Case 1:10-cv-01005-RBJ-KMT Document 80 Filed 03/26/12 USDC Colorado Page 1 of 14
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable R. Brooke Jackson
Civil Action No. 10-cv-01005-RBJ-KMT TROY ANDERSON, Plaintiff, v. STATE OF COLORADO, DEPARTMENT OF CORRECTIONS, SUSAN JONES, in her official capacity as warden of the Colorado State Penitentiary, and ARISTEDES W. ZAVARAS, in his official capacity as the Executive Director of the Colorado Department of Corrections, Defendants.
ORDER
This civil rights case is set for a trial to the Court commencing April 30, 2012. Four motions are pending, one of which [#77] is not yet ripe but will be mentioned briefly at the end of this order. This order addresses the other pending motions: plaintiff’s motion for partial summary judgment on his Fourth Claim in which he asserts that defendants have violated his Eighth Amendment right to be free of cruel and unusual punishment by depriving him of any outdoor exercise [#47]; defendants’ motion for summary judgment on all claims [#48]; and plaintiff’s motion to reopen discovery for a limited purpose [#65].
FACTS.1 Mr. Anderson is an inmate in the Colorado Department of Corrections, also known as CDOC. For more than 11 years, with the exception of a one-month period in 2001 when he was
1 The parties have filed some 50 pages of disputed and undisputed facts as well as nearly 1700 total pages of pleadings and exhibits for the three motions addressed in this order. For future reference, more concise briefs, recognition of fact disputes, and even better proofreading in some instances would make for better advocacy.
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sent to another facility for a mental health evaluation, he has been incarcerated at the Colorado State Penitentiary. This is a maximum security facility where each inmate is placed in administrative segregation, sometimes called “Ad Seg.” Mr. Anderson is confined alone in a small cell at all times except for approximately five visits each week of about one to one and one quarter hours each when he is taken to a similarly small cell with a pull-up bar for exercise followed by a shower. He has essentially no direct human contact except with CDOC staff.
Although his lengthy Complaint described a long list of issues, the gist of this case can fairly be divided into three separate but related complaints. First, he alleges that he has been denied appropriate diagnosis and treatment for serious mental health issues. Second, because the Colorado State Penitentiary provides no facility for outside exercise, he has not seen the sun or the outside world for more than eleven years, resulting in physical and mental harm. Third, although inmates theoretically can earn their way out of the Colorado State Penitentiary by successfully completing a five-level Quality of Life Level Program (“QLLP”), he has been unable to do so because of an arbitrary demerit system that in turn punishes his improperly treated mental illness.
Mr. Anderson asserts six claims: (1) that he has been deprived of a liberty interest without the due process guaranteed by the Fourteenth Amendment by the manner in which defendants have administered demerits, called “negative chrons,” that has prevented him from progressing to higher levels and ultimately out of Ad Seg; (2) that he has been deprived of a liberty interest without due process by reason of defendants’ failure to provide an appropriate medication request and review procedure and, therefore, necessary medications; (3) that defendants’ failure to provide appropriate mental health treatment has also violated his Eighth (and Fourteenth) Amendment right to be free of cruel and unusual punishment; (4) that
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defendant’s denial of outdoor exercise over the period of time Mr. Anderson has been in Ad Seg violates his Eighth (and Fourteenth) Amendment right to be free of cruel and unusual punishment due to defendants’ denial of outdoor exercise; (5) that discrimination on the basis of his mental impairment violates the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq.; and (6) such discrimination also violates the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978 (“Rehabilitation Act”), 29 U.S.C. § 794 et seq.
CONCLUSIONS. A. Plaintiff’s Motion for Partial Summary Judgment [#47]. Plaintiff seeks a summary judgment that denial of outdoor exercise for more than 11 years violates his right to be free of cruel and unusual punishment. The Eighth Amendment applies to state action through the due process clause of the Fourteenth Amendment. To establish that a condition of confinement constitutes cruel and unusual punishment, an inmate must show both an objective component, i.e., that a prison deprivation was sufficiently serious (such as by denying the minimal civilized measure of life necessities) and a subjective component, i.e., that prison officials acted with a culpable state of mind (some form of wanton conduct at least amounting to deliberate indifference as compared to inadvertence or good faith error). Wilson v. Seiter, 501 U.S. 294, 298-304(1991). To obtain summary judgment, plaintiff must show that it is beyond any genuine dispute of fact that he has been subjected to cruel and unusual punishment. Fed. R. Civ. P. 56(a). The Tenth Circuit has on occasion addressed prisoner demands for outdoor exercise. In one case it noted that “[t]here is substantial agreement among the cases in this area that some form of outdoor exercise is extremely important to the psychological and physical well being of
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inmates, and some courts have held a denial of fresh air and exercise to be cruel and unusual punishment under certain circumstances.” Bailey v. Shillinger, 828 F.2d 651, 653 (10th Cir. 1987). To my knowledge, however, no court has held that denial of fresh air and exercise is a per se Eighth Amendment violation. It depends on the facts of the particular case.
In Ajaj v. U.S., 293 F. App’x 575 (10th Cir. 2008)(unpublished) the court considered allegations that the inmate had been prevented from exercising outside during his first year at the Administrate Maximum United States Penitentiary in Florence, Colorado and intermittently thereafter. Those allegations did not rise to the level of an Eighth Amendment violation. Id. at 584. However, “a factfinder might conclude that the risk of harm from three years of deprivation of any form of outdoor exercise was obvious and that DOC officials disregarded that risk by keeping [the inmate] in administrative segregation.” Fogle v. Pierson, 435 F.3d 1252, 1260 (10th Cir. 2006).
Plaintiff contends that virtually all other federal and state prisons in the country, including the most secure institutions, provide an outdoor exercise facility; that prison experts agree that this is appropriate and important; that the Colorado State Penitentiary has an outdoor courtyard that was designed for outdoor recreation but is used for storage; that the Penitentiary also has substantial open space where an outdoor recreation area could be located; that, particularly due to the length of his deprivation of such exercise, Mr. Anderson has sustained both physical and mental harm; and that CDOC’s continued failure and refusal to make outdoor exercise available to him constitutes deliberate indifference.
Defendants respond that Mr. Anderson is able to exercise indoors, and that he has not shown that the inability to exercise outdoors causes physical or mental harm. Defendants argue that providing daily outdoor exercise to approximately 750 offenders (a request that Mr.
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Anderson does not appear to be making) is not feasible; that giving Mr. Anderson but not others the opportunity for outdoor exercise (another request that plaintiff does not appear to be making) would create management and security problems; that the QLLP program is designed to motivate inmates to cooperate and behave so as to progress to a higher level; and that the Court should defer to the broad discretion of prison administrators to manage prisons safely and effectively.
The Court finds that these issues are replete with factual disputes. Indeed, it is all but inconceivable to this Court that a matter of such potentially great significance both to the CDOC and to inmates at the Colorado State Penitentiary would be decided on summary judgment without a full evidentiary record. Plaintiff’s motion is denied.
B. [Defendants’] Motion for Summary Judgment [#48]. Defendants advance seven arguments, collectively amounting to the allegation that none of plaintiff’s claims turn on genuine disputes of material fact, and that all of the claims should be dismissed as a matter of law. 1. Statute of limitations. Defendants argue that any claim accruing before May 3, 2008 (two years before this case was filed) is barred by the applicable statute of limitations. Defendants made the same argument in their motion to dismiss filed and briefed earlier in this case. The Court, by Chief Judge Daniel, denied the motion. The Court concluded that the period of limitations applicable to the claims brought pursuant to 42 U.S.C. § 1983 (One through Four) is two years from the date that Mr. Anderson knew or should have known of the injury that was the basis for the claim. [#37] at 4-5. Similarly, the period of limitation applicable to the two statutory claims (Five and Six) is two years from the date when he knew of should have known of the cause of his injuries. Id. at
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5-6. The Court held that, although claims accruing prior to May 3, 2008 might be barred, it could not determine from the face of the Complaint that any of the claims are barred. Id. at 6-8.
In the pending motion for summary judgment, defendants focus only on plaintiff’s Second Claim, and specifically on the allegation that Mr. Anderson was improperly denied two medications, Strattera and Wellbutrin, that had been prescribed for him. Defendants note, as they did in their motion to dismiss, that Mr. Anderson alleged that he was denied Strattera by the formulary board at the Colorado State Penitentiary on July 15, 2004, and the board denied Wellbutrin in April 2007. The Court found it to be unclear from the face of the Complaint when the internal appeal process was complete or whether Mr. Anderson continues to appeal the denials of those medications. [#37] at 7. Defendants now present the affidavit of Darren Lish, M.D., a staff psychiatrist at the CDOC, who states that no appeal was taken from the denial of Wellbutrin. Id. ¶20. Defendants also point to plaintiff’s allegation that he did not have a right to appeal and did not appeal.
Plaintiff responds that he grieved the denial of Wellbutrin, the only avenue available to him, and that the grievance was finally denied on August 7, 2008. Ex. 19 to Robertson aff. [#503] at 12. Defendants respond that Mr. Anderson knew or should have known of his injury when Wellbutrin was denied, not when his grievance process concluded.
It does not appear that plaintiff now disputes that his claim arising from the 2004 denial of Strattera is time barred. I agree with the plaintiff, however, that because there was a form of “appeal” by way of the grievance procedure, his filing of a Complaint based on the denial of Wellbutrin was timely. Accordingly, the motion for summary judgment based upon the statute of limitations is granted as to the Strattera denial but is otherwise denied.
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2. Change in Prison Policy. Defendants next argue that plaintiff was prescribed Wellbutrin and provided it in December and, therefore that his claim based on the denial of Wellbutrin is moot. A case becomes moot and must be dismissed where the underlying controversy is resolved, and the court “cannot affect the matter in issue in the case before it.” Church of Scientology of California v. U.S., 506 U.S. 9, 12 (1992). However, “[t]he heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000). The prescription of Wellbutrin in December 2010 does not moot a claim that its previous denial was improper. Moreover, the previous denial was apparently based on the drug’s not being on the “formulary.” A doctor’s non-formulary prescription of Wellbutrin was denied. The drug apparently is now on the formulary. However, whether that was simply a temporary change, and whether Mr. Anderson will continue to be given the drug if prescribed by a physician, are issues of fact that cannot be resolved on a motion for summary judgment. 3. Prison Litigation Reform Act. Defendant points out that, under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(e), “[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.” Defendants argue that this bars plaintiff’s claim for compensatory damages under the Rehabilitation Act, because plaintiff has not alleged that he sustained physical injuries. Plaintiff does not dispute that the Prison Litigation Reform Act applies to his claims under the Rehabilitation Act (and the ADA). However, he submits an affidavit in which he
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states that the lack of outdoor exercise has caused his muscles to grow weaker. [#47-2] ¶73. That is sufficient to create a fact dispute that prevents summary disposition.
4. Plaintiff’s Due Process Claims (Claims One and Two). Defendants argue that plaintiff has not shown that the periodic reviews regarding his classification status in the QLLP or the process for obtaining non-formulary medications involve a liberty interest that could support a due process claim. To state a procedural due process claim, a plaintiff must establish: (1) that he has a liberty or property interest protected by the due process clause, and (2) that the procedures utilized were inadequate under the circumstances. See Veile v. Martinson, 258 F.3d 1180, 1184-85 (10th Cir. 2001). Plaintiff must demonstrate a “legitimate claim of entitlement” to the right asserted in the Complaint. Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 460 (1989). The issue with respect to the periodic reviews was addressed in Toevs v. Reid, 646 F.3d 752 (10th Cir. 2011). The court concluded on the record before it that an inmate’s indefinite placement in the QLLP at the Colorado State Penitentiary that actually lasted for years, in the type of conditions described by Mr. Toevs (similar to those described by Mr. Anderson), established a protected liberty interest; and that because Mr. Toevs did not receive periodic reviews that provided meaningful guidance as to how he was progressing or when he might be returned to the general population, his constitutional rights were violated. Id. at 753, 756-60. Whether the facts of the present case are sufficiently different to warrant a different conclusion is an issue that is inappropriate for summary judgment. With regard to his claim based on the review process for non-formulary medications, plaintiff argues that no reasons were given for the original denial, and that he was not permitted directly to appeal the denial. He alleges that there are not meaningful or sufficient procedural
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protections, and that they leave open the possibility of decisions that are arbitrary or based on bias, discrimination or prejudice. He further argues that CDOC’s denial of his non-formulary medications without adequate process “imposes an atypical and significant hardship on [him] in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 483-84.
The Court finds that CDOC’s denial of his non-formulary medication could impose the type of hardship warned of in Sandin if Mr. Anderson can show that a primary reason he has not progressed out of Ad Seg is because his mental illness has been improperly and inadequately treated due to the non-formulary request and appeal procedures. The Court finds there is a genuine fact dispute about whether that occurred here.
5. Plaintiff’s Eighth Amendment Claim Relating to the Adequacy of his Mental Health Treatment.
Defendants argue that plaintiff cannot establish an Eighth Amendment violation on the basis of inadequate mental health treatment. As defendants acknowledge, the Eighth Amendment’s ban on cruel and unusual punishment is violated if a defendant’s “deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain.” Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006)(internal citations omitted). Plaintiff must establish two elements: objectively that his medical need is sufficiently serious, and subjectively that the defendant “knew of and disregarded an excessive risk to inmate health and safety.” Farmer v. Brennan, 511 U.S. 825, 834 (1994)(internal citations omitted). Because defendants concede, at least for purposes of the present order, that Mr. Anderson’s mental health condition is sufficiently serious to satisfy the first element, the Court will focus on whether there is a genuine issue of material fact with regard to the second element.
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A defendant is deliberately indifferent where he was both “aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he [drew] the inference.” Ibid. Delaying medical treatment can violate the Eighth Amendment if the delay itself “reflect[s] deliberate indifference which results in substantial harm.” Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993). The Tenth Circuit has defined substantial harm to mean a “lifelong handicap, permanent loss, or considerable pain.” Garrett v. Stratman, 254 F.3d 946, 949-50 (10th Cir. 2001).
It is not disputed that plaintiff has not received certain medications prescribed by physicians for the treatment of his mental illness. The significance of his not receiving those medications is a matter of medical judgment and testimony. The Court agrees with defendants that a difference in medical judgment is not sufficient to establish an Eighth Amendment violation. Coppinger v. Townsend, 398 F.2d 392, 394 (10th Cir. 1968)(stating “[t]he prisoner’s right is to medical care- not to the type or scope of medical care which he personally desires.”). However, that does not foreclose the possibility that medical or mental health treatment will be so inadequate that it will rise to the level of an Eighth Amendment violation. The Court concludes that plaintiff has raised a genuine issue of material fact as to whether defendants were deliberately indifferent to his mental health issues.
6. Plaintiff’s Eighth Amendment Claim for the Denial of Outdoor Exercise. For the reasons stated above in regard to plaintiff’s motion for partial summary judgment,
defendants’ motion is denied. Genuine issues of material fact exist as to whether the deprivation was sufficiently serious and whether the defendants acted intentionally or with deliberate indifference. Wilson, 501 U.S. at 298-99.
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7. Plaintiff’s ADA and Rehabilitation Act Claims.2 The ADA prohibits discrimination by public entities on the basis of disability. The
Rehabilitation Act prohibits such discrimination by recipients of federal funding. To state a claim under the ADA (and the Rehabilitation Act) a “plaintiff must allege that: (1) he is a qualified individual with a disability, (2) who was excluded from participation in or denied the benefits of a public entity’s services, programs, or activities, and (3) such exclusion, denial of benefits, or discrimination was by reason of a disability.” Robertson v. Las Animas County Sheriff’s Dep’t, 500 F.3d 1185, 1193 (10th Cir. 2007).
Plaintiff alleges, and it is not disputed for present purposes, that he suffers from a mental impairment that rises to the level of a disability. He has not received the benefit of completion of the QLLP. He contends that this is because of CDOC’s refusal to provide reasonable accommodation in the form of necessary medication and treatment. The ADA and the Rehabilitation Act do not provide a private right of action for substandard medical care. Fitzgerald v. Corrections Corp. of America, 403 F.3d 1134, 1144 (10th Cir. 2005). In other words, these statutes do not create a federal remedy for medical malpractice. However, that is not the gist of plaintiff’s claim. Rather, he argues that he was unable successfully to complete the QLLP because of his mental impairment and that, despite doctors’ prescription of drugs that would have treated the mental impairment and would have enabled him to progress through the program, CDOC prevented him from obtaining the drugs. Defendants argue that he has been fully accommodated, citing Dr. Lish’s affidavit [#48-2] at ¶50. Dr. Lish states, in conclusory language perhaps drafted by others, that “Mr. Anderson has received appropriate, timely treatment by his treating clinicians and treating psychiatrists while he has been incarcerated with
2 “The Rehabilitation Act is materially identical to and the model for the ADA,” the elements are the same except that the Rehabilitation Act requires that defendant receive federal funds. Crawford v. Indiana Dep’t of Corrections, 115 F.3d 481, 483 (7th Cir. 1997).
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the CDOC. Ibid. Plaintiff responds by citing, among other things, the affidavit of Raymond Patterson, M.D., who states that Mr. Anderson has not received adequate treatment. This fact dispute is sufficient to deny summary resolution of the issue without the need to look further.
C. Plaintiff’s Motion to Reopen Discovery for a Limited Purpose [#65]. Plaintiff wishes to reopen discovery to depose Dr. Erin Lenocker, someone who has had “interactions” with Mr. Anderson and is listed as a witness by defendants, and Dr. Vicki Tuakoi, Mr. Anderson’s new mental health provider. 1. Deposition of Dr. Lenocker. Dr. Lenocker was not identified in defendants’ initial disclosures as a person with knowledge. However, she was disclosed during the course of discovery when defendants supplemented their initial disclosures with an incident report on which plaintiff relied in taking the deposition of Dr. Lampela. Defendants also relied on the incident report, written by Dr. Lenocker, in their Motion for Summary Judgment. Counsel states that Dr. Lenocker has been listed on defendants’ “may call” list, and because counsel does not know what she will say, plaintiff is prejudiced to the point that a deposition should be permitted or the witness should be stricken. It is disappointing to the Court that counsel have not been able or willing to resolve this relatively minor dispute by agreement. In any event, I do not agree with the premise that just because a lawyer does not know precisely what a potential witness will say, a deposition is necessarily critical. That kind of thinking is one thing that has contributed to the high if not outrageous cost of civil litigation in the modern era. It does not appear to the Court that Dr. Lenocker is a major player in this drama. It does appear that plaintiff’s counsel already know a fair amount about where she fits into it. Yes, defendants probably should have listed her in its
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disclosures. Nevertheless, we are well past the discovery cutoff, trial is approaching, and it is time for the lawyers to devote their attention to finding the forest in the vast expanse of trees that have been developed and written about in the various motions. The request to reopen discovery for a deposition of Dr. Lenocker is denied. The Court orders that if defendants elect to call Dr. Lenocker as a witness, they should make her available to one of the plaintiff’s lawyers for a brief interview “in the hall” before she is called.
2. Deposition of Dr. Tuakoi. Plaintiff argues and defendant does not dispute that Mr. Anderson’s mental health
treatment has changed at least somewhat since the close of discovery. Although Dr. Tuakoi does not appear on either party’s witness list, she apparently is Mr. Anderson’s current mental health provider and might be in the best position to provide an update. This information might be particularly relevant to plaintiff’s request for injunctive relief. Plaintiff’s attorneys state that they only recently learned of Dr. Tuakoi’s involvement through defendants’ supplementation of plaintiff’s mental health records. Defendants respond that the request to depose Dr. Tuakoi was made six months after Mr. Anderson himself was being treated by her. However, I am not sure Mr. Anderson is a reliable source of current treatment information for his attorneys.
Defendants have not shown that they would be prejudiced beyond the obvious time and expense that one more deposition would require. In the circumstances the Court orders that defendants make Dr. Tuakoi available for a deposition limited to one hour, exclusive of any cross examination by defense counsel. The lawyers should exercise their best efforts to pick a time and place that accommodate Dr. Tuakoi’s schedule. The deposition may be taken by telephone if both parties agree.
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ORDER. 1. Plaintiff’s motion for partial summary judgment [Doc. # 47] is DENIED. 2. Defendants’ motion for summary judgment [Doc. # 48] is GRANTED IN PART (as
to denial of Strattera in 2004) AND DENIED IN PART (in all other respects). 3. Plaintiff’s motion to reopen discovery [Doc. #65] is GRANTED IN PART (regarding
a one-hour deposition of Dr. Tuakoi) AND DENIED IN PART (regarding the request to depose Dr. Lenocker). 4. The Court does not address plaintiff’s motion in limine concerning the admissibility of portions of depositions of defendants’ employees and experts [#77]. However, the Court directs counsel to confer again, before the trial preparation conference, concerning these designations, bearing in mind (1) that the Court expects counsel reasonably to accommodate reasonable requests of opposing counsel, but (2) the Court generally prefers live testimony to deposition transcripts. DATED this 26th day of March, 2012.
BY THE COURT:
___________________________________ R. Brooke Jackson United States District Judge
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 Case 1:10-cv-01005-RBJ-KMT Document 1 Filed 05/03/10 USDC Colorado Page 1 of 40
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. TROY ANDERSON,
Plaintiff, v. STATE OF COLORADO, DEPARTMENT OF CORRECTIONS, SUSAN JONES, in her official capacity as warden of Colorado State Penitentiary, and ARISTEDES W. ZAVARAS, in his official capacity as Executive Director of the Colorado
Department of Corrections, Defendants.
COMPLAINT
Plaintiff Troy Anderson, incarcerated in the Colorado State Penitentiary in Cañon City, Colorado, submits this complaint for violations of his rights under the Eighth and Fourteenth Amendments to the United States Constitution, the Americans with Disabilities Act, and the Rehabilitation Act.
PARTIES 1. Plaintiff TROY ANDERSON is, and was at all times relevant herein, a citizen of the United States. Mr. Anderson has been a prisoner confined in the Colorado Department of Corrections since May 25, 2000. Mr. Anderson suffers from severe mental illness that
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substantially limits several of his major life activities, including, but not limited to, thinking, learning, concentrating, and interacting with others. Mr. Anderson also has a record of such impairments and is regarded by Defendants as having such impairments. 2. Defendant COLORADO DEPARTMENT OF CORRECTIONS (―CDOC‖) is a department of the State of Colorado. The department is responsible for all inmates in the state’s prison population. 3. Defendant SUSAN JONES is the Warden of Colorado State Penitentiary (―CSP‖) and as such, is responsible for the custody and care of Mr. Anderson, and all prisoners in CSP. She oversees all employees at CSP, and has authority for the establishment and implementation of all policies and procedures at the institution. 4. Defendant ARISTEDES W. ZAVARAS is the Executive Director of CDOC and as such, is responsible for the custody and care of Mr. Anderson and all prisoners in CDOC. He oversees all employees in CDOC, and has authority to establish, alter, and implement all policies and procedures within CDOC.
JURISDICTION AND VENUE 5. This Court possesses subject matter jurisdiction over Plaintiff’s claims pursuant to 28 U.S.C. §§ 1331 and 1343. 6. Venue of this action is proper in the District of Colorado under 28 U.S.C. § 1391(b).
NATURE OF THE CASE 7. Defendants are excluding Mr. Anderson from programs and activities, denying him privileges afforded nondisabled prisoners, and otherwise discriminating against him based on conduct (more accurately, Defendants’ perception of the possibility of conduct) that is a direct
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result of his disability and/or based on Defendants’ perception of him as disabled and/or his history of disability, while at the same time denying him access to the diagnosis and treatment that would permit him to control that conduct. Among the programs and activities to which he is being denied access are those that would permit him to progress out of administrative segregation and reduce the length of his sentence. Defendants’ discrimination thus has the effect of isolating and segregating him within the prison and prolonging his sentence. In the alternative, to the extent that Defendants are punishing him for behavior – or their perceived possibility of behavior – that is the result of his disability, he is entitled to the reasonable accommodation of conditions. 8. Ever since he was a young child, Mr. Anderson has suffered from a severe mental disability – likely caused by an organic brain syndrome – preventing him from performing major life activities, such as learning and interacting with others and causing him to have mood swings, severe depression and bouts of impulsive behavior. Mr. Anderson’s mental health history demonstrates that he cannot function properly absent proper treatment and accommodations. Even though Defendants are aware of his long history of mental health concerns, for nearly a decade they have failed to provide him adequate mental health care and have discriminated against Mr. Anderson because of his disability. 9. Even when Defendants’ own doctors have prescribed medications that they believed necessary to treat Mr. Anderson’s mental conditions, Defendants have repeatedly refused to provide such medication. Mr. Anderson was never informed of why he could not receive these ordered medications, and why he is denied access to these and other medications most likely to address his mental health needs.
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10. Furthermore, the failure to provide adequate treatment has resulted in further discrimination, as Mr. Anderson has repeatedly been denied the ability to progress out of segregation, based on behavior that is the direct result of his disability. He also was denied access to Offenders with Mental Illness—a program designed for inmates with mental illnesses. This denial was specifically because of the manifestations of his mental disability, behaviors that have not been appropriately addressed. Accordingly, Mr. Anderson seeks to have his mental health needs diagnosed and treated appropriately with the proper medication. 11. Defendants – who have already held Mr. Anderson in solitary confinement for nearly a decade – continue to retain him there indefinitely. While Mr. Anderson does not have a life sentence, his retention at CSP essentially ensures that he will die in prison. If he were allowed to earn his way out of CSP administrative segregation he would be eligible for good time credits, which could greatly reduce his sentence. But, as a matter of policy, CSP prisoners are ineligible for these credits, even with good behavior. 12. Instead of providing treatment to address these behaviors and allow Mr. Anderson to progress out of segregation, Defendants continue to subject Mr. Anderson to punitive measures. Defendants assert that their punitive policies, for example limiting prisoners to owning only two books, are an incentive for prisoners to behave. Yet, when the behavior (or perceived possibility of behavior) is a result of a mental health condition, these intentionally restrictive policies fail to provide any meaningful incentive, or further a legitimate penological goal. Rather, they merely punish Mr. Anderson for his mental illness. 13. Among the punitive measures leveled against Mr. Anderson, Defendants have a policy to never allow him – or any other inmate at Colorado’s ―supermax‖ – outside. Accordingly, Mr.
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Anderson has gone nearly a decade without seeing or feeling the sun. His only recreation takes place in the ―day hall,‖ an indoor room with a floor, ceiling, and four walls. The ―day hall‖ is not outside, nor does it allow even a view of the sun. Mr. Anderson has access to this ―day hall‖ merely five hours a week, during which time he also must shower. Furthermore, time in the ―day hall‖ is not guaranteed and is frequently cancelled during prison lockdowns. Although Defendants are aware that many CSP prisoners, including Mr. Anderson, do not have access to the outside for years or decades, they have been deliberately indifferent to this substantial mental and physical health risk. Defendants have simply ignored the detrimental health effects a person experiences when he is not allowed time outdoors in the sun and fresh air. Mr. Anderson seeks to have this inhumane form of punishment ended, and to be able to regularly feel the sun and wind on his skin. 14. CDOC continues to hold Mr. Anderson in the solitary conditions at CSP through a monthly review process that is entirely arbitrary and insufficient. Under the current review system, if an inmate receives a ―chron‖ he cannot leave solitary confinement. A ―chron‖ is a note of negative or positive behavior entered into the prisoner’s record at the discretion of prison personnel, which is used to determine a prisoner’s security classification. However, the issuance of chrons is arbitrary; a guard can enter one for any behavior, including small, subjective infractions such as ―being non-responsive.‖ Prisoners have no notice of chrons, cannot dispute their issuance, and there is no meaningful way for inmates to challenge the chrons after their issuance, as there is with formal infractions. Yet, even absent these protections, the chrons have as much impact on a prisoner’s review as formal disciplinary infractions, which are given for more serious prisoner misconduct only after a disciplinary hearing process. Furthermore, the
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prison uses these chrons in violation of their own operational memorandum. Mr. Anderson seeks to have this practice abolished and replaced with a system that recognizes a prisoner’s right to due process in determining his or her classification.
FACTS A. Mr. Anderson has a long history of mental health concerns and treatment. 15. Mr. Anderson was born on November 12, 1969. He was adopted as an infant by Darrell and Carol Anderson. 16. Mr. Anderson has had mental health issues throughout his life. According to his mother and father, Mr. Anderson has struggled with his emotions from the time he was a baby. Numerous reports have been written by mental health professionals to document the existence of Mr. Anderson’s mental illnesses and disabilities. 17. Mr. Anderson began treatment for his mental health issues starting at age five when his parents treated his bedwetting with imipramine, an antidepressant, and noticed positive behavioral side effects. 18. Over the years Mr. Anderson has been diagnosed and assessed with many mental health illnesses, including Attention Deficit Hyperactivity Disorder, Anti-Social Personality Disorder, Intermittent Explosive Disorder, bipolar disorder, cognitive disorder, a seizure disorder and polysubstance dependence. 19. According to Mr. Anderson and his parents, outside a proper therapeutic setting, he has never been able to control his emotions and anger, which has resulted in family dysfunction and Mr. Anderson being incarcerated for 23 of his 40 years.
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20. Throughout his childhood Mr. Anderson struggled with mental illness and suicidal ideations. In 1980, at age ten, Mr. Anderson took an automatic pistol from his father’s gun collection intending to commit suicide. 21. Shortly after this incident, Mr. Anderson wrote a note to his teacher indicating that he had bad feelings and sometimes wished he were dead. In response to this note, his parents had him admitted to the Mental Health Center of Boulder County (―MHCBC‖) under a ―crisis intake.‖ 22. At the MHCBC, Dr. Schmitt determined that even as a child, Mr. Anderson already had ―mood swings and strong guilt feelings around his aggressive and explosive urges.‖ 23. At MHCBC, Mr. Anderson also was evaluated by Dr. Larson who diagnosed Mr. Anderson with Attention Deficit Disorder (―ADD‖). 24. Dr. Larson ordered that Mr. Anderson’s imipramine be discontinued and ordered Mr. Anderson’s ADD be treated with Ritalin. At the time, Mr. Anderson’s parents noted a positive ―remarkable change‖ to their son’s behavior after his ADD was properly medicated. However, Mr. Anderson’s parents discontinued his medication after only a few months. 25. In 1983, Mr. Anderson ran away from home and threatened to kill himself. Mr. Anderson tried both family and individual therapy, but ultimately his parents sought assistance from mental health professionals at several facilities. During this time, he repeatedly tried to hurt himself, cutting himself on multiple occasions, at times severely enough to require stitches. On more than one occasion he ran away from the facility. 26. In 1984, Mr. Anderson was placed at the Boulder Psychiatric Institute (―BPI‖) as part of a plea agreement for several non-violent crimes.
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27. At BPI, Mr. Anderson was seen by Dr. Freedman in August of 1984. Dr. Freedman believed Mr. Anderson was probably psychotic and recommended treatment with antipsychotic medication. 28. While at BPI, Mr. Anderson received comprehensive behavior therapy along with recommended medications. During his time at BPI, staff noted that Mr. Anderson’s psychosis, rage, and violent acting out had significantly improved and that he had made ―considerable progress.‖ 29. When Mr. Anderson was released from BPI at the age of sixteen, he had a variety of diagnoses. Despite these conditions, his medications were discontinued upon release. 30. Without proper medication and treatment Mr. Anderson’s behavior deteriorated. In May 1987, a warrant was issued for Mr. Anderson’s arrest for aggravated armed robbery and theft. 31. Mr. Anderson was eventually arrested in California. While in jail in California, Mr. Anderson attempted suicide twice. In November 1987, Mr. Anderson was sent back to Colorado to the custody of CDOC. He was placed by court order at the Fort Logan Mental Health Center (―Fort Logan‖) for mental health testing. 32. As part of the court order, the judge required that Mr. Anderson be evaluated by a mental health professional. Dr. Eugene Schwartz evaluated Mr. Anderson. In Dr. Schwartz’s report to the court, he stated that Mr. Anderson was mentally ill and that a prison environment would be very likely to lead to Mr. Anderson becoming psychotic and suicidal. 33. After the court-ordered mental health evaluation, Mr. Anderson was discharged from Fort Logan in March 1988 and committed to the Mount View School (―Mount View‖) (now Mount
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View Youth Services Center) in the Closed Adolescent Treatment Center for a term of five years for aggravated robbery. 34. Within seven days of being transferred to Mount View, Mr. Anderson attempted suicide. 35. Mr. Anderson was later transferred into CDOC custody at Fremont Correctional Facility to serve the remainder of his sentence in an adult facility. In March of 1991, Mr. Anderson was transferred to Centennial Correctional Facility (―CCF‖). 36. Frustrated by not being properly diagnosed and treated throughout his life, Mr. Anderson started refusing mental health treatment and started acting out. 37. Following this gap in mental health care, Mr. Anderson’s behavior continued to worsen. He had many confrontations with other inmates and CDOC staff, write-ups from CDOC staff, an additional assault charge, and placement in administrative segregation in October 1993 at CSP for his behavior. 38. Based on his erratic behaviors and mental health concerns while incarcerated at CSP, Mr. Anderson was sent to San Carlos Correctional Facility (―SCCF‖), a CDOC facility for mentally ill prisoners, for evaluation in October 1996. However, Mr. Anderson did not receive the appropriate mental health treatment because he was returned shortly to CSP. 39. After being returned to CSP, Mr. Anderson did not participate in mental health services because of his frustration with CDOC and struggles with his mental health. 40. In October 1997, at age twenty-seven, Mr. Anderson was released from CSP. 41. For the next year, Mr. Anderson was incarcerated intermittently. He used illegal drugs to self-medicate his mental health issues, including methamphetamines, to which he became addicted.
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42. In December 1998, Mr. Anderson was arrested by Commerce City Police an attempted to escape arrest, but eventually surrendered. 43. In March 1999, Mr. Anderson again attempted to escape police captivity while being transported, but surrendered to police. 44. According to court documents, when asked for Mr. Anderson’s statement at the presentence interview for his convictions in 2000, Mr. Anderson responded, ―I wish I would have done more to get on medication so this wouldn’t have happened.‖ 45. On March 20, 2000, Mr. Anderson was convicted of charges related to menacing as well as attempted murder related to his escape attempts. 46. His mother testified at the trial that she wanted him to get the proper help and medications he has always needed throughout his life. 47. Adams County Judge Richter, in his recommendations for Mr. Anderson at his sentencing on March 20, 2000, advised CDOC that Mr. Anderson needed mental health services and recommended he be sent to SCCF to be evaluated and given such services as part of the sentence. B. Mr. Anderson has not received proper treatment, diagnoses and medication while at
CSP. 48. CDOC has been on notice of Mr. Anderson’s mental health care needs from the beginning of his first incarceration in 1991 through today. 49. Mr. Anderson’s extensive mental health concerns are documented in CDOC’s own records, as well as records provided to them from other mental health institutions, providers and court documents. These records establish his mental health disabilities and his need for on-going mental health diagnosis, treatment, and proper medication. In addition, since his incarceration in
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2000, Mr. Anderson has continually asked for help, participated in, and advocated for the mental health services he needs. 50. Following sentencing for his March 2000 convictions, Mr. Anderson was placed directly into administration segregation at Denver Reception and Diagnostic Center (―DRDC‖). Shortly thereafter, Mr. Anderson was moved from DRDC to administrative segregation at CSP. 51. After a few months at CSP, Defendants moved Mr. Anderson to SCCF to be treated for his mental health issues in October 2001. 52. While at SCCF, Mr. Anderson worked with mental health staff. Mr. Anderson was noticeably less angry, irritable and combative while at SCCF where he was receiving treatment. 53. While at SCCF Mr. Anderson’s medications were adjusted when medical staff determined that some of his prescriptions had side effects that made him more unstable and combative. Defendants acknowledged that Mr. Anderson’s behavior had been impacted by these prescriptions. 54. After only one month of promising treatment at SCCF, CDOC transferred Mr. Anderson back to CSP. 55. This move occurred against the wishes of his therapists and doctors at SCCF, who believed that SCCF was the best placement to address Mr. Anderson’s mental illnesses. 56. In his brief time at SCCF in 2001, Mr. Anderson was initially assessed as having Intermittent Explosive Disorder (―IED‖) and Anti-Social Personality Disorder (―ASPD‖). However, because CDOC allowed Mr. Anderson to stay at SCCF for only a short time, additional necessary testing was not completed.
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57. For the past decade, since his return from SCCF, Mr. Anderson has been housed at CSP and has not been provided proper mental health care. Despite requests and recommendations from his therapists at CSP for neurological testing and other diagnostic tests, CDOC failed to take steps to accurately determine his mental health needs. 58. After his return to CSP in 2001, Mr. Anderson slipped into a depression. For the first few months, he did not actively participate in mental health treatment, including taking medication. However, recognizing he needed help, he soon began seeking treatment. 59. Staff at CSP disregarded the work done by mental health professionals at SCCF and prescribed the same medications that had given him the side effect of being combative, and that had been determined to be a cause of many problems for Mr. Anderson. Mr. Anderson realized what these medications would do to him from his treatment at SCCF and refused to take them. 60. Mental health staff did not employ the standard mental health practice of trying Mr. Anderson on a variety of mental health medications, taking note of the efficacy of each, specifically to determine what would work for him. 61. Upset with the inadequate treatment he was receiving, Mr. Anderson went on a hunger strike in November of 2000, in an attempt to bring attention to the conditions and unfair policies facing prisoners at CSP. The hunger strike was specifically focused on the lack of treatment for himself and other individuals with mental health disabilities. He remained on his hunger strike for two weeks and lost over ten pounds. 62. During his time at CSP, Defendants have failed to provide Mr. Anderson with adequate mental health treatment. At times, Mr. Anderson did not receive any mental health treatment.
