rehabilitation Act, 29 U.S.C. 794 (“§ 504”); (ii) discrimination based on disability in violation of Title II of the Americans with Disabilities Act (the “ADA”), 42 U.S.C. §§ 12131-12133; (iii) denial of due process of law in disciplinary, grievance, administrative and parole proceedings and interviews in violation of the due process clause of the Fourteenth Amendment of the U.S. Constitution, U.S. Const, amend. XIV, § 1 (the “Due Process Clause”); (iv) deliberate indifference to the needs of deaf and hearing-impaired inmates in violation of the Due Process Clause; (v) deprivation of equal protection under the law in violation of the equal protection clause of the Fourteenth Amendment of the U.S. Constitution, U.S. Const, amend. XIV, § 1 (the “Equal Protection Clause”); (vi) infringement of the rights of deaf and hearing-impaired inmates to confidential medical and mental health communications and decision-making in violation of the Fourteenth Amendment of the U.S. Constitution, U.S. Const, amend. IX & XIV, § 1 and (vii) deliberate indifference to the serious medical needs of deaf and hearing-impaired inmates in violation of the Eighth Amendment to the U.S. Constitution, U.S. Const, amend. VIII. This Court has jurisdiction pursuant to 28 U.S.C. § 1331. Plaintiffs have standing to press their constitutional claims under 42 U.S.C. § 1983 (“§ 1983”). For the reasons set forth below, this motion will be granted in part and denied in part. The Parties Plaintiff Doris Clarkson (“Clarkson”) was from October 1988 until June 1991 an inmate incarcerated by the New York State Department of Correctional Services (“DOCS”). Clarkson has been deaf since early childhood and communicates using American Sign Language (“ASL”). Plaintiff-intervenor Janice Whan (“Whan”) was from August 1990 until January 1992 an inmate of DOCS. Whan is hearing-impaired, suffering from congenital, degenerative hearing loss, and communicates by lip reading and with the assistance of hearing aids. Plaintiff-intervenor Mark Brock (“Brock”) was from 1986 to 1993 an inmate of DOCS. Brock has been incarcerated in DOCS’ Downstate Correctional Facility (“Downstate”), Auburn Correctional Facility and at the Eastern Correctional Facility (“Eastern”). Brock has been completely deaf since birth, and communicates primarily through ASL. Plaintiff-intervenor Terryton Harrison (“Harrison”) has been from February 1992 to the present an inmate of DOCS. He was incarcerated at Downstate for approximately three months and was then at Clinton Correctional Facility (“Clinton”). Previously, Harrison was incarcerated at the Elmira Correctional Facility (“Elmira”), Attica Correctional Facility (“Attica”) and at the Senso-rially Disabled Unit at Eastern (the “SDU”). Harrison is deaf, and he communicates primarily through ASL. He has virtually no residual hearing, cannot lip read well and his speech is not understood by hearing persons. Plaintiff-intervenor Riis Powell (“Powell”) has been from early 1992 to the present an inmate of DOCS. Powell is currently incarcerated at the SDU of the Eastern Correctional Facility. Previously he was housed at the Downstate and Coxsackie Correctional Facilities. Powell is deaf from birth, has virtually no residual hearing or ability to speak, and communicates primarily through ASL. He has limited ability to communicate in written English. Plaintiff Glennis Robertson (“Robertson”) was from May 1991 to approximately December 1993 an inmate of DOCS. Robertson is hearing-impaired, and communicates through ASL, Signed English, and lip reading. She cannot communicate well by reading or writing English. Her reading comprehension was tested by DOCS as grade level 2.9. Plaintiff Larry Randall (“Randall”) was from 1989 to April 1994 an inmate of DOCS. He served his sentence at the Attica, Green-haven and at Southport Correctional Facilities. He was transferred to Sing Sing Correctional Facility (“Sing Sing”) after he became seriously ill, and was given medical parole in April 1994. Randall is hearing-impaired, and hears through the use of hearing aids. These named plaintiffs represent two subclasses of deaf and hearing-impaired inmates as defined in this Court’s decision of January 25, 1993. The plaintiff class was certified as two distinct sub-classes, one male (the “Male Sub-Class”) and one female (the “Female Sub-Class”) described as follows: (a) all present and future deaf and hearing-impaired male inmates of the New York State Department of Correctional Services who have been, are, or will be discriminated against, solely on the basis of their disability, in receiving the rights and privileges accorded to all other inmates; and (b) all present and future deaf and hearing-impaired female inmates of the New York State Department of Correctional Services who have been, are, or will be discriminated against, solely on the basis of their disability, in receiving the rights and privileges accorded to other inmates. Clarkson v. Coughlin, 145 F.R.D. 339, 347-48 (S.D.N.Y.1993) (“Clarkson II”). Defendant DOCS is a department of New York State. Defendant Thomas A. Coughlin III is Commissioner of DOCS (“Coughlin”) and is responsible for the supervision, management and control of all DOCS facilities. DOCS receives federal financial assistance in excess of $7 million. As a department of New York State, DOCS is a “public entity” within the purview of the ADA, 42 U.S.C. §§ 12131, 12132. Defendant Robert Greifinger is Deputy Commissioner and Chief Medical Officer of DOCS (“Greifinger”). He is responsible for the provisions of health care services to DOCS inmates, the organization and supervision of DOCS’ Division of Health Services and the performance of DOCS’ health care employees. Defendant Susan Butler is Deputy Commissioner for Program Services of DOCS (“Butler”). She is responsible for the delivery of program services to DOCS inmates, including recreation, education and visiting. Defendant Elaine A Lord is Superintendent of Bedford Hills Correctional Facility (“Lord”). Lord is charged with the supervision, management, and control of Bedford Hills, including directing the work and defining the duties of all subordinate officers and employees of that facility. Defendant Bridget Gladwin is Superintendent of the Taconic Correctional Facility (“Gladwin”). Gladwin is charged with the supervision, management, and control of Ta-conic, including directing the work and defining the duties of all subordinate officers and employees of that facility. Defendant Walter Kelly is Superintendent of Attica (“Kelly”). Kelly is charged with the supervision, management, and control of Attica, including directing the work and defining the duties of all subordinate officers and employees of that facility. Defendant Daniel Senkowski is Superintendent of Clinton Correctional Facility (“Senkowski”). Senkowski is charged with the supervision, management, and control of Clinton, including directing the work and defining the duties of all subordinate officers and employees of that facility. Defendant Stephen Dalsheim is Superintendent of Downstate (“Dalsheim”). Dal-sheim is charged with the supervision, management, and control of Downstate, including directing the work and defining the