Case 2:15-cv-00221-wks Document 1 Filed 10/15/15 Page 1 of 10

U.S. DISTRICT COURT

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FOR THE DISTRICT OF VERMONT

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PRISONER A,

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Plaintiff,

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STATE OF VERMONT, AGENCY OF )

HUMAN SERVICES, DEPARTMENT )

OF CORRECTIONS, DEPARTMENT )

OF MENTAL HEALTH, DEPARTMENT )

OF AGING AND INDEPENDENT

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Defendants.

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Docket No. '2: \S~V" ·'2.2
Jury Trial Requested

VERIFIED COMPLAINT

1. This action is brought by Plaintiff Prisoner A seeking declaratory,

injunctive, compensatory, and punitive relief pursuant to the Americans with

Disabilities Act ("ADA"), 42 U.S.C. § 12182 et seq., Section 504 ofthe Rehabilitation

Act, 29 U.S.C. §794(a), and the Vermont Fair Housing and Public Accommodations

Act, 9 V.S.A. 4500, et seq. because of Defendants' actions of willfully and knowingly

causing Plaintiff to be held in unnecessarily segregated circumstances when he would

be eligible for community placement if the appropriate, State-funded available

community supports and services were implemented.

PARTIES

2. Plaintiff Prisoner A (hereinafter referred to as "Plaintiff') is an

individual with significant disabilities who is currently incarcerated in the Southern

Disability Rights Vermont 111 Main Street/ Ste. 7 Montpelier, VT 05602 (802) 229-1355

State Correctional Facility in Springfield, Vermont. 3. Defendant Agency of Human Services ("AHS") has overall

Case 2:15-cv-00221-wks Document 1 Filed 10/15/15 Page 2 of 10

responsibility for providing appropriate placement and care for people in State's custody insofar as Defendants DOC, DMH, and DAIL are major components thereof. 3 V.S.A. §§ 3001-3002.
4. Defendant Department of Corrections (DOC), is a part ofthe Vermont Agency of Human Services and is responsible for the custody, care, and supervision of persons incarcerated at Vermont State Correctional Facilities, including the Southern

State Correctional Facility, in Springfield, Vermont. 28 V.S.A. § 102. 5. Defendant Department of Mental Health (DMH) is a governmental entity
authorized by State law to provide comprehensive services to all citizens of the state in mental health and related problems. 18 V.S.A. §7201.
6. Defendant Vermont Department of Aging and Independent Living (DAIL) is part of the Agency of Human Services and provides various services to Vermonters over the age of60 or who have a disability. 33 V.S.A. § 501.
JURISDICTION 7. This Court has general jurisdiction over this matter pursuant to 28 U.S.C. § 1331.
VENUE 8. Venue is proper in this Court under 28 U.S.C. §1391.
FACTS 9. Plaintiff is a 37-year-old individual with one or more disabilities qualifying him for protections against disability-based discrimination within the

Disability Hights Vermont
141 Main Street I Ste. 7
Montpelier, VT 05602 (802) 229-1355

meaning of42 U.S.C. §12102. 10. Plaintiff has been noted by Defendants to have been diagnosed with

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schizo-affective disorder and depression, among other diagnoses.

11. Title II of the ADA prohibits discrimination on the basis of disability by public entities, including any department serving as an instrumentality of the State, i.e. correctional facilities. 42 U.S.C. §12131(1); 28 C.F.R. §35.102(a); 28 C.F.R. §35.130(b); Pennsylvania Dep't ofCorr. v. Yeskey, 524 U.S. 206,209 (1998).

12. Regulations implementing Section 504 of the Rehabilitation Act of 1973 prohibit recipients of federal financial assistance from "[u]tiliz[ing] criteria or methods of administration ... (i) [t]hat have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap [or] (ii) [t]hat have the ... effect of substantially impairing accomplishment of the recipients' program with respect to handicapped persons." 45 C.F.R. § 84.4(b)(4); 28C.F.R. § 41.51(b)(3)(i).

13. Defendants receive federal funding to fund aspects oftheir services and supports and are thus subject to the protections of Section 504.