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Mr. Anderson repeatedly requested additional mental health care, even voicing his concern about the inadequacy of his care to the warden. 63. In April of 2004, Dr. Steele administered to Mr. Anderson an Adult Attention Deficit Hyperactivity Disorder (―ADHD‖) test and evaluated him as having ―significant‖ symptoms in 17 out of 18 factors. CSP mental health staff has acknowledged that this test indicates Mr. Anderson suffers from severe adult ADHD. 64. Stimulant treatment is common for adult ADHD. The only non-stimulant medication used for adult ADHD that is generally accepted by the medical community for adults is Strattera. 65. According to the Colorado Department of Corrections Formulary regulations no stimulant medications are authorized unless an inmate is granted an exception at the request of his doctor. 66. Defendants’ psychiatrist prescribed Mr. Anderson Wellbutrin, a stimulant, and Strattera, the stimulant alternative, to treat his ADHD. However, Defendants have refused to provide Mr. Anderson either of these medications or any other stimulant equivalent that would work to treat his ADHD. 67. Defendants have recognized Mr. Anderson’s mental disabilities, including ADHD and other diagnoses. 68. Despite recognizing his severe mental illness, Defendants continually fail to treat Mr. Anderson’s mental illnesses with appropriate medication. 69. Mr. Anderson’s psychiatric medications have been mismanaged and, at times, used inappropriately to punish Mr. Anderson by CSP staff. In one instance, CSP assigned a physician’s assistant, Travis Waters, to oversee Mr. Anderson’s psychiatric medications rather
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than a psychiatrist. After a disagreement between Mr. Anderson and the Mr. Waters about what medications were appropriate, Mr. Anderson refused further meetings with him. Mr. Anderson did so because he did not believe Mr. Waters had his best interest in mind. 70. Rather than trying to resolve this issue by further discussion or consideration of Mr. Anderson’s concerns, Mr. Waters retaliated against Mr. Anderson by abruptly discontinuing his prescription of the drug Effexor, which he was receiving for anxiety in February 2007. As a result, Mr. Anderson experienced extreme symptoms, including nausea, vomiting, muscle cramps, severe headaches and dizziness. 71. The manufacturer of Effexor informs providers and patients that discontinuation of the drug can cause the appearance of new symptoms, including: agitation, anorexia, anxiety, confusion, impaired coordination and balance, diarrhea, dizziness, dry mouth, dysphoric moods, nightmares, fatigue, flu-like symptoms, headaches, hypomania, insomnia, nausea, nervousness, sweating, tremors, vertigo, vomiting and more. The manufacturer recommends not taking anyone off the drug without gradually lowering the dosage. 72. Defendants have continually failed to provide necessary testing and treatment to Mr. Anderson. 73. CDOC psychiatrist Dr. Peggy Steele noted on September 1, 2006 that Mr. Anderson continues to be diagnosed with ADHD and Cognitive Disorder NOS. She said he seems to ―display traits‖ of Borderline Personality Disorder, and Antisocial Personality Disorder with Narcissistic features. She also mentions IED is congruent with much of Mr. Anderson’s erratic behavior and mania throughout his life.
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74. Defendants have been on notice that Mr. Anderson needs further testing to determine his mental health care diagnoses and needs. CSP’s medical personnel have recommended Mr. Anderson have assessments for neurological issues. These and other standard diagnostic tests have never been performed. 75. Despite knowledge of Mr. Anderson’s severe conditions, at times CSP fails to provide regular visits with a therapist. Mr. Anderson recently went over 12 weeks, from December 2009 to February 2010, and March 2010 until late April 2010, without seeing a mental health professional. Defendants, including Warden Jones, were aware of this lapse as Mr. Anderson has asked repeatedly when he would get to speak to a provider. 76. On September 25, 2009, Mr. Anderson submitted a request for accommodations for his mental disabilities. Mr. Anderson’s requests for all accommodations were denied because of a determination that he is not disabled, saying ―we have determined you do not have a mental health disability.‖ 77. This decision was counter to Mr. Anderson’s long mental health history and CSP’s continual consideration of him to be placed in a program specifically designed for individuals with mental illness. 78. This response was given to Mr. Anderson without the utilization of an interactive process by CDOC personnel. At all times, Mr. Anderson made himself available and was willing to participate in the interactive process.
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C. Without proper treatment and/or accommodation Mr. Anderson cannot qualify for any programs that permit him to earn his way out of administrative segregation at CSP.
79. Mr. Anderson continues to seek to progress to a lower security level in conjunction with working on his mental illness. According to CDOC regulations, CSP is a maximum security prison that all prisoners can progress out of with good behavior. Currently, Mr. Anderson is not able to participate in any step-down programs because of behavior that is a direct result of his disabilities. Accordingly, Mr. Anderson remains in maximum administrative segregation indefinitely because of the lack of treatment and accommodation for his mental health needs. 80. To be moved from to a lower security prison Mr. Anderson must maintain positive behavior according to the Colorado Department of Corrections. This requirement does not include any consideration of Mr. Anderson’s mental health needs, including assessments of ADHD, IED, Borderline Personality Disorder, and ASPD, which result in loss of control over behavior. 81. One program in which Mr. Anderson seeks to be able to participate is the Offenders with Mental Illness (―OMI‖) program. Mr. Anderson satisfies the listed criteria to qualify for this program. 82. In October 2006, Mr. Anderson was approved though several steps of the intake process for the program, but ultimately was denied participation. The reason given to Mr. Anderson for his denial was because of concerns with his ―possible negative behavior.‖ Without appropriate treatment and accommodations from Defendants, Mr. Anderson is not being permitted to participate in the OMI program.
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83. After being denied entrance into the OMI program, Mr. Anderson grieved the denial. In response to his grievance, CSP notified Mr. Anderson that his participation in the OMI program posed significant security concerns because of his anger issues. However, Mr. Anderson has not had any disciplinary infractions or convictions in CSP since 2005, when he received an incident report for giving envelopes to another prisoner. 84. Mr. Anderson’s behaviors are manifestations of biological impairments beyond his control. Defendants have punished Mr. Anderson for these disabilities, and his continued confinement in administrative segregation – with all attendant restrictions – is a direct result of Defendants’ discrimination on the basis of Mr. Anderson’s disabilities. D. The formulary board denied the psychiatrists’ prescriptions, refusing to provide
necessary treatment to Mr. Anderson. 85. Mr. Anderson has never received any form of discipline for improper use, sale, or bartering of his medications. 86. CDOC staff members are aware that Mr. Anderson’s mood swings and anger are a part of his mental illness. In one report, his CSP therapist, Mr. Arave wrote, ―Definitely, he could benefit from stabilizing psych meds. He has a history of being addicted to his anger as the primary mode of coping and dealing with frustration.‖ 87. CSP medical personnel are able to freely prescribe and dispense medications that have been approved by CDOC Drug Formulary. This formulary includes medications for treatment of mental illnesses. Any inmate is eligible to be prescribed and receive medication from the prison. 88. CSP medical personnel who believe patients require medications that have not been approved by the statewide formulary board can request an exception that may be granted at the
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discretion of the CSP formulary review board. If the exception request is denied, that denial may be appealed to a state formulary review board that makes the final determination. 89. Only the prescribing physician may request a formulary exception, and only the prescribing physician may appeal a formulary decision. 90. CDOC Drug Formulary precludes individuals with ADHD, such as Mr. Anderson, from receiving standard treatments and medications. According to CSP staff, there are no stimulants on CDOC Formulary. Stimulants are the most common prescription treatment for adult ADHD. 91. CDOC’s refusal to prescribe stimulants for individuals with adult ADHD is discriminatory. Adults with ADHD need proper medical treatment, including drugs, as prescribed by the doctors, so that they can manage their behaviors and earn privileges and progress to lower classification levels. 92. The formulary board at CSP is comprised of two individuals, Dr. Koprivinikar and Mr. Travis Waters. Mr. Waters is a Physician’s Assistant and not a medical doctor or psychiatrist. Mr. Waters is also the individual who abruptly took Mr. Anderson off Effexor without appropriately decreasing the dosage, causing him significant pain. Mr. Waters is a biased decision-maker when it comes to reviewing requests involving Mr. Anderson. His presence on the formulary board prevents Mr. Anderson from receiving a fair consideration for any exception request. 93. Mr. Anderson was prescribed Strattera, a non-stimulant treatment for adult ADHD, on July 15, 2004, by his psychiatrist at the time, Dr. Miller. Dr. Miller made a request to the formulary board for this medication.
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94. Mr. Anderson was denied this medication by the formulary board shortly thereafter. Again, no reason for the denial has been given to Mr. Anderson. 95. Dr. Miller told Mr. Anderson he appealed the decision by the CSP formulary board denying Strattera for Mr. Anderson to the state formulary, which also denied the request. Again, Mr. Anderson was given no explanation for this denial. 96. In April of 2007, Mr. Anderson’s psychiatrist and therapist, Dr. Westcott and Dr. Steele, determined that Wellbutrin, a stimulant, was necessary for proper treatment of Mr. Anderson’s adult ADHD. They made the request to the CSP formulary board for Mr. Anderson to receive it. 97. The CSP formulary rejected this request from Mr. Anderson’s treating mental health professionals. No reason was given for this rejection. 98. Mr. Anderson’s therapist and psychiatrist, Dr. Steele and Dr. Westcott, appealed the denial of the Wellbutrin to the state formulary board. The state formulary board also denied this requested medication. Again, no reasons were provided for this rejection. 99. Mr. Anderson has no personal recourse to appeal the decision by the formulary board rejecting his psychiatrist and therapist’s request he receive Wellbutrin or Strattera. 100. However, Mr. Anderson grieved the decision about the Wellbutrin, as well as the formulary process in general. CSP has responded to his grievances, telling Mr. Anderson that this is not a grievable issue for CDOC inmates, even though they are the individuals who need the medications. 101. The formulary board has never requested any information, or allowed any statement, from Mr. Anderson personally before denying requests for medications made by his physicians.
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E. The conditions Mr. Anderson has endured for nearly a decade at CSP implicate a protected liberty interest.
102. Mr. Anderson’s placement in administrative segregation is indefinite. He has endured the conditions of administrative segregation at CSP since November 2000, when he returned from SCCF – a time period of over 3,350 days. 103. Everyone housed in CSP is held in solitary confinement. 104. Mr. Anderson is allowed no human contact at CSP. Mr. Anderson is not even allowed to hug his family and loved ones when they come to visit. 105. Mr. Anderson has limited ability to communicate with other inmates. He must yell through a slot in his door. He never sees any other inmate in person and never has face-to-face interactions with any person other than CDOC staff. 106. Mr. Anderson’s cell size is approximately 12’ x 8’ in size, approximately 96 square feet or the size of a small bathroom. 107. Within his cell he has a concrete bed, a metal desk and a metal stool, which are attached to the floor, and three shelves. He also has a metal toilet and sink. All furniture in his cell is made of metal or concrete. 108. Mr. Anderson’s personal belongings are required to fit inside two boxes. A single locker box is allowed for personal items and a legal cardboard box for legal documents is allowed. No personal effects or photos are allowed to be displayed. Accordingly, he cannot even have a picture of his family visible on the wall or the shelf. 109. Mr. Anderson has a small window that is approximately five inches wide and two feet tall. It is permanently sealed and does not allow air in.
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110. The noise in Mr. Anderson’s cell is constant, because of the concrete and metal in his room that amplify the sound. Anytime inmates are speaking, everyone in the unit hears noise from the voices and the resulting echoes. 111. Mr. Anderson is forced to eat every single meal in his cell alone within arm’s reach of his toilet. 112. Mr. Anderson’s hands are shackled behind his back and at his legs anytime he leaves his cell. 113. Even when seeing a doctor for blood-draws in the clinic, Mr. Anderson remains shackled. One arm is taken from a shackle and attached to a metal hospital bed and the other is attached to an iron rod so the arm cannot bend. In that position, CDOC doctors do their evaluations and tests on Mr. Anderson. 114. Mr. Anderson only is allowed two phone calls a month for twenty minutes. All of his non-legal calls are monitored. 115. Mr. Anderson is only allowed to own two personal books at any time, which include religious texts. These books can only be exchanged out once a year. 116. The only way for Mr. Anderson to access legal documents is for him to tell CSP staff exactly the source or case he wants. He has no way to perform his own research. 117. CSP only provides the classes inmates must take to progress out of administrative segregation. These classes are broadcast through the television and have no personal instruction component. The teachers only collect and grade assignments. There is no additional programming or education for inmates to participate in to improve their education or vocational skills to prepare them for participation in society.
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118. Mr. Anderson has seen each of the ―classes‖ multiple times. 119. Mr. Anderson is allowed to own only a limited amount of clothing. Even though Mr. Anderson can send his clothes regularly to be washed at CSP, when the clothes return they are still dirty. Mr. Anderson must rewash his clothes in the shower after being ―laundered‖ by CSP to get them clean. 120. Mr. Anderson’s access to canteen items, including food and toiletries is extremely limited. Mr. Anderson does not have access to healthier foods like tuna, peanut butter or soup, as prisoners in general population do. 121. Mr. Anderson is also not allowed to purchase the same personal items that inmates can in general population such as radios, fans, sweatpants and tennis shoes. 122. Mr. Anderson is allowed, at most, one hour a day, five days a week out of his cell to be used to shower and exercise in the indoor recreation room or ―day hall‖ that provides. 123. Furthermore, during prison lockdowns, Mr. Anderson cannot leave his cell at all. 124. At times, Mr. Anderson goes days without leaving his cell. 125. Prison guards at CSP use Oleoresin Capsicum Spray (―O.C. Spray‖) during involuntary inmate cell extractions. O.C. Spray is a chemical agent that causes tears, pain, and temporary blindness. 126. Because of his cooperation, Mr. Anderson has never been the subject of an O.C. Spray cell extraction. However, when other inmates are extracted using the O.C. Spray, Mr. Anderson is forced to endure the tears, pain, and temporary blindness caused by indirect exposure to O.C. Spray throughout the unit.
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127. Mr. Anderson has grieved the issue of his exposure to O.C. spray. In their response, CSP staff acknowledged that prisoners other than those who are the subject of the cell extractions are exposed to the O.C. Spray, but this process is still used and no protective action for the harms it causes ―bystander‖ prisoners, such as masks, has been taken. 128. Specifically, Mr. Anderson’s request to not be exposed to the O.C. Spray during other inmates’ cell extractions was denied because it would not be ―a proper use of taxpayer money,‖ according to a grievance response from CSP. While CSP ―regrets‖ that other individuals are harmed by this practice, they specifically find their policy and use of O.C. Spray to be ―appropriate.‖ 129. While in administrative segregation, neither Mr. Anderson, nor any individual in CSP, is eligible to earn good time or earned time, which would reduce his sentence and shorten the time before he becomes parole eligible. 130. Mr. Anderson’s ineligibility for earned time is based solely on his placement in administrative segregation and does not reflect his behavior, which has been consistently positive since 2005, with no write-ups. Mr. Anderson’s incarceration is being prolonged based on Defendants’ perception of possible behavior that is the result of his disability. 131. Mr. Anderson is forced to endure significant hardships atypical of individuals placed in general population because of his classification and placement in CSP. F. CSP refuses to provide outdoor exercise access. 132. Mr. Anderson has never been outside in the sun in the ten years he since he arrived at Colorado State Penitentiary.
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133. Mr. Anderson only receives exercise time in an indoor cell, known as the ―day hall.‖ This indoor cell has metal grates on the windows that are about five inches wide and three feet long. A small amount of air passes through the holes in these grates. The cell is approximately eight feet by twelve feet in size. There is one pull-up bar in the cell for exercise purposes. 134. The indoor cell provided for recreation does not have any windows that allow direct sunlight. 135. Accordingly, for nearly a decade, Mr. Anderson has not felt or had sunlight hit his skin. 136. Because of this, Mr. Anderson is not receiving any physical benefits of sunshine, and may suffer from Vitamin D deficiency as a result. 137. At most, Mr. Anderson is allowed five hours a week of out-of-cell time, which includes time for showers in addition to his recreation. 138. Often Mr. Anderson’s recreation time is cancelled because CSP has been put in a ―lockdown‖ or for other reasons. 139. CSP uses these ―lockdowns‖ for different reasons, including when there is an emergency at the prison, when there is a disturbance at the prison, and when there is a shortage of staff at the prison. G. Defendants’ arbitrary review process keeps Mr. Anderson in administrative
segregation. 140. Although all inmates at CSP are housed in administrative segregation, according to CDOC policies, all inmates at CSP qualify to earn privileges, including stepping down to a lower security prison. 141. The Quality of Life Level Program (―QLLP‖) is the program CSP uses to determine an inmate’s privileges and ability to enter a step down program.
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142. All inmates start at level one, which is the most restrictive level; individuals can progress to level five, which is the least restrictive. 143. As the levels increase so do the corresponding privileges, including benefits such as an increased number of visits and phone calls. 144. At level one, prisoners can make one phone call and can have one visitor per month. In general, a prisoner will be held in level one for only a week. 145. At level two, inmates are allowed to have two visitors and make two phone calls a month. 146. At level three, inmates are allowed four visitors and four phone calls a month. 147. While in levels one through three, an inmate is not allowed contact with any other individuals. 148. After successful completion of level three, a prisoner is eligible to move into the Progressive Reintegration (―PRO‖) Unit. To participate in the PRO unit, prisoners are moved to a different institution, the Centennial Correctional Facility (―CCF‖). 149. In the PRO Unit, the individual starts at level four and can progress with good behavior through level five. 150. Each level in the PRO Unit provides more opportunities for prisoners to be out of their cell and work with other prisoners. Successful completion of the PRO Unit program makes an inmate eligible for placement into general population. 151. In order for Mr. Anderson, or anyone housed in CSP, to be eligible to move from administrative segregation and into the PRO Unit, he must maintain level three status for a minimum of three consecutive months.
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152. To move up to each level, a prisoner must be without any ―incidents‖ for ninety days (excepting level one, where the review is after seven days). 153. Mr. Anderson must track his own progress and request to be moved up a level when all criteria have been met, as Defendants frequently fail to keep accurate track of a prisoner’s status. Currently, Mr. Anderson is on QLLP level two. 154. Prisoners are not notified of the QLLP reviews, nor are they present at these reviews. 155. The prison may adjust an inmate’s QLLP level depending on whether the individual has had an ―incident‖ within the review period. An incident is generally when a prisoner is given a negative chron. 156. A chron is a notation of any behavior, positive or negative, exhibited by a prisoner. 157. Negative chrons can be entered for arbitrary behaviors such as ―complaining‖ or ―being non-responsive.‖ 158. Issuance of a chron is at the sole discretion of the prison staff. Chrons may be used to either prohibit an inmate from moving on to the next level, or as a basis for removing a level already earned by the inmate. 159. There is no mechanism for inmates to challenge the accuracy of a chron. 160. When a negative chron is given, the prisoner does not receive any notice of the chron, and does not have any means to rebut the alleged behavior, nor to challenge what is stated by the CSP staff. 161. The prisoner will usually not even be aware of the chron until his Administrative Classification Review (―Class Review‖). The Class Review is used to determine whether
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continued administrative segregation is appropriate for any inmate currently housed in administrative segregation. 162. The chrons are also supposed to be recorded on a log called the ―Chronlog.‖ 163. The last chron filed on Mr. Anderson’s Chronlog Report was dated December 5, 2005. 164. According to Mr. Anderson’s Class Review, however, he has received negative chrons on 09/04/2009, 06/04/2009, 05/23/2009, 04/06/2008, 08/30/2007, 05/05/2007, 05/07/2007, 02/23/2007, 02/28/2007, 12/17/2006, and 12/26/2005. 165. None of these were reported on Mr. Anderson’s Chronlog report. These chrons only appear on Mr. Anderson’s Class Reviews, the document used to determine Mr. Anderson’s retention in administrative segregation. 166. According to Mr. Anderson’s Class Review he has received negative chrons, and is being retained in administrative segregation, for incidents with no explanation other than ―complaining to staff‖ or ―bad attitude at count.‖ 167. CSP operational memoranda require information regarding behavior be limited to the ―review period.‖ Mr. Anderson’s Class Reviews are a review of the past 30 days. 168. Despite this requirement, Mr. Anderson’s Class Review dated March 2, 2009 refers to chrons received in 2007. Thus, a chron Mr. Anderson received 19 months earlier was used, at least in part, as the basis for retaining Mr. Anderson in administrative segregation during his March 2, 2009 Class Review. 169. Relying on chrons, in any capacity, to determine Mr. Anderson’s proper placement bases the process on an arbitrary decision, and prevents Mr. Anderson from receiving a meaningful review.
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170. Mr. Anderson is not notified when a chron has been issued. Unless Mr. Anderson requests the information from his case worker, he is not notified of a chron until his next Class Review. 171. After learning of a chron, Mr. Anderson is not afforded a hearing regarding the chron or allowed to question the guards issuing the chron before it is used against him in his Class Review. Mr. Anderson is not provided any opportunity to submit his own evidence that a chron has been given unfairly. 172. Mr. Anderson is also not given notice of the Class Review, and is not permitted to attend this meeting or provide any input regarding whether he will be retained in isolation. Accordingly, he does not participate in any of the regular reviews concerning his status in administrative segregation. 173. Mr. Anderson’s only opportunity to challenge a chron is through the prison’s grievance process. 174. The grievance process is CSP’s mandatory administrative procedure for dealing with prisoner complaints. A prisoner must submit a form, identifying the issue, to his caseworker who then forwards it to the person charged with dealing with issues of the nature addressed in the grievance. The grievance process has three steps that allow the prison response times of 25 days, 25 days, and 45 days respectively. 175. Having a chron expunged, via the grievance process, is only meaningful if Mr. Anderson remains chron-free during the grievance process. If a subsequent chron was received during the grievance process, CSP would be able to keep Mr. Anderson from moving to the next QLLP
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level on the basis of the new chron, regardless of whether the grieved chron is found to be a mistake and removed. 176. If the prison took the full time to answer each step of his grievances about a chron, Mr. Anderson would be 95 days chron-free; five days more than the three month requirement to move up a level, making the grieved chron a moot point. 177. Mr. Anderson has never heard of any instance where a chron was overturned or expunged from his or any other inmate’s records. 178. Mr. Anderson has not had a hearing for a violation of prison policies since May 12, 2005; however his QLLP and privileges have been adjusted based on chrons. 179. CDOC can use chrons at their discretion to hold individuals like Mr. Anderson in administration segregation for as long as they deem necessary. Earning privileges and access to step-down programs is a sham at CSP because the chron process allows prison officials to keep people in administration segregation indefinitely with no process for prisoners to appeal. 180. Because of chrons, and related failure to provide meaningful review regarding continued placement at CSP, Mr. Anderson will not be eligible for parole until 2041. If Mr. Anderson were not subject to such arbitrary processes and allowed to be in a general population facility, he could reduce the time necessary for parole by many years.
CAUSES OF ACTION FIRST CLAIM FOR RELIEF Against Defendants Susan Jones and Aristedes W. Zavaras The Classification and Review System, including the Use of Chrons, Violates Mr. Anderson’s right to Due Process under the Fourteenth Amendment. (42 U.S.C. § 1983 – Fourteenth Amendment Deprivation of Liberty Interest Without Due
Process of Law)
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181. Mr. Anderson incorporates herein by reference all other paragraphs of this complaint as if those allegations were set out explicitly herein. 182. Mr. Anderson has a liberty interest in being free from the extreme and indefinite solitary confinement he has been subjected to over the past decade. His continued confinement in such isolated and harsh conditions is an atypical and significant hardship, as compared to the ordinary incidents of prison life. 183. Under the Fourteenth Amendment to the United States Constitution, Mr. Anderson may not be deprived of a liberty interest without due process of law. 184. Defendants fail to provide any meaningful review process assessing why Mr. Anderson is held indefinitely in solitary confinement. 185. Defendants’ continued reliance on an arbitrary review system as a means to prevent Mr. Anderson from being placed in improved conditions fails to provide sufficient process to protect Mr. Anderson’s liberty interest. 186. Defendants’ reliance on negative chrons to keep Mr. Anderson in solitary confinement creates an arbitrary process that fails to provide Mr. Anderson sufficient process. 187. Defendants’ failure to provide sufficient process, including any notice, hearing or opportunity to rebut evidence regarding Mr. Anderson’s retention in isolation violates his right to due process.
SECOND CLAIM FOR RELIEF Against Defendants Susan Jones and Aristedes W. Zavaras’ The Medication Request and Review Procedures Violate Mr. Anderson’s right to Due Process
under the Fourteenth Amendment. (42 U.S.C. § 1983 – Fourteenth Amendment Deprivation of Liberty Interest Without Due
Process of Law)
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188. Mr. Anderson incorporates herein by reference all other paragraphs of this complaint as if those allegations were set out explicitly herein. 189. Under the Fourteenth Amendment to the United States Constitution, Mr. Anderson may not be deprived of a liberty interest without due process of law. 190. As a general matter, Defendants are required to provide necessary medical and mental health treatment for prisoners who are under their control. Providing adequate medical and mental health care includes providing medications that are necessary for treatment of an illness or condition. Prisoners in CDOC, and specifically in CSP, receive medications as ordered by their treating physicians. 191. Prisoners who require non-formulary medications suffer an atypical and significant hardship compared to other prisoners, as they are not permitted adequate and appropriate treatment for their recognized condition. They are not permitted this treatment even if the CSP physicians themselves order it. 192. Whenever a CSP physician prescribes a non-formulary medication, the prescription goes through a review process before the prisoner is permitted to receive the medication. This review process does not provide meaningful or sufficient procedural protections to ensure that necessary medications are not erroneously denied. 193. Neither the prisoner nor the physician is permitted to speak before this Board. The reasons for granting a prescription or denying it are not provided to the prisoner or the physician. 194. There is no written basis produced explaining how or why non-formulary requests should be permitted or denied, leaving open the possibility that the decision is arbitrary, or based on bias, discrimination, or prejudice.
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195. Defendants’ formulary procedures do not allow for inmates to challenge decisions rendered by the formulary review board. All appeals must come from physicians who may exercise their own discretion as to whether an appeal will be made. 196. Mr. Anderson was given no opportunity to appeal directly to the formulary review board and support his claim in violation of his right to due process.
THIRD CLAIM FOR RELIEF Against Defendants Susan Jones and Aristedes W. Zavaras Failure to provide adequate mental health treatment violated Mr. Anderson’s Right to be Free of Cruel and Unusual Punishment under the Eighth Amendment. (42 U.S.C. § 1983 – Eighth Amendment Violation of Plaintiff’s Right to be Free of Cruel and
Unusual Punishment) 197. Mr. Anderson incorporates herein by reference all other paragraphs of this complaint as if those allegations were set out explicitly herein. 198. The Eighth Amendment to the United States Constitution forbids cruel and unusual punishment. The Eighth Amendment prohibits deliberate indifference to serious medical needs of prisoners. 199. The Defendants have violated Mr. Anderson’s right to be free from cruel and unusual punishment by failing to provide Mr. Anderson with adequate mental health care, including but not limited to proper medication, access to prescribed medication, and by failure to properly test, diagnose, and treat Mr. Anderson. 200. Mr. Anderson has an obvious serious medical need. He has been diagnosed over his lifetime with serious mental health conditions that require treatment, including appropriate medications.
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201. Defendants are aware of Mr. Anderson’s serious medical need, as his prison medical file contains diagnoses, and documents the need for further testing and prescription medications that have not been provided. 202. Despite this knowledge, and even orders for treatment and medications, Defendants have acted with deliberate indifference to Mr. Anderson’s serious mental health condition. 203. Defendants’ refusal to treat Mr. Anderson’s mental health needs by not providing required testing, medications, and therapy, some of which were specifically ordered by CSP mental health staff, constitutes cruel and unusual punishment. 204. Defendants’ intentional denial and/or deliberate indifference to Mr. Anderson’s serious mental health conditions is documented in his mental health records at CSP. His condition impacts his behavior severely enough that his mental health condition is obvious even to nonmedical correctional staff. 205. Defendants’ refusal to treat Mr. Anderson’s mental health needs by providing diagnostic and neurological evaluations for a complete and accurate diagnosis of his mental health needs, as requested by CSP mental health staff, constitutes cruel and unusual punishment. 206. Defendants’ interference with Mr. Anderson’s mental health assessment has caused Mr. Anderson additional harm including, weight loss, headaches, anxiety, sleep disturbances, depression and other psychological problems.
FOURTH CLAIM FOR RELIEF Against Defendants Susan Jones and Aristedes W. Zavaras Denial of Outdoor Exercise Violates of Mr. Anderson’s right to be Free of Cruel and Unusual
Punishment under the Eighth Amendment. (42 U.S.C. § 1983 – Eighth Amendment Violation of Plaintiff’s Right to be Free of Cruel and
Unusual Punishment)
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207. Mr. Anderson incorporates herein by reference all other paragraphs of this complaint as if those allegations were set out explicitly herein. 208. The Eighth Amendment to the United States Constitution forbids cruel and unusual punishment. 209. Defendants have contained Mr. Anderson indoors without access to fresh air and sunlight for nearly ten years. 210. Defendants’ deliberate and intentional actions place Mr. Anderson’s physical and mental health at serious risk. 211. Even though Defendants are aware of this risk, as it has been ordered in other cases that such exercise is illegal, unconstitutional, and dangerous, Defendants have failed to improve their conditions, or provide Mr. Anderson – or any prisoner at CSP – access to sunlight or fresh air. 212. The denial of outdoor exercise also is an excessive and disproportionate punishment that constitutes cruel and unusual punishment.
FIFTH CLAIM FOR RELIEF Against all Defendants
Discrimination on the Basis of Mr. Anderson’s Disability in Violation of the Americans With Disabilities Act.
(42 U.S.C.S. § 12101 – Violation of ADA) 213. Mr. Anderson incorporates herein by reference all other paragraphs of this complaint as if those allegations were set out explicitly herein. 214. Mr. Anderson is an individual with a mental impairment, a record of such an impairment, and regarded as having such impairment within the meaning of 42 U.S.C. § 12102, as his serious mental illnesses constitute mental impairments that substantially limit him in several major life activities, including but not limited to learning, concentrating, thinking and interacting with
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others. These limitations on his life activities have had a profound effect on Mr. Anderson’s life as fully described above. 215. As an inmate in the custody of CDOC, Mr. Anderson is qualified for the programs, activities, aids, benefits, and services offered by CDOC. 216. Mr. Anderson, with or without reasonable modifications to rules, policies or practices, met and continues to meet the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by Defendants. Thus, Mr. Anderson is a ―qualified individual with disabilities‖ within the meaning of the ADA, 42 U.S.C. § 12131(2). 217. Defendants are public entities as that term is used in 42 U.S.C. § 12131. 218. ―[N]o 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. 219. Defendants have discriminated against Mr. Anderson on the basis of disability in violation of 42 U.S.C. § 12132 and its implementing regulations as more fully described above. 220. Such discrimination includes but is not limited to exclusion of Mr. Anderson from services and programs accorded to prisoners on the basis of his disability. Defendants have also failed to make reasonable accommodations and modifications to policies, practices, procedures for Mr. Anderson. 221. Defendants’ discrimination is intentional and/or represents deliberate indifference to the strong likelihood that pursuit of the actions and policies at issue in this Complaint would likely result in a violation of federally protected rights.
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222. Mr. Anderson has been injured and aggrieved by and will continue to be injured and aggrieved by Defendants’ discrimination.
SIXTH CLAIM FOR RELIEF Against Defendant CDOC
Discrimination on the Basis of Mr. Anderson’s Disability in Violation of the Rehabilitation Act. (29 U.S.C.S. § 794 – Violation of Rehabilitation Act)
223. Mr. Anderson incorporates herein by reference all other paragraphs of this complaint as if those allegations were set out explicitly herein. 224. ―No otherwise qualified individual with a disability in the United States, as defined in section 706(8) of this title, shall, solely by reason of her or his disability, 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. 225. Defendants receive and benefit from federal financial assistance as that term is used in 29 U.S.C. § 794 through the Prison Rape Elimination Act and other sources. 226. Mr. Anderson is an individual with a mental impairment, a record of such an impairment, and regarded as having such impairment within the meaning of 42 U.S.C. § 12102 (as incorporated into 29 U.S.C. § 705(b)(9)(B)), as his serious mental illnesses constitute mental impairments that substantially limit him in several major life activities, including but not limited to learning, concentrating, thinking and interacting with others. These limitations on his life activities have had a profound effect on Mr. Anderson’s life as fully described above. 227. As an inmate in the custody of CDOC, Mr. Anderson is qualified for the programs, activities, aids, benefits, and services offered by CDOC. 228. Mr. Anderson, with or without reasonable modifications to rules, policies or practices, met and continues to meet the essential eligibility requirements for the receipt of services or the
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participation in programs or activities provided by Defendants. Thus, Mr. Anderson is a ―qualified handicapped person‖ within the meaning of the Rehabilitation Act. See, e.g., 28 C.F.R. § 41.32(b). 229. Defendants have discriminated against Mr. Anderson on the basis of disability in violation of 29 U.S.C. § 794 and its implementing regulations as more fully described above. 230. Such discrimination includes but is not limited to exclusion of Mr. Anderson from services and programs accorded to prisoners on the basis of his disability. Defendants have also failed to make reasonable accommodations and modifications to policies, practices, procedures for Mr. Anderson. 231. Defendants’ discrimination is intentional and/or represents deliberate indifference to the strong likelihood that pursuit of the actions and policies at issue in this Complaint would likely result in a violation of federally protected rights.
PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests: A. A declaration that Mr. Anderson has been and is being deprived by Defendants of his
right to be free from cruel and unusual punishment in violation and contravention of the Eighth Amendment of the United States Constitution; B. A declaration that Mr. Anderson has been and is being deprived by Defendants of his right to due process in violation and contravention of the Fourteenth Amendment of the United States Constitution by not providing Mr. Anderson with a meaningful review of his continued placement in extreme conditions that result in an atypical and significant hardship;
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C. A declaration that Mr. Anderson has been and is being deprived by Defendants of his right to due process in violation and contravention of the Fourteenth Amendment of the United States Constitution by not providing meaningful review of the denial of necessary medical treatment through the formulary process;
D. A declaration that Mr. Anderson has been and is being deprived by Defendants of his right to be free of discrimination on the basis of disability under the Americans with Disabilities Act and Rehabilitation Act by Defendants exclusion and segregation on the basis of disability and refusal to make reasonable modifications to policies, practices and procedures necessary to avoid such discrimination;
E. An injunction requiring Defendants to comply with the Eighth Amendment and the Due Process Clause of the United State Constitution, the Americans with Disabilities Act, and the Rehabilitation Act, including but not limited to: 1. providing access to outdoor exercise that allows Mr. Anderson regular access to fresh air and sunlight, including time outside of the prison buildings; 2. providing adequate and meaningful review of Mr. Anderson's continued retention in extreme conditions, including ceasing to rely on the current chron system, and providing all procedural protections necessary to ensure Mr. Anderson is not erroneously placed or retained in administrative segregation generally or in any of the QLLP levels; 3. providing adequate process and procedures to ensure that Mr. Anderson is not erroneously deprived of necessary medications; 4. requiring proper diagnosis and treatment of Mr. Anderson's mental illness
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including all prescribed medications and therapy and requiring transfer out of administrative segregation to SCCF or another appropriate facility; 5. providing Mr. Anderson the proper medications to accommodate his mental health disabilities as deemed appropriate through further testing, including but not limited to prescribed medications not on the CDOC drug formulary; 6. placing Mr. Anderson in an appropriate step-down program, including providing him with individualized planning within the program to allow him to progress to a lower custody level that considers his mental disabilities; 7. modifying their administrative segregation privilege and incentive policies to prevent Defendants from punishing Mr. Anderson due to his disability; 8. awarding Mr. Anderson any earned or good time credits toward his sentence that he has been denied in violation of the law, and moving up his eligibility date for parole and release from prison accordingly; and 9. requiring Defendants to report to this Court for review of the adequacy of the programs, changes to procedures and responses implemented in response to this Court's direction. F. An award of attorneys' fees and costs of this action, including expert witness fees, on all claims allowed by law; G. An award of compensatory damages for violation of the Rehabilitation Act, 29 U.S.C.S. § 794; and H. Any additional or alternative relief as may be just, proper and equitable.
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Dated: May 3, 2010