duties of all subordinate officers and employees of that facility. Defendant Raul Russi is Chair of the New York State Board of Parole and Head of the New York State Division of Parole (“Russi”). He has superintendence, management and control of all New York State Board of Parole and Division of Parole hearings and services. Defendant Richard C. Surles (“Surles”) is Commissioner of the New York State Office of Mental Health (“OMH”). Pursuant to N.Y. Corr. Law § 401, DOCS has designated the Office of Mental Health to provide psychiatric services to inmates in the State correctional system. These defendants are sometimes referred to herein collectively as the “Defendants”. Prior Proceedings Clarkson initiated this action by filing a Class Action Complaint on March 15, 1991. On March 26, 1991, she brought an Order to Show Cause seeking access to the requested services, among other relief. Clarkson filed her First Amended Class Action Complaint on May 10, 1991. Defendants answered on May 17,1991. On June 14,1991, the date on which Clarkson was paroled, the Defendants moved for dismissal of the action and transfer. Motions for intervention, joinder of additional defendants and class certification were filed on August 9, 1991. In an opinion of February 4, 1992 this Court granted the motions for intervention and joinder and denied all other motions pending at the time. Clarkson v. Coughlin, 783 F.Supp. 789 (S.D.N.Y.1992) (“Clarkson I”). Plaintiffs filed further motions seeking joinder of additional defendants, intervention by additional plaintiffs and certification of a class. After stipulation by the parties and with permission of this Court the respective return dates of these motions were reset. By opinion dated January 25, 1993, this Court granted: (i) the additional motion to intervene, (ii) the motion to join additional defendants, (iii) leave to amend the complaint, and (iv) certification of the plaintiff class and the two sub-classes within it, one of male and one of female deaf or hearing-impaired inmates in DOCS custody. See Clarkson II. Plaintiffs filed their Second Amended Class Action Complaint on March 29, 1993. Defendants answered once again on April 30, 1993. Plaintiffs in turn filed another Amended Complaint on June 8, 1993. A final round of amendment to the complaint and corresponding answer concluded with Defendants’ filing on September 26, 1994. Plaintiffs filed the instant summary judgment motion on August 3, 1994. After stipulations extending the time for Defendants to file responsive papers and for Plaintiffs to reply, oral argument was heard on the within motion on February 8, 1995 at which time the motion was deemed fully submitted. The Facts There are two different forms of communication through manual signs commonly used by deaf people in this country — Signed English and ASL. Signed English is a form of English in which each spoken word is accorded a corresponding manual “sign” and these signs are used with their customary syntax and in their customary word order. Signed English is essentially a system for visually paraphrasing spoken English. Although ASL also utilizes manual signing, it is best thought of as a foreign language used by American deaf people, with its own grammar and syntax. Proficiency in Signed English, regardless of degree, does not facilitate communication in ASL, and vice versa. The certification exam administered by the National Registry of Interpreters for the Deaf is considered the most reliable means of ascertaining the competence of a sign language interpreter. See Joint Committee on Access to the Courts, Improving the Access of Deaf and Hearing-Impaired Litigants to the Justice System, 48 The Record of the Association of the Bar of the City of New York, 834, 839 (1993). A qualified sign language interpreter is defined in the federal regulations appurtenant to the ADA as one who is “able to interpret effectively, accurately, and impartially both receptively and expressively, using any necessary specialized vocabulary.” 28 C.F.R. § 35.104. A telephone communication device for the deaf (“TDD”) is a device which uses the electronic transmission of text to allow deaf persons to communicate via telephone, with deaf persons or hearing persons who have access to a TDD, or with hearing persons who do not have a TDD, via a third-party relay service. Telecommunication is facilitated for some hearing-impaired people by use of amplified handsets. A closed-eaptioned decoder is an apparatus which “subtitles” the spoken text on television or film so that deaf and hearing-impaired persons can follow television programs. Visual alarm systems are devices which visually alert deaf persons to emergencies such as building fires, by means of a flashing light or other visual cue. Hearing impaired individuals who are not completely deaf are sometimes assisted through the installation of amplified alarms. Berthlynn Terry (“Terry”) is DOCS’ Deputy Commissioner for Affirmative Action and the head of its Office of Affirmative Action which is responsible for development and implementation of policies regarding inmates with disabilities. Terry is the person identified by DOCS as having knowledge and information pertaining to compliance with the Rehabilitation Act and the ADA. In deposition testimony she indicated that she was unaware of any “formal mechanism” in the prison system by which inmates can discuss their needs for reasonable accommodations based on disabilities. The documentary record reveals no form by which inmates could request such an accommodation, and defendants did not submit their evaluation, required by the ADA, of their programs for disabled inmates. Lorraine Waldron, a corrections counselor employed by DOCS at Downstate (“Wal-dron”) has taken classes in sign language. In a system which assigns a corrections counselor to every inmate, Waldron has been and is assigned as the counselor to some of the male class members who arrived at Downstate for reception and classification. According to her declaration, Waldron’s sign language abilities are “not highly developed.” The record is silent on whether Waldron can communicate in ASL, the primary mode of communication used by several of the male named plaintiffs. Although a precise number is not alleged, the parties agree that at any given time there may be over fifty inmate members of the plaintiff class. The complete range of auxiliary aids and assistive devices required to permit class members to participate fully in and benefit from the programs, services and activities DOCS makes available to non-disabled inmates is not present in each of the facilities in which class members are incarcerated. Up to thirty deaf and hearing-impaired and visually-impaired male inmates may be, at any given time, serving part of their sentences in the SDU, which is a special unit within Eastern for persons with sensorial disabilities where they receive services to accommodate their disabilities. Prior to placement in the SDU all of the deaf and hearing-impaired male inmates spend months in DOCS’ reception and classification facilities (“Reception Facilities”) which are not equipped or staffed to provide the complete range of auxiliary aids and assistive