14. The Vermont FairHousing and Public Accommodations Act (VFHPAA) is also applicable to correctional facilities because legislative intent has made clear that the VFHPAA would be applied consistently with the ADA. Dep 't ofCarr. v. Human Rights Comm 'n, 181 Vt. 225, 228, (2006).

15. Both the ADA and VFHPAA mandate that a "public entity shall

administer services, programs, and activities in the most integrated setting appropriate

Disability Rights Vermont 111 Main Street/ Ste. 7 Montpelier, VI' 05602 (802) 229-1355

to the needs of qualified individuals with disabilities." 28 C.F.R. §35.130(d); 9 V.S.A. § 4502(c)(2). A violation of this integration mandate occurs when the individual is not

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placed in the most integrated setting reasonably possible. Olmstead v. L. C., 527 U.S. 581, 601-603 (1999).

16. Plaintiffs minimum sentence was served on July 13, 2013, but he continues to be held at Southern State Correctional Facility ("SSCF") because of the failure of Defendants to have a reasonably functional system in place to identify and implement appropriate disability-related supports in the community to prevent continued, unnecessary and harmful institutionalization.

17. Plaintiffwas eligible for release to the community since July 2013 pending the identification of suitable supported housing, but has remained incarcerated due to Defendants' failure to maintain adequate capacity of supported or transitional housing to meet demand.

18. On information and belief, Plaintiff would be eligible for State and federal funded community supports, such as Choices for Care (CFC) and/or Community Rehabilitation Treatment (CRT) services, if released from incarceration.

19. Through counsel, Plaintiff has caused his discharge crisis to be heard at the Statewide Interagency Team (SIT) monthly meetings for more approximately ten months without any substantive effort, results, or progress towards ending the unnecessary and harmful institutionalization Plaintiff continues to withstand.

20. Had Defendants met their legal duty as interpreted by the United States

Disability Rights Vermont 111 Main Street/ Stc. 7 Montpelier, VI' 05602 (802) 229-1855

Supreme Court in Olmstead and provided for placement of Plaintiff in the most integrated setting, Plaintiff would not have remained incarcerated for approximately the

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past two years at SSCF, nor would he have experienced the exacerbated mental, emotional, and physical harm and trauma, including a significant suicide attempt, that he continues to endure by being held further in the segregated setting of prison instead of being placed in an appropriate, more integrated setting.

21. As a result of the abuse, neglect, and discrimination endured during Plaintiffs incarceration to date, and the failure of Defendants to place him in the least restrictive, most integrated, and most clinically appropriate setting, Plaintiff has suffered unnecessary pain and suffering and a continuing violation of his civil rights.

22. Defendants knew or should have known that Plaintiffs continued incarceration would result in the immediate and continuing deprivation of Plaintiffs right to be free from disability-based discrimination.

23. On information and belief, prisoners similarly situated to Plaintiff, but without disabilities or the need for State-funded community disability-based support services, are released into the community at or close to their minimum, while Plaintiff has been discriminated against by prolonged, unnecessary incarceration in an institutional setting.

24. Supervised release into the community is a service and/or program offered and provided by Defendant DOC. Upon information and belief, Plaintiff, because of his disabilities, is being denied the equal benefit of those programs as compared to his non-disabled peers.

Disability Rights Vermont 141 MainSlreet/Slc. 7 Montpelier, Vf 05602 (802) 229-1355

25. While incarcerated Plaintiff has not been provided adequate mental

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health care or supports for his developmental disabilities, resulting in one significant suicide attempt and exposing him to continued risk of harm as he remains in prison due to a lack of available community supports.

26. Plaintiff has exhausted all available administrative remedies available to him, most recently by filing a "Grievance #7" Decision Appeal to the Department of Corrections Commissioner's Office on August 26, 2015 via e-mail and U.S. Mail, which was confirmed to have been received by counsel for Defendant DOC counsel on August 31,2015, and which was never subsequently responded to after repeated inquiries from Plaintiffs counsel (which also went unanswered).

27. Plaintiffs counsel gave notice via e-mail to Defendant's counsel on October 2, 2015 that Plaintiff now considers all administrative remedies to be exhausted due to the failure of the Commissioner to respond to the final level of appeal (Grievance #7) within twenty days pursuant to DOC Policy Offender Grievance System #320.01, Attachment 1 § (f).