Respectfully submitted,

s/ Brittany Glidden Student Law Office Brittany Glidden Laura L. Rovner Ashley Wheeland, Student Attorney Patrick Curnalia, Student Attorney University of Denver Sturm College of Law 2255 E. Evans Ave. Denver, CO, 80208 Ph: 303-871-6140 Fax: 303-871-6847 Email: bglidden@law.du.edu

s/ Amy F. Robertson Fox & Robertson, P.C. 104 Broadway, Suite 400 Denver, CO 80203 Ph: 303-595-9700 Fax: 303-595-9705 Email: arob@foxrob.com

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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Wiley Y. Daniel
Civil Action No. 10-cv-01005-WYD-KMT TROY ANDERSON,
Plaintiff, v. STATE OF COLORADO, DEPARTMENT OF CORRECTIONS; SUSAN JONES, in her official capacity as Warden of Colorado State Penitentiary; and ARISTEDES W. ZAVARAS, in his official capacity as Executive Director of the Colorado Department of Corrections,
Defendants.
ORDER
THIS MATTER is before the Court on Defendants’ Motion to Dismiss [ECF No. 5], filed May 25, 2010. Defendants move to dismiss Plaintiff’s claims asserted under the Eighth and Fourteenth Amendments of the United States Constitution, the Americans with Disabilities Act, and the Rehabilitation Act. I have considered Plaintiff’s response in opposition to the motion [ECF No. 9], filed June 23, 2010 and Defendant’s reply in support of the motion [ECF No. 12], filed July 16, 2010. For the reasons stated below, Defendants’ motion to dismiss is denied. I. BACKGROUND
This case arises out of a complaint filed by Plaintiff Troy Anderson against three defendants: the State of Colorado Department of Corrections (“CDOC”); Susan Jones,
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the warden of the Colorado State Penitentiary (“CSP”), in her official capacity; and Aristedes Zavaras, the Executive Director of the CDOC, his official capacity.
On March 20, 2000, Mr. Anderson was incarcerated at the CSP after his conviction of charges related to menacing as well as attempted murder. (Compl. ¶ 45.) Following his sentencing for these convictions, Mr. Anderson was placed directly into administrative segregation at Denver Reception and Diagnostic Center (“DRDC”). (Compl. ¶ 50.) Shortly thereafter he was moved to administrative segregation at CSP. Id. He was then briefly moved to the San Carlos Correctional Facility (“SCCF”), a CDOC facility for mentally ill prisoners, but was then returned back to CSP, against the wishes of his therapists and doctors at SCCF, who believed he should remain at SCCF for further mental health treatment. (Compl. ¶¶ 54, 55.) While at SCCF, Mr. Anderson was assessed as having Intermittent Explosive Disorder and Anti-Social Personality Disorder, but additional necessary treatment was not completed, as Mr. Anderson was transferred back to CSP. (Compl. ¶ 56). Mr. Anderson has been housed at the CSP since that time. He alleges that he has been kept in administrative segregation without due process; that he has been denied medications without due process; that he has not received adequate medical treatment; that he has been kept indoors for a period of over nine years; and that he has been discriminated against on the basis of his mental disabilities. II. STANDARD OF REVIEW
Under Fed.R.Civ.P. 12(b)(6), a defendant may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). The
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Court’s inquiry is “whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its face.’” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544)). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A pleading that offers ‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of action will not do.’ Nor does the complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. at 1949 (quoting Twombly, 550 U.S. at 555, 557). Furthermore, conclusory allegations are “not entitled to the assumption of truth.” Id. at 1950.
The Tenth Circuit has interpreted “plausibility,” the term used by the Supreme Court in Twombly, to “refer to the scope of the allegations in a complaint” rather than to mean “likely to be true.” Robbins v. Okla. ex rel. Okla. Dep't of Human Servs., 519 F.3d 1242, 1247 (10th Cir. 2008). Thus, “if [allegations] are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged their claims across the line from conceivable to plausible.” Id. (internal quotations omitted). “The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.” Id. “This requirement of plausibility serves not only to weed out claims that do not (in the absence of additional allegations) have a reasonable prospect of success, but also to inform the defendants of the actual grounds of the claim against them.” Id. at 1248. Additionally, the Tenth Circuit has instructed
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that “the degree of specificity necessary to establish plausibility and fair notice, and therefore the need to include sufficient factual allegations, depends on context” and that whether a defendant receives fair notice “depends on the type of case.” Id. III. ANALYSIS
As an initial matter I note the Eleventh Amendment forbids a suit for damages against a state in federal court. Ambus v. Granite Board of Education, 995 F.2d 992, 994 (10th Cir.1993) (citing Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974)). Thus, to the extent that Mr. Anderson is suing the Defendants in their official capacities for money damages, such a claim is properly dismissed as barred by the Eleventh Amendment, unless the state has waived Eleventh Amendment Immunity. States waive their Eleventh Amendment immunity under the Rehabilitation Act (the “RA”), however, by accepting federal financial assistance. The only statute under which Mr. Anderson seeks monetary damages is the Rehabilitation Act, and only against the state itself, not the individual Defendants. (Pl.’s Resp. at 4.)
A. Statute of Limitations Defendants’ first argument is that each of Mr. Anderson’s claims should be dismissed as barred by the statute of limitations. Although the statute of limitations is an affirmative defense, the issue may be resolved on a motion to dismiss where the application of the limitations period is apparent on the face of the complaint. Dummar v. Lummis, 543 F.3d 614, 619 (10th Cir. 2008); Aldrich v. McCulloch Props., Inc., 627 F.2d 1036, 1041 & n. 4 (10th Cir. 1980). In this case, the applicable statute of limitations for Plaintiff’s first through fourth
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claims, each brought under 42 U.S.C. § 1983, is Colorado’s two-year statue of limitations for personal injury actions. See Col. Rev. Stat. § 13-80-102(1)(g) (“All actions upon liability created by a federal statute where no period of limitation is provided in said federal statute” and “regardless of the theory upon which suit is brought ... shall be commenced within two years.”); see also Hunt v. Bennett, 17 F.3d 1263, 1265 (10th Cir. 1994) (finding that “§ 1983 claims are best characterized as personal injury actions and we therefore apply” the State of Colorado's two-year statute of limitations (citation omitted)). Mr. Anderson’s fifth claim, brought under Title II of the ADA, 42 U.S.C. § 12132, and his Sixth claim, brought pursuant to Section 504 of the RA, 29 U.S.C. § 794, are also governed by a two-year statue of limitations. See EEOC v. W.H. Braum, Inc., 347 F.3d 1192, 1197 (10th Cir. 2003); Baker v. Board of Regents, 991 F.2d 628, 631 (10th Cir. 1993).
Although state law governs issues regarding the applicable statute of limitations, “federal law governs the determination of when a § 1983 action accrues.” Braxton v. Zavaras, 614 F.3d 1156, 1159 (10th Cir. 2010) (citing Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995)). “Section 1983 claims accrue, for the purpose of the statute of limitations, when the plaintiff knows or has reason to know of the injury which is the basis of his action.” Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994) (quotation omitted). “A plaintiff has reason to know of his injury when he should have discovered it through the exercise of reasonable diligence.” Indus. Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 969 (10th Cir. 1994) (citation omitted). The accrual of Mr. Anderson’s claims brought under Title II of the ADA and Section 504 of the RA is
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likewise determined by federal law. Accordingly, for each of Mr. Anderson’s claims, the statute of limitations began to run when he knew or had reason to know of the cause of his injuries that would form the basis of his action. Alexander v. Okla., 382 F.3d 1206, 1215 (10th Cir. 2004).
Mr. Anderson filed his Complaint on May 3, 2010. Thus, any claims that accrued prior to May 3, 2008 may be barred by the statute of limitations. Applying these standards, I cannot say that it is apparent from the face of the Complaint that any of Mr. Anderson’s claims are barred by the statute of limitations.
Plaintiff’s first claim is premised on the assertion that the classification and review system used to determine Mr. Anderson’s placement within the prison, including the use of chrons to assess negative behavior, violates Mr. Anderson’s right to due process under the Fourteenth Amendment. Mr. Anderson asserts that the Defendants have “failed to provide any meaningful review process assessing why Mr. Anderson is held indefinitely in solitary confinement.” (Compl. ¶ 184.) He further alleges that “Defendants reliance on negative chrons to keep Mr. Anderson in solitary confinement creates an arbitrary process that fails to provide Mr. Anderson sufficient process.” (Compl. ¶ 186.) To the extent Mr. Anderson’s claim challenges his initial placement in administrative segregation, it is barred by the two-year statute of limitations. His claim, however, goes further and challenges the process that continues to keep him there. This claim is supported by factual allegations that took place within the statute of limitations period and is therefore not barred.
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In his second claim, Mr. Anderson asserts that Defendants have denied requests for medication without due process. Specifically, he asserts that on July 15, 2004 the formulary board at the CSP denied a prescription for Strattera, a non-stimulant treatment for adult ADHD (Compl. ¶ 93) and that Defendants gave no reason for the denial. (Compl. ¶ 94.) Additionally, he states that in April 2007, his psychiatrist and therapist determined that he should take a stimulant called Wellbutrin, but that the CSP formulary board rejected the request for the medication. (Compl. ¶¶ 96, 97.) He argues that his due process rights have been violated with respect to these denials because he “has no personal recourse to appeal the decision by the formulary board rejecting his psychiatrist and therapist’s request he receive Wellbutrin or Straterra.” (Compl. ¶ 99.)
Although the Complaint includes the dates that Mr. Anderson was initially prescribed these two medications it is unclear from the face of the Complaint when the appeal process was complete, or if Mr. Anderson continues to appeal these denials. (Compl. ¶¶ 98 - 101.) Accordingly, it is not clear from the allegations in the Complaint that Mr. Anderson’s second claim is barred by the statute of limitations.
In his third claim, Mr. Anderson contends that Defendants have violated his Eighth Amendment rights by failing to provide him with adequate medical treatment. Like the allegations which support Mr. Anderson’s second claim, some of the specific factual averments may indeed fall outside the limitations period. The specific averments all relate, however, to Mr. Anderson’s broader claim that he has received inadequate medical treatment throughout his incarceration and that he continues to receive inadequate treatment today. As such, from the allegations in the Complaint, I cannot
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say that this claim is time-barred. In this fourth claim, Mr. Anderson asserts a violation of his Eighth Amendment
rights based on denial of access to outdoor exercise. He asserts that he has been, and is currently, denied all access to outdoor exercise and that he has not been outside in over nine years. I find that this claim is not barred by the statute of limitations.
I likewise find that it is not apparent from the face of the Complaint that Mr. Anderson’s fifth and sixth claims, for violations of the ADA and the RA, are barred by the statute of limitations. Anderson alleges that he has been discriminated against on the basis of his alleged mental disabilities, and that he continues to be discriminated against. I note that Mr. Anderson specifically states that he is only seeking damages under the RA for the two-year period prior to the filing of the Complaint.
B. Alternative Grounds for Dismissal - Failure to State a Claim Defendants argue in the alternative that claims one, two, four, five, and six should be dismissed for failure to state a claim. Defendants make no alternative arguments regarding claim three. Contrary to the Defendants’ assertions, I find that Mr. Anderson has adequately pled each of his claims. Mr. Anderson’s Complaint offers more than conculsory allegations. It contains specific averments regarding his continued placement in administrative segregation, his treatment while in prison, his lack of medical care, and his complete denial of outdoor exercise, such that each of his claims is sufficiently nudged “across the line from conceivable to plausible.” Robbins v. Okla. ex rel. Okla. Dep't of Human Servs., 519 F.3d 1242, 1247 (10th Cir. 2008).
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Accordingly, I find that it would be premature to dismiss Mr. Anderson’s claims at this stage in the proceedings. III. CONCLUSION
Based on the foregoing, it is ORDERED that Defendants’ Motion to Dismiss is DENIED.
Dated: March 30, 2011 BY THE COURT: s/ Wiley Y. Daniel Wiley Y. Daniel Chief United States District Judge
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge R. Brooke Jackson
Civil Action No. 10-cv-01005-RBJ-KMT TROY ANDERSON, Plaintiff, v. STATE OF COLORADO, DEPARTMENT OF CORRECTIONS, SUSAN JONES, in her official capacity as warden of the Colorado State Penitentiary, and ARISTEDES W. ZAVARAS, in his official capacity as the Executive Director of the Colorado Department of Corrections, Defendants.
Final Order and Judgment
This case was tried to the Court between April 30 and May 8, 2012. The Court left the record open through May 25, 2012 so that the parties could address a new regulation, scheduled to be issued by the Colorado Department of Corrections (“CDOC”) shortly after the trial, that potentially would address some of the plaintiff’s concerns. The Court now issues its findings of fact, conclusions of law, and order of judgment.
FACTS Troy Anderson has been an inmate in the CDOC all but three years since 1991. While serving his first sentence, he was placed in “administrative segregation” because, in his words, he became “very disruptive.” Administrative segregation is the most restrictive custody level imposed within the CDOC. It is not punitive segregation. Rather, it is reserved for inmates who are considered to be threats to prison employees, other inmates, or prison security. In 1993 the CDOC opened the Colorado State Penitentiary (“CSP”) in Canon City, Colorado. The CSP is
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Colorado’s highest security “supermax” facility. Until recently, all inmates there were in administrative segregation. Mr. Anderson remained at the CSP until his release from prison in 1997.
In 2000 he was returned to prison, this time on an 83-year sentence with a parole eligibility date of June 5, 2041. Because he presently is 42 years of age, there is a good chance that he will spend the rest of his life in prison. Mr. Anderson was again assigned to the CSP and placed in administrative segregation, this time because his crimes included two shoot outs with police during escape attempts. He has remained in administrative segregation at the CSP since he returned.
In administrative segregation at the CSP, each offender is housed in a single cell approximately 90 square feet in size. Defendants’ Exhibit 10 (diagram). The cell contains a metal bed, desk, toilet and three shelves. There is small vertical glass window that admits light but which, because of its placement in relation to the bed, desk and shelving, is difficult to access to look out. A light in the cell is left on 24 hours a day. The inmates’ daily existence is one of extreme isolation. They remain in their cells at least 23 hours a day. The cells were designed in a manner that discourages and largely restricts vocal communication between cells. According to inmate David Bueno, he can hear other people yelling and screaming but not conversations. All meals are passed through a slot in the cell door to the inmate. The inmates have little human contact except with prison staff and limited opportunities for visitors, depending on the inmate’s level of privileges as will be discussed later.
In theory the inmate is removed from his cell for about one to one and one-quarter hours five times each week. On these occasions the inmate is taken to an approximately 90 square foot, oddly shaped interior “recreation” room. See Plaintiff’s Exhibit 348 (photographs). This
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room is empty except for a chin-up bar. It has two vertical “windows,” approximately five feet by six inches in size, which are not glassed but instead are covered with metal grates. The grates have holes approximately the size of a quarter that open to the outside. The inmate can see through the holes, can sometimes feel a breeze, and can sometimes feel the warmth of the sun. This is his only exposure of any kind to fresh air. After approximately 60 minutes in this room, the inmate is permitted to shower and then is returned to his cell. According to Mr. Anderson and other inmates who testified, in practice the number of opportunities to go to this “exercise” room is sometimes fewer because of lockdowns or other reasons, and missed times are not made up.
With the exception of approximately one month in 2001 when Mr. Anderson was taken to another CDOC facility for a mental health evaluation, and then his transport to and from the courthouse for his trial in this case, he has not been out of doors in 12 years. He has not, therefore, had any opportunity for outdoor exercise. Unless the inmate is able to earn his way out of administrative segregation, his stay in administrative segregation can be indefinite. At the present time there are nine offenders, including Mr. Anderson, who have been in administrative segregation at the CSP for more than 10 years.
Mr. Anderson does not request that he be removed from administrative segregation at this time. Like many prisoners in Colorado and elsewhere, Mr. Anderson suffers from mental illness. He does not believe that his mental illness has been properly treated, and he fears that until it is, he might be a danger to himself or others. Several CDOC employees likewise expressed the opinion that, at this time, he remains too much of a security risk to progress out of administrative segregation. Rather, Mr. Anderson and the team of lawyers representing him have tackled certain policies and procedures at the CSP that they contend have adversely affected his mental
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health and that have prevented him from taking advantage of the opportunities that the CSP provides to progress out of administrative segregation.
Mr. Anderson sued the CDOC; Susan Jones, the Warden of the CSP when the suit was filed; and Aristedes W. Zavaras, then the Executive Director of the CDOC. Ms. Jones and Mr. Zavaras are named in their official capacities, and because neither of those individuals presently holds those positions, the suit more properly is against the present holders of those positions. In any event, suits against prison officials in their official capacities are in substance suits against the CDOC.
The Complaint initially asserted six claims for relief. Claims One through Four named the two prison officials in their official capacities. Claims Five and Six named all defendants. The second claim has since been dismissed. The remaining claims, by claim number, assert (1) a due process violation arising from the use of an unfair system to evaluate Mr. Anderson’s behavior for purposes of earning privileges and ultimately progressing out of administrative segregation; (3) cruel and unusual punishment in the form of inadequate mental health treatment; (4) cruel and unusual punishment by denial of any opportunity for outdoor exercise; (5) violation of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., by denying him access to certain programs and benefits because of his mental health issues; and (6) violation of the section 504 of the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978 (“Rehabilitation Act”), 29 U.S.C. § 794, for the same reason.
Instead of treating these claims in that order, however, I will organize the remainder of this opinion around the three central targets of the Complaint; (1) denial of access to the out of doors and outdoor exercise; (2) mental health treatment; and (3) barriers to progression out of administrative segregation.
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CONCLUSIONS I. OUTDOOR ACCESS AND EXERCISE.
Mr. Anderson contends that denial of any opportunity to be outside and to have outdoor exercise during the 12 years he has been held in administrative segregation constitutes cruel and unusual punishment contrary to the Eighth Amendment, which is applicable to the States through the Fourteenth Amendment. I agree.
The Eighth Amendment does not mandate comfortable prisons, but it does forbid inhumane conditions. Farmer v. Brennan, 511 U.S. 825, 832 (1994). If (1) treatment of an inmate is, objectively, a “sufficiently serious” deprivation of rights, and (2) prison officials have, subjectively, a “sufficiently culpable state of mind,” the Eighth Amendment has been violated. Id. at 834 (internal citations omitted).
A. Was the deprivation “Sufficiently Serious”? A prison condition is sufficiently serious if it denies the inmate “the minimal civilized measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). This Court concludes that denial of any opportunity to be outdoors and to engage in some form of outdoor exercise for a period of 12 years is a serious deprivation of a human need, according to the evidence in this case and according to any reasonable concept of what constitute the civilized measure of life’s necessities. Plaintiff’s medical expert Raymond Patterson, M.D., a psychiatrist who has spent much of his impressive career in and around prisons, and who frequently serves as a consultant and expert on prison conditions, testified that every prison he has visited except the CSP provides some opportunity for outdoor exercise, even to death row inmates. It is important, he believes, to
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a person’s mental health. He is not alone. Eight clinical employees of the CDOC testified during this trial: Paula Frantz, M.D., a family and emergency medicine specialist who serves as the Chief Medical Officer for the CDOC; Darren Lish, M.D., the current Chief of Psychiatry for the CDOCV; Joan Koprivnikar, M.D., one of Mr. Anderson’s former treating psychiatrists and the CDOC; and five psychologists, Drs. James Michaud (CDOC’s current Mental Health Administrator); Peggy Steel, Vicky Tuakoi, Jill Lampela and Erin Lenocker. Every one of these CDOC professionals who was asked about outdoor exercise agreed with Dr. Patterson. Dr. Koprivnikar, for example, described outdoor exercise as being “extremely important” for the mood, sleep and overall wellbeing of an individual. Dr. Steele testified that it is unfortunate that Mr. Anderson cannot go outside, because outdoor exercise is good for everyone. She added that it is difficult to get any exercise at the CSP.
In 1987 the Tenth Circuit considered the case of an individual who was sentenced to a Wyoming state prison for first degree murder, then transferred at his request to a Minnesota prison, and then returned to the Wyoming prison after murdering an inmate in Minnesota. Bailey v. Shillinger, 828 F.2d 651 (10th Cir. 1987). The court in a per curium opinion agreed that placement of that inmate in segregation was appropriate. However, the inmate complained that he was being denied exercise and fresh air. The court commented, “[t]here is substantial agreement among the cases in this area that some form of regular outdoor exercise is extremely important to the psychological and physical wellbeing of inmates, and some courts have held a denial of fresh air and exercise to be cruel and unusual punishment under certain circumstances.” Id. at 653. In that instance the prison had constructed an outdoor exercise facility after the inmate filed suit, and he was allowed to use it for one hour per week. The Court held, “[a]though this amount of exposure to exercise and fresh air is still restrictive, we cannot say, without more,
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that it fails to satisfy the demands of the Eighth Amendment.” Id. See also Perkins v. Kansas Department of Corrections, 165 F.3d 803, 810 (10th Cir. 1999)(a prisoner who was denied outdoor exercise for nine months stated a claim for violation of the Eighth Amendment on which relief could be granted).
One case cited by the court in Bailey was Spain v. Procunier, 600 F.2d 189 (9th Cir. 1979). Six prisoners who were considered to be among the most dangerous in the California state prison at San Quentin were housed in a maximum security segregation unit for four years with no indication as to when they would be released. They were permitted to exercise one at a time in an indoor corridor one hour per day, five days per week, although in practice the exercise opportunities were less frequent. The trial court found that the denial of fresh air and regular outdoor exercise constituted cruel and unusual punishment and ordered defendants to give plaintiffs the right to engage in outdoor exercise one hour per day, five days a week unless inclement weather, unusual circumstances, or disciplinary needs made that impossible. The circuit affirmed, stating “we do not consider it necessary to decide whether deprivation of outdoor exercise is a per se violation of the eighth amendment. Our ruling, and that of the district court, applies to these plaintiffs who were assigned to the [segregation unit] for a period of years.” Id. at 199. The court acknowledged the prison’s arguments that outdoor exercise was withheld to protect prison staff and other inmates from violence, to protect plaintiffs from violence, and to reduce the risk of escape. However, “[t]hese concerns justify not permitting plaintiffs to mingle with the general population but do not explain why other exercise arrangements were not made. The cost or inconvenience of providing adequate facilities is not a defense to the imposition of a cruel punishment.” Id. at 200.
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More recent panels of the Ninth Circuit have indicated that denials of outdoor exercise for 14 months, Thomas v. Ponder, 611 F.3d 1144, 1151 (9th Cir. 2010), and even six weeks, Lopez v. Smith, 203 F.3d 1122, 1133 (9th Cir. 2000), can be sufficient to support an Eighth Amendment claim. Other courts outside the Ninth Circuit holding that long-term denial of outdoor exercise constitutes cruel and unusual punishment include Rhem v. Malcolm, 371 F. Supp. 594, 627 (S.D.N.Y. 1974) and Sinclair v. Henderson, 331 F. Supp. 1123, 1131 (E.D. La. 1971). But see Bass v. Perrin, 170 F.3d 1312, 1317 (11th Cir. 1999)(placement of inmates on “Yard Suspension List” so that they could not enjoy the privilege of two hours per week of outdoor exercise privilege did not violate the Eighth Amendment where is was done for disciplinary reasons based on clear and compelling facts; the discipline was for possession of homemade firearms and handcuff keys, stabbing another inmate, commandeering a dump truck at knife point in an escape attempt, and murdering a correctional officer).
The present case exceeds all of these cases in terms of the potential for serious harm. Mr. Anderson is a mentally ill inmate. He has been deprived of any form of outdoor exercise, and virtually any meaningful exposure to fresh air, for 12 years. Nothing was presented in the evidence of this case to suggest that the end is in sight. Coupled with the other conditions of administrative segregation at the CSP, this prolonged deprivation is a paradigm of inhumane treatment.
B. Have Defendants Been “Deliberately Indifferent” to Mr. Anderson’s Health? As indicated above, in addition to showing that the deprivation is sufficiently serious, plaintiff must establish that prison officials had a “sufficiently culpable state of mind,” namely, that they were “deliberately indifferent” to the inmate’s health or safety. Farmer, 511 U.S. at 834. Under that standard, “a prison official cannot be found liable under the Eighth Amendment
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for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of harm exists, and he must also draw the inference.” Id. at 837.
The CSP facility was built between 1990 and 1993. Thus, construction started three years after the Tenth Circuit recognized that “regular outdoor exercise is extremely important to the psychological and physical well being of inmates,” Bailey, 828 F.2d at 653, and 11 years after the Ninth Circuit held that depriving segregated inmates outdoor exercise for more than four years constituted cruel and unusual punishment. Spain, 600 F.2d at 200. Whether CDOC officials were aware of those decisions or similar decisions of other courts at that time is unknown to me.
I do, however, assume that CDOC officials were aware then, but if not then, that they are certainly on notice now, of what other supermax facilities have done to provide outdoor exercise to segregated inmates. Plaintiff’s corrections expert, Steven Martin, who has more than 40 years of hands-on and consulting experience in corrections, including “supermax” facilities in five states, testified that to the best of his knowledge the CSP is the only supermax facility in the country, including the notorious federal supermax prison at Florence, Colorado, that does not provide some opportunity for outdoor exercise. In Mr. Martin’s opinion, prolonged denial of outdoor exercise has no valid penological justification. Dr. Patterson, the plaintiff’s medical expert, likewise testified that he is unaware of any other supermax type prison that does not provide outdoor exercise opportunities for their inmates.
As indicated above, CDOC clinical personnel acknowledged during the trial that outdoor exercise is very important. The CDOC’s facilities in Sterling and San Carlos, Colorado, the
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latter of which houses many mentally ill inmates, provide outdoor exercise for all inmates including those in administrative segregation.
In February 2010 the American Bar Association adopted standards for the treatment of prisoners. Standard 23-3.6(b) recommended that “[e]ach prisoner, including those in segregated housing, should be offered the opportunity for at least one hour per day of exercise, in the open air if weather permits.” Plaintiff’s Exhibit 250 at Bates # DUN000334. Those standards are not, of course, binding on the CDOC. On February 1, 2011 CDOC issued Administrative Regulation 1000-01, which states that it is the policy of the CDOC “to ensure all facilities provide a comprehensive recreation program that includes leisure-time activities, outdoor exercise [44481] and recreation activities appropriate to the offenders….” Plaintiff’s Exhibit 51 at Bates #P002525. The reference “4-4481” is to an American Correction Association policy applicable to prisons in general, not specifically to administrative segregation.
However, in 2011 the CDOC commissioned a study of its administrative segregation policies by the Prison Division of the National Institute of Corrections. The resulting report, admitted as Plaintiff’s Exhibit 404, was issued in October 2011. It is sometimes referred to as the “Austin-Sparkman” report, after its two authors. The authors found that outdoor recreation was deficient at the CSP and other CDOC facilities with administrative segregation units except at Sterling and San Carlos. Id. at 18.
The CSP itself was designed with a central open-air courtyard that could be used for outdoor exercise. However, the inmates in administrative segregation have never been allowed to use it. When 126 medium security offenders were brought in to occupy empty cells earlier this year, they were permitted to use it. The CSP also has provided a location on the north side of its building for outdoor use by medium security offenders. Warden Jones testified that the
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open-air courtyard, particularly after certain modifications that have been made, is sufficiently secure for use by any inmates at CSP. However, she does not recommend that inmates in administrative segregation should be permitted to use the open-air courtyard because of current budget and staffing issues. She does not believe that the other outdoor exercise area is sufficiently secure for administrative segregation inmates at this time.
Larry Reid, Deputy Director of Prison Operations and a former warden at the CSP, helped to develop the administrative segregation policies. He testified that CSP was touted as the best supermax prison in the industry when it became operational in 1993. In his view, the indoor exercise rooms provided to inmates in administrative segregation at the CSP provide “a lot of opportunities for exercising.” Inmates can do calisthenics, and isometrics against the wall, and they can talk through the grate openings to people outside. These rooms, Mr. Reid says, provide an “outdoor environment inside the facility,” including fresh air, panoramic view, and access to the elements. He adds that inmates get to go outside when they are taken to a hospital or other places, apparently like a trip to the courthouse.
The fact that this highly experienced senior official in the CDOC believes that a tiny indoor room with a chin-up bar and a grate with small openings to the outside provides an “outdoor environment” and “lots of opportunities for exercising,” and that it is ok for Mr. Anderson to be confined without outdoor exercise or any real exposure to fresh air and the out of doors for 12 years and counting, is troubling, to say the least. The clinical personnel who are charged with providing mental health care to inmates at the CSP know better. CDOC officials know that the CSP is out of step with the rest of the nation. They have been told by the experts whom they hired that access to outdoor recreation at the CSP is deficient. However, so far as the evidence in this case shows, nothing has been done to provide any form of outdoor exercise to
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Mr. Anderson or to other inmates who have been held in administrative segregation at the CSP for long periods. The Court concludes that defendants have been deliberately indifferent to Mr. Anderson’s mental and his physical health.
Accordingly, plaintiff has proven, to a preponderance of the evidence, that failure to provide reasonable access to the out of doors and outdoor exercise to Mr. Anderson constitutes cruel and unusual punishment in violation of the Eighth Amendment. II. MENTAL HEALTH TREATMENT.
The Eighth Amendment’s obligation to provide for prisoners’ minimal life necessities includes a requirement to provide access to adequate medical care, including mental health care. Ramos v. Lamm, 639 F.2d 559, 574 (10th Cir. 1980). See generally Brown v. Plata, 131 S.Ct. 1919 (2011). Inmates cannot provide for their own medical care, and denial of needed care for any significant condition is “sufficiently serious.” Prison officials are deliberately indifferent if they know that an inmate faces a substantial risk of serious harm but do not take reasonable measures to abate it. Farmer, 511 U.S. at 847. “[W]hen incarceration deprives a person of reasonably necessary medical care (including psychiatric or mental health care) which would be available to him or her if not incarcerated, the prison authorities must provide such surrogate care.” Langley v. Coughlin, 888 F.2d 252, 254 (2d Cir. 1989).
Mr. Anderson contends that he has been unconstitutionally denied adequate access to mental health care in two respects. First, he has not been prescribed medication that he contends he needs and that would be available to him if he were not incarcerated. Second, he contends that he cannot receive effective treatment unless it is provided by a multidisciplinary treatment team.
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Mr. Anderson also contends that the denial of appropriate mental health care violates Title II of the ADA, 42 U.S.C. § 12132, and section 504 of the Rehabilitation Act, 29 U.S.C. § 794. The elements of the two federal statutes are essentially the same for present purposes. Plaintiff must show that “(1) he is a qualified individual with a disability, (2) who was excluded from participation in or denied the benefits of a public entity’s services, programs, or activities, and (3) such exclusion, denial of benefits, or discrimination was by reason of a disability.” Robertson v. Las Animas County Sheriff’s Dep’t, 500 F. 3d 1185, 1193 (10th Cir. 2007).
Because of his mental illness, Mr. Anderson is a qualified person with a disability. There are two programs at the CSP that offer increased privileges and potentially a means to progress out of administrative segregation based upon good behavior: the Quality of Life Level Program or “QLLP” (now apparently called “Progressive Management”), which is available to all administrative segregation inmates; and the Offenders with Mental Illness or “OMI” program, which has been specially created for inmates with mental illness. Mr. Anderson contends that he has been denied some of the benefits of the QLLP program, and has been unable to participate in and therefore has been denied the benefits of the OMI program. He further contends that his inability to obtain these benefits has been by reason of his disability, because without effective mental health care (stimulant medication and a multidisciplinary treatment team) he cannot control behaviors that have limited his progression in the QLLP program and have caused him to be removed from the OMI program.
A. Has Mr. Anderson Been Denied Necessary and Appropriate Medication? The various health care professionals who testified agree that Mr. Anderson suffers from
antisocial personality disorder and attention deficit hyperactivity disorder (“ADHD”). They have somewhat different opinions regarding which of these is his primary diagnosis. They do agree
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that “stimulants,” such as Ritalin (methylphenidate hydrochloride), are the most effective medications for the treatment of ADHD.
However, no physician at the CDOC has prescribed Ritalin or any other stimulant for Mr. Anderson. There are arguably two reasons for that. First, stimulants are not included in the CSP’s or the CDOC’s statewide medication “formulary,” which is a list of medications that CDOC physicians can prescribe without special permission. Second, at least some of CDOC’s clinical personnel who are familiar with Mr. Anderson believe that stimulants are inappropriate for him.
The reason Ritalin and other stimulants are not on the formulary, at least in large part, is their susceptibility to abuse, that is, susceptibility to being hoarded, traded, sold, or given, voluntarily or involuntarily, to an inmate for whom the medication was not prescribed. The decision whether to place a particular medication on the formulary is well within the discretion that prison officials have to administer their prisons without judicial interference. However, a prison may not use general concern about a drug’s abuse potential as an excuse for denying a particular prisoner medication that he needs.
CSP, like other prisons, reduces abuse potential by crushing pills, floating them in liquid, and observing the inmate consume them. Determined inmates still can and do secrete medicines, such as by “cheeking” pieces and trapping pieces in their gums. Nevertheless, medications with high abuse potential are prescribed at the CSP. Effexor and Wellbutrin, both of which are known to be subjects of abuse, are on the formulary and have been prescribed for Mr. Anderson. Two CDOC inmates, one an adult and the other a juvenile, currently receive Ritalin, even though it is not on the formulary. Inmate Carlos Mondragon testified that he was prescribed Ritalin for ADHD when he was in the Buena Vista facility. According to Dr. Patterson, stimulants are
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provided where necessary and appropriate in other high security prisons. With the exception of one note about Mr. Anderson’s “cheeking” medications, there is no evidence that Mr. Anderson has abused any of the many medications that have been prescribed for him during his years at the CSP. Dr. Lish acknowledged that he does not think that Mr. Anderson is planning to abuse a stimulant medication if he receives one.
Whether Ritalin or other stimulants are appropriate for him is a more difficult question. Dr. Patterson believes that a stimulant, or at least Strattera (atomoxetine) which is the only nonstimulant approved by the FDA for treatment of ADHD, should be prescribed. However, Dr. Koprivnikar, who served as a treating psychiatrist for Mr. Anderson for four to five months in 2010 and 2011 at the CSP, does not believe that a stimulant is appropriate. She also noted that it would not address behaviors arising from antisocial personality disorder.
Another significant problem is that Mr. Anderson was addicted to methamphetamine before he was incarcerated. Dr. Lish expressed concern about prescribing a stimulant for someone with a prior addiction that is “basically the same as what he was addicted to.” Plaintiff’s attorneys argue that Mr. Anderson would likely be prescribed a stimulant if he were not incarcerated and cites, among other things, the CDOC’s Mission Statement which commits to providing health care comparable to that of the community. Plaintiff’s Exhibit 217 at Bates #P002689. A more apt comparison might be between incarcerated and non-incarcerated individuals who have a history of meth addiction.
An even more fundamental problem with Mr. Anderson’s quest for a stimulant is that courts do not prescribe medication. Courts are not in a position to second guess the medical judgment of a physician. Recognizing that problem, plaintiff’s attorneys propose that the Court order defendants to develop a treatment plan. The proposal [in docket #102] lists 10 different
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things that the plan must take into account. Id. at 4-5. This proposal too comes dangerously close to having the Court dictate what CDOC’s physicians and other clinical personnel must do.
Moreover, the proposed order provides that if plaintiff is not satisfied with defendants’ plan, he may require that it be reviewed by an independent psychiatrist jointly selected by the parties. Given Mr. Anderson’s fixation on obtaining stimulant medication, it is likely that he will be dissatisfied with any plan that does not include a stimulant prescription. This Court is not prepared to take medical judgments out of the hands of the psychiatrists who work at the CDOC and turn those judgments over to an “independent psychiatrist.” The Court was impressed with the qualifications and competence of the CDOC physicians who testified, and it has no reason to suspect that other CDOC psychiatrists are any less capable.
One thing that is reasonably clear, however, is that the psychiatrists at the CDOC have tried nearly everything else. Mr. Anderson has been prescribed Effexor, Desipramine and Wellbutrin for treatment of symptoms associated with ADHD. These are not stimulants. They are not FDA approved for the treatment of ADHD. These “off-label” drugs apparently have benefits for some ADHD patients. However, Dr. Patterson testified that they have not been effective for Mr. Anderson. Whether or not they have provided some benefit to him, the behaviors that have held him back – primarily threating and abusive language and disruptive conduct – have continued, even to the point that, as discussed below, he was removed from the program specially designed for mentally ill inmates because of his conduct.
The Court lacks the expertise to know whether Mr. Anderson’s continuing behavior issues can be attributed to the lack of the “right” medication. This was not proven by a preponderance of the evidence, and therefore, the Court does not find that he has established his ADA or his Rehabilitation Act claim. However, at the conclusion of his testimony I put this
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question to Dr. Lish, who as indicated above is the Chief of Psychiatry for the CDOC: are we at a point where giving a stimulant a try might make sense? He responded that it was a legitimate question, and that stimulants should be considered, but that they would not change Mr. Anderson’s antisocial personality disorder. He testified that he would not object to Mr. Anderson’s receiving Ritalin if that is the decision of his “treatment team,” although he said that he personally would try Strattera before he would try Ritalin. I also note that, as of the time of the trial, there was no specific psychiatrist treating Mr. Anderson. He was, as far as I could tell, “between doctors” (psychiatrists) at that time.