devices they require. Members of the Male SubClass are incarcerated in general population facilities for some or all of their incarceration. At these facilities the full range of auxiliary aids and assistive devices is either incomplete or wholly unavailable. Members of the Female Sub-Class are incarcerated in general population facilities for the entire length of their, incarceration, because the SDU presently houses only male inmates and is the only such facility in the DOCS system. Individuals committed to DOCS’ custody are first sent to facilities designated as Reception Facilities where they are processed and assessed to determine appropriate long-term facility placements in the correctional system. The statutorily mandated purpose of program and classification procedures is: to assure the complete study of the background and condition of each inmate in the care or custody of the department and the assignment of such inmate to a program that is most likely to be useful in assisting him [sic] to refrain from future violations of the laws. Such procedures ... shall require ... consideration of the physical, mental and emotional condition of the inmate; ... his educational and vocational needs; ... the danger he presents to the community or to other inmates; the recording of continuous case histories ...; and periodic review of case histories and treatment methods used. N.Y. Correction Law § 137(1). Downstate is a Reception Facility. At the Reception Facilities information is acquired from inmates through interviews with counselors and review of background materials which accompanied inmates into DOCS’ custody. DOCS is required by New York statute to conduct a psychiatric evaluation of each inmate. N.Y. Correction Law § 148 (McKinney 1987). Inmates who are identified as having special medical or mental health needs are sent to a special unit within a Reception Facility, called “extended classification” to undergo more extensive educational, medical and intelligence testing. While incarcerated in a Reception Facility inmates receive no educational, vocational or rehabilitative training. After some time in a Reception Facility, each inmate is placed more or less permanently in a long-term DOCS facility. Inmates who go though extended classification are evaluated by classification analysts and other professionals, and as a result of these evaluations may be assigned to specialized units within DOCS for their long-term placement. Some, but not all, of the deaf and hearing-impaired male inmates are referred from extended classification to the SDU. Other deaf or hearing-impaired inmates who may need the services provided in the SDU are referred to other long-term facilities because of medical, security or disciplinary reasons. Upon arrival in any DOCS’ facility, inmates are assigned counselors who are to work with inmates throughout their prison stay. DOCS’ counselors are required to evaluate the educational, vocational and programmatic needs of inmates in their custody. Counselors are required to conduct appropriate psychological, intelligence, educational and vocational evaluations as are necessary to make appropriate program and service placements. It is the counselor’s role to supplement the evaluation process with input from inmates regarding programs which may be helpful to them. State administrative regulations encourage DOCS to provide telephone and television privileges to all inmates in DOCS custody. See 7 N.Y.C.R.R. § 320.3(e) (“[v]isiting, phone calls, and correspondence shall be encouraged as a vital part of rehabilitation.”) DOCS is required to maintain a grievance process through which inmates can seek redress when actions or inaction of DOCS’ staff negatively affect their incarceration. See 9 N.Y.C.R.R. § 7654. DOCS is charged with maintaining inmates in a safe physical environment. New York Correction Law § 45(6). DOCS is responsible for providing inmates with timely and appropriate medical and mental health care. New York Correction Law §§ 45(6), 148. Finally, inmates have procedural due process protections in disciplinary and parole board proceedings. See 7 N.Y.C.R.R. Part 250 et seq. (disciplinary proceedings); 9 N.Y.C.R.R. § 8000 et seq. (parole proceedings). Defendants are aware of Plaintiffs’ respective hearing disabilities and the extent to which these disabilities interfere with each inmate’s ability to participate in DOCS programs and activities. Plaintiff Clarkson has been deaf since early childhood. She has virtually no speech ability and her comprehension of spoken or written English is severely limited. Her primary language is ASL. Clarkson is unable to lip read or communicate in Signed English. Clarkson was incarcerated in the Bedford Hills Correctional Facility for almost three years from October 1988 to June 1991. Defendants knew that she needed a sign language interpreter and assistive devices in order to communicate effectively. She never received the services of a qualified sign language interpreter, nor any assistive devices, such as a TDD. Clarkson was never provided with access to a qualified sign language interpreter for medical or psychiatric care, even after the Superintendent of Bedford Hills was notified that Clarkson had been administered the Human Immunodeficiency Virus (HIV) test without her knowledge and informed consent. The priest who advised Clarkson regarding her rights to consent or refuse HIV testing could not communicate effectively with her in ASL. Clarkson was prescribed three daily medicines. Because she is deaf and Defendants could not communicate effectively with her, however, she never understood what they were for. It was alleged that she had a psychiatric condition, yet no evaluation or counseling of her mental health condition was done in the presence of a sign language interpreter. Clarkson was enrolled in educational programs while at Bedford Hills, including Adult Basic Education and Arts and Crafts but she received no instruction through a sign language interpreter. Before Clarkson was to meet with the Parole Board in March 1991, she attended several interviews with Parole Board staff to ascertain her plans for the future. She was not provided with an interpreter at these interviews. Janice Whan suffers from congenital, degenerative hearing loss caused by prenatal exposure to rubella. She also suffers from glaucoma. Whan’s hearing loss got progressively worse while she was an inmate at DOCS’ Taconic Correctional Facility from August 1990 until January 1992. Originally she required only one hearing aid but by the time she was released from DOCS’ custody she needed two. Whan communicates with hearing people by reading lips, but depends on hearing aids to give much needed auditory cues when trying to follow conversation. She requested the hearing aids and DOCS did not provide them' until ten months after her request. While at Taconic, Whan could not hear the fire alarm, could not follow television because there is no closed-caption decoder and lacked the amplified handset that she needed in order to use the telephone. Whan had difficulty following her prison orientation and other programs. Whan explained her problems to the Program Committee and her counselors, but no action was taken to provide her with the requisite hearing aids or accommodations she needed to hear and lip read more effectively. On several occasions DOCS’ medieal staff loudly discussed Whan’s medieal problems in close proximity to other inmates. Plaintiff Brock is deaf and has been deaf since birth. His primary method of communication is ASL.