FIRST CAUSE OF ACTION- PLAINTIFF'S CONTINUED INCARCERATION CONSTITUTES VIOLATIONS OF TITLE II OF THE ADA

28. Plaintiff incorporates by reference paragraphs one (1) through twentyseven (27), above.

29. The continued institutional placement of Plaintiff as an incarcerated

individual when he is eligible for release but for the lack of State-funded disability-

based community supports and services constitutes disability discrimination in that it

Disability Rights Vermont 111 Main Street/ Ste. 7 Montpelier, VI' 05602 (802) 229-1 :155

denies Plaintiff because of his disability the benefits of services, programs or activities of a public entity in violation of Title II of the Americans with Disabilities Act, 42

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U.S.C. §§ 12131-12134.

30. Plaintiff has suffered and continues to suffer significant pain and anguish

and is at risk of significant harm because of Defendants' unlawful, discriminatory

conduct identified above.

SECOND CAUSE OF ACTION- PLAINTIFF'S CONTINUED INCARCERATION CONSTITUTES A VIOLATION OF THE
"INTEGRATION MANDATE" OF THE ADA

31. Plaintiff incorporates by reference paragraphs one (1) through twenty-

seven (27), above.

32. The regulation implementing Title II of the ADA requires public entities

to "administer services, programs, and activities in the most integrated setting

appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. §

35.130(d)(emphasis added); 28 C.F.R. § 35.152(b)(2) (requiring that prisoners with

disabilities be housed in the most integrated setting appropriate to their needs under the

program access obligation); see also, Olmstead v. L. C., 527 U.S. 581, 592, 597 (1999).

33. By allowing Plaintiffs continued incarceration at SSCF beyond his

minimum, Defendants are violating the implementing regulations of Title II ofthe ADA

by failing to administer the treatment of a qualified individual with a disability in the

most integrated setting appropriate to the needs ofthat individual. 28 CFR § 35.130(d).

See, Olmstead, Supra.

34. Plaintiff has suffered and continues to suffer significant pain and anguish

and is at risk of significant harm because of Defendants' unlawful, discriminatory

Disability Rights Vermont 141 Main Street/ Stc. 7 Montpelier, VT 05602 (802) 229-1355

conduct identified above.

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THIRD CAUSE OF ACTION- PLACEMENT OF PLAINTIFF IN THE CURRENT CIRCUMSTANCES CONSTITUTES A VIOLATION OF THE REHABILITATION ACT 35. Plaintiff incorporates by reference paragraphs one (1) through twenty-
seven (27), above. 36. Defendants' actions in allowing Plaintiff to continue to be incarcerated at
SSCF past his minimum constitutes disability discrimination against Plaintiff, and has resulted in both denial to him of the benefits of services, programs or activities of a public entity in violation of Section 504 ofthe Rehabilitation Act, 29 U.S.C. §794(a), as well as significant pain and suffering, because Defendants willfully allowed Plaintiff to continue to be incarcerated past his minimum despite facts and circumstances demonstrating he is eligible for release into the community but for a lack of community based supports funded by Defendants.
37. Defendants' actions and omissions identified above have caused and continue to cause Plaintiff harm.

FOURTH CAUSE OF ACTION- PLACEMENT OF PLAINTIFF IN THE CURRENT CIRCUMSTANCES CONSTITUTES A VIOLATION OF THE
VERMONT FAIR HOUSING AND PUBLIC ACCOMODATIONS ACT

38. Plaintiff incorporates by reference paragraphs one (1) through twenty-

seven (27), above.