Accordingly, because Mr. Anderson is absolutely entitled to necessary and effective mental health care under the Eighth Amendment, the Court is willing to go this far. Defendants are directed to assign a CDOC psychiatrist, either Dr. Lish or someone he designates, to reevaluate Mr. Anderson’s current mental health treatment needs. Preferably, though not necessarily, this will be a physician who has not already formed an opinion regarding the appropriate medication regimen for him. This physician will meet with Mr. Anderson, conduct an appropriate examination, consult with Mr. Anderson’s current treatment provider (psychologist), conduct an appropriate review of Mr. Anderson’s medical records, and take whatever steps he or she concludes are appropriate in his or her medical judgment. This may or may not include any medication change.
The only restriction this Court will place is that the fact that a particular medication is not on the formulary should not be dispositive. Denial of an appropriate and necessary medication based on the possibility that Mr. Anderson would abuse it by allowing other inmates to consume it, where there is essentially no history that he has abused medication in that manner during his years in administrative segregation, and where “crush and float” and other procedures can be
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taken to minimize any potential abuse, would constitute deliberate indifference to a serious need and would violate the Eighth Amendment. If the physician concludes that a non-formulary medication is appropriate, he or she should apply to the formulary committee for authority to prescribe the medication. The Court will not second guess the decision of the formulary committee any more than it will second guess the judgment of the doctor. However, the Court orders that the committee’s decision be based upon the exercise of medical judgment, not upon the possibility that Mr. Anderson might abuse a medication. I note in this regard that Warden Jones testified that if the clinical staff were to prescribe the medication Mr. Anderson wants, she would be fine with it.
B. Has Mr. Anderson Been Denied an Appropriate Treatment Team”? The other goal of the third, fifth and sixth claims is to have the Court order that a
multidisciplinary treatment team be created to provide mental health care to Mr. Anderson. I note that this request is in some ways the converse of the request for stimulant medication. There was no evidence that an individual in the community with Mr. Anderson’s illnesses would necessarily be treated by a multidisciplinary team.
According to plaintiff’s trial brief [#91], defendants “already use such treatment teams – which typically include the current psychologist, mental health supervisors, correctional officers, and at times prisoners – to monitor and support a prisoner’s treatment and progress.” Id. at 3. I agree. Dr. Koprivnikar testified that Mr. Anderson has been, in effect, treated by a “team,” consisting of a psychiatrist (as often as the doctor thinks is necessary), a clinician (either a psychologist or a Masters-level social worker), a case manager, and a medical provider (a family physician if necessary). While he has been in the QLLP program there has been no formal treatment team as such. But, the evidence is that he has been treated and prescribed medication
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by at least three psychiatrists. He has received mental health therapy from at least five psychologists. The most recent psychologist assigned to him is Dr. Vicky Tuakoi who has been with him since June 2011, and whom Mr. Anderson describes as “a trooper” who has a great deal of patience. He has always had a case manager. Frankly, despite what I might have thought about the mental health care provided to prisoners going into the trial, the evidence was that Mr. Anderson has received substantial mental health counseling and treatment over the years.
Perhaps more importantly, however, the CDOC realized, according to Warden Jones, that the QLLP program was not effective for mentally ill offenders in administrative segregation. Therefore, CDOC created the OMI program “to meet the needs of offenders housed in a high security environment with mental illness and those who are developmentally disabled.” Operational Memorandum 650-108, admitted as Joint Ex. 6, at ¶IV.A. The goal of the OMI program is “to assist offenders through a multi-disciplinary approach to correct negative behaviors and gain tools and appropriate social skills to progress to general population or to the community.” Id.
OMI at the CSP is an eight-level system (followed by four additional levels at the Centennial North facility) that both trains participants in ways to modify their behavior and provides incentives in the form of increased privileges (such as telephone sessions, non-contact visits, canteen spending, television programing, unrestrained movement to the exercise rooms and showers, unrestrained time for activity therapy and board games, and others) as the inmate moves up through the incentive levels. Id. ¶IV.G. Participants in the OMI program may use the outdoor courtyard in groups of four at Level Eight and groups of two at Level Ten.
OMI is a multidisciplinary team approach. The team, which collectively forms a “Level Review Committee” or “LRC,” includes mental health therapists (psychologists), case managers,
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the housing captain, the law librarian, teachers, drug and alcohol counselors, the pod lieutenant, and correctional officers. There is no psychiatrist on the team as such, but the therapist can communicate with a psychiatrist, and the psychiatrist has the inmate’s chart available for review. The LRC meets weekly, discusses each inmate and whether to move him to a different level, either up or down, and makes recommendations to the Associate Warden, who generally concurs.
Participants in the OMI program receive group as well as individual therapy. The team attempts to identify for each offender concrete and measurable target behaviors that will assist him in progressing through the OMI program and on to the general population. Offenders who are extremely disruptive and dangerous receive a “Behavior Modification Plan.” Progression through the levels in the OMI program can be affected by negative chrons (discussed later in this order), incident reports, and participation in group activities. According to Jill Lampela, Psy.D. who supervises the OMI program, the LRC looks at the substance of any negative chron.
The fact that an Operational Memorandum has lofty goals does not necessarily prove that the program provides appropriate treatment for the affected inmates. However, the Court was particularly impressed by the testimony of Dr. Lampela. She describes this as an “incredible program” designed to help mentally ill inmates learn about their illness and to learn coping skills so that they can manage well in a less restrictive environment. According to her, the OMI has been quite successful in progressing administrative segregation inmates out to general population. Warden Jones testified that 58 offenders had progressed out of administrative segregation through the OMI program as of the time of the trial.
Mr. Anderson was selected for participation in the OMI program in late 2010 and admitted into the program when space became available in June 2011. He was an active
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participant and attended eight group sessions. However, he was removed from the program in October 2011 because he was disruptive and was creating an unsafe community for other offenders. The LRC attempted to keep him in the program but away from other participants, but Dr. Tuakoi and Dr. Lampela ultimately agreed that it was not working.
Nevertheless, Mr. Anderson is eligible to return to the program. Dr. Lampela believes that he will be ready to return when this case is over. She testified that Mr. Anderson has been “really focused” on this case, but when the case ends, she believes that he will be able to focus on what they are trying to teach in OMI and be successful. Dr. Tuakoi believes that if Mr. Anderson could control his verbal outbursts, he would be successful in the OMI program. She is not convinced that he is ready for readmission yet. He is participating now in a “WRAP plan,” see Joint Exhibit 7, and he needs to comply with that plan to become eligible to reapply for OMI. At the present time he has been vacillating between complying and impulsive and threatening behaviors. However, she believes that returning to and successfully completing the OMI program is an attainable goal.
As with medication, it is not the Court’s place to second guess the judgment of health care professionals who seem both capable and sincerely committed to making the OMI program work in general and for Mr. Anderson. This program provides the multidisciplinary team approach that he desires.
I note that a physician is not a regular member of the team, a fact of which Dr. Patterson is critical. His criticism is not necessarily without basis. Psychologists cannot prescribe medicine. If they do not regularly consult with the CDOC’s psychiatrists, or if the psychiatrists do not make themselves readily available, then there is a danger that the full measure of the inmates’ needs might not be met. However, the Court has ordered defendants to assign a
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psychiatrist to evaluate with fresh eyes Mr. Anderson’s medication and treatment needs, and in the process to consult with Mr. Anderson’s current treatment provider. I cannot speculate that if and when Mr. Anderson returns to the OMI program the team will not have adequate access to a psychiatrist familiar with his situation.
The Court concludes that the opportunity for multidisciplinary treatment is present for Mr. Anderson at the CSP. The reason that he is not presently in the OMI program relates to his disruptive behavior. Setting aside the possibility that a medication change could help him control the behaviors that led to his removal from the program, as discussed above, there is nothing evident that the Court could order that would probably improve his ability to take advantage of the opportunity that is there for him. The Court concludes that Mr. Anderson’s claims have not been proven by a preponderance of the evidence with respect to his desire for a multidisciplinary treatment team. III. BARRIERS TO PROGRESSION OUT OF ADMINISTRATIVE SEGREGATION.
As indicated above, inmates who participate in the OMI program have their own eightlevel incentive system for obtaining additional privileges and, ultimately, consideration for progression out of administrative segregation into the general prison population. Until recently, the QLLP was the incentive program for all other inmates. Mr. Anderson has been in the QLLP except for his four months in the OMI program in 2011.
Mr. Anderson contends that his ability to participate successfully in the QLLP has been limited by two things: his inability to control inappropriate behaviors, due to the lack of effective mental health care; and certain features of the QLLP program itself that have unfairly held him back. Barriers related to mental health care were discussed in section II of this order. This section examines the other barriers of which he complains. Mr. Anderson argues that two
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procedures in particular -- a chronological recording system that permits employees arbitrarily and unfairly to place demerits on him, and a review system that provides no useful feedback or guidance on how to avoid those demerits and progress through and out of administrative segregation -- violate his due process rights as guaranteed by the Fifth and Fourteenth Amendments.
Complicating this discussion is the fact that the QLLP was largely replaced by a new policy that went into effect one week after the trial concluded. The Court left the record open following the conclusion of the trial in order to receive the anticipated policy changes and to permit the parties to submit supplemental briefs addressing them.
Therefore, in this section I will first consider whether Mr. Anderson has a constitutionally protected interest in progressing out of administrative segregation. Because I conclude that the answer to that question is “yes,” I then examine the two principal parts of the QLLP of which Mr. Anderson complains; then I examine the changes that are contained in the new policy; and finally, I consider whether the stratified incentive system, in its present form, deprives Mr. Anderson of due process.
A. Is There a Protected Liberty Interest in Gaining Removal from Administrative Segregation at the CSP? This very issue was addressed and answered affirmatively in Toevs v. Reid, 646 F.3d 752
(10th Cir. 2011) (Toevs I). The CDOC did not dispute the trial court’s conclusion that the conditions of Mr. Toevs’ confinement in administrative segregation at the CSP created a liberty interest. The appellate panel agreed. Id. at 756. However, that opinion was amended and superseded by the same panel in Toevs v. Reid, 685 F.3d 903 (10th Cir. 2012)(Toevs II). The court clarified that it did not have to decide whether Mr. Toevs had a liberty interest, because the
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CDOC did not dispute, for purposes of reviewing the district court’s grant of summary judgment in favor of the CDOC, that there was such an interest. Toevs II, 685 F.3d at 911.
The question that the circuit did not have to answer in the Toevs case is squarely before this Court. Obviously, incarceration deprives an inmate of liberty. One’s interest in avoiding incarceration, or even transfer to more adverse conditions of confinement, does not necessarily invoke the due process clause. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). However, if the conditions of incarceration impose a significantly atypical and extreme hardship, as compared to the ordinary incidents of prison life, they can create a protected liberty interest in being removed from those conditions. See Sandin v. Conner, 515 U.S. 472, 484 (1995).
The Tenth Circuit has listed a number of factors that can be considered in determining whether a liberty interest exists in the context of prison segregation, i.e., “whether (1) the segregation relates to and furthers a legitimate penological interest, such as safety or rehabilitation; (2) the conditions of placement are extreme; (3) the placement increases the duration of confinement . . . and (4) the placement is indeterminate.” Estate of DiMarco v. Wyoming Department of Corrections, 473 F.3d 1334, 1342 (10th Cir. 2007). These factors are not necessarily dispositive. Rather, “the proper approach is a fact-driven assessment that accounts for the totality of conditions presented by a given inmate’s sentence and confinement.” Rezaq v. Nalley, 677 F.3d 1001, 1012 (10th Cir. 2012).
I will assume without deciding that confinement in administrative segregation at the CSP relates to and furthers a legitimate penological interest. Also, no evidence was presented that serving time in administrative segregation will lengthen his period of confinement. Therefore, the first and third DiMarco factors tend to weigh against a finding of a liberty interest.
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On the other hand, the second DiMarco factor weighs in favor of the plaintiff. I find that the conditions of Mr. Anderson’s confinement, particularly including the extreme isolation and the fact that he has remained in administrative segregation for 12 years and counting, are atypical and exceptionally harsh. Compare Wilkinson, 545 U.S. at 214-16, 223-24, with Rezaq, 677 F.3d at 1014. In Rezaq, the Tenth Circuit panel concluded that conditions at the federal supermax facility in Florence, Colorado (ADX) were not so extreme as to create a liberty interest in avoiding placement there. To be sure, the conditions there were harsh, including 23 hours a day in a small cell and all meals alone in the cell. On the other hand, as the court noted, the inmates had showers in their cells, control over the lights in the cells, the opportunity for outdoor recreation, and the ability to communicate occasionally with other inmates.
As for the fourth DiMarco factor, whether placement in administrative segregation was indefinite, the Rezaq panel determined that the existence of twice yearly reevaluations of an inmate’s placement in administrative segregation with an opportunity to appeal indicated that their placement was not “indefinite.” The critical distinction, however, beyond the fact that the Rezaq plaintiffs were no longer at ADX when the case was decided, is the duration of Mr. Anderson’s placement in administrative segregation. Mr. Martin testified that a two-year length of stay in administrative segregation is very substantial. Confinement for 12 straight years in conditions like those of administrative segregation at the CSP might be unprecedented. Inmate Mondragon testified that he spent 15 years in administrative segregation within the CDOC, but it was not all in one block.
Considering the totality of the circumstances, as Rezaq teaches, the Court concludes that the conditions and duration of Mr. Anderson’s confinement in administrative segregation at the
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CSP are sufficiently extreme to create a liberty interest worthy of constitutional protection in progressing out.
B. Has Mr. Anderson Received Due Process? 1. The QLLP. The QLLP was a stratified incentive-based program utilizing increased levels of privileges based upon “demonstrated appropriate offender behavior and program compliance” to motivate and reward participants. See Operation Memorandum 650-100, admitted as Joint Exhibit 10, at ¶¶ I and III.E. At one time the QLLP had six levels. See Toevs II, 685 F.3d at 908. The entry level, which was the most restrictive but also expected to last a relatively short time, was Level 1. Levels 1 through 3 were classified as administrative segregation Levels 4 through 6 were classified as “close custody.” Upon completing level 6 the inmate was eligible for transfer to general population. Progression through the six levels required a minimum of 13 months. There was no maximum amount of time. Id. By the time this case went to trial the QLLP program had changed somewhat. See Operational Memorandum 650-100, admitted as Joint Exhibit 10 (February 10, 2012 ed.). This version had four levels. Levels One through Three were traditional administrative segregation. Level Four, called “Thinking for a Change,” offered cognitive development classes. Successful completion of Level Four could result in the inmate’s progression out of administrative segregation. Mr. Anderson has never progressed beyond the third level in either iteration of the QLLP. As indicated above, plaintiff’s objections to the QLLP system focus on two parts of the progression system: the chronological recording system, in particular the recording and impact of
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“negative chrons;” and an administrative review process that he contends provided no meaningful review.
a. Negative chrons. Progress through the levels of the QLLP depended upon the inmate’s behavior and completion of required programs. With respect to behavior, the CSP maintained what it called a “Chronological Recording Database.” Any employee could at any time enter either a positive or a negative comment on some behavior of an inmate that the employee observed. These comments were commonly referred to as positive or negative “chrons.” There were no written standards for what behavior could be “chroned.” Negative chrons impeded an inmate’s progress through the QLLP levels. According to Case Manager Daniel Dennis, one “minor” negative chron would not prevent an inmate from progressing from Level Two to Level Three in the QLLP system. However, Case Manager Darla Jimenez testified that an inmate had to be totally chron-free for 90 days in Level Three in order to go before the Classification Committee for a decision as to whether the inmate could move out of administrative segregation into Level Four. At a minimum, therefore, a negative chron would cause the inmate to have to re-start the time clock for completion of Level Three. According to Ms. Jimenez, one negative chron could cause the inmate to be regressed to a lower QLLP level, such as from Level Three to Level Two or even all the way back to Level One. Plaintiff’s expert Steve Martin concluded from his investigation that a negative chron of any kind would cause the inmate to be regressed from Level Three to Level Two. Warden Jones disagreed somewhat. She testified that the practice of permitting one negative chron, no matter what its substance, to act as a veto to upward progression had changed approximately one year before the trial, and she assumed that case managers and others were
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following the newer practice. Even so, it is beyond dispute that negative chrons constituted a serious impediment to progression. Inmate Bueno, for example, testified that he spent nine years in administrative segregation at the CSP even though he had only two “write-ups,” meaning Code of Prison Discipline or “COPD” charges during all that time, because negative chrons kept him there.
Frequently the inmate would not know that he had been “chroned” at the time. Unless the employee who entered the chron chose to inform the inmate, he would learn of the negative (or positive) chron when he received a monthly Administrative Segregation Classification Review form, known as an “ASR,” in the internal mail. Even then the ASR provided only cryptic information as to what the chron was for. In no case was the inmate given an opportunity to present contrary evidence.
Mr. Anderson does not dispute that some negative chrons recorded against him legitimately reflected inappropriate behavior. For example, Mr. Anderson has received negative chrons for threats to harm or kill guards, threats to throw feces, verbal abuse and other disruptive behavior. On the other hand he has received negative chrons for what on their face seem like more minor incidents, such as not returning a food tray; banging in the shower; and attempting to order a canteen item not authorized for the CSP. Joint Exhibit 2 at Bates # 23353; Joint Exhibit 4 at Bates #13825. His complaint is that a system that permits any employee to record a negative chron, with no standard for what constitutes chronable behavior, no check on whether the negative chron was deserved, and no serious consideration of the chron’s substance, is unfair.
The plaintiff and plaintiff’s corrections expert, Mr. Martin, propose that the Court order the elimination of the chronological reporting system. Instead, behavioral issues would be addressed solely through the COPD system. The Code of Prison Discipline identifies behaviors
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that could support a COPD conviction. When a COPD complaint is filed, the inmate is entitled to a due process hearing including the opportunity to present evidence.
b. Administrative segregation reviews. The other procedure challenged by Mr. Anderson was the poor quality of his monthly reviews. In the Toevs case the inmate contended that he was denied due process because the periodic reviews he received in Levels 1 through 3 of the six-level QLLP system were “perfunctory, meaningless, and all said the same thing;” and because he received no reviews at all in Levels 4 through 6. Toevs II, 685 F. 3d at 908. The Tenth Circuit agreed that he was entitled as a matter of due process to “meaningful” reviews. A “meaningful review” in a behavior-modification program “evaluates the prisoner’s current circumstances and future prospects, and, considering the reason(s) for his confinement to the program, determines whether that placement remains warranted.” Id. at 913. In a stratified incentive program such as the QLLP, a meaningful review “would consider whether the prisoner is eligible to move to the next level or, if the prisoner already is at the highest level, whether he or she is eligible to graduate from the program.” Id. It should “provide a statement of reasons, which will often serve as a guide for future behavior (i.e., by giving the prisoner some idea of how he might progress toward a more favorable placement),” because the goal of placement in a stratified incentive program “is solely and exclusively to encourage a prisoner to improve his future behavior.” Id. The court held that Mr. Toevs had not received meaningful reviews. For example, he was not given meaningful information as to why he was being held at a certain level. Certain classes were recommended, but there was no indication whether they had to be completed in order to progress to a higher level. Id. at 914-15.
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Administrative segregation reviews are conducted monthly by the inmate’s case manager. Under the system in place at the time of trial, the case manager filled out the ASR form, presented it to a supervisor for signature, and sent it to the inmate through the internal mail. Mr. Anderson’s ASR’s were admitted collectively as Joint Exhibit 2. They demonstrate that the quality of the reviews was not much improved for several months following the first Toevs decision, which was issued on June 20, 2011.
The first post-Toevs ASR, issued to Mr. Anderson on July 11, 2011 when he was still in the OMI program, contains a sentence not found in previous reviews: “Progression out of the CSP OMI program is contingent upon program compliance, demonstration of appropriate behavior, and approved progression to OMI Level 9 as defined in OM 650-108.” Id. at Bates # 23355. This sentence was repeated in the next several reviews. Then, after Mr. Anderson was removed from the OMI program, the sentence changed to state: “Progression out of the CSP Quality of Life program is contingent upon program completion, demonstration of appropriate behavior, and approval through the CSP classification process as defined in IA 600-2 and OM650-100.” Id. at Bates # 24494. That sentence was then repeated in subsequent reviews through and including his most recent review at the time of the trial, issued March 6, 2012. Id. at the first (unnumbered) page of the exhibit.
Receiving an ASR containing those sentences through the mail, with no in-person elaboration or explanation, does not constitute a “meaningful review.” In fact, it’s worse than that. The ASR form contains what amounts to a series of check boxes under the heading, “Justification” for retention in administrative segregation. In Mr. Anderson’s last five ASR’s, the boxes checked are “Continue Behavioral Review” and “Lack of Program Participation.” The ASR gives no clue as to what “Continue Behavioral Review” means. “Lack of Program
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Participation” has no basis in fact. It is undisputed that Mr. Anderson has completed the programs that are available to him (except, of course, the QLLP and the OMI programs themselves). Case Manager Jimenez testified that case managers cannot delete that check mark from the form, even if the inmate has completed available programs. The check stays there until the inmate is approved to move to Level Four.
Three of Mr. Anderson’s post-Toevs ASR’s, covering reviews for the period of October through December 2011, also have a check in the box for “Erratic/Disruptive Behavior.” Joint Exhibit 2 at Bates ##23347, 24494, and 23827. Perhaps this refers to the behaviors that resulted in his removal from the OMI program in October and carried over into the next two ASR’s. The ASR’s do not say.
Nowhere do these ASR’s provide meaningful input to Mr. Anderson as to what he needs to do to progress. These ASR’s remained much as Mr. Toevs described them: “perfunctory, meaningless, and [they] all said the same thing.”
2. The “Progressive Management” program. Throughout the trial CDOC witnesses indicated that “change is on the way.” I do not say that cynically. The CDOC had the Toevs case and the Austin-Sparkman report to consider. Also, the evidence revealed that the current Executive Director of the CDOC wished to reduce the number of inmates in administrative segregation. By the time of trial the CDOC had already significantly reduced the number of inmates in administrative segregation at the CSP through a new process of having Deputy Directors conduct individual reviews of every inmate who had been in administrative segregation for a lengthy period of time. According to Mr. Reid, these reviews were implemented to make sure that inmates are not being kept in administrative segregation over minor issues. A Deputy Director’s review of Mr. Anderson’s situation resulted
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in a recommendation that he be placed in the OMI program, although he was already in that program at the time.
However, more changes were announced on May 15, 2012 when the CDOC issued Administrative Regulation 650-03, submitted to the Court as Exhibit A-1 to the defendants’ supplemental brief [# 107-1]. This AR revised CDOC’s policies regarding administrative segregation. The QLLP apparently no longer exists as such. I am not sure how the CDOC will refer to the new policy, but I will label it “Progressive Management,” after part IV.G which describes the new version of the stratified incentive system.
The Progressive Management program has five “Privilege Levels,” denominated I, II, III, IV A, and IV B. Id. ¶IV.H. Privilege Levels I through III appear to correspond to the previous three administrative levels, although the entry level is Privilege Level II. Privilege Level IV A, also called “Cognitive Programming,” appears roughly to correspond to the previous Level Four. It is designed as a transition level between administrative segregation and general population. Privilege Level IV B is for offenders who have completed the first three levels but who continue to pose a substantial security risk if they were returned to general population. Progress through the Privilege Levels is estimated “typically” to take a minimum of nine months. Id. ¶IV.G.1.
The program makes a number of procedural changes including, among others, the following:
“At all levels, offenders will be afforded a meaningful monthly out of cell meeting with their case manager. The case manager meeting will be documented in the electronic chronological log.” Id. ¶G.5. The discussion between the inmate and the case manager at the monthly meeting should include but not be limited to (a) current level status; (b) the offender’s efforts to obtain life skills necessary to be a success
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upon release, and planning for employment and other post-release matters (c) recent behavior, including negative and positive chrons, incident reports and COPD convictions; (d) behaviors that might have resulted in COPD convictions or prior administrative segregation placements, including discussion “about what is needed to overcome these problems, i.e., making better choices; (e) program completion and needs; (f) work assignments and work history; (g) whether the offender has clinical issues or needs clinical treatment; (h) progression off of administrative segregation status; and (i) STG (Security Threat Group, essentially gang) affiliation and activity.” Id. In each level of the progression system, privileges may be suspended up to seven days for an offender’s negative behaviors. A chronological entry of the offending behavior will be made; an incident report will be completed; and the on-site supervisor will be notified, which will be documented in the chronological record. The offender will be notified in writing, within one working day, of the negative chron, the date and time of the behavior, and the staff person taking the action. Id. ¶¶H.1.g.; H.2.f; H.3.g.; H.4.h; H.5.g. At Privilege Level II, which again is the point of entry for an offender newly assigned to administrative segregation, the individual “will be oriented to their behavioral expectations while in Administrative Segregation and the requirements for working their way out of Administrative Segregation. The orientation expectations will be provided in writing utilizing form 650-03C.” Id. ¶H.2.c. AR Form 650-03C, entitled “Administrative Segregation Privilege Level Review,” apparently is the new ASR form. The offender’s progression is charted on another
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AR form, number 650-03F. This form requires a specific indication of what is required for the offender to progress or continuing progressing. The forms are distributed to the offender. In a section entitled “Level Movement,” the new policy provides that the “Housing supervisor (CO IV) and the assigned case manager will conduct a review of all chronological log entries and any other applicable documentation. Negative chronological entries will not prevent the review from occurring.” Id. ¶I.1.b. Any CDOC employee may recommend reassignment of an offender to a lower level based documented negative behavior, but the Housing supervisor or Shift Commander will be notified of all such recommendations and will approve or deny them. Level changes will be reviewed by the internal classification committee for a final decision. Id. ¶I.2, 3. In a section entitled “Monitoring and reviews,” the new policy requires that a “qualified mental health DOC employee or contract worker” will personally interview and review the status of any offender in administrative segregation for longer than 30 days; prepare a written notification of findings; and conduct a mental health interview every 30 days, outside of the offender’s cell in a confidential location. Offenders in administrative segregation “shall” be reviewed by their case manager every 30 days, outside the offender’s cell. A monthly written review by the case manager will be provided to the internal classification committee. A CDOC Deputy Director will meet with every offender who has been in administrative segregation for one year and review the case to determine if continued placement in administrative segregation is warranted. Id. ¶J.
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Offenders in administrative segregation will receive daily visits from the senior correctional supervisor in charge, daily visits from a qualified health care official (unless more frequent medical attention is needed), and visits from members of the program staff upon request. Id. ¶L. 3. Has the new “Progressive Management” system removed any due process violations that were present? The CDOC’s supplemental brief touts the new policy as mooting plaintiff’s concerns relating to negative chrons and administrative reviews. Plaintiff’ supplemental brief expresses skepticism. I am closer to the defendants’ position. With respect to the new administrative review procedures, plaintiff’s counsel concede that the monthly meetings with case managers required by the new policy have “the potential to provide guidance to prisoners concerning what they need to do to progress.” Plaintiff’s Brief on New CDOC Regulations [#106] at 4 (emphasis in original). However, they continue, “there is nothing to indicate that this will be anything more than a rote repetition of what is on the paper form.” Id. Counsel question how effective the reviews will be in helping prisoners with mental illness, but they acknowledge that “[o]verall, until the reviews are happening, there is no ability to determine whether they provide meaningful – or any – guidance to prisoners as to what is needed to progress.” Id. Like any other policy or procedure, this will only be as effective as the good faith efforts of the employees charged with implementation make it. However, the Court at this point has no basis to conclude that the new policy will deny Mr. Anderson due process in terms of the quality of his administrative reviews. Instead of sending a relatively meaningless ASR to the employee through the mail, the case managers now must meet with each inmate monthly, outside the cell,
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and discuss a specific list of topics including chrons, behavioral issues in general, and what the inmate needs to do to overcome perceived problems and progress. On its face this represents a reasonable response to Toevs and a substantial improvement on the old review system.
Plaintiff’s attorneys focus their criticism of the new policy primarily on negative chrons, arguing that it “makes no change to the negative chron system.” Plaintiff’s Brief on New CDOC Regulation [#106] at 2. I do not entirely agree. Negative chrons must be discussed with the inmate at the monthly out-of-cell meeting with his case manager. Any negative chron that results in a suspension of privileges must be supported by an incident report; the on-site supervisor must be notified; and the offender must be notified in writing within one day. For purposes of level movement all negative chrons are reviewed by the Housing Supervisor and the Case Manager. A negative chron will not prevent that review from occurring. Any recommendation that an offender be reassigned to a lower level must be based on documented negative behavior which is reviewed by the Housing Supervisor or Shift Commander and then the internal classification committee before action is taken.
Plaintiff lists several concerns about negative chrons that he believes have not been addressed. First, a negative chron can still be given by any employee for any reason. That appears to be true. However, the new policy builds in more review, particularly if a negative chron will be used as the basis to suspend privileges or to affect level movement. A negative chron will not prevent such reviews.
Closely related, plaintiff notes that the new policy still provides no protocol as to what is considered to be appropriate and inappropriate behavior. It likely is impossible to list every possible negative behavior. However, it is implicit in the new policy that inmates will be generally informed as to what behaviors are appropriate, what behaviors are inappropriate, and
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which of the latter group will likely halt progression and potentially be the basis for a regression review. That appears to be built into the new policy for inmates coming into administrative segregation at Level II. It is explicit that the inmate’s behaviors will be discussed with him, and he will be given guidance on what he needs to improve. Warden Jones identified five behaviors that she considers to be significant negative behaviors: throwing things, particularly bodily fluids; barricading; covering the cell (so employees cannot see in); threats; and making weapons. Deputy Director Reid listed assaults, threats, disruption, and recruiting others to disrupt, as noncompliant behaviors.
Plaintiff complains that employees are still not required to give the employee contemporaneous notice of a negative chron. That is not true if the negative chron is the basis of any suspension of privileges. I agree that it would be better if employees did notify inmates contemporaneously of the recording of a negative (or positive) chron, and perhaps with the CDOC’s and this Court’s encouragement they will. At a minimum, the inmate will learn of the chron at the monthly case manager meeting.
Plaintiff points out that the inmate is still not afforded an opportunity to respond to the charge. It is true that the new policy does not guarantee an immediate opportunity to respond to a negative chron. The Tenth Circuit indicated, though not in the specific context of a negative chron, that due process does not require that inmates be given the opportunity to submit additional evidence during monthly reviews. Toevs II, 685 F.3d at 913. Nevertheless, the new policy does provide the inmate the opportunity to discuss a negative chron and provide his input at the monthly meeting.
Finally, plaintiff worries that a single negative chron can still deny an inmate progression out of administrative segregation. This appears to be possible. However, as indicated above, all
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chronological entries are to be reviewed before any level change is made, and a negative chron will not prevent that review. In my view it is implicit in the new policy that the substance and the seriousness, not just the mere existence, of a negative chron will be considered in making decisions regarding level progression and, ultimately, progression out of administrative segregation. In Mr. Martin’s words, “if you’re not looking behind [the chron], you’re just pushing paper.”
Because plaintiff’s goal was to eliminate the chronological reporting system entirely, it might be that no tweaking of the system would be satisfactory to him. In fairness, however, it must be recognized that the chronological reporting system has positive aspects. Chrons enable what Mr. Reid calls the “boots on the ground people” to note behavior problems without triggering a formal COPD disciplinary proceeding every time inappropriate behavior is observed. The chron record is a potentially valuable picture of the inmate’s behavior over time. It gives employees a form of protection against abusive behavior. It also should not be forgotten that the system permits employees to record positive chrons. It is not a system with which this Court should meddle lightly.
The bottom line is that, if used fairly, the chronological recording system will not be inconsistent with constitutional due process. It appears to this Court that AR 650-03 reflects a significant effort by the CDOC to improve the evaluation and review policies for administrative segregation inmates. It deserves to be given a chance. If it proves to be form over substance, Mr. Anderson knows where to find me.
ORDER 1. The Court enters judgment in favor of the plaintiff and against defendants on
plaintiff’s Fourth Claim for Relief. The Court orders that within 60 days the CDOC
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must develop and present to plaintiff’s counsel and the Court a plan that ensures that Troy Anderson has access for at least one hour, at least three times per week, to outdoor exercise in an area that is fully outside and that includes overhead access to the elements, e.g., to sunlight, rain, snow and wind, unless inclement weather or disciplinary needs make that impossible. Plaintiff may file objections, if any, to the plan within 21 days. Defendants may reply within 14 days following plaintiff’s submission of objections. 2. The Court orders defendants to assign a CDOC physician to take a fresh look at Mr. Anderson’s medication and treatment needs as set forth in this Order. With that exception, the Court enters judgment in favor of the defendants on plaintiff’s Third Claim for Relief. 3. Plaintiff has brought to the Court’s attention legitimate concerns about how chronological reporting and administrative reviews have functioned in the past. Administrative Regulation 650-03 has addressed some of those concerns expressly, and it appears to the Court that others are addressed implicitly. In the spirit of giving the new policy and those who will implement it a fair chance, the Court enters judgment in favor of the defendants on plaintiff’s First Claim for Relief. 4. The Court enters judgment in favor of the defendants on plaintiff’s Fifth and Sixth Claims for Relief. 5. Plaintiff’s Second Claim for Relief has been withdrawn. 6. The plaintiff prevailed on the outdoor exercise issue, which was a central focus of the case; the relief ordered will directly and materially benefit Mr. Anderson (and perhaps others). The plaintiff prevailed in obtaining an order that his medical and
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treatment needs must be looked at afresh by a physician, and that the possibility that he might abuse any particular medication may not trump a decision concerning care he needs based on medical judgment. While the plaintiff did not convince the Court to order the elimination of the chronological reporting system, the plaintiff’s expressions of concern about certain things not expressly covered in AR 650-03 have been noted. Accordingly, while both parties prevailed on some claims, the Court finds that the plaintiff is the overall prevailing party for purposes of costs and attorney’s fees. Counsel are directed to confer and attempt in good faith to reach agreement on the amount of costs and attorney’s fees. If agreement is not reached, then plaintiff will proceed in accord with the requirements of Fed. R. Civ. P. 54(d) and D.C.Colo.LCivR 54.1.
DATED this 24th day of August, 2012. BY THE COURT:
___________________________________ R. Brooke Jackson United States District Judge
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 Case 1:10-cv-01005-RBJ-KMT Document 110 Filed 08/28/12 USDC Colorado Page 1 of 2
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-01005-RBJ-KMT TROY ANDERSON,
Plaintiff, v. STATE OF COLORADO, DEPARTMENT OF CORRECTIONS, SUSAN JONES, in her official capacity as warden of the Colorado State Penitentiary, and ARISTEDES W. ZAVARAS, in his official capacity as the Executive Director of the Colorado Department of Corrections,
Defendants.
FINAL JUDGMENT
PURSUANT to and in accordance with Fed. R. Civ. P. 58(a) and the Final Order and Judgment [#109], filed August 24, 2012, by the Honorable R. Brooke Jackson, United States District Judge, and incorporated herein by reference as if fully set forth, it is
ORDERED that final judgment is hereby entered in favor of the plaintiff and against defendants on plaintiff’s Fourth Claim for Relief. The Court orders that within 60 days the CDOC must develop and present to plaintiff’s counsel and the Court a plan that ensures that Troy Anderson has access for at least one hour, at least three times per week, to outdoor exercise in an area that is fully outside and that includes overhead access to the elements, e.g., to sunlight, rain, snow and wind, unless inclement weather or disciplinary needs make that impossible. Plaintiff may file objections, if any, to the plan within 21 days of the Court’s Order of August 24. Defendants may reply within 14 days following plaintiff’s submission of objections. It is further
ORDERED that defendants assign a CDOC physician to take a fresh look at Mr.