- Brock cannot read or write English well. In order to make himself properly understood, Brock requires the assistance of a qualified sign language interpreter. Brock was an inmate at Downstate for over six months. Shortly after Brock moved to intervene in this case, he was transferred to the SDU. On a previous incarceration from 1986 to 1988 Brock was housed in the SDU, except for several months when he was transferred to the Auburn Correctional Facility for disciplinary or security reasons. During his time at Downstate, Brock was not provided with the services he needs despite his obvious hearing-impairment, his direct requests for assistance, and a notation sent from the Rikers Island Pre-Screening Unit to DOCS staff at Downstate which indicated that Brock “requires sign language.” Although Downstate is a Reception Facility which does not offer inmates educational or vocational programming, the few programs, services and privileges offered to hearing inmates at Downstate were not accessible to Brock because he is deaf. Because Brock does not write English well and was not given access to a qualified sign language interpreter, he was unable to explain his medical condition during doctor’s appointments and he could not participate in an Alcoholics Anonymous (“AA”) counseling program. His educational, vocational and medical needs were never evaluated with the assistance of an interpreter. Nor was he provided with adequate sign language interpreter services during disciplinary proceedings. At Downstate, Brock’s counselor assisted him in his disciplinary proceeding. Although the counselor was familiar with Signed English, she is not fluent in ASL and is not a qualified interpreter. Brock could not make himself understood by his counsel- or or anyone else at Downstate. Brock’s request to his counselor for a TDD was denied. He was told that she could make calls for him. Consequently, Brock could not make private telephone calls. In addition, he could not watch television because there was no closed-caption decoder. Brock missed morning count because he could not hear the public announcement system. He was at risk of harm because there was no visual alarm system. None of these services were provided to Brock during his incarceration at Auburn either. Harrison is a deaf inmate who is currently incarcerated at Clinton. Harrison has virtually no residual hearing and primarily communicates in ASL. Harrison cannot lipread well and his speech is not understood by hearing persons. Between 1985 and 1987, Harrison was housed at Elmira for approximately six months, then at the SDU for two years. For security reasons, Harrison was then transferred out of the SDU to Attica. Harrison began his current incarceration in February 1992 at Downstate, where he was placed in extended classification because of his deafness and mental health needs. The classification analyst recommended that although Harrison’s needs could best be served in the SDU at Eastern, he should be placed in an alternative maximum security setting because of prior problems he had dealing with deaf inmates at the SDU. Harrison was transferred to Clinton on May 30, 1992. At Clinton, Harrison was considered for inclusion in two special programs. He was denied admission into the Merle Cooper Program, a therapeutic program for inmates because he was found “unable to benefit from group therapy due to hearing impairment.” Initially he was also denied admission to the Assessment and Program Placement Unit (“APPU”), a special unit for victim prone inmates, because “Harrison is a deaf mute, a condition for which the APPU program has no services.” Harrison was transferred to the Clinton APPU on or about November 14, 1992 where he presently does not have access to a sign language interpreter. At no DOCS-facility other than the SDU was Harrison provided with access to qualified sign language interpreters or other services he needed to participate in prison programs and activities. At Attica, Harrison was denied all programming because of his deafness and stayed in his cell twenty-four hours a day. At no DOCS facility was he permitted to participate in a group drug and alcohol rehabilitation program because he had no access to an interpreter. In the Clinton APPU, there are no programs or services accessible to deaf inmates. Harrison has been disciplined in several DOCS facilities without being provided a qualified sign.language interpreter either in preparation for or during his disciplinary proceedings. On January 6, 1994, Harrison was disciplined for disobeying two direct orders from corrections officers that he did not understand. The record contains the statement by a corrections officer: “Harrison was ordered to pick up a cup in the mess hall. I ordered him by pointing to the cup because I know that he is deaf.” On another occasion a corrections officer reported that he ordered Harrison “with directed hand motions” to clean up a mess. Although Harrison asked in writing for a sign language interpreter to be present at the disciplinary hearing, he was told by the hearing officer at the hearing that Clinton does not have access to sign language interpreters. The hearing was conducted by an exchange of written messages. While at Attica, Harrison received fifteen days in “keeplock” after a disciplinary hearing in which he was not provided with an interpreter. Harrison also met with parole officers at Attica and Elmira without being provided with an interpreter. Plaintiff Powell is a deaf inmate who has been in DOCS’ custody since February 1992. On May 12, 1992, Powell was transferred from the extended classification at Downstate to the SDU. Powell was previously incarcerated at the SDU and at DOCS’ Coxsaekie Correctional Facility (“Coxsaekie”). Powell has been totally deaf since birth with.virtually no residual hearing or ability to speak, and limited ability to communicate in written English. Powell’s reading comprehension level, as tested by DOCS, .is at a third grade level. The New York State Supreme Court Justice who sentenced Powell wrote a letter to Defendants stating that Powell “needs two levels of sign language interpreters to comprehend and to communicate.” Defendants were made aware of Powell’s requirements when they received a Presentence Investigation Report on Powell from the New York City Department of Probation, dated January 23, 1992, advising them about the types of services and assistive devices he would need to function in a DOCS facility: Powell is a deaf mute and was interviewed with the aide [sic] of two sign language interpreters. Powell stated that while he has been incarcerated, he has been unable to communicate with other inmates, hence, rendering him isolated, and “left out.” Powell requests that he be housed with other deaf inmates and that he be kept informed of the daily activities at the correctional facility. In addition, the defendant stated “a telephone communication system for the deaf and closed captioned television would enable him to keep contact with his family and with the ‘outside world.’ ” During his incarcerations at Downstate, and his earlier incarcerations at Elmira and Coxsackie, Powell was not provided with access to a qualified sign language interpreter for any purpose, including disciplinary proceedings. Although allowed to enroll in Downstate’s AA program, Powell could not understand or participate in the AA program because there was no qualified sign language interpreter present. He was not provided with a TDD, a closed captioned television decoder, or a flashing alarm for morning count or fire drills. He did not have any means of understanding the public announcement system. Plaintiff Robertson has been severely hearing-impairéd since birth. While she has limited residual hearing in her left ear with hearing aids, to communicate with others she depends mainly upon ASL, Signed English and lip reading. Robertson’s ability to lip read is not sufficient for her to communicate with the hearing world by lip reading alone. Robertson cannot communicate well by reading or writing English. Her reading comprehension is at the 2.9 grade level. Robertson was an inmate at DOCS’ Grove-land Correctional Facility (“Groveland”) and then at Bedford Hills Correctional Facility from May 1991 to approximately December 1993. Her transfer to Bedford Hills was the result of a disciplinary hearing at Groveland in which she was not provided with an interpreter, and which resulted in a three month period of severely limited privileges. Robertson’s programming options were curtailed because she was not provided with a sign language interpreter. She was removed from a drug counseling program at Groveland when correctional staff realized she could not follow the group discussions. Robertson was then repeatedly denied access to such a program at Bedford Hills during 1992. Robertson’s failure to enter a drug counseling program was used in part to deny her application for temporary release. She has requested assistive services and an interpreter at both Groveland and Bedford Hills, but they have not been provided. Lack of auxiliary aids impeded her ability to talk to her children’s foster mother on the telephone and to watch television. Plaintiff Randall was a hearing-impaired inmate in DOCS custody from 1989 to April 1994 when he was given a medical parole. Randall served his sentence at Attica and, after he became seriously ill, at Sing Sing. Randall has severe hereditary bilateral sen-sorineural hearing loss in both ears. Randall requires two hearing aids. From February 1991 to June 1991, one of Randall’s hearing aids was broken and he was forced to use only one aid. From June 1991 to on or about May 1992, both of Randall’s hearing aids were broken, and he was without any means of communication for that period. Randall could not function in a school program without his hearing aids, and he was denied access to a work program. He was without a work or educational program for over one year due to his being without hearing aids. No alternative accommodation was made to permit Randall to benefit from any prison school or work program.. Additionally, Randall was not provided with an amplified telephone handset which he requires in order to communicate by telephone. Plaintiff Ripie has been an inmate in DOCS’ custody since November 9,1993. She has been incarcerated at the Bedford Hills Correctional Facility. Ripie is deaf and communicates only through ASL. Prior to her arrival at Bedford Hills, the staff at the Broome County Jail, the Southern Tier Independent Center, and Ripic’s lawyer all informed DOCS of her need for a sign language interpreter, a TDD and a closed caption decoder. The New York State Advocate for the Disabled was also involved in efforts to obtain accommodations for Ripie’s disability- Four months after her arrival at Bedford Hills, Ripie received some of the services she needs. Instead of access to a qualified sign language interpreter, Bedford Hills identified two inmates to translate for Ripie when needed. They are not certified interpreters, and they are not always available. They are sometimes unable to translate such that Rip-ie can understand and be understood. Ripie has several serious medical conditions, including congenital heart failure, and during medical appointments, she is unable to comprehend doctors’ medical recommendations and is unable to ask follow-up questions about treatment options and medications. Ripie has been depressed and suicidal since her incarceration but none of her communications with Defendants’ medical or mental health staff have been through qualified sign language interpreters. No vocational evaluation of Ripie was done because no sign language interpreter was available. She was assigned to two classes, a basic education class and a horticulture class. An inmate who can sign is also enrolled in the basic education class; she translates, but inadequately. When that inmate is absent, Ripie is completely cut off from goings on the class. In the horticulture class Ripie is entirely without the benefit of translation. Ripie is similarly forced to depend on other inmates to communicate with DOCS personnel in the medical and mental health context. An OMH psychiatrist who evaluated Ripie without the aid of a qualified sign language interpreter, noted that Ripie is “understandably frustrated and‘nervous’ about the difficulty in communicating in the prison environment. Her worries/concerns are appropriate and not out of proportion to these objective stressors.” Discussion The legal standards applicable to Plaintiffs’ motion will be applied to the facts described above. In their failure to provide notice of rights to accommodations and available assistance, to consult with disabled inmates as to the most effective form of accommodation, to complete a statutorily required self-evaluation and to formulate and effectuate grievance procedures regarding accommodations, Defendants have violated the ADA. By failing to provide interpretive services during reception and classification, through the absence' or inadequacy of assistive communications devices for telephone and television and by their failure to provide visual safety alarms, Defendants have violated both § 504 of the Rehabilitation Act and the ADA. By their failure to make reasonable accommodations to facilitate full participation by class members in educational, vocational and rehabilitative contexts such as classes and counselling sessions, Defendants have violated class members’ constitutional due process rights and the ADA. Further, by their failure to provide qualified interpreters or other needed assistive devices for medical and mental health treatment Defendants have violated class members’ constitutional due process rights and, in those cases in which communication between patient and medical personnel is essential to the efficacy of treatment, violated the Eighth Amendment’s proscription against cruel and unusual punishment. By their failure to provide qualified interpreters or other needed assistive devices for disciplinary, grievance and parole proceedings, Defendants have violated class members’ constitutional due process rights. Finally the Female Sub-Class has suffered an equal protection violation by virtue of Defendants’ creation and maintenance of the males-only SDU, which created a classification based on gender without a strong justification. A. Rule 56 Standards for Summary Judgment Plaintiffs move for summary judgment in their favor pursuant to Rule 56. The Rule 56 motion for summary judgment is “an integral part” of the Federal Rules of Civil Procedure and facilitates the overall purpose of the Rules as stated in Rule 1, namely, “to secure the just, speedy and inexpensive determination of every action.” Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). A motion for summary judgment may be granted only when there is no genuine issue of material fact remaining for trial and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Silver v. City Univ. of New York, 947 F.2d 1021, 1022 (2d Cir.1991). The Second Circuit has repeatedly noted that “[a]s a general rule, all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion, and all doubts as to the existence of a genuine issue for trial should be resolved against the moving party.” Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir.1988) (citing Celotex v. Catrett, 477 U.S. 317, 330, n. 2, 106 S.Ct. 2548, 2556, n. 2, 91 L.Ed.2d 265 (1986) (Brennan, J., dissenting) and Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1609-10, 26 L.Ed.2d 142 (1970)); see United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Cartier v. Lussier, 955 F.2d 841, 845 (2d Cir.1992); Burtnieks v. City of New York, 716 F.2d 982, 983-84 (2d Cir.1983). If, when “[vjiewing the evidence produced in the light most favorable to the nonmovant ... a rational trier could not find for the nonmovant, then there is no genuine issue of material fact and entry of summary judgment is appropriate.” Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir.1991). The nonmovant “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Bare assertions cannot serve to raise genuine issues of material fact and a non-movant opposing summary judgment may not rest upon conelusory allegations or denials. See Rule 56, Fed.R.Civ.P.; Park Ave. Tower Assocs. v. City of New York, 746 F.2d 135, 141 (2d Cir.1984); Project Release v. Prevost, 722 F.2d 960, 970 (2d Cir.1983); In re B.D. International Discount Corp. v. Chase Manhattan Bank, 701 F.2d 1071, 1077 n. 11 (2d Cir.1983); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir.1980). If the movant has met' its burden under Rule 56 of proffering sufficient evidence to show that there is no genuine issue of material fact present, then the opposing party must produce significant probative evidence which tends to support its position. United States v. Pent-R-Books, 538 F.2d 519, 529 (2d Cir.1976). A material fact is one that would “affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); see Iacobelli Construction, Inc. v. County of Monroe, 32 F.3d 19, 23 (2d Cir.1994). Dispute as to material fact is “genuine,” and hence summary judgment is not appropriate, only if evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Rule 56, Fed. R.Civ.P.; Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Lang v. Retirement Living Publishing Co., 949 F.2d 576, 580 (2d Cir.1991). Summary judgment is appropriate under these standards as to Plaintiffs’ claims that (i) Defendants have violated the notice, consultation, self-evaluation and grievance procedure requirements of the ADA; (ii) Defendants have violated both the Rehabilitation Act and the ADA by their failure to provide interpretive services for various aspects of reception and classification; (iii) the absence or inadequacy of assistive communications devices for telephone and television and the absence of visual safety alarms violates both the ADA and the Rehabilitation Act; (iv) Defendants’ failure to make reasonable accommodations to facilitate full participation by class members in educational, vocational and rehabilitative contexts such as classes and counselling sessions violates the ADA and Plaintiffs’' due process rights; (v) Defendants’ failure to provide qualified interpreters and/or other assistive devices during medical and mental health treatment violates class members’ constitutional due process and privacy rights, and in those cases in which communication between patient and medical personnel is essential to the efficacy of treatment, the Eighth Amendment’s proscription against cruel and unusual punishment;, (vi) Defendants’ failure to provide qualified interpreters and/or other assistive devices in disciplinary, grievance and parole proceedings violates class members’ due process rights; (vii) transfers out of, or refusals to transfer into, the SDU for disciplinary, safety, medical or mental health reasons violate the ADA and the Rehabilitation Act; and (viii) Defendants’ creation and maintenance of a special prison unit at which all or most of the needs of deaf and hearing-impaired inmates are accommodated — the SDU — but from which women are excluded based on gender violates the equal protection rights of the Female Sub-Class, about which there are no genuine issues of material fact. B. Declaratory Judgment Plaintiffs seek declaratory judgment as to the rights of the Plaintiff class. This Court has authority to render a declaratory judgment pursuant to 28 U.S.C. § 2201(a), which states: In a ease of actual controversy within its jurisdiction ... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such. The two criteria guiding the policy in favor of rendering declaratory judgments are (1) whether the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, and (2) whether it will terminate and afford relief from the uncertainty, insecurity and controversy giving rise to the proceeding. See Continental Casualty Co. v. Coastal Savings Bank, 977 F.2d 734, 737 (2d Cir.1992); Broadview Chemical Corp. v. Loctite Corp., 417 F.2d 998 (2d Cir.1969), cert. denied, 397 U.S. 1064, 90 S.Ct. 1502, 25 L.Ed.2d 686 (1970). If either prong of this test is met, the request for declaratory judgment should be entertained. Continental, 977 F.2d at 737; Broadview, 417 F.2d at 1001. Under these authorities declaratory judgment is appropriate with respect to: the class’ claims of violations of the Due Process Clause, the Rehabilitation Act and the ADA in Defendants’ failure to provide accommodations in vocational and academic classroom instruction and in alcohol and drug rehabilitation counselling; Plaintiffs’ claim that provision of medical treatment to class members without the assistance of a qualified interpreter, or other assistive devices, violates class members’ privacy, due process and Eighth Amendment rights; the class’ claim that Defendants’ failure to provide interpretive services or other assistive devices to class members during disciplinary, grievance and parole proceedings is a violation of their due process rights and of the ADA and the Rehabilitation Act; and Plaintiffs’ claim that Defendants’ creation and maintenance of a special prison unit at which all or most of the needs of deaf and hearing-impaired