39. Defendants' actions in allowing Plaintiff to continue to be incarcerated at

SSCF past his minimum without adequate mental health services constitutes disability

discrimination against Plaintiff, and has resulted in both denial to him of services,

Disability Rights Vermont 141 Main Street/ Stc. 7 Montpelier, VI' 05602 (802) 229-1355

facilities, goods, privileges, advantages, benefits, or accommodations in violation of 9 V.S.A. § 4502, in addition to significant pain and suffering, because Defendants

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willfully allowed Plaintiff to be held in prison despite facts and circumstances demonstrating he is eligible for release into the community but for a lack of community based supports funded by Defendants.
40. Defendants' actions and omissions identified above have caused and

continue to cause Plaintiff harm. PRAYER FOR RELIEF
WHEREFORE, plaintiff respectfully requests that the Court:

1. Issue a judgment that the actions of Defendants described herein are

unlawful and violate Plaintiffs rights under the laws of the United States and the State

of Vermont;

2. Grant Plaintiff damages adequate to compensate Plaintiff for the pain

and suffering, including emotional distress and loss of dignity, as well as physical

injury, stemming from the violations ofhis rights as stated in this Complaint;

3. Award Plaintiff punitive damages;

4. Issue a preliminary and thereafter permanent injunction against

Defendants, their subordinates, agents, employees, and all others acting in concert with

them, from denying Plaintiff his right to be placed in the most integrated setting

reasonable as set forth in this Complaint;

5. Order that Defendants transition Plaintiff to a supported community

placement and provide Plaintiff with adequate mental health treatment and care in the

most integrated setting reasonable;

Disability Rights Vermont
141 Main Street I Ste. 7
Montpelier, VI' 05602 (802) 229-1855

6. Grant Plaintiff reasonable attorney fees and costs pursuant to 42 U.S.C. § 12205 and other applicable law; and Grant such other relief as the Court considers

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just and proper. 7. Any other relief the Court determines fair and equitable.

at~, Dated

Vermont thisf Octay of October, 2015.

By:

Arthur . uben, Esq. Counsel for Plaintiff Disability Rights Vermont 141 Main Street, Suite 7 Montpelier, VT 05602 (802) 229-1355 aj @disabilityrightsvt.org

Original Verified Complaint signed and notarized by Plaintiff has been filed with the Court with a Motion to Seal.

Disability Rights Vermont 111 Main Street/ Ste. 7 Montpelier, VT 05602 (802) 229-1:355
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 Case: 2:15-cv-221 As of: 09/18/2016 11:35 AM EDT 1 of 3
CLOSED,ENE3,ENEF
U.S. District Court District of Vermont (Burlington) CIVIL DOCKET FOR CASE #: 2:15−cv−00221−wks

Prisoner A v. State of Vermont et al Assigned to: Judge William K. Sessions III Cause: 42:1983 Civil Rights Act
Plaintiff Prisoner A

Date Filed: 10/15/2015 Date Terminated: 06/07/2016 Jury Demand: Plaintiff Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question
represented by Arthur J. Ruben Disability Rights Vermont 141 Main Street, Suite 7 Montpelier, VT 05602 (802) 229−1355 Fax: (802) 229−1359 Email: aj@disabilityrightsvt.org ATTORNEY TO BE NOTICED

V. Defendant State of Vermont
Defendant Vermont Agency of Human Services
Defendant Vermont Department of Corrections
Defendant Vermont Department of Mental Health
Defendant Vermont Department of Aging and Independent Living ENE Evaluator ENE Evaluator TERMINATED: 06/06/2016

represented by David R. Groff , Esq. Vermont Office of the Attorney General 109 State Street, 3rd Floor Montpelier, VT 05609−1001 (802) 828−1101 Fax: (802) 828−5341 Email: david.groff@vermont.gov ATTORNEY TO BE NOTICED
represented by David R. Groff , Esq. (See above for address) ATTORNEY TO BE NOTICED
represented by David R. Groff , Esq. (See above for address) ATTORNEY TO BE NOTICED
represented by David R. Groff , Esq. (See above for address) ATTORNEY TO BE NOTICED
represented by David R. Groff , Esq. (See above for address) ATTORNEY TO BE NOTICED
represented by Michael J. Marks , Esq. MarksPowers LLP 1205 Three Mile Bridge Road Middlebury, VT 05753

Case: 2:15-cv-221 As of: 09/18/2016 11:35 AM EDT 2 of 3
(802) 388−2211 Fax: (802) 388−1113 Email: Michael@markspowers.com TERMINATED: 06/06/2016 ATTORNEY TO BE NOTICED