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Anderson’s medication and treatment needs as set forth in the Court’s Order of August 24. With that exception, final judgment is hereby entered in favor of the defendants on plaintiff’s Third Claim for Relief. It is further
ORDERED that final judgment is hereby entered in favor of the defendants on plaintiff’s First Claim for Relief. It is further
ORDERED that final judgment is hereby entered in favor of the defendants on plaintiff’s Fifth and Sixth Claims for Relief. It is further
ORDERED that Plaintiff’s Second Claim for Relief has been withdrawn. It is further ORDERED that the plaintiff is the overall prevailing party for purposes of costs and attorney’s fees. Counsel are directed to confer and attempt in good faith to reach agreement on the amount of costs and attorney’s fees. If agreement is not reached, then plaintiff will proceed in accord with the requirements of Fed. R. Civ. P. 54(d) and D.C.Colo.LCivR 54.1.
DATED at Denver, Colorado, this August 28th, 2012.
FOR THE COURT: Gregory C. Langham, Clerk
By: s/ Edward Butler Edward P. Butler Deputy Clerk

 
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-01005-WYD-KMT TROY ANDERSON,
Plaintiff, v. STATE OF COLORADO, DEPARTMENT OF CORRECTIONS, SUSAN JONES, in her official capacity as warden of Colorado State Penitentiary, and TOM CLEMENTS, in his official capacity as Executive Director of the Colorado Department of Corrections,
Defendants.
PLAINTIFF’S RESPONSE TO MOTION FOR SUMMARY JUDGMENT (Doc. 48)
Plaintiff, through counsel, responds to Defendants’ Motion for Summary Judgment (Doc. 48).
INTRODUCTION RESPONSE TO MOVANT’S STATEMENT OF MATERIAL FACTS 1. General Conditions within Colorado State Penitentiary (CSP) 1-13. Undisputed. 14. Partially Disputed. CDOC programs and the locations of those programs consistently change. In 2010, the OMI and PRO-Unit Programs were exclusively at CCF. Lampela Dep. 74:1217, 77:18-78:10; Exh. 4 to Doc. 47 at 5. Now, the CDOC asserts that the OMI Program is active at CSP and CCF, Lampela Dep. 77:18-78:10, and the PRO-Unit has moved to Sterling Correctional Facility. Defendant’s SOF ¶ 14, Jones Dep. 26:22-27:5. Furthermore, successful progression into the PRO-Unit does not guarantee transfer to Sterling, Jones Dep. 26:22 - 27:5, nor does successful
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completion of the OMI Program guarantee transfer out of CSP. Lampela Dep. 140:5-11. 15. Disputed. The main fact considered for progression is whether prisoners have, or have not, received negative chrons, Robertson Decl. Ex. 20 (OM 659-100 at Anderson 004637); Jiminez Dep. 146:9-17; Jones Dep. 225:15-25, which are given for such a wide variety of reasons they are not reflective of behavior or program compliance. See infra ¶¶ 292-316. 16-20. Undisputed. 21. Disputed. Mr. Anderson has remained in administrative segregation (also referred to as “ad seg” herein) because he has received negative chrons. See Jiminez Dep. 146:9-17; see e.g. Robertson Decl. Ex. 39 (Review from 2/8/11). While some of these chrons are for potential violence or threat of violence, others are for minor concerns, such as “sticking his nose in other peoples (sic) business.” Robertson Decl. Ex. 1 (Administrative Segregation Classification Review for Troy Anderson, 9/13/02). 22. Partially disputed. Mr. Anderson fears that he poses a security risk to others. Anderson Decl. ¶ 162. Yet, he believes if he was offered necessary mental health treatment he could prevent this behavior. Id. ¶¶ 9, 69, 162. 23. Undisputed that Mr. Anderson has progressed and regressed in the Quality of Life (“QOL”) Program. Disputed that his regression was because of his high propensity for violence, as some of the reasons he regressed were negative chrons for more minor events such as “ratlining,” (a common practice of sending notes to other prisoners), Robertson Decl. Ex. 2 (Administrative Segregation Classification Review for Troy Anderson, 5/13/05), and “not returning items that were passed,” Robertson Decl. Ex. 3 (Administrative Segregation Classification Review for Troy Anderson, 1/16/2007). 24. Undisputed that the Quality of Life program was designed to assist in behavior modification
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of prisoners with violent propensities. Disputed that the program provides any appropriate or adequate assistance, including mental health treatment, to actually allow prisoners with violent propensities to successfully modify behavior. Anderson Decl. ¶ 109; see also Patterson Decl. at ¶¶ 17-20. 25-26. Undisputed. 27. Undisputed that he continues to engage in verbally aggressive behavior. Disputed that he continues to engage in physically assaultive conduct. Mr. Anderson has not hurt any individual in over ten years. Anderson Decl. ¶ 113; see also, e.g., Robertson Decl. Ex. 38 (Administrate Segregation Classification Reviews dated 7/14/10, 8/13/10, 9/11/10, 10/11/10, 11/10/10). His only nonverbal charge in the past ten years was for “attempt[ing] to grab” an officer through the food port. Id. (11/10/10 review); Anderson Decl. ¶ 113. 28-42. Undisputed. 43. Disputed. CSP has an outdoor area specifically designed for offender recreation. Exh. 7 to Doc. 47, 1704, 1707; Jones Dep. 250:24-251:12. 44. Disputed. CSP was specifically designed to provide outdoor recreation and did actually provide such recreation for a period of approximately eight years. Dep. of Larry Reid in Dunlap v. Zavaras, 09-cv-01196-CMA-MEH (“Reid Dunlap Dep.”) 47:20-48:7; Jones Dep. 251:24-252:17. 45-46. Undisputed. 47. Disputed. Because offenders are fully restrained whenever they are out of an enclosed cell or area, Dennis Dep. 34:1-6, it is not clear why moving to different locations in the institution increases the risk to those present. 48. Partially disputed. Recreation usually lasts less than an hour. Exh. 2 to Doc. 47 ¶¶ 41, 43. Often, recreation is canceled. Id. ¶44. Both the size of the indoor recreation room and the fact that
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no outdoor recreation is offered violate the ACA standards, and the DOC is aware of these violations. Reid Dunlap Dep. 115:3-16; Shoemaker Dep. 66:22-67:18. 49-50. Undisputed. 51. Disputed. Former Warden of CSP, Larry Reid, testified that the door to the exercise room, which exits to an interior day hall, is one inch above the floor, allowing interior air to enter the exercise room. Reid Dunlap Dep. 19:13-14. 52-53. Undisputed. 54. Partially disputed. Offenders can only feel indirect sunlight or see out of the window if they push themselves up into the cement in which the grates are recessed. Exh. 2 to Doc. 47, ¶ 56. 55-56. Undisputed. 57. Disputed. In order to progress, Mr. Anderson needs to go without receiving negative chrons, which are often do not relate to whether the prisoner is program and behaviorally compliant. Martin Decl. ¶¶ 11-12. Examples of why individuals have not progressed are negative chrons for “being disrespectful after being skipped at lunch,” Robertson Decl. Ex. 7 (Administrative Segregation Classification Review for Troy Anderson, 05/02/2008), “reckless eyeballing,” Bueno Decl. ¶ 18, and “avoiding general conversation,” Biraldi Decl. ¶ 12. 58. Partially Disputed. See supra ¶14. 59. Undisputed. 60. Disputed. Mr. Anderson has suffered from ADHD since childhood. Patterson Decl. ¶ 6. Dr. Peggy Steele reported that Mr. Anderson “has a history of ADHD as a child.” Robertson Decl. Ex. 8 (Clinical Note, 03/28/2006). 61-62. Undisputed. 63. Partially disputed. Effexor is not commonly prescribed for ADHD. Att. 3 to Patterson
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Dec. at 26 (listing drugs commonly used for ADHD treatment and not including Effexor). 64-68. Undisputed. 69. Disputed. Mr. Anderson also indicated, in a grievance dated February 12, 2007, that the Effexor had “almost no discernable effects” on his ADHD, and that he was hoping to try another medication. Robertson Decl. Ex. 21 (Grievance, Anderson 000884). 70. Partially disputed. Although sometimes referred to as “Dr.” Waters, Travis Waters has no M.D. and is a physician’s assistant (PA). Att. 1 to Exh. B to Doc. 48. (Note PA Travis Waters is a different person than Dr. James Waters who performed Mr. Anderson’s neuropsych evaluation in 2000 and 2001. See generally Psychological and Neurological Evaluation of Troy Anderson by James H. Waters, Ph.D. (“Waters Report”) at 13505 (Robertson Decl. Ex. 15)). 71-72. Undisputed. 73. Disputed. Mr. Anderson requested to restart taking the medication on February 20, 2007, only eight days after deciding to go off of this medication. Robertson Decl. Ex. 9 (Ambulatory Health Records, 2/20/2007). 74. Partially disputed. PA Waters did not taper Mr. Anderson off of Effexor; instead, he ceased all distribution of Effexor immediately (Att. 7 to Ex. B to Doc. 48), causing much pain to Mr. Anderson during medication withdrawal and relapses into some of his mental health issues. Robertson Decl. Ex. 22 (Grievance, Anderson 000858-59). 76-80. Undisputed. 81. Undisputed. 82. Disputed. At this meeting, Mr. Anderson stated that his untreated mental illnesses made it difficult to interact appropriately with staff and that “he is not attempting to abuse or manipulate the system” regarding getting medication. Robertson Decl. Ex. 10 (Clinical Note, 7/6/2007).
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83-84. Undisputed. 85. Disputed. The provider is the only individual who can file a direct appeal to the denial and he did not do so. However, Mr. Anderson filed a grievance challenging the formulary board decision, which was his only recourse. Robertson Decl. Ex. 19 (Grievance, Anderson 000873-79). 88. Partially disputed. The FDA does not approve of desipramine as treatment for ADHD. It is not as effective as many other available medications, including stimulants. Patterson Decl. ¶ 22; Patterson Decl. Att. 3 at 26. 89. Undisputed. 91. Partially disputed. Mr. Anderson made this statement at one session in November 2007, but he does not currently feel that he is in a “good mood most of the time.” Anderson Decl. ¶ 128. 92. Undisputed. 93. Partially disputed. Mr. Anderson thought increasing his desipramine would assist him. However, it was raised so high without proper monitoring by the Department that the drug, at times, exceeded therapeutic levels and was potentially dangerous. Patterson Decl. ¶ 21. 94-100. Undisputed. 101. Partially disputed. No clinical session occurred this day, rather, the comment was elicited during a cell-side administrative segregation round. Robertson Decl. Ex. 11 (Clinical Note, 9/30/2008). The conversation lasted no more than fifteen minutes. Id. 102-05. Undisputed. 106. Disputed. Dr. Snyder, not Mr. Anderson, noted improved mood swings and irritability. Robertson Decl. Ex. 12 (Ambulatory record, 6/4/2009). Dr. Snyder also noted that Mr. Anderson thought that his moods were getting worse. Id. 107-16. Undisputed.
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117. Partially disputed. Mr. Anderson did say that he was “alright” but continued by describing

problems he was having with his mental health, including “having problems still with concentration,

also with irritability.” Robertson Decl. Ex. 13 (Ambulatory Record 6/8/10).

118-20. Undisputed.

121. Disputed. The record reflects a “positive ‘remarkable change’ in [Mr. Anderson’s] behavior

after being prescribed Ritalin, even though he only took Ritalin for a few months.” Waters Report

at 13505.

122-29. Undisputed.

130. Partially disputed. Dr. Koprivnokar met with Mr. Anderson on January 7, 2011. Robertson

Decl. Ex. 14 (Ambulatory Record, 1/7/2011). Furthermore, Mr. Anderson continued to complain

of irritability and an inability to concentrate. Id.

131-36. Undisputed.

137. Disputed. Mr. Anderson’s prescription tapered him off of Wellbutrin.

138-140.

Undisputed.

STATEMENT OF ADDITIONAL MATERIAL FACTS

Mr. Anderson has a history of mental health disabilities dating back to childhood.

141. Ever since he was a young child, Mr. Anderson has suffered from severe mental illness.

Anderson Decl. ¶¶ 20-23; Patterson Decl. ¶¶ 7-8; Waters Report at 13505.

142. There are numerous reports written by mental health professionals documenting the

existence of Mr. Anderson’s mental health illnesses and disabilities. Patterson Decl. ¶¶ 7-8; Waters

Report; Robertson Decl. Ex. 16 (Report of Jeff Metzner, M.D., (“Metzner Report”) at

Anderson00046-49).

143. Mr. Anderson began treatment for mental health issues starting at age five. Waters Report at

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13503. He began treatment for bedwetting at age 5 with when his parents treated his bedwetting with Tofranil, which is the antidepressant imipramine. Id. at 13503. His parents noticed positive behavioral side effects. Id. at 13505. 144. Over the years, Mr. Anderson has been diagnosed and assessed with many mental health concerns, including Attention Deficit Hyperactivity Disorder, Anti-Social Personality Disorder, Intermittent Explosive Disorder, bipolar disorder, cognitive disorder, a seizure disorder and polysubstance dependence. Patterson Decl. ¶ 8; Waters Report at 13505-07, 13511-12, 13518-24. 145. According to Mr. Anderson and his parents, outside of a proper therapeutic setting, he has never been able to control his emotions and anger, Anderson Decl. ¶ 39, which has resulted in family dysfunction and Mr. Anderson being incarcerated for 25 of his 42 years. Id. ¶¶ 42-43. 146. Throughout his childhood Mr. Anderson struggled with mental illness and suicidal ideations. Id. ¶¶ 20-23. 147. In 1980, at age ten, Mr. Anderson took an automatic pistol from his father’s gun collection intending to commit suicide. Id. ¶ 21. 148. Over the past thirty years, Mr. Anderson has had several suicide attempts. On multiple occasions he cut himself severely enough to require stitches. Id. ¶¶ 25-26, 35, 38, 67. 149. While he currently does not have active suicidal ideations, he still thinks about killing himself every day. He says he does not take action because he is worried it would hurt his family and because he hopes to make positive changes through this lawsuit. Id. ¶ 141. 150. During times his behavior improved, but this only occurred when he was receiving consistent therapy and appropriate medications in a therapeutic setting. Id. ¶ 40. 151. When he was discharged from each location, his medications were discontinued and his behavior would deteriorate. Id. ¶ 41.
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Everyone who encounters Mr. Anderson recognizes his severe mental health concerns. 152. In May 1987, a warrant was issued for Mr. Anderson’s arrest for aggravated armed robbery and theft. Robertson Decl. Ex. 17 (Fort Logan Discharge Summary, at Anderson000031). 153. Following his arrest, he was placed in custody. However, because his probation officer and his guardian ad litem were concerned about his mental health issues and his suicidality, they requested he receive mental health evaluation. Id. As a result, sent for mental health testing to Fort Logan Mental Health Center. Id. The Center recommended continued treatment and therapy. Id. at Anderson000032. 154. Following testing, he was placed at the Closed Adolescent Treatment Center, where he was assessed to be psychotic. Metzner Report at Anderson000047. 155. In 1990, following his discharge from the Treatment Center, Mr. Anderson was again arrested. Metzner Report at Anderson000046. As part of this case, the judge ordered a mental health evaluation to assess Mr. Anderson’s competency. Id. This psychiatrist’s report to the court urged continued work for his diagnosis, medication therapy and treatment. Id. at Anderson000049. 156. Following his sentencing, Mr. Anderson was placed at the Mount View School, and within seven days attempted suicide. Waters Report at 13510. 157. Mr. Anderson was later transferred to into CDOC custody at Fremont Correctional Facility, in 1991 was placed at Centennial Correctional Facility, and in 1993 was placed in administrative segregation at CSP. Waters Report at 13511. 158. Based on his erratic behaviors and mental health concerns while incarcerated at CSP, Mr. Anderson was send to San Carlos Correctional Facility (“SCCF”), a CDOC facility for individuals with severe mental illness, for evaluation in October 1996. Waters Report at 13511-12. 159. Mr. Anderson largely refused mental health treatment, Anderson Decl. ¶ 51, and was shortly
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returned to CSP. Waters Report at 13512. 160. In 1997, at age twenty-seven, Mr. Anderson was released from CSP. Anderson Decl. ¶ 55; Robertson Decl. Ex. 23 (Housing Quarters Sheet, Anderson 001734). 161. For the next year, Mr. Anderson was incarcerated intermittently. Anderson Decl. ¶ 57. He used illegal drugs to self-medicate his mental health issues, including methamphetamines, to which he became addicted. Id. ¶ 57; see also id. at ¶¶ 32-33. 162. Throughout this time, Mr. Anderson reports hearing voices that command him and degrade him. Waters Report at 13512-13. 163. In December 1998, Mr. Anderson was arrested by Commerce City Police. Robertson Decl. Ex. 24 (Diagnostic Narrative Summary). While he attempted to escape arrest, he eventually surrendered. Anderson Decl. ¶ 58. 164. When asked for a statement at the presentence interview for his convictions in 2000, Mr. Anderson told the judge that he wished he could have done more to get treatment so none of the events would have happened. Id. ¶ 63. 165. In 2000, Adams County Judge Richter, in his recommendations at Mr. Anderson’s sentencing on March 20, 2000, advised CDOC that Mr. Anderson needed mental health services and recommended that he be sent to SCCF to be evaluated and given such services as part of the sentence. Robertson Decl. Ex. 25 (Prendergast, Alan. “Head Games.” Denver Westword News, September 21, 2006, at P1910); Anderson Decl. ¶ 64.
Since his incarceration in 2000, Mr. Anderson has consistently been seeking care. 166. During this same time, Mr. Anderson began to recognize how much he had done wrong in his life and was aware of his significant need for mental health services. Anderson Decl. ¶ 69. 167. He was so determined to begin gaining help that he took a plea deal in another case where
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he pled guilty for offenses in exchange for the state agreeing to pay for him to get a neuropsych evaluation. Anderson Decl. ¶¶ 64-65. 168. As a result of this plea deal, Dr. Waters completed a neuropsych evaluation of Mr. Anderson. See generally Waters Report. 169. Since his reincarceration, Mr. Anderson has repeatedly and sincerely expressed his regret at hurting or attempting to hurt others, including the police and correctional officers. Anderson Decl. ¶¶ 7-10. 170. He made up his mind that as he returned to CDOC he wanted to improve his mental illness and learn to control his anger. Id. ¶ 69. 171. He also decided that, if he could not control his anger, he would rather stay isolated and alone than take the risk of hurting someone else. Id. ¶¶ 62, 162. 172. Mr. Anderson has not hurt another individual since that time, over ten years ago. Id. ¶ 113; Robertson Decl. Ex. 4 (Administrative Review, Anderson 013759).
CDOC has provided inadequate mental health care. 173. Despite the Court’s recommendation that Mr. Anderson be sent to SCCF for mental health care, Mr. Anderson was sent directly to CSP after entering the system through the Denver Reception and Diagnostic Center (“DRDC”) (where everyone enters CDOC). Robertson Decl. Ex. 25; Anderson Decl. ¶¶ 68-70 174. Defendants sent him to CSP despite being aware of Mr. Anderson’s severe mental health concerns and his need for services. See generally Defs.’ Resps. to Pl.’s Second Set of Interrogs., No. 15 (Robertson Decl. Ex. 31). 175. After a few months at CSP, Defendants moved Mr. Anderson to SCCF to be treated for his mental health issues. Robertson Decl. Ex. 23 (Housing Quarters Sheet, Anderson 001734); id. Ex.
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26 (San Carlos Treatment Plan, Anderson 000174). 176. While at SCCF, Mr. Anderson worked with mental health staff, who reported that he was noticeably less angry, irritable, and combative. Robertson Decl. Ex. 27 (San Carlos Discharge Summary, Anderson 000157). 177. While at SCCF, Mr. Anderson’s medications were adjusted when medical staff determined that some of his prescriptions had side effects that made him more unstable and combative. Anderson Decl. ¶ 77; Robertson Decl. Ex. 27 (San Carlos Discharge Summary, Anderson 000157). Defendants acknowledged that Mr. Anderson’s behavior had been impacted by these prescriptions. Robertson Decl. Ex. 27 (San Carlos Discharge Summary, Anderson 000157). 178. Despite this progress, Mr. Anderson was returned to CSP a few months after his arrival at SCCF. Robertson Decl. Ex. 23 (Housing Quarters Sheet, Anderson 001734). 179. He was returned due to no fault of his own, and against the wishes of his therapists. Robertson Decl. Ex. 28 (Mental Health Contact 11/2000, Anderson 000559). 180. The return was ordered by custody staff as part of a prisoner “trade out,” meaning that CDOC needed the extra bed at SCCF. Id. 181. Initially, Mr. Anderson was frustrated after being removed and refused treatment, but he later began asking for help. Anderson Decl. ¶¶ 81-82; Robertson Decl. Ex. 29 (Mental Health contact 11/2000, Anderson 000557 (noting his frustration at transfer)). 182. Since that time, Mr. Anderson has consistently sought treatment and asked for help for his concerns. Anderson Decl. ¶ 130. 183. Even CDOC employees have admitted that they believe he is earnestly seeking help, and is sincere at his efforts to improve. See Lampela Dep. 73:6-8; Lish Dep. 120:6-8; Koprivnikar Dep. 156:16-17.
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184. Though Mr. Anderson has repeatedly asked for help, Defendants have not provided him with adequate care. Anderson Decl. ¶ 130; Patterson Decl. at ¶ 14; Patterson Dep. 237:7-10. 185. He has seen a large number of providers and has rarely received consistent care, see, eg. Admissions Defs.’ Resps to Pl.’s Third Requests for Admissions No. 25 (Robertson Decl. Ex. 32), despite CDOC’s awareness of the importance of continuity of care, Lampela Dep. 115:8-116:1. Indeed, Defendants’ psychiatric expert, who works for the CDOC, concedes that there is not a lot of continuity of care by psychiatrists at the CDOC. Lish Dep. 25:12-23. 186. Mr. Anderson sees a psychiatrist, who provides a diagnosis and prescribes his medications, and a therapist, with whom he has talk therapy. Anderson Decl. ¶ 85. 187. While Dr. Lampela, the head of the OMI program believes it is essential for these two individuals to communicate, Lampela Dep. 106:14-108:3, Mr. Anderson’s providers do not communicate. Koprivnikar Dep. 27:11-13, 157:2-6. She also states that Mr. Anderson’s treatment plan, as written, is insufficient. Lampela Dep. 109:17-110:9. 188. At least once, Mr. Anderson went over six months without seeing a therapist, despite repeatedly requesting care. Anderson Decl. ¶ 88. 189. In the past seven months, Mr. Anderson has had three “primary” therapists. Defs.’ Resps to Pl.’s Third Requests for Admissions No. 25 (Robertson Decl. Ex. 32). 190. Each has told him that they are his “permanent” therapist, and then each has switched after a few months. Anderson Decl. ¶¶ 85, 93-94.
Dr. Patterson opined that Mr. Anderson’s care is inadequate, in part because he is denied necessary medications. 191. Dr. Patterson, a psychiatrist who specializes in correctional medicine, opined that Mr. Anderson’s mental health care is inadequate. Patterson Decl. at ¶ 14; Patterson Dep. 237:7-10.
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192. Dr. Patterson diagnosed Mr. Anderson with adult-ADHD NOS and noted that ADHD has been in his record since he was a child. Patterson Decl. at ¶ 7; see also Koprivnikar Dep. 16:17-17:4; Lish Decl. ¶ 36. Dr. Patterson also diagnosed him with personality disorders including antisocial personality disorder and personality disorder not otherwise specified with narcissistic and borderline features. Patterson Decl. ¶ 8. 193. Dr. Patterson opined that Mr. Anderson will not be able to progress in his therapy until his ADHD is controlled enough such that he can concentrate and pay attention, which would, in turn, permit him to benefit from therapy designed to treat his personality disorder. Patterson Decl. ¶ 17, 23; Patterson Dep. 143:20 - 144:16. 194. As such, Dr. Patterson opined that adequate mental health treatment for Mr. Anderson would include a comprehensive treatment plan involving psychological therapy, psychiatric therapy, supervision from housing and correctional staff, as well as medication. Patterson Decl. ¶¶ 18-19. Mr. Anderson has not been adequately treated for his complex mental health disorders and behaviors, including the fact that he has not been offered an adequate and substantial trial of an FDA-approved, non-formulary medication for his ADHD. Paterson Decl. ¶¶ 14-15. 195. A psychostimulant is the proper medication for Mr. Anderson and cognitive behavioral therapy is the appropriate therapy. Patterson Dep. 190:3-5; see also id. 247:7-10 (“I’m just opining that a competent, adequate assessment of Troy Anderson indicates that he has ADHD; that the primary treatment for his ADHD has been withheld from him.”); 270:19 - 271:12 (adequate mental health treatment would have required trying a psychostimulant, then a non-psychostimulant that has been approved by the FDA for ADHD such as Strattera, and if those are not effective, a second or third line medication such as Wellbutrin). 196. Dr. Patterson, when asked to evaluate the treatment Mr. Anderson had received for his
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antisocial personality disorder, stated “I don’t think I’d call it treatment. He has had contact with staff, with clinicians, with psychiatrists and with case managers.” Patterson Dep. 233:3-8. 197. Proper treatment would require, at the very least, that Defendants address any verbal threats from a clinical as well as disciplinary perspective. Id. 233:3 - 234:18; see also id. 271:13 - 272:8 (personality disorders are treatable; Defendants have not offered the time or intensity of therapy necessary to treat Mr. Anderson’s personality disorders). 198. Dr. Patterson opined that the medication treatment of choice for adult ADHD has been stimulant medications, particularly methylphenidate (Ritalin or Concerta) and amphetamine / dextroamphetamine preparations including Adderall XR and Focalin XR, both of which have been demonstrated to have superior efficacy compared to the non-stimulant Strattera or the antidepressants Wellbutrin and desipramine. Patterson Decl. ¶ 22; Patterson Decl. Att. 3 at 26-28; see also Koprivnikar Dep. 25:8-11, 146:7-21, 149:18-22. 199. There are numerous notations in Mr. Anderson's records which indicate that he would like to be put on Ritlin, or another FDA approved stimulant medication for the treatment of ADHD. Lish Decl. ¶ 49. 200. While all three of Mr. Anderson's therapists have informed Mr. Anderson that he requires medication for his ADHD, Anderson Decl. ¶ 99, none of them communicated with the psychiatrist actually responsible for his medications. Koprivnikar Dep. 27:11-13. 201. None of his therapists sought these medications otherwise, as they all told Mr. Anderson he will only receive stimulant medication if it is added to the formulary. Anderson Decl. ¶¶ 99-100. 202. In addition to these individuals, many other providers during Mr. Anderson’s time in CDOC have told him that they believe he requires stimulant, or at least other, medications for his mental health concerns. Anderson Decl. ¶ 99.
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The P&T Committee and the Composition of the Formulary 203. The CDOC maintains a formulary of medications which CDOC providers are expected to abide by. Koprivnikar Dep. 31:18 - 33:7; Ex. 30 at 1. 204. The Pharmaceutical and Therapeutic Committee (“P&T Committee”) determines which medications are on the formulary. Koprivnikar Dep. Ex. 30 at 3. 205. The P&T committee meets approximately once a month. Id. 206. At each meeting, a different class of medication -- for example, endocrinology or HIV medications -- is discussed. Koprivnikar Dep. 48:1-12. 207. Each type of medication is referred to as a “class” and the review devoted to that class as a “class review.” Id. 48:24 - 49:12; Ex. 30 at 3. 208. The class of psychiatric medications is discussed approximately once a year. Id. 48:13-18. 209. There are no stimulant medications on the CDOC formulary, including Ritalin which is a stimulant commonly used for the treatment of ADHD. Id. 132:7-9; 139:2-5; Patterson Decl. Att. 3 at 26. 210. Besides stimulants, there are no other general categories of medications that are not on the formulary list. Koprivnikar Dep. 152:2-8. 211. Strattera is not a stimulant, but is commonly used to treat symptoms of ADHD. Id. 151:313. 212. Strattera is not on the formulary list. Id. 151:3-15. 213. Wellbutrin used to be on the formulary, but was taken off because it was being abused. Id. 39:12-18; 80:25 - 81:7. 214. There were also safety concerns associated with the abuse concerns for Wellbutrin. Id. 68:812.
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215. “Wellbutrin is now [on the] formulary, but it’s still a security issue.” Id. 69:25 - 70:12. 216. When the P&T Committee meets, there are “usually some changes.” Id. 77:20 - 78:6. 217. A couple of medications are taken off the formulary each year. Id. 78:24 - 79:3. 218. When the Department wants or needs to, there are other ways to remove medications from the formulary list besides the formal P&T Committee procedure. Id. 83:21 - 84:7. 219. Dr. Koprivnikar does not recall a discussion when Wellbutrin was previously taken off the list. Id. 220. Medication was removed by the previous Chief Medical Officer Cary Shames without discussion. Id. 221. For example, the antipsychotic medication Geodon was substituted for Abilify without a doctor advocating for one or the other. Dr. Koprivnikar believes this was “more of a cost and availability discussion.” Id. 50:25 - 51:15. 222. Medications may be removed from the formulary based on efficiency, space, and agreements between the pharmacy and distribution companies. Id. 85:24 - 86:9. 223. “There have been instances where older medications have been . . . deleted from the list, but it’s more because you can only have a certain size to your formulary and the pharmacy can only maintain a certain quantity of medications.” Id. 76:5-9. 224. Dr. Frantz, the chief medical officer, testified that Wellbutrin was added to the formulary during the November, 2010, meeting. Frantz Dep. 7:6-9; 32:6-10. However, Dr. Koprivnikar testified that Wellbutrin was not added during a P&T Committee meeting and that she was surprised to see it had been added. Koprivnikar Dep. 79:7 - 80:1. 225. Wellbutrin was added at the request of the chief psychiatrist, Dr. Hogan, and there was no discussion of it at the meeting. Frantz Dep. 32:18 - 33:9; 35:6-21.
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226. Mr. Anderson’s psychotherapist, Mr. Kirkman, told him that the only reason that Wellbutrin was added to the formulary was this lawsuit. Anderson Dec. ¶ 123.
The Non-Formulary Committee and The Requests for Strattera and Wellbutrin for Mr. Anderson 227. The non-formulary committee is a panel of psychiatrists who are provided the task of reviewing psychiatric requests from other psychiatrists for medications that are not found on CDOC’s formulary. Lish Decl. ¶ 20. 228. Dr. Koprivnikar is a member of the non-formulary committee. Koprivnikar Dep. 11:13 12:1. 229. Although there have been non-formulary requests for Ritalin, only one has been approved. Id. 132:10 - 133:23. 230. When stimulants are requested through the non-formulary process, they are generally denied. Id. 143:5-7. 231. In 2004, a non-formulary request was submitted for Strattera for Mr. Anderson. Id. 167:2225 & Ex. 34. 232. This request was denied. Defs.’ Resp. to Pl.’s First Requests for Admission, No. 8 (Robertson Decl. Ex. 33). 233. CDOC testified that the reason why it was denied was that it was improperly submitted, however, the physican did not try to resubmit the paperwork and there was no follow-up. Id.; Koprivnikar Dep. 170:15 - 171:6. 234. Mr. Anderson never received notice of his denial of Strattera and was never given any reason why he could not have this requested medication. Anderson Decl. ¶ 101. 235. Mr. Anderson was not permitted to appeal this denial, as non-formulary requests can only be
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appealed by the physician. Koprivnikar Dep. 128:16-24. 236. Because it was not on the formulary, on August 2, 2007, Dr. Wescot submitted a nonformulary request to the non-formulary committee for Wellbutrin, which request was ultimately denied. Lish Decl. ¶¶ 19-20; Movant's Statement of Material Facts ¶¶ 83-84. 237. Dr. Wescot’s request was denied because Mr. Anderson was not in a GED program and was not a facility disruption problem. Koprivnikar Dep. 158:17 - 159:2. 238. For a long time, the Department admits that adult ADHD was not a priority and that it was only treated when individuals were trying to receive a GED. Koprivnikar Dep. 159:24 - 160:2. For example, during the tenure of Chief Medical Officer Shames, he imposed guidelines for the approval of medication for ADHD: “the person had to be furthering their education, like their GED or working on college course, or they had to be a management problem. That was the only time ADHD was treated.” Id. 159:18 - 160:2. 239. These requirements for medication for ADHD are different from the ones used now. Id. 159:18-22. 240. Dr. Shames's policy was not codified. Id. 160:19-23. 241. Dr. Shames did not really believe that ADHD was a problem or should be treated. Id. 160:17-18.
Mr. Anderson’s Grievance Concerning the Denial of Wellbutrin. 242. Only a provider can request non-formulary medication. Id. 110:5-8. 243. The only “appeal” from a denial of a non-formulary request is to resubmit the request to the committee. Id. 127:10 - 128:9. 244. The physician may also appeal to the Chief Medical Officer, but this is so rare that Dr. Koprivnikar could not recall a time it had happened. Id. 129:6 - 130:1.
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245. The only recourse for an inmate to request that a prescription be resubmitted to the nonformulary committee is the grievance process. Id. 128:16 - 129:2. 246. Mr. Anderson filed a step 1 grievance relating to the denial of the non-formulary request for Wellbutrin on August 23, 2007. Robertson Decl. Ex. 19 at ANDERSON000877. 247. This step 1 grievance was denied on September 6, 2007. Id. at ANDERSON000878. 248. Mr. Anderson filed a step 2 grievance relating to the denial of the non-formulary request for Wellbutrin on September 12, 2007. Id. at ANDERSON000875. 249. This step 2 grievance was denied on September 24, 2007. Id. at ANDERSON000876. 250. Mr. Anderson filed a step 3 grievance relating to the denial of the non-formulary request for Wellbutrin on October 3, 2007. Id. at ANDERSON000874. 251. This step 3 grievance was denied on August 7, 2008. Id. at ANDERSON000873. 252. Dr. Patterson opined that the non-formulary review process was deeply flawed and is concerning. Patterson Decl. ¶ 16; see also Patterson Dep. 240:18 - 242:20. 253. He explained that there did not appear to be adequate responses given to providers, nor are there adequate safeguards to ensure that individuals receive necessary medications. Id. 117:6 118:17 (discussing providers and following up), 248:5 - 250:3 (discussing the formulary and getting appropriate meds to patient) 254. Defendants acknowledge that Mr. Anderson has adult ADHD, Koprivnikar Dep. 106:7-10, and are aware that stimulant medications are the most effective for his ADHD, id. 105:1-4, 107:1618), yet they deny these to Mr. Anderson, see Lish Dep. 80:18 - 81:11. 255. CDOC has a blanket policy of denying stimulant medications to everyone within their custody. Koprivnikar Dep. 152:2-8; see also Defs.’ Resps. to Pl.’s First Requests for Admission No. 14 (Robertson Decl. Ex. 33) (no stimulants on formulary).
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256. CDOC says that they do this because they are concerned about security. Koprivnikar Dep. 153:11-18; see also id. 67:24-27; 67:16 - 69:2; Lish Dep. 105:5-106:9. 257. Defendants admit that they could crush and float the medication, which is effective at preventing other addictive medications from being a problem. Koprivnikar Dep. 70:13 - 71:4; Lish Dep. 133:2-6. 258. Crushing and floating is a practice where medications are ground up and then are placed into water. Koprivnikar Dep. 70:20-24. It is done to because it prevents prisoners from cheeking medications. Id. 70:25 - 71:4. 259. Defendants identified multiple other practices they use to prevent offenders from passing and abusing medications, including mouth checks and supervised administration and ingestion of medication. Id. 71:19 - 72:5; Frantz Dep. 28:5 - 29:4. 260. A few individuals in the CDOC receive stimulant medication, one of whom is at CSP. Koprivnikar Dep. 132:12-13, 133:6-14.; see Robertson Decl. Ex. 30 (Chart, Anderson 000887-88). 261. Defendants are aware that the one individual in CSP was prescribed Ritalin, a stimulant, because he has ADHD. Koprivnikar Dep. 134:7-17. However, Defendants are unaware of the reasons why a stimulant was initially prescribed instead of a non-stimulant. Id. The other CDOC offender on Ritalin suffers from depression, not ADHD. Id. 262. Juveniles are also permitted to receive stimulant medications because the Defendants want to “give them every opportunity to stay out [of prison].” Id. 25:21 - 26:3; see also id. 147:2-9. 263. Dr. Patterson stated that he has toured numerous other correctional institutions and that they do permit stimulant medications, and take care of any security concerns by crushing and floating the medication. Patterson Decl. at ¶ 25. 264. Dr. Patterson opined that crushing and floating medications is a standard and common
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practice and is not burdensome. Id. ¶ 26. 265. Indeed, everyone in CSP receiving Wellbutrin, including Mr. Anderson, currently receives that medication in crush and float form. Koprivnikar Dep. 70:17-24. 266. Mr. Anderson does not have any history of abusing, selling, or hoarding medications during his time in CDOC. Lish Dep. 42:5 - 43:12. 267. CDOC has stated that in order for Mr. Anderson to receive stimulant medication he would need to have to “significant behavioral issues” and his “behavior would have to be pretty extreme.” Koprivnikar Dep. 26:4-22. 268. Apparently, if Mr. Anderson were “[t]earing up [his] cell, being assaultive with the officers, being assaultive with other offenders, throwing things, breaking things…,” he would be prescribed Ritalin for his ADHD, Koprivnikar Dep. 26:6-9, but no offender has ever satisfied these criteria, id. at 26:21-24. 269. Not permitting Mr. Anderson access to these medications is in contrast to most individuals in CDOC, who receive the medications that their providers order for them. Korpivnikar Dep. 29:410; 138:16-18; 138:22 - 139:1. Not receiving a requested medication is “atypical.” Id. 138:19-21. 270. Dr. Patterson opined that this basis for denial is not compelling from a medical standpoint, and that the fact that juveniles receive stimulant medications indicates that this can be accomplished safely. Patterson Dep. 113:11 - 115:2, 225:4-15. 271. It is Dr. Patterson's opinion that if Mr. Anderson had been adequately treated, he probably more likely than not would have been out of segregation years ago, Patterson Dep. 146:14-17, and that had he been placed on Ritalin five years ago, he would not be in segregation now, id. 148:1-3. 272. While Mr. Anderson was “placed” in the OMI program in December 2010, Defs.’ Resps. to Pl.’s Second Set of Interrogs., No. 6 (Robertson Decl. Ex. 31), he was not placed in an active pod
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until recently, Lampela Dep. 18:16-22 (noting he was in an inactive pod as of late April). 273. Furthermore, Mr. Anderson does not feel comfortable participating in the programs afforded to prisoners in the OMI program because he does not feel that his mental health issues have been treated adequately enough to prepare him for those situations. Anderson Decl. ¶¶ 13234.
Mr. Anderson suffers severe effects of his mental illness that are serious and impact his ability to perform major life activities. 274. Mr. Anderson reports that his anger comes on suddenly and intensely and that the only technique he has for keeping it under control is to walk away. Anderson Decl. ¶¶ 110, 115. 275. Because of his explosive anger and inability to control his emotions he cannot, and has never been able to fully, interact with others. Id. ¶¶ 111, 116. 276. After an event passes he is able to calm down and then feels devastated for what he said to other people and for threatening people. Id. ¶ 117. 277. The fact that he does this over and over again makes him in despair; he feels depressed and suicidal. Id. ¶ 117. 278. Dr. Patterson notes that this pattern is typical of someone with antisocial personality behavior and personality disorder not otherwise specified with borderline and narcissistic features. Patterson Decl. ¶ 8. 279. Even though, more than anything else, Mr. Anderson wants to be able to be around people and to have normal conversations, he is afraid of being put into situations where his anger explodes and he is not able to control it. Anderson Decl. ¶ 13, 132. 280. He does not wish to be removed from isolation until he receives treatment for his mental health conditions and he knows that he can manage them. Id. ¶¶ 161-62.
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281. Mr. Anderson reports that he cannot concentrate in therapy and that he cannot learn. Id. ¶ 129. 282. Dr. Patterson noted that his thought process is interrupted and cannot be focused. See Patterson Decl. at ¶ 9. 283. Mr. Anderson writes that his mind is always going, and that he cannot calm it down. Anderson Decl. ¶ 118. 284. All he wants is the appropriate medication so he can receive cognitive behavioral therapy to help him gain control of his mental health conditions. Id. ¶¶ 125-27. 285. Mr. Anderson wants to be in a safe and supportive environment, and to receive adequate care. Id. ¶¶ 13, 130, 161.
As a result of these behaviors resulting from his mental illness Mr. Anderson is held at CSP, the most restrictive prison in CDOC. 286. Mr. Anderson is held in CSP, a prison devoted entirely to housing individuals in solitary confinement. Robertson Decl. Ex. 35 (OM 650-100). 287. Mr. Anderson is in CSP at least in part because of his mental illness and disability. Patterson Decl. ¶ 10-11; Patterson Dep. 140:18 - 141:5 (negative chrons due to ADHD). 288. Conditions at CSP are the most restrictive of any prison in CDOC. Jones Dep. 16:11 - 17:3; Bueno Decl. ¶¶ 34-59. 289. Significantly, Mr. Anderson spends more than 23 hours a day alone in his cell, and is never able to communicate face-to-face with other human beings, unmediated by barriers or shackles. Anderson Decl. ¶¶ 3, 137; Robertson Decl. Ex. 35 (OM 650-100). 290. CSP severely restricts the educational opportunities available, the job possibilities, the items available in the canteen, the property allowance, the number of visits and phone calls, and the
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amount of recreation received. See Bueno Decl. ¶¶ 34-59; Anderson Decl. ¶¶ 142, 144, 152-154; see also infra ¶¶ 319-35. 291. The conditions at CSP are so controlled and restrictive, they even preclude Mr. Anderson from hanging up a picture of his family, and only permit him to own two books, which he can only exchange annually. Jones Dep. 99:6-15 & Ex. 15 (IA 850-06); Exh. 2 to Doc. 47, ¶ 28.
The review process to progress out of CSP is inadequate. 292. To progress out of CSP, a prisoner must work his way through multiple levels. Robertson Decl. Ex. 35 (OM 650-100). 293. The main factor that determines progression through these levels is whether a person has received negative chrons. Jones Dep. 225:15-226:14; Robertson Decl. Ex. 20 (Anderson 004637); see Jiminez Dep. 146:9-17. 294. If a prisoner has received one negative chron in the prior ninety days, he will not progress in the Quality of Life Program. Jiminez Dep. 146:9-17; Robertson Decl. Ex. 35 (OM 650-100 at PAGE.); Mondragon Decl. ¶ 11 & Att. 2. 295. A negative chron can be given by any staff member, at any time, for behavior they consider to be negative. Defs.’ Resp. to Pl.’s First Interrogs, No. 8 (Robertson Decl. Ex. 37). 296. The staff member records the negative chron into a system-wide database. Jiminez Dep. 47:11-13; 93:22-94:19. 297. Yet, sometimes even when there is a negative behavior a chron won’t be issued. Jiminez Dep. 105:20-106: 4. The issuance of chrons of any sort is “unpredictable” and might not be done because a staff member is busy or because the “phone could ring.” Id. 298. There are no written standards that explain what a chron is. Defs.’ Resp. to Pl.’s First Interrogs, No. 8 (Robertson Decl. Ex. 37); Jiminez Dep. 103:3-8.
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299. Negative chrons are often given for vague and ambiguous reasons. Martin Decl. ¶¶ 11-12. 300. For example, Mr. Anderson has received negative chrons for such behavior as: “being disrespectful after being skipped for lunch” (9/2/2008 – P000243), “complaining to staff” (id.); and “sticking his nose into other peoples (sic) business” (Robertson Decl. Ex. 1 (Administrative Segregation Classification Review for Troy Anderson, 9/13/02). 301. Other prisoners have received negative chrons for vague accusations, such as: “dirty looks,” Ekin Decl. ¶ 11; “being uncooperative,” Mondragon Decl. ¶ 16; “avoiding general conversation,” Biraldi Decl. ¶ 12; and “not talking to correctional officers,” Thill Decl. ¶ 15. 302. Mr. Anderson is rarely told when he receives a negative chron, Anderson Decl. ¶ 168, and there is no requirement that staff do so. Defs.’ Resps. to Pl.’s Third Set of Requests for Admission No. 28 (Robertson Decl. Ex. 32). Generally, he is only aware of the chron when he is denied progression to a new level. Anderson Decl. ¶ 168 ; see also Biraldi Decl. ¶¶ 8-9; Ekin Decl. ¶¶ 6-7. 303. There is no ability to challenge negative chrons, or even just to receive clarification about what the specific event or behavior was. Mondragon Decl. ¶¶ 9-10 & Att. 1; Thill Decl. ¶ 10. 304. Chrons are not grievable. Mondragon Decl. ¶¶ 9-10 & Att. 1. 305. Every thirty days, Mr. Anderson receives a form indicating that he was reviewed. See, e.g., Robertson Decl. Ex. 38 (Administrate Segregation Classification Reviews dated 7/14/10, 8/13/10, 9/11/10, 10/11/10, 11/10/10); Jiminez Dep. 123:17-24. 306. He receives no notice of this review and has no ability to put forth evidence or be heard in any way. Anderson Decl. ¶ 166. 307. Ms. Darla Jiminez, a former case manager of Mr. Anderson explained that, in reality, what this means is his caseworker looked at his record for new negative chrons and entered these onto a form. Jiminez Dep. 123:17-124:4, 125:17-21.
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308. There is no discussion between staff members about Mr. Anderson and no meeting takes place in connection with this review. Jiminez Dep. 123:17-124:2. 309. Rather, the main consideration as to what will come on or off the form is whether there is space available on the computerized form. Jiminez Dep. 135:8-24; 136:3-19; 140:7-23. 310. Once the caseworker has filled out the form, she sends it to the other “committee members” for signature. Jiminez 144:8-145:2. 311. The only corrections Ms. Jiminez ever received were for typos. Id. 312. The form that Mr. Anderson receives denying or granting him progression contains no information or direction as to what he should do in the future. Anderson Decl. ¶ 170; see, e.g., Robertson Decl. Ex. 38 (Administrate Segregation Classification Reviews dated 7/14/10, 8/13/10, 9/11/10, 10/11/10, 11/10/10). 313. Rather, the forms received each month are nearly identical, with only a few words changing each month. See, e.g., id; Anderson Decl. ¶ 169; see also Thill Decl. ¶¶ 11, 13 & Atts. 1 & 2. 314. Steve Martin, Plaintiff's expert in corrections, has extensive experience in correctional administration, with specific expertise in the management of high security inmates administratively classified and housed in segregated settings, and the operation of maximum security prisons in which they are confined. Martin Decl. ¶ 2. 315. Mr. Martin opined that this review system is arbitrary and insufficient, as it makes Mr. Anderson’s confinement status dependent on subjective standards employed by whatever official or officials may be in a position at a particular time to exercise his/her own personal judgment. Martin Decl. ¶ 11. Absent clear standards and an opportunity to participate in the process, Mr. Anderson is left to wonder and speculate about what he may do to improve his quality of life. Martin Decl. Att. 2 at 13.
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316. Further, Mr. Martin opined that, under this system, Mr. Anderson is unable to determine what it is he must do to realize or effectuate a diminution of these restrictions, which is antithetical to principles of fundamental fairness as applied in correctional setting. Id. ¶ 12.
Privileges and Benefits Available to Mr. Anderson and Other Inmates 317. According to CDOC’s regulations, “[u]se of administrative segregation is a preventive and management assignment process and is to be distinguished from punitive and disciplinary segregation.” Robertson Decl. Ex. 18 (AR 600-02, Offender Classification, Administrative Segregation). 318. Warden Susan Jones was Defendants’ Rule 30(b)(6) designee on the topic of privileges and benefits made available by CDOC to inmates in general population and administrative segregation settings, including eligibility, reasons for offering privileges, and whether the privileges and benefits pose a security risk. Jones Dep. 5:20 - 6:12 & Ex. 9 at 2. 319. The CDOC classifies inmates into five custody levels. Administrative segregation is the highest security. Close custody is the second highest. Minimum is the lowest. Jones Dep. 15:1-9; 18:9-20 & Ex. 10 at 2. 320. There are a number of items that inmates in close custody -- the level just under administrative segregation -- may possess that those in administrative segregation may not. For example, inmates such as Mr. Anderson who are in levels 1, 2 or 3 of the CSP Quality of Life Program are permitted only two books and are prohibited from having the following: a clock radio; personal (non facility-issue) underwear, socks, sweatpants, gym shorts, t-shirts, tennis shoes, thermal shirts or drawers; a fan; or a photo album. Jones Dep. 104:11-15 & Ex. 15 Att. B at 2. 321. Inmates in the OMI program have the same privileges as the level they were in in the Quality of Life program. Lampela Dep. 119:19 - 121:2.
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322. Inmates in the close custody worker program at CSP are permitted to have: five books; a clock radio; and personal (non facility-issue) underwear, socks, sweatpants, gym shorts, t-shirts, tennis shoes, thermal shirts or drawers. Jones Dep. Ex. 15, Att. B at 2. 323. Inmates in close custody at the San Carlos Correctional Facility (“SCCF”) are permitted to have:
a. An address book; b. An alarm clock; c. 15 books (5 recreational; 10 educational or religious); d. a calculator, solar power; e. an extension cord; f. a fan; g. a file box; h. a notebook; i. a photo album; j. a radio; k. a bathrobe; l. personal (non facility-issue) underwear, socks, sweatpants, gym shorts, tennis shoes,
thermal shirts or drawers; and m. a typewriter. Jones Dep. 74:20 - 75:5 & Ex. 12 at ANDERSON010363 324. Warden Jones testified that it would be possible to add typewriters to the Quality of Life program on an inmate-by-inmate basis. Jones Dep. 85:10-25. 325. Inmates at SCCF are permitted to take correspondence courses, whereas inmates at CSP are
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not. Jones Dep. 89:14 - 91:11 & Ex. 14. 326. The reason Mr. Anderson is not permitted to take correspondence courses is because he is housed at CSP. Jones Dep. 95:3-5. 327. It would be possible, if they had the staff, to deliver correspondence courses at CSP in much the same way that courses such as drug and alcohol courses are currently provided there. Jones Dep. 93:25 - 94:24. 328. Some inmates at Sterling Correctional Facility are permitted to have art supplies. Inmates such as Mr. Anderson in levels 1, 2 or 3 of the CSP Quality of Life Program are not permitted to have art supplies besides colored pencils. Jones Dep. 113:7 - 114:3; 115:14-18, Ex. 15, Att. B at 2 & Ex. 16 at ANDERSON011068. 329. Inmates in higher levels of administrative segregation at Sterling Correctional Facility will have access to computers and computer programming instruction, while inmates at CSP do not. Jones Dep. 134:7 - 135:22. 330. As of April 4, 2011, inmates incarcerated at CSP were not eligible for any type of earned time due to their status as administrative segregation offenders. Resp. to RFA No. 16 (Robertson Decl. Ex. 36). 331. This denial effectively added years to Mr. Anderson’s sentence and likely will make the difference between being paroled and dying at CSP. See, e.g., AR 550-12, Earned Time Credit, available at http://www.doc.state.co.us/sites/default/files/ar/0550_12_0.pdf (showing up to 30% of sentence can be reduced). 332. As of April 4, 2011, inmates in the OMI program at CSP were not eligible for any type of earned time due to their status as administrative segregation offenders. Resp. to RFA No. 17 (Robertson Decl. Ex. 36).
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333. Since July 1, 2011, inmates in administrative segregation have been eligible to receive earned time if he meets the criteria of the applicable section or “any modified criteria developed by the department.” Colo. Rev. Stat. §§ 17-22.5-302(1.3); 17-22.5-405(8). The legislation does not contain any provision for a retroactive award of earned time. 2011 Colo. Legis. Serv. Ch. 289 (S.B. 11-176). 334. As of July 8th, 2011, Mr. Anderson now may receive a few days of good time credit each month, however, this is still significantly less than prisoners in general population prisons. See Executive Directive 22-11, available at http://www.doc.state.co.us/sites/default/files/0550_12_ 07082011.ED_pdf (listing maximum awards as one or two days per month for specific assessments). 335. Inmates that progress out of administrative segregation, including the OMI program at CSP, into a non-administrative segregation facility, are not ordinarily credited with any retroactive earned time that would have been earned but for their status as administrative segregation offenders. Resp. to RFA No. 19 (Robertson Decl. Ex. 36). 336. Officials should make an individualized determination, rather than an absolute blanket prohibition, especially under the circumstances where his situation is based on a mental impairment. Martin Dep. 87:19 - 88:3. 337. Plaintiff's expert Mr. Martin opined that there is no basis to deny in blanket fashion virtually all privileges and benefits based solely on Plaintiff’s confinement status in Administrative Segregation. Martin Decl. ¶ 5. 338. Detainees in special management units should be afforded basic living conditions that approximate those provided to the general population, consistent with the safety and security considerations that are inherent in more controlled housing, and in consideration of the purpose for which each detainee is segregated. Martin Dep. 115:7-13. 339. Absent an individualized determination that provision of a particular privilege or benefit
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represents a security or safety risk, those privileges and benefits provided to inmates not housed in Administrative Segregation should be provided Plaintiff. Martin Decl. ¶ 5. 340. In other words, to the extent permitted by legitimate security and operational requirements associated with segregated housing, inmates separated based on administrative needs (vis-à-vis disciplinary separation) should be afforded privileges and benefits parallel to those offered similarly classified general population inmates. Id. 341. Mr. Martin's opinion includes, but is not limited to, such privileges and benefits as additional reading materials, additional phone calls, additional visits, additional canteen food items, access to electronic canteen items, additional clothing items, and access to educational/ vocational training materials. Id. 342. Although Plaintiff is housed at CSP and has been assessed to pose certain safety and security risks if housed at a general population facility, his administrative confinement status alone does not provide a basis for blanket loss of virtually all privileges and benefits. Martin Decl. ¶ 9. 343. Plaintiff has not been found guilty of an act of institutional violence in approximately ten years. Id. 344. Moreover, Plaintiff has not, of record, posed a safety or security risk while utilizing CSP’s limited recreational facilities. Id. 345. If Plaintiff was to be granted additional privileges or benefits, much like those available to inmates at other high security facilities, the vast amount of these would be limited for use in a secure cell subject to all security precautions the facility wishes to impose, e.g., unannounced cell searches. Therefore, there is no legitimate penological justification for denying plaintiff access to increased privileges or benefits, absent an individual determination that a particular privilege or benefit represents a security or safety issue. Id.
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ARGUMENT In considering a motion for summary judgment, the Tenth Circuit “repeatedly has emphasized that [courts] must draw all inferences in favor of the party opposing summary judgment.” O’Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1096 (10th Cir. 1999). The non-movant is given ‘wide berth to prove a factual controversy exists.’” Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 966 (10th Cir. 2002). The “moving party carries the burden of showing beyond a reasonable doubt that it is entitled to summary judgment.” Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002) (internal quotation omitted). “‘If a moving party fails to carry its initial burden of production, the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial. In such a case, the nonmoving party may defeat the motion for summary judgment without producing anything.’” Id. I. Plaintiffs’ Claims Relating to Wellbutrin Are Not Time-Barred. In 2007, Mr. Anderson’s doctor submitted a non-formulary request for Wellbutrin, which was denied. Facts ¶ 236. Mr. Anderson timely grieved the denial – the only avenue available to him -- and pursued it through all three steps. Id. ¶¶ 245-50. His step 3 grievance was finally denied on August 7, 2008. Id. ¶ 251. Because the request was first denied in August, 2007, Defendant argues that the two-year statute of limitations has passed on any claim Mr. Anderson would have to be administered the drug Wellbutrin. Doc. 48 at 19.1 Defendants raised this same argument in their Motion to Dismiss, Doc. 5 at 5; this Court denied the motion, stating that “it is unclear from the face of the Complaint when the appeal process was complete . . ..” Doc. 37 at 7. Mr. Anderson's 1 Although none of Mr. Anderson’s claims is limited solely to the request for Wellbutrin, Defendants’ statute of limitations argument addresses only that request. Because Defendants have the burden of production in a motion for summary judgment, see Trainor, 318 F.3d at 979, Plaintiff addresses only the argument they raised.
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grievance process concluded on August 7, 2008, well within the limitations period asserted by Defendants. See Doc. 48 at 18 (asserting that claims accruing prior to May 3, 2008 are barred). Plaintiffs’ claims relating to the prescription of Wellbutrin are thus not time-barred. II. Plaintiffs’ Claims Relating to Wellbutrin Are Not Moot.
Wellbutrin was added to the formulary in late 2010, Mr. Anderson’s doctor prescribed it, and he began taking it. Movants’ Statement of Material Facts (“DF”) ¶¶ 127-28. Defendants argue that, because of this, any claim for the denial of this drug is moot. Given the ease with which Wellbutrin could be removed from the formulary and the prescription discontinued, however, this claim is not moot. “‘[V]oluntary cessation of a challenged practice’” cannot moot a claim unless “‘subsequent events [make] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 193 (2000) (citations omitted). Defendants have the “‘heavy burden of persua[ding]’ the court that the challenged conduct cannot reasonably be expected to start up again.” Id. at 189.
Defendants cannot satisfy this “heavy burden.” Wellbutrin has been on and off the formulary, generally without discussion. Facts ¶¶ 213-15; 224-26. Medications can be removed from the formulary for a variety of reasons, and have, in the past, been removed without discussion. Id. ¶ 222. Mr. Anderson’s doctor’s non-formulary request for the drug and Mr. Anderson's grievance were denied. Id. ¶¶ 236-51. Defendants have not asserted that Wellbutrin will remain on the formulary or that any future non-formulary request would be granted; nor could they not credibly do so. Defendants have not satisfied the “heavy burden” of persuading the Court that Mr. Anderson will not, in the future, be denied Wellbutrin. III. Plaintiff Is Entitled to Damages Under the ADA and RA.
Plaintiff agrees that his claim for damages under the ADA and RA are governed by the 34

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Prison Litigation Reform Act requirement that he show a physical injury. 42 U.S.C. § 1997e(e). However, it is at least a disputed issue of fact whether he has met this standard. Mr. Anderson has alleged that the lack of outdoor exercise has caused his muscles to grow weaker, and has limited his ability to perform physical exercise. Doc. 47-2 ¶ 73; see, e.g., Kettering v. Harris, 2009 WL 508348 , at *8, 26 (D.Colo. Feb. 27, 2009) (finding sufficient injury due to plaintiff’s testimony that prolonged restraint in emergency restraint chair prevented his legs from working properly upon release). IV. There is a disputed issue of fact concerning whether the periodic reviews of Mr.
Anderson’s continued CSP placement satisfy due process. A. Mr. Anderson has a protected liberty interest in avoiding placement at CSP. Defendants concede for summary judgment that Mr. Anderson has a liberty interest at CSP. Doc 48 at 22; see also Trainor, 318 F.3d at 979. B. There is a disputed issue regarding whether the procedures are sufficient to
satisfy due process requirements. The next question is what process is afforded to Mr. Anderson. Wilkinson v. Austin, 545 U.S. 209, 224 (2005). Mr. Anderson does not contest the adequacy of the process by which he was initially placed at CSP. Rather, he argues that Defendants violate due process because they deny him the right to meaningful periodic reviews of his status. Doc. 1 at 29-30. Due process ensures that the procedures in place are adequate to protect against erroneous deprivations of liberty, Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976); Wolff v. McDonnell, 418 U.S. 539, 556-57 (1974). These protections are particularly important in the context of ad seg, which can be “a pretext for indefinite confinement of an inmate.” Toevs v .Reid, __F.3d __, 2011 WL 2437782, at *11 (10th Cir. June 20, 2011)(citing Hewitt v. Helm, 459 U.S. 460, 477 n.9 (1983)).
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1. Defendants’ failure to provide notice and an opportunity to be heard creates a factual issue about the adequacy of the periodic reviews.
While periodic reviews require fewer procedural protections than the initial transfer to segregation, the fundamental requirements of due process still apply. Toevs, 2011 WL 2437782 at *57; Hewitt, 459 U.S. 476 & n.8. Notice and an opportunity to be heard are among the most important procedural mechanisms to avoid erroneous deprivations. Wilkinson, 545 U.S. at 225-26. Citing no specific authority, Defendants argue that Mr. Anderson is not required to receive notice of his reviews or have an opportunity to be heard regarding his retention in segregation. See generally Doc. 48 at 23. The Court has rejected this argument and explained that a person must receive notice of the reasons he continues to be segregated, must have an opportunity to be heard, and must be given reasons for any continued restrictions. Hewitt, 459 U.S. at 476 & n.8. Defendants’ periodic reviews do not meet this standard: they fail to provide notice of these reviews, and do not permit Mr. Anderson to be heard or to give input into the review. Facts ¶ 306. Based on these failings alone, the reviews are inadequate to protect Mr. Anderson’s rights.
2. The Tenth Circuit has recently declared CSP’s periodic reviews are inadequate because they do not provide reasons for lack of progression.
In Toevs, the Tenth Circuit determined, as a matter of law,2 that CSP was denying the Plaintiff meaningful periodic reviews. Id. at *7. Specifically, the panel determined that the reviews were inadequate because they “never informed [the Plaintiff] of the reasons why he was
2 Even if this Court does not agree that this is established as a matter of law, any dispute about the meaningfulness of periodic reviews should be permitted to proceed to a fact-finder who can weigh the credibility of the witness at trial. “A plaintiff who can introduce evidence that the decision has already been made and any hearing would be a sham is entitled to go forward with a procedural due process claim.” Ryan v. Illinois Dep’t of Children and Family Servs., 185 F.3d 751, 762 (7th Cir. 1999); see also Williams v. Norris, 277 F. App’x 647, 649 (8th Cir. 2008) (in a prison segregation case, the court concluded that “there remains an unresolved fact issue on this record as to whether Williams actually received meaningful reviews, rather than sham reviews, as he contends”).
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recommended for or denied progression, so that he would have a guide for his future behavior.” Id. at *7. The record demonstrates that Mr. Anderson is subject to the same reviews as Mr. Toevs was, Facts ¶¶ 292-316, and that he also did not receive reasons for his progress or lack thereof at CSP Facts ¶ 312. Thus, it is apparent that a reasonable fact-finder could conclude that Mr. Anderson’s reviews lacked meaning, making summary judgment on this issue inappropriate.
“[B]ecause of the potentially unlimited span of the confinement” in ad seg, periodic reviews must be meaningful. Rhinehart v. Gomez, 1998 WL 118179 at *4 (N.D. Cal. March 2, 1998); see also Hewitt, 459 U.S. at 477 n.93. The Tenth Circuit recently explained that “a ‘meaningful’ review is one that evaluates the prisoner’s current circumstances and future prospects, and, considering the reason(s) for his confinement to segregation, determines, without preconception, whether that placement remains warranted.” Toevs, 2011 WL 2437782 at *6. Because “the goal of the placement is behavior modification, the review should provide a guide for future behavior.” Id. at *6.
In addition, these reviews are meaningless because they are based on the arbitrary and
unreliable “chron” system. Facts ¶¶ 295-301. Despite the arbitrary nature of this system, negative
chrons are determinative of progress out of CSP; if a prisoner receives even one negative chron, he will not be permitted to progress in the QOL program for at least ninety days. Facts ¶¶ 293-94. Further, this process lacks basic procedural protections. The prisoner does not know he received a negative chron until he has already been denied progression, and never has any opportunityto challenge the alleged behavior. Facts ¶¶ 302-03. Correctional expert Steve Martin notes that this process is subjective and arbitrary, and that it fails to provide guidance to Mr. Anderson, leaving him
3See also Sourbeer v. Robinson, 791 F.2d 1094, 1101 (3d Cir. 1986) (meaningfulness is the “most fundamental” right of due process); Horton v. Zavaras, 2010 WL 3341259, at *9 (D. Colo. June 11, 2010) (the “provision of periodic, but meaningless, reviews of [a prisoner’s] status should not weigh against a conclusion that his segregation was indeterminate”) (emphasis added).
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to wonder and speculate about what he may do to improve his quality of life. Facts ¶¶ 314-15. As the chrons determine whether an individual will progress out of ad seg, the “reviews”
themselves are rote and meaningless. There is no meeting or discussion; rather, the case manager simply checks to see if the prisoner has received any additional negative chrons and, if he has, denies him progression. Facts ¶¶ 294, 305, 307. The case manager then routes a completed the form to the other committee members, who sign it without substantive comment or additions. Facts ¶¶ 31011. Accordingly, these periodic reviews are inadequate. V. There is a disputed material issue of fact concerning whether the medication non-
formulary review comports with due process. Mr. Anderson’s second due process claim alleges that he has a liberty interest in receiving medications that he was prescribed by his CDOC physicians, and that he is being denied these medications based on a process that is inadequate. The touchstone of the liberty interest inquiry is whether a condition “imposes an atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 483-84 (1995). A. Mr. Anderson has a protected liberty interest in receiving necessary
medication. Prison officials are required to provide adequate health care for those within their custody. See generally Estelle v. Gamble, 429 U.S. 97, 104 (1976). It is atypical for an inmate or class of inmates to be denied an entire category of medication necessary to address their mental illness. Facts ¶ 269. Because this type of medication is necessary and, in Mr. Anderson's case, because its lack may be keeping him in ad seg, Facts ¶ 271, its denial is a significant hardship. See Sandin, 515 U.S. at 483-84. Mr. Anderson has a liberty interest in avoiding denial of necessary medications. Defendants cite no support for their assertion that this is not a protected due process right. See generally Doc. 48 at 24.
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B. There is a disputed issue regarding whether the non-formulary review procedures are adequate to protect this interest.
The non-formulary review process is inadequate to ensure that individuals are receiving necessary medications. Requests for non-formulary medications are determined based only on a form submitted by the physician requesting the medication. See Facts ¶¶ 227-28. When a medication is denied, reasons are not consistently provided to the prescribing doctor or to the prisoner. Facts ¶¶ 233-34, 236-37, 252-53. The inmate’s only recourse is the grievance process. Id. ¶¶ 243-45. The reasons that medications are granted or provided are, on their face, not always clear or reasonable. See, e.g., id. ¶¶ 261, 270. This review process is inadequate to protect a prisoner’s significant interest in receiving necessary medications. VI. Mr. Anderson did not receive adequate mental health care.
In order to establish an Eighth Amendment violation for a condition of confinement, a prisoner must demonstrate that: 1) the condition of confinement is sufficiently serious; and 2) that the prison staff was aware of the risk or condition, but were deliberately indifferent. Farmer v. Brennan, 511 U.S. 825, 828-29, 834 (1994).
A. Mr. Anderson has serious mental health concerns. Defendants concede for the purpose of summary judgment that Mr. Anderson has a serious mental health condition. Doc. 48 at 25; see also Trainor, 318 F.3d at 979. The Supreme Court has determined that denial of adequate medical or mental health care is a sufficiently serious condition under the Eighth Amendment. Estelle, 429 U.S. at 290; Ramos v. Lamm, 639 F.2d 559, 575 (1980). B. CSP has continually failed to provide Mr. Anderson with adequate care. The second prong of the Eighth Amendment inquiry requires that a prisoner demonstrate that the prison was deliberately indifferent to a serious need. Mata v. Saiz, 427 F.3d 745, 752 (10th
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Cir. 2005). Generally, that requires showing that the prison officials were aware of the situation and that they failed to respond reasonably. Id.; see also Perkins v. Kansas Dep’t. of Corr., 165 F.3d 803, 80910 (10TH Cir. 1999) (deliberate indifference is a question of fact). While Defendants are correct in pointing out that “matters for medical judgment, such as whether one treatment is preferable to another are beyond the [Eighth] Amendment’s purview,” Doc. 48 at 26, prison officials are not entitled to deny care that is standard for the community, that is more effective, and that was recommended, simply by calling it a “matter of medical judgment.” See Ramos, 639 F.2d at 575.
Here, Defendants have consistently and repeatedly—for a period of approximately a decade—denied Mr. Anderson the standard of care treatment for his mental health condition. In order to benefit from cognitive therapy, Mr. Anderson must be able to focus and concentrate, something his severe ADHD prevents him from doing. Fact ¶ 193. Stimulant medications are the standard treatment for adult ADHD, have been shown more effective than any other treatment, and are regularly used in the community. Id. ¶¶ 88, 121, 195, 198, 202, 209, 205. Defendants, and specifically Mr. Anderson’s psychiatrist, admit that he would likely benefit from stimulant medication. Id. ¶ 202. Yet, Defendants continue to deny these medications to Mr. Anderson.
CDOC’s alleged basis for denying necessary medications—that providing them would create a security risk—is inadequate and their actions demonstrate deliberate indifference to Mr. Anderson’s treatment. These medications are commonly provided at other prisons, Facts ¶¶ 263-64, and nearly all security concerns can be addressed by giving “crush and float” orders (a practice already in use within CSP), id. ¶¶ 257-58. In addition, CDOC provides other medications that it admits raise security concerns. Id. ¶¶ 213-15, 257-59, 262.
Finally, beyond the failure to provide necessary medications, Defendants have been deliberately indifferent by failing to provide other components of adequate mental health treatment
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to Mr. Anderson, including an adequate treatment plan, a comprehensive approach, and continuity of care. Facts ¶¶ 185, 187, 194-98. Thus, a reasonable fact-finder could conclude that the security risk is insufficient or false, and that Defendants are deliberately indifferent in denying Mr. Anderson needed and standard medications and other required care. VII. Defendants are violating the Eighth Amendment by denying, and continuing to
deny, Mr. Anderson any outdoor access for the last eleven years. Mr. Anderson’s claim that Defendants have violated his Eighth Amendment right to be free from cruel and unusual punishment by denying him outdoor access is discussed extensively in his Motion for Partial Summary Judgment. Doc. 47. In Defendants’ Motion, they claim that denial of outdoor access is not a serious deprivation, but cite no caselaw that would indicate that total deprivation from outdoor access for a prolonged period—here, more than a decade—would not be sufficiently serious. Doc. 48 at 27-28. Defendants argue that they did not act with deliberate indifference because this was a matter within their discretion. Doc. 48 at 28. However, once a condition is viewed as “sufficiently serious” under the Eighth Amendment, it is no longer discretionary. See DeSpain v. Uphoff, 264 F.3d 965, 974 (2001) (prison officials are required to provide “humane conditions” with “basic necessities”; otherwise termed sufficiently serious conditions). While prison officials are given significant and wide discretion, they are limited by the Constitution and are not at liberty to deprive prisoners of significant human needs. Id. VII. Plaintiff’s ADA and Rehabilitation Act Claims. Title II of the ADA prohibits discrimination on the basis of disability by public entities. 42 U.S.C. § 12132. The Rehab Act prohibits such discrimination by recipients of federal funding. 29 U.S.C. § 794. The plaintiff must allege that “(1) he is a qualified individual with a disability, (2) who was excluded from participation in or denied the benefits of a public entity’s services, programs, or
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activities, and (3) such exclusion, denial of benefits, or discrimination was by reason of a disability.” Robertson v. Las Animas County Sheriff’s Dep’t, 500 F.3d 1185, 1193 (10th Cir. 2007).
Defendants assume that Mr. Anderson has a mental impairment that rises to the level of a disability. Doc. 48 at 31. This is well-supported in the record. Facts ¶¶ 141-65; 192; 254; 274-83. He is qualified because he is an inmate of CDOC who, with reasonable modifications, would meet the essential eligibility requirements for participation in the programs at issue. 42 U.S.C. § 12131(2) (defining “qualified individual”). Defendants have discriminated against Mr. Anderson by segregating him based on his disability, denying him benefits and services, providing him benefits and services that are not equal to those afforded others, and refusing to make reasonable modifications to their policies to avoid discrimination. See, e.g., 28 C.F.R. § 35.130(b)(1)(i), (ii), (b)(7) & (d); see also Alexander v. Choate, 469 U.S. 287, 301 (1985).4
Mr. Anderson asserts that CDOC violates the ADA and RA under three different theories. First, CDOC’s policy of denying access to the most common medications for his disability (ADHD) discriminates against individuals with that disability. Second, CDOC refuses to provide the reasonable accommodation (in the form of treatment and medication) necessary to permit Mr. Anderson to be integrated with other prisoners. Third, if -- even with proper medication and treatment -- his mental illness requires that he be kept in ad seg, he is qualified for a number of programs and benefits that he is now being denied based solely on that placement. Because that is tantamount to denying him these programs and benefits based on his disability, it constitutes illegal discrimination under the ADA and RA. The second and third theories are alternatives: either Mr. Anderson must be integrated into general population (and receive the accommodations necessary to
4“Reasonable modification” and “reasonable accommodation” are identical standards. Robertson, 500 F.3d at 1195 n.8. 
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accomplish this) or, if he must be segregated based on his disability, he is entitled to receive the same services as nondisabled inmates not requiring segregation.
Defendant argues that Mr. Anderson’s claim is medical malpractice, and is therefore not actionable under the ADA or RA. To the contrary, claims of discrimination relating to medical treatment may be actionable under the ADA. Rashad v. Doughty, 4 Fed. App’x 558, 560 (10th Cir. 2001); United States v. Georgia, 546 U.S. 151, 157 (2006) (“deliberate refusal of prison officials to accommodate [an inmate’s] disability-related needs in such fundamentals as . . . medical care, and virtually all other prison programs constitute[s] ‘exclu[sion] from participation in or . . . deni[al of] the benefits of’ the prison’s ‘services, programs, or activities’”). Mr. Anderson’s ADA and RA claims do not seek adequate medical treatment per se; rather, these claims seek reasonable modifications that would permit him to be integrated with other prisoners and/or to receive programs and services he is being denied based on his disability.
Defendants asserted these same grounds in their unsuccessful motion to dismiss. Doc. 5 at 13-14. In their current motion, rather than address the arguments Plaintiff made in his earlier opposition brief, Doc. 9 at 10-15, or attempt to explain or distinguish the cases he cited, Defendants repeat verbatim the argument from their Motion to Dismiss, adding only the conclusory assertions that Plaintiff has received adequate mental health treatment and been fully accommodated by this treatment. Compare Doc. 5 at 13-14 with Doc. 48 at 29-31.
A. Defendants Violate the ADA and RA by Limiting Access to the Most Common And Effective Medications for ADHD.
The most common and effective medications for ADHD are stimulants. Facts ¶¶ 195, 198, 200. The nonstimulant Strattera is also effective, though not as effective as stimulants, and Wellbutrin and desipramine are also prescribed at times . Id. ¶ 198. From the time he entered CSP
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until late last year, none of these medications was available to Mr. Anderson: none was on the formulary, and non-formulary requests for Wellbutrin and Strattera had been denied. Id. ¶¶ 209-14; 231-37. In November, 2010, Defendants added Wellbutrin to the formulary, id. ¶ 224, though, as explained in Section II above, there is no guarantee that Wellbutrin will remain available to him. Ultimately, although Mr. Anderson has indicated that he would like to be put on stimulants, id. ¶ 199, the formulary still contains no stimulant medications, and non-formulary requests for such medications are generally denied. Id. ¶¶ 209, 230. No other class of medications besides stimulants are completely absent from the formulary. Id. ¶ 210. Because the most common and effective medications for ADHD are not on the formulary and are generally not available through nonformulary requests, CDOC discriminates against individuals with Mr. Anderson’s disability.
“Access to prescription medications is part of a prison’s medical services and thus is one of the ‘services, programs, or activities’ covered by the ADA.” Kiman v. N.H. Dep’t of Corr., 451 F.3d 274, 286-87 (1st Cir. 2006). CDOC’s restrictions on the medications most commonly used to treat Mr. Anderson’s disability thus do not constitute “a medical ‘judgment’ subject to differing opinion – [they are] outright denial[s] of medical services.” See id. at 287; see also Hughes v. Colo. Dep’t of Corr., 594 F. Supp. 2d 1226, 1241 (D. Colo. 2009) (prisoner may state a claim for “discriminatory exclusion from generally available medical services”); McNally v. Prison Health Servs., 46 F. Supp. 2d 49, 58 (D. Me. 1999) (ADA claim alleged based on denial of access to prescription medication).
B. CDOC violates the ADA and RA by Failing to Provide Treatment Sufficient to Integrate Mr. Anderson With Other Prisoners.
“Unjustified isolation . . . is properly regarded as discrimination based on disability.” Olmstead v. L.C., 527 U.S. 581, 597 (1999), see also Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1180-81 (10th Cir. 2003) (same). In Olmstead, the Supreme Court held that reasonable modifications may be
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required to ensure maximum appropriate integration. Id., 527 U.S. at 603-04; see also Fisher, 335 F.3d at 1181 (public entities required “to ‘make reasonable modifications’. . . in order to avoid the discrimination inherent in the unjustified segregation of the disabled.”). Mr. Anderson remains segregated from general population because Defendants have not treated his mental illness.
Defendants assert that Mr. Anderson has received adequate treatment and medication, and refer generally to a declaration that recites his treatment history since 2006. Doc. 48 at 31 (citing Lish Decl. ¶¶ 5-50). Plaintiffs dispute a number of Dr. Lish’s assertions, see Facts ¶¶ 60, 63, 72, 82, 88, 91, 93, 98, 101, 106, 110, 117, 121, 130, as well as the conclusion drawn in Defendants’ motion. Dr. Patterson opined that Mr. Anderson has not been adequately treated for his complex mental health disorders and behaviors including the fact that he has not been offered an adequate and sustained trial of an FDA approved non-formulary medication for his ADHD. Id. ¶ 194. More importantly, he concluded that, if Mr. Anderson had been adequately treated, he more likely than not would have been out of segregation years ago and that had Mr. Anderson “been placed on Ritalin five years ago, I don’t think he would be in segregation now.” Id. ¶ 271.
Defendants are incorrect in arguing that this is a medical malpractice claim: Mr. Anderson is not seeking adequate treatment per se, but rather the reasonable modification of CDOC’s policies so that he receives treatment sufficient to permit him to be integrated with other prisoners. This is an actionable request for reasonable modification under the ADA and RA. For example, in Rouse v. Plantier, 997 F. Supp. 575, 582 (D. N.J. 1997), vacated on other grounds, 182 F.3d 192 (3d Cir. 1999), the court held that the plaintiffs had stated a claim under the ADA when they argued that the failure of the defendant prison to treat their diabetes had “excluded [them] from participating in prison
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programs.”5 Like the plaintiffs in Fisher , who were entitled to reasonable modifications to the state's prescription drug policy to ensure they could remain integrated in the community, 335 F. 3d at 1181-82, Mr. Anderson is entitled to a reasonable modification to permit him to be integrated into the general population of the prison. Where denial of treatment is tantamount to a denial of a reasonable modification of policies that results in segregation and exclusion from other programs, it constitutes an actionable disability discrimination under the ADA and RA.
C. In the Alternative, CDOC Violates the ADA and RA by Refusing the Reasonable Modification of Providing Mr. Anderson Access to Programs Available to Non-Segregated Inmates.
If the Court should hold that Mr. Anderson is not entitled to the reasonable modifications discussed above or if such measures should prove insufficient to permit Mr. Anderson to be integrated with other prisoners, it may be necessary to continue to house him in ad seg. Because this placement is based on conduct caused by his disabilities, Facts ¶ 287 -- and thus for analytical purposes, on the disability itself6 -- it cannot be used as a basis for denying him access to benefits or programs available to other non-segregated prisoners. In light of the professed administrative, rather than punitive, purpose of ad seg, id. ¶ 317, it is improper to withhold services from Mr. Anderson based on behavior that he cannot control and that CDOC will not provide the treatment to help him control.
A decision that it is necessary to house Mr. Anderson in ad seg is like a decision to segregate
5 In the employment context, an employer must consider whether a mentally disabled employee’s misconduct can be remedied through a reasonable accommodation. If so, then the employer should attempt the accommodation.” Den Hartog v. Wasatch Academy, 129 F.3d 1076, 1088 (10th Cir. 1997). 6 See McKenzie v. Dovala, 242 F.3d 967, 974 (10th Cir. 2001) (holding that "the ADA's antidiscrimination provision 'does not contemplate a stark dichotomy between "disability" and "disability-caused misconduct,"' but rather protects both" and that "the ADA protects [an employee] from adverse employment action based on conduct related to her illness so long as she does not pose a 'direct threat.'" (Internal quotations omitted)).
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prisoners who use wheelchairs for security reasons or because certain facilities are more accessible than others. While segregation of individuals with disabilities is never preferable, where courts have held it to be necessary, they have further held that such prisoners may not be denied access to programs and benefits available in other units. For example, in Pierce v. County of Orange, 526 F.3d 1190 (9th Cir. 2008), the Ninth Circuit upheld a decision not to “mainstream” prisoners with mobility and dexterity disabilities. Id. at 1220. Because the accessible but segregated facilities had fewer programs, however, “disabled detainees -- solely by virtue of their status as disabled -- [had] no possibility of access to the superior services” in other, inaccessible, facilities. Id. at 1221. As a result, the court held, any educational, recreational or other program offered to nondisabled inmates had to be made “similarly available” to the disabled plaintiffs. Id. at 1222.7
There are a number of programs and services for which Mr. Anderson would be qualified but for his placement in ad seg, that is, but for his disability. Facts ¶¶ 320-26. And the fact that he is in ad seg cannot be used to deem him “unqualified.” See Alexander, 469 U.S. at 301 (“The benefit itself, of course, cannot be defined in a way that effectively denies otherwise qualified handicapped individuals the meaningful access to which they are entitled.”). Although Defendants do not challenge this in their Motion, Plaintiff has submitted evidence that demonstrates that his requested accommodations are reasonable. Facts ¶¶ 327-45. Defendants put on no evidence or arguments concerning any defenses to the reasonable modification requirement; as such, Plaintiff does not have an obligation to address them. See Trainor, 318 F.3d at 979.
7 See also Love v. Westville Corr. Ctr., 103 F.3d 558 (7th Cir. 1996) (holding that denying quadriplegic prisoner housed in infirmary access to educational and other programs violated the ADA); cf. Schmidt v. Odell, 64 F. Supp. 2d 1014, 1031 (D. Kan. 1999) (accommodating amputee prisoner in an accessible but isolated cell “would have effectively confined plaintiff to a small area with no opportunity to move about, without the privileges enjoyed by the other inmates, in a segregated area of the jail used for punishment of inmates – all on account of his disability.”).