inmates are accommodated, and which special unit is not available to women deprives Female Sub-Class members of equal protection under the law. C. Injunctive Relief Plaintiffs seek a preliminary and permanent injunction. The standard for granting a preliminary injunction in this Circuit is a showing of (1) irreparable injury and (2) a likelihood of success on the merits or (a) sufficiently serious questions going to the merits to make them a fair ground for litigation and (b) the balance of hardships tipping in favor of the movant. Blum v. Schlegel, 18 F.3d 1005, 1010 (2d Cir.1994); Laureyssens v. Idea Group, Inc., 964 F.2d 131, 135-36 (2d Cir.1992); SEC v. Unifund SAL, 910 F.2d 1028, 1038 n. 7 (2d Cir.1990); Citibank, N.A. v. Nyland (CF8) Ltd., 839 F.2d 93, 97 (2d Cir.1988). The Second Circuit considers the showing of irreparable harm to be “[p]erhaps the single most important prerequisite for the issuance of a preliminary injunction.” Citibank, N.A. v. Citytrust, 756 F.2d 273, 275 (2d Cir.1985) (quoting Bell & Howell Mamiya Co. v. Mosel Supply Corp., 719 F.2d 42, 45 (2d Cir.1983)). Irreparable injury is one that cannot be redressed through a monetary award. Where money damages are adequate compensation, a preliminary injunction will not issue. See JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 (2d Cir.1990). Monetary loss will not suffice unless the movant shows damage that cannot be rectified by financial compensation. See Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir.1989). The law in this Circuit requires a showing that irreparable damages are likely, not merely possible. JSG Trading Corp., 917 F.2d at 79; Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam). The standard for a permanent injunction is essentially the same as for a preliminary injunction with the exception that the plaintiff must actually succeed as to the merits rather than a showing of likelihood as to that success in some future proceeding. See, e.g., Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 546 n. 12, 107 S.Ct. 1396, 1404, 94 L.Ed.2d 542 (1993); University of Texas v. Camenisch, 451 U.S. 390, 392, 101 S.Ct. 1830, 1832 n. 12, 68 L.Ed.2d 175 (1981). In the instant action, this standard dovetails with that of summary judgment. If it is found that no genuine issue of material fact exists as to any one of plaintiffs’ claims, then the injunction relief sought regarding that claim will be granted permanently. In the event that at least one genuine issue of material fact has been joined regarding a claim, this Court will then weigh the probability of plaintiffs’ success on that claim in considering whether to grant preliminary injunctive relief. With respect to all of the claims for which summary judgment is granted, the requirement of irreparable harm has been met and Plaintiffs have succeeded on the merits. Statutory Claims Section 504 of the Rehabilitation Act Plaintiffs allege that DOCS has discriminated against them in violation of § 504 of the Rehabilitation Act. Section 504 guarantees that individuals who are qualified to participate in a program or activity will have meaningful access to the program or activity if offered by a grantee of federal funds. See Alexander v. Choate, 469 U.S. 287, 301, 105 S.Ct. 712, 720, 83 L.Ed.2d 661 (1985); Rothschild v. Grottenthaler, 907 F.2d 286, 290 (2d Cir.1990). Provided that a person’s disabilities do not prevent them from meeting the essential eligibility requirements of the program or activity, the Section’s guarantee of meaningful access applies. See 28 C.F.R. § 42.540(Z). Where an individual does not appear initially to be otherwise qualified, a court must nevertheless evaluate whether reasonable accommodations would make the handicapped individual qualified to participate in the program or enjoy the benefit in question. See Alexander v. Choate, 469 U.S. at 300-01, 105 S.Ct. at 720-21; see also Harris v. Thigpen, 941 F.2d 1495, 1525 (11th Cir.1991). The Rehabilitation Act has been held to apply to prisoner claims as a general matter. See Harris, 941 F.2d at 1522 n. 41; Bonner v. Lewis, 857 F.2d 559, 562 (9th Cir.1988). The language of the statute indicates that any entity receiving federal funding is covered by the Act. DOCS concedes that it receives such funding. Further, the Act’s references to “otherwise qualified individual with handicaps” or “qualified handicapped person” are neither expressly nor implicitly limited in such a way as to exclude state prisoners. Since class members are “handicapped persons” as defined by Section 504 in that they “a physical or mental impairment which substantially limits one or more of [their] major life activities,” 29 U.S.C. § 706(8)(B)(i), they are protected by the Act. Thus since Defendants and Plaintiffs fall within the purview of the Rehabilitation Act, its prohibitions are applicable to the case at hand. The basic proscription of Section 504 is as follows: No otherwise qualified individual with handicaps ... as defined in ... this title ... shall, solely by reason of her or his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. 29 U.S.C. § 794. The term “otherwise qualified” is defined in the regulations as “[w]ith respect to services, a handicapped person who meets the essential eligibility requirements for the receipt of such services.” 28 C.F.R. § 42.540(Z); see Rothschild, 907 F.2d at 291. The regulations implementing § 504 elaborate upon the meaning of nondiscriminatory access to programs and services for disabled individuals: A recipient [of federal financial assistance] may not discriminate on the basis of handicap in the following ways directly or through contractual, licensing, or other arrangements under any program receiving Federal financial assistance: (i) Deny a qualified handicapped person the opportunity accorded others to participate in the program receiving Federal financial assistance(;) (ii) Deny a qualified handicapped person an equal opportunity to achieve the same benefits that others achieve in the program receiving Federal financial assistance .... (iv) Deny a qualified handicapped person an equal opportunity to participate in the program by providing services to the program. 