Date Filed 10/15/2015
10/15/2015 10/15/2015 10/15/2015 10/15/2015 10/15/2015 10/16/2015
11/03/2015 11/16/2015 11/16/2015 11/16/2015 11/16/2015 11/16/2015 11/18/2015
12/07/2015 12/07/2015

# Docket Text
1 VERIFIED COMPLAINT against State of Vermont, Vermont Agency of Human Services, Vermont Department of Aging and Independent Living, Vermont Department of Corrections, Vermont Department of Mental Health filed by Prisoner A. (Attachments: # 1 Verified Complaint (document filed under seal), # 2 Civil Cover Sheet), # 3 Certificate of Service) (law). (Entered: 10/15/2015)
2 MOTION to Proceed Under a Psuedonym filed by Prisoner A.(law) (Entered: 10/15/2015)
3 MOTION to File Under Seal 1 Verified Complaint filed by Prisoner A. (Attachments: # 1 Verified Complaint) (images are sealed) (law) (Entered: 10/15/2015)
4 MOTION for Preliminary Injunction filed by Prisoner A. (Attachments: # 1 Affidavit of Arthur J. Ruben, Esq.)(law) (Entered: 10/15/2015)
5 MOTION for Leave to Proceed in Forma Pauperis filed by Prisoner A. (Attachments: # 1 Affidavit in Support) (documents filed under seal) (law) (Entered: 10/15/2015)
6 MOTION to File Under Seal 5 MOTION for Leave to Proceed in Forma Pauperis filed by Prisoner A. (document is sealed) (law) (Entered: 10/15/2015)
7 ORDER granting 2 Motion to Proceed Under A Psuedonym; granting 3 Motion to File Under Seal; granting 5 Motion for Leave to Proceed in forma pauperis; granting 6 Motion to File Under Seal. Signed by Judge William K. Sessions III on 10/16/2015. (This is a text−only Order.) (eae) (Entered: 10/16/2015)
8 MOTION for Assistance With Effecting Service on Defendants filed by Prisoner A. (Attachments: # 1 Certificate of Service)(Ruben, Arthur) Text clarified on 11/3/2015 (jlh). (Entered: 11/03/2015)
9 ORDER denying as moot 8 Motion For Assistance with Effecting Service on Defendants. Signed by Judge William K. Sessions III on 11/16/2015. (This is a text−only Order.) (eae) (Entered: 11/16/2015)
10 WAIVER OF SERVICE Returned Executed: Vermont Department of Corrections waiver sent on 10/15/2015, answer due 12/14/2015. (Attachments: # 1 Certificate of Service)(Ruben, Arthur) (Entered: 11/16/2015)
11 WAIVER OF SERVICE Returned Executed: Vermont Agency of Human Services waiver sent on 10/15/2015, answer due 12/14/2015. (Attachments: # 1 Certificate of Service)(Ruben, Arthur) (Entered: 11/16/2015)
12 WAIVER OF SERVICE Returned Executed: Vermont Department of Mental Health waiver sent on 10/15/2015, answer due 12/14/2015. (Attachments: # 1 Certificate of Service)(Ruben, Arthur) (Entered: 11/16/2015)
13 WAIVER OF SERVICE Returned Executed: Vermont Department of Aging and Independent Living waiver sent on 10/15/2015, answer due 12/14/2015. (Attachments: # 1 Certificate of Service)(Ruben, Arthur) (Entered: 11/16/2015)
14 NOTICE OF APPEARANCE by David R. Groff, Esq on behalf of State of Vermont, Vermont Agency of Human Services, Vermont Department of Aging and Independent Living, Vermont Department of Corrections, Vermont Department of Mental Health.(Groff, David) (Entered: 11/18/2015)
15 STIPULATED MOTION to Withdraw 4 MOTION for Preliminary Injunction filed by Prisoner A.(Ruben, Arthur) (Entered: 12/07/2015)
16 ORDER granting 15 Stipulated Motion to Withdraw 4 MOTION for Preliminary Injunction. Signed by Judge William K. Sessions III on 12/7/2015. (This is a text−only