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CONCLUSION

Because of the numerous material and disputed facts, this Court should deny Defendants’

Motion for Summary Judgment on all claims.

DATED: July 21, 2011

Respectfully submitted,

STUDENT LAW OFFICE

/s/ Brittany Glidden Brittany Glidden Laura L. Rovner University of Denver Sturm College of Law 2255 E. Evans Ave., Suite 335 Denver, Colorado 80208 Tel: (303) 871-6140 Fax: (303) 871-6847 E-mail: bglidden@law.du.edu

/s/ Amy F. Robertson Amy F. Robertson Fox & Robertson, P.C. 104 Broadway, Suite 400 Denver, CO 80203 Tel: 303-595-9700 Fax: 303-595-9705 Email: arob@foxrob.com

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CERTIFICATE OF SERVICE I hereby certify that on July 21, 2011, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email addresses: Chris W. Alber chris.alber@state.co.us
/s/Caitlin R. Anderson Caitlin R. Anderson
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 Case 1:10-cv-01005-RBJ-KMT Document 91 Filed 04/23/12 USDC Colorado Page 1 of 11
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-1005-RBJ-KMT TROY ANDERSON,
Plaintiff, v. STATE OF COLORADO, DEPARTMENT OF CORRECTIONS, et al.,
Defendants.
PLAINTIFF’S TRIAL BRIEF
In this trial, Troy Anderson—a mentally ill prisoner who is held in solitary confinement at Colorado State Penitentiary—will demonstrate that his civil rights are being violated. Specifically, Mr. Anderson will demonstrate : 1) that he is being denied effective, community standard mental health treatment, in violation of the Eighth Amendment, the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act (“RA”); 2) that the progression program at CSP is based on an arbitrary demerit system; and 3) that Defendants subjected Mr. Anderson to cruel and unusual punishment by being denying him any outdoor access for over twelve years.
POINTS OF LAW I. MENTAL HEALTH TREATMENT It is not in dispute that Mr. Anderson suffers from mental illness; both parties’ doctors agree that he has Attention Deficit Hyperactivity Disorder (“ADHD”). The question at this trial will be whether the care Defendants have provided to treat Mr. Anderson’s serious mental conditions is adequate, or whether Defendants’ treatment is discriminatory and deliberately indifferent. The Eighth Amendment, the ADA and the RA require Defendants to provide Mr. Anderson with additional treatment for his mental illness. At this time, Mr. Anderson is
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withdrawing his due process claim regarding the non-formulary process because he does not have any non-formulary requests that have been denied by the committee. Despite withdrawing this claim, evidence regarding the formulary process and the non-formulary committee is relevant to the extent it impacts what medications Mr. Anderson is provided.
1) EIGHTH AMENDMENT To demonstrate an Eighth Amendment claim, a prisoner must show 1) that his medical or mental health need is objectively serious; and 2) that the defendants knew of a serious condition or risk and “fail[ed] to take reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994). During this trial, there will be little dispute that Mr. Anderson is a man suffering from multiple diagnosed mental illnesses, and that his need for care is objectively serious. There also is no dispute that he has received care from many Department providers. However, the mere provision of continuing medical treatment does not foreclose a claim for deliberate indifference to medical needs. Halpin v. Simmons, 33 F.App’x 961, 964 (10th Cir. 2002) (overturning district court); see also Waldrop v. Evans, 871 F.2d 1030, 1035 (11th Cir. 1989) (“choice of an easier but less efficacious course of treatment can constitute deliberate indifference”). The dispute in this case is about what treatments Mr. Anderson is entitled to. Prison officials are deliberately indifferent if they fail to take reasonable measures to abate a serious condition of a prisoner in their custody. Farmer, 511 U.S. at 847; Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999). Adequate or reasonable medical care requires qualified medical personnel to determine what services are of a quality that is acceptable when measured by professional standards in the community. See Hill v. Corr. Corp. of America, 2009 WL 2475134, *7 (D. Colo. Aug. 11, 2009)(citing Barrett v. Coplan, 292 F.Supp.2d 281, 285 (D.N.H. 2003)); Langley v. Coughlin, 888 F.2d 252, 254 (2d Cir. 1989) (““[T]he basic legal principle is clear and well established. . .that when incarceration
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deprives a person of reasonably necessary medical care. . .which would be available to him or her if not incarcerated, the prison authorities must provide such surrogate care.” ).
Mr. Anderson seeks effective care. Doctors from both sides will testify that stimulant medications are the most effective form of treatment for ADHD. While mere disagreement with medical professionals would not give rise to an Eighth Amendment violation, Perkins v. Kansas Dept. of Corr., 165 F.3d 803, 811 (10th Cir. 1999), here there is no disagreement about what treatment is most effective. In addition, Mr. Anderson seeks to have a “treatment team” or group of individuals to work with to assist him with his mental health concerns. Defendants already use such treatment teams—which typically include the current psychologist, mental health supervisors, correctional officers, and at times the prisoners—to monitor and support a prisoner’s treatment and progress.
2) ADA & RA Title II of the ADA prohibits discrimination on the basis of disability by public entities. 42 U.S.C. § 12132. The Rehabilitation Act prohibits such discrimination by recipients of federal funding. 29 U.S.C. § 794. To state a claim under these statutes, the plaintiff must allege that “(1) he is a qualified individual with a disability, (2) who was excluded from participation in or denied the benefits of a public entity’s services, programs, or activities, and (3) such exclusion, denial of benefits, or discrimination was by reason of a disability.” Robertson v. Las Animas County Sheriff’s Dep’t, 500 F.3d 1185, 1193 (10th Cir. 2007). A person has a qualifying disability when she has an impairment that substantially limits one or more of his major life activities, has a record of such impairment, or is regarded as having such an impairment. 42 U.S. C. § 12102(1); 29 U.S.C. § 705(20)(B). Major life activities include thinking, learning, and concentrating. See 42 U.S.C. § 12102(2)(A). In addition, the majority of circuits have determined that the ability to interact with others is a major life activity. Jacques v. DiMarzio, Inc. 386
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F.3d 192, 202 (2d Cir. 2004). The evidence at trial will demonstrate that Mr. Anderson has a long history of mental illness that has substantially impaired—and continues to substantially impair—his ability to think, learn, concentrate, and interact with others, and that Defendants regard him has having such impairments.
(a) Denial of Services on the Basis of Disability The ADA and RA prohibit the denial of services on the basis of disability. 28 C.F.R. § 35.130(b)(i) & (ii). “Access to prescription medications is part of a prison’s medical services and thus is one of the ‘services, programs, or activities’ covered by the ADA.” Kiman v. N.H. Dep’t of Corr., 451 F.3d 274, 286-87 (1st Cir. 2006).1 In McNally, the court found a delay of necessary medications to all HIV-positive individuals was discrimination pursuant under the ADA. McNally v. Prison Health Servs, 46 F. Supp. 2d 49, 58-59 (D. Me. 1999). Here, the evidence will show that there is a blanket denial of the most effective medications to treat ADHD, and that in the past the prison has largely denied the need for treatment of ADHD at all.
(b) Failure to Provide Reasonable Accommodations Mr. Anderson will demonstrate that his disabilities prevent him from being able to participate in and benefit from the Quality of Life Level Program (“QLLP”), therapeutic and other services at CSP. He is qualified to participate in the QLLP program because he is a prisoner housed at CSP. See OM 650-100, Joint Ex. 10. The QLLP program, which controls Mr. Anderson’s access to services such as phone calls, visits, and job opportunities, qualifies as a “service, program, or activity” under the ADA. See supra fn 2. Public entities are required to “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the
1 Services, programs and activities include, essentially, “anything a public entity does”; almost any official activity in which inmates participate in prisons is in the scope of the ADA. See Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 211 (1998).
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modification would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7). Here, Mr. Anderson is asking for the reasonable modification of effective medications and treatment that will permit him to successfully participate in the QLLP program.
While Defendants characterize this as a medical malpractice claim, Mr. Anderson is not seeking adequate treatment per se, but rather the reasonable modification of CDOC’s policies so that he receives treatment sufficient to permit him to participate in the QLLP program. See, e.g., Rouse v. Plantier, 997 F. Supp. 575, 582 (D. N.J. 1997), vacated on other grounds, 182 F.3d 192 (3d Cir. 1999) (holding that plaintiffs stated claim under ADA when defendant prison’s failure to treat their diabetes had “excluded [them] from participating in prison programs.”).
If this Court determines that Mr. Anderson is not entitled to additional treatment, he argues in the alternative that he is entitled to the reasonable accommodation of additional services while being housed in administrative segregation. Mr. Anderson is denied services and benefits because he is in administrative segregation. So long as his disability prevents him from successfully participating in the QLLP and/or requires that he be segregated, he will be denied services and benefits, such as outdoor access, books, educational programs, canteen items, on the basis of his disability. A prisoner who must be housed in a specific location because of his disability may not – by dint of that placement – be denied access to the services and programs of the prison. See Pierce v. County of Orange, 526 F.3d 1190, 1220-22 (9th Cir. 2008) (holding that prisoners who use wheelchairs may be segregated in accessible facilities but must be provided similar services to nondisabled prisoners); see also Love v. Westville Corr. Ctr., 103 F.3d 558 (7th Cir. 1996) (holding that denying quadriplegic prisoner housed in infirmary access to programs violated the ADA).
QLLP PROGRESSION PROCEDURES The processes for determining whether Mr. Anderson is able to able to progress out of
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solitary confinement at CSP violate his rights under the Due Process Clause. There is no dispute that he must successfully complete three levels of the QLLP before he is transferred to another facility where he would receive additional services and benefits, as well as be held at a lower custody status. Prisoners are prevented from progressing if they have “inappropriate behavior” as determined by prison staff members. See OM 650-100, Joint Ex. 10. There exist no clear or objective criteria for what behavior is “inappropriate” and prisoners are prevented from progressing if they receive a “negative chron,” which is a behavioral note for which there is no listed criteria and no procedural protections.
To state a procedural due process claim, a plaintiff must establish: 1) that he has a liberty or property interest protected by the due process clause, and 2) that he was not afforded an appropriate level of process. See Veile v. Martinson, 258 F.3d 1180, 1184-85 (10th Cir. 2001).
a) LIBERTY INTEREST The touchstone inquiry in determining whether a person possesses a liberty interest in avoiding particular conditions is the nature of the conditions themselves. Wilkinson v. Austin, 545 U.S. 209, 223 (1995). If administrative segregation poses an “atypical and significant hardship compared to the ordinary incidents of prison life,” it implicates a liberty interest. Sandin v. Conner, 515 U.S. 472, 484 (1995). The Supreme Court has not established a baseline for what prison conditions are “ordinary” for purposes of comparison. Wilkinson, 545 U.S. 209, 223 (1995). In Estate of DiMarco v. Dept. of Corr., the Tenth Circuit also declined to adopt a baseline for the liberty interest inquiry, and instead directed district courts to consider four factors in assessing whether an individual has a protected liberty interest: 1) the legitimate penological interest in segregation; 2) the extreme nature of the conditions; 3) whether segregation may increase the duration of confinement; and 4) whether placement in segregation is indefinite. 473 F.3d 1334,
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1341-42 (10th Cir. 2007). These factors are not exclusive, and “the proper approach is a fact-driven assessment that accounts for the totality of conditions presented by a given inmate’s sentence and confinement.” Rezaq v. Nalley, --F.3d--, 2012 WL 1372151 at *9 (10th Cir. Apr. 20, 2012).
In addition to the four DiMarco factors, multiple Tenth Circuit decisions have considered the duration of placement in segregation—even when it was as short as a few months—to be determinative. See Trujillo v. Williams, 465 F.3d 1210, 1225 (10th Cir. 2006); see also Payne v. Friel, 266 F. App’x 724, 728 (10th Cir. 2008). This emphasis comports with other circuits across the country. See Harden-Bey, 524 F.3d 789, 793 (6th Cir. 2008) (“most (if not all) of our sister circuits have considered the nature of the more-restrictive confinement and its duration in determining whether it imposes an “atypical and significant hardship”); Stephens v. Cottey, 145 F.App’x 179, 181 (7th Cir. 2005) (in determining liberty interest “courts place a premium on the duration of the deprivation.”); Beverati v. Smith, 120 F.3d 500, 504 (4th Cir. 1997) (assessing duration).
Discussing this standard, a recent decision the Tenth Circuit distinguished between punitive segregation and administrative segregation, noting that the “‘ordinary incidents of prison life’ will differ depending on a particular inmate’s conviction and the nature of nonpunitive confinement routinely imposed on inmates serving comparable sentences.” Rezaq, 2012 WL 1372151 at *9.
Thus far, Defendants have not challenged the assertion that Mr. Anderson’s conditions are an atypical and significant hardship compared to the ordinary incidents of prison life. Mr. Anderson also will demonstrate that his conditions are remarkably similar to the conditions at issue in Wilkinson, where the Supreme Court found that the conditions were an atypical and significant hardship compared to any baseline.
b) MEANINGFUL PROCESS Once a liberty interest is established, the next question is what process is to be afforded.
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Wilkinson, 545 U.S. at 224. Just this month, the Tenth Circuit clarified what process is to be afforded to a prisoner in segregation in the context of the QLLP program. Toevs v. Reid, --F.3d--, 2012 WL 1085802 (10th Cir. Apr. 2, 2012). The panel held that “Where, as here, the goal of the placement is solely and exclusively to encourage a prisoner to improve his future behavior, the review should provide a statement of reasons, which will often serve as a guide for future behavior (i.e., by giving the prisoner some idea of how he might progress toward a more favorable placement).” Id. at *6 (citing Wilkinson, 545 U.S. at 226).
The panel reviewed the QLLP process under Mathews v. Eldridge, which requires courts to examine “the probable value, if any, of additional or substitute procedural safeguards” and “the fiscal and administrative burdens [on the government] that the additional or substitute procedural requirement would entail.” Id. (quoting Mathews, 424 U.S. 319, 335 (1976)). Specifically, the panel determined that the QLLP is intended to provide the prisoner the incentive to make better choices and earn his eventual release to the general population. Id. Accordingly, the court held that a vague or ambiguous decision is not meaningful; “one supposedly has the keys to one's release, but one has no idea what they are.” Id. Meaningful process requires reasons for denial and a “guide” for how the prisoner can improve his behavior. Id.
Mr. Anderson asserts that he is regularly denied progression in the QLLP, but that he is not certain about what he needs to accomplish or how exactly his behavior must be modified in order to progress. He requests clear, objective criteria about what he must do to prevent “inappropriate behavior” so that he can progress out of CSP.
II. OUTDOOR ACCESS The third area at issue in this lawsuit concerns the long-term denial of outdoor access to Mr. Anderson. There is no dispute that Mr. Anderson—and all prisoners housed at CSP—are denied
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access to the outdoors, and only receive recreation in an inside room. As a result of this blanket denial, Mr. Anderson has not been outside or felt the sun on his skin in over eleven years.
The Eighth Amendment is violated if a prison subjects those within its custody to “unnecessary suffering” or conditions that are counter to “society’s evolving standards of decency.” Estelle v. Gamble, 429 U.S. 97, 103-04 (1976) (“unnecessary suffering”); Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (evolving standards). A prisoner is not required to demonstrate actual harm; rather, a condition is sufficiently serious if Mr. Anderson is placed at future risk of harm to his physical or mental health. Helling v. McKinney, 509 U.S. 25, 33-35 (2009). Risk of harm need not relate to a particular prisoner, but can be applicable to a group of at-risk individuals. Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008)(emphasis added). To demonstrate deliberate indifference, the plaintiff must show that prison officials are aware of a significant risk of harm, and that they have failed to take reasonable steps to abate it. Farmer, 511 U.S. at 847. The factfinder may conclude that a prison official subjectively knew of the substantial risk of harm by circumstantial evidence or “from the very fact that the risk was obvious.” Id. at 842.
Long-term denial of outdoor access is a serious deprivation as it results in unnecessary suffering, and is counter to society’s evolving standards of decency. For many decades, courts have recognized that prisoners are harmed if they are not permitted outdoor access, as “some form of regular outdoor exercise is extremely important to the psychological and physical well being of inmates.” Bailey v. Shillinger, 828 F.2d 651, 653 (10th Cir. 1987) (citing Spain v. Procunier, 600 F.2d 189, 199 (9th Cir.1979)); accord Williams v. Greifinger, 97 F.3d 699, 703–05 (2d Cir.1996) (discussing contours of right to out-of-cell exercise); Mitchell v. Rice, 954 F.2d 187, 191 (4th Cir.1992) (“Generally a prisoner should be permitted some regular out-of-cell exercise.”); Davenport v. DeRobertis, 844 F.2d 1310, 1313 (7th Cir. 1988) (allowing only one hour of out-of-cell exercise a week violated Eighth
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Amendment). Periods significantly shorter than a decade have been found—as a matter of law—to constitute a significant risk of harm. See Thomas v. Ponder, 611 F.3d 1144, 1151 (9th Cir. 2010) (thirteen month denial sufficient); Lopez v. Smith, 203 F.3d 1122, 1133 (9th Cir. 2000) (six weeks).
Defendants have acted with deliberate indifference to the serious risk resulting from extended denial of outdoor access. First, Defendants are aware of the risk of harm from long-term denial of outdoor exercise both because it is obvious, and because this lawsuit itself has put them on notice of the denial. In addition, Defendants are aware that outdoor access is considered basic need of prisoners as it is regularly provided by all correctional facilities at all security levels. Colorado stands alone in the type of blanket denial of outdoor exercise suffered by Mr. Anderson. Second, in light of this knowledge, Defendants have responded unreasonably. Even though CSP has an outdoor exercise area, Defendants do not allow any prisoners to utilize it. Further, they have failed to construct an outdoor area in the secure perimeter of CSP, a step that would require little effort and expense and would actually improve safety.
III. RELIEF SOUGHT Mr. Anderson seeks the following injunctive relief: 1) community standard mental health care including effective medications and a treatment team; 2) improved procedures to