28 C.F.R. § 42.503(b)(1). The Second Circuit has held that in order to state a claim under Section 504, plaintiffs must establish that: (1) they are “handicapped persons” under the Act; (2) they are “otherwise qualified” to participate in the offered activity or program or to enjoy the services or benefits offered; (3) they are being excluded from participation or enjoyment solely by reason of their disability; and (4) the entity denying plaintiffs participation or enjoyment receives federal financial assistance. See Rothschild, 907 F.2d at 289-90. This standard is applied to the various aspects of Plaintiffs’ Rehabilitation Act claim. Defendants concede that Plaintiffs are “handicapped persons” under the Act and that DOCS receives federal funding. They attempt to join issues of fact as to whether Plaintiffs are “otherwise qualified” for the services or benefits in question and as to whether they are being denied participation solely by reason of disability. As is set out in detail below, Defendants have violated § 504 of the Rehabilitation Act by failing to provide interpretive services during reception and classification, through the absence' or inadequacy of assistive communications devices for telephone and television, by their failure to provide visual safety alarms and by their failure to make reasonable accommodations to facilitate full participation by class members in educational, vocational and rehabilitative contexts such as classes and counselling sessions. With regard to each of these areas there are no genuine factual issues and it is established that class members are “otherwise qualified” to participate in the offered activities and programs or to enjoy the services or benefits offered and that they are being excluded from participation or enjoyment solely by reason of their disability, the other elements of a prima facie § 504 claim having been conceded. Title II of the ADA Like the Rehabilitation Act, the ADA and the regulations promulgated thereunder, 28 C.F.R. Part 35, prohibit discrimination on the basis of disability. The ADA became effective as of January 1992. Title II of the statute prohibits discrimination by public entities and provides: no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. § 12132. Title II of the ADA regulates the conduct of public entities. In particular a public entity may not, either directly or through contractual, licensing, or other arrangements: (b)(l)(i) Deny a qualified individual with a disability the opportunity to participate in or benefit from [an] aid, benefit, or service; (ii) Afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit or service that is not equal to that afforded others; (iii) Provide a qualified individual with a disability with an aid, benefit or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others; [or] (vii) Otherwise limit a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service. 28 C.F.R. § 35.130(b). The definition of “public entities” includes any state or local government or any department or agency thereof, or other instrumentality of a state or local government. See 42 U.S.C. § 12131(1). The meaning of “qualified individual with a disability” for purposes of Title II, derived via reference to the corresponding regulation promulgated under the Rehabilitation Act, is a person with a disability who, with or without a reasonable accommodation, “meets the essential eligibility requirements for the receipt of’ the benefits or services in question. See 28 C.F.R. § 42.540(i) (defining handicapped individual who is “otherwise qualified” under Rehabilitation Act); 42 U.S.C. § 12133 (requiring that remedies, procedures and rights under Title II of ADA are identical to those under § 504 of the Rehabilitation Act). As under the Rehabilitation Act, the protections afforded by the ADA turn on whether, with or without reasonable accommodations in programs and services, a disabled individual meets the essential eligibility requirements to participate in the program or receive the benefit in question. See 42 U.S.C. § 12131(2). The requirements for stating a claim under the ADA are virtually identical to those under § 504 of the Rehabilitation Act. See Martin v. Voinovich, 840 F.Supp. 1175, 1192 (S.D.Oh.1993); Galloway v. Superior Court, 816 F.Supp. 12, 19 (D.D.C.1993). Stated in the ADA’s terms, a plaintiff is expected to show that: (1) he or she is a “qualified individual with a disability”; (2) he or she is being excluded from participation in, or being denied the benefits of some service, program, or activity by reason of his or her disability; and (3) the entity which provides the service, program or activity is a public entity. See Ellen S. v. Florida Board of Bar Examiners, 859 F.Supp. 1489, 1492-93 & n. 4 (S.D.Fla.1994); People First of Tennessee v. Arlington Developmental Center, 878 F.Supp. 97, 100 (W.D.Tenn.1992); see also Staron v. McDonald’s Corp., 51 F.3d 353, 355-56 (2d Cir.1995) (under Title III, noting that when it was undisputed that plaintiffs were qualified individuals with disabilities and that defendant operated a public accommodation which plaintiffs could utilize with a reasonable accommodation and reasonableness of accommodation was the only disputed question, plaintiffs had stated a colorable claim); Galloway v. Superior Court, 816 F.Supp. at 19. In addition to its anti-discrimination provisions, the Department of Justice’s regulations implementing the ADA enumerate other affirmative obligations imposed by the ADA on state agencies. Plaintiffs assert that Defendants have failed to meet these additional affirmative requirements. First, public entities are required to provide disabled persons with the opportunity to request the auxiliary aids and services of their choice and give “primary consideration” to the preferences expressed. DOJ, Technical Assistance Manual, Title II, ADA, II-7.1100. The ADA also requires that persons with disabilities receive notice of the protections the statute affords them. Public entities must “make available to ... beneficiaries, and other interested persons information regarding the ... protections against discrimination as assured them by the Act and this part.” 28 C.F.R. § 35.106. In addition, 28 C.F.R. § 35.163 provides that “a public entity shall ensure that interested persons, including persons with impaired ... hearing, can obtain information as to the existence and location of accessible services, activities, and facilities.” ADA-related regulations require public entities to determine the most appropriate auxiliary aid or service, and stress the importance of consultation with disabled individuals, because they are most familiar with their particular disabilities and are in the best position to determine what type of aid or service will be effective. DOJ, Technical Assistance Manual, Title II, ADA, II-7.1100. The ADA also requires covered entities to conduct a “self-evaluation” of agency programs, services and physical plant to determine what modifications of policy and structure are necessary to comply with the ADA. 28 C.F.R. § 35.105. “Once a public entity has identified policies and practices that deny or limit the participation of individuals with disabilities in its programs, activities, and services, it should take immediate remedial action to eliminate the impediments to full and equivalent participation.” DOJ, Technical Assistance Manual: Title II of the ADA, II-8.2000. Even where agencies earlier conducted a self-evaluation under the Rehabilitation Act, the ADA requires the agency to expand the self-evaluation to incorporate programs or services not covered under § 504 or not included in the § 504 self-evaluation. 28 C.F.R. § 35.105(d). Agencies were given until January 26,1993, one year from the effective date of the Department’s regulations, to complete the ADA self-evaluation. Finally, regulations promulgated under the ADA require covered entities to develop a grievance mechanism available to individuals who claim that the state or local agency has failed to honor some or all of its affirmative obligations to make programs and services accessible to disabled individuals. See 28 C.F.R. § 35.107. As will be discussed in detail, Defendants have violated the ADA by their failur