Case: 2:15-cv-221 As of: 09/18/2016 11:35 AM EDT 3 of 3

12/15/2015
12/16/2015 12/30/2015
12/30/2015 01/04/2016
01/28/2016 02/02/2016
02/18/2016 03/30/2016
04/01/2016 04/11/2016 04/18/2016 04/18/2016
04/29/2016 04/29/2016 06/06/2016 06/07/2016

Order.) (eae) (Entered: 12/07/2015)
17 ANSWER to 1 Complaint by State of Vermont, Vermont Agency of Human Services, Vermont Department of Aging and Independent Living, Vermont Department of Corrections, Vermont Department of Mental Health.(Groff, David) (Entered: 12/15/2015)
18 ENE LETTER re: Potential Evaluators sent; responses due by 1/4/2016. (hbc) (Entered: 12/16/2015)
19 PROPOSED Stipulated Discovery Schedule/Order by State of Vermont, Vermont Agency of Human Services, Vermont Department of Aging and Independent Living, Vermont Department of Corrections, Vermont Department of Mental Health. (Attachments: # 1 Certificate of Service)(Groff, David) (Entered: 12/30/2015)
20 ENE Evaluator Michael J. Marks, Esq. assigned. (hbc) (Entered: 12/30/2015)
21 STIPULATED DISCOVERY SCHEDULE/ORDER Discovery due by 8/15/2016. Motions due by 9/15/2016. Early Neutral Evaluation set for 5/15/2016 at 09:00 AM. Ready for Trial by 11/1/2016. Signed by Judge William K. Sessions III on 1/4/2016. (law) (Entered: 01/04/2016)
22 DISCOVERY CERTIFICATE − Initial Disclosures by Prisoner A.(Ruben, Arthur) (Entered: 01/28/2016)
23 DISCOVERY CERTIFICATE − Initial Disclosures by State of Vermont, Vermont Agency of Human Services, Vermont Department of Aging and Independent Living, Vermont Department of Corrections, Vermont Department of Mental Health.(Groff, David) (Entered: 02/02/2016)
24 DISCOVERY CERTIFICATE − First Set of Interrogatories and Requests to Produce by Prisoner A.(Ruben, Arthur) (Entered: 02/18/2016)
25 STIPULATED MOTION to Enlarge the Discovery Schedule/Order filed by State of Vermont, Vermont Agency of Human Services, Vermont Department of Aging and Independent Living, Vermont Department of Corrections, Vermont Department of Mental Health.(Groff, David) (Entered: 03/30/2016)
26 ORDER granting 25 Stipulated Motion for Extension of Time to Complete Discovery. Signed by Judge William K. Sessions III on 4/1/2016. (This is a text−only Order.) (eae) (Entered: 04/01/2016)
27 DISCOVERY CERTIFICATE − Notice of Deposition of Christina Granger by Prisoner A.(Ruben, Arthur) (Entered: 04/11/2016)
28 DISCOVERY CERTIFICATE − Notice of Deposition of Christine Johnson by Prisoner A.(Ruben, Arthur) (Entered: 04/18/2016)
29 DISCOVERY CERTIFICATE − Answer to Interrogatories and Requests to Produce by State of Vermont, Vermont Agency of Human Services, Vermont Department of Aging and Independent Living, Vermont Department of Corrections, Vermont Department of Mental Health.(Groff, David) (Entered: 04/18/2016)
30 DISCOVERY CERTIFICATE − Notice of Deposition of Sue Ransom−Kelley by Prisoner A.(Ruben, Arthur) (Entered: 04/29/2016)
31 DISCOVERY CERTIFICATE − Revised Notice of Deposition of Christine Johnson by Prisoner A. Amendment (Ruben, Arthur) Text clarified on 5/4/2016 (jlh). (Entered: 04/29/2016)
32 REPORT of Early Neutral Evaluation by ENE Evaluator (Attachments: # 1 Certificate of Service)(Marks, Michael) (Entered: 06/06/2016)
33 ORDER DISMISSING CASE without costs, with the right to petition, upon good cause shown within 60 days, to reopen the action if settlement is not consummated. Signed by Judge William K. Sessions III on 6/7/2016. (jam) (Entered: 06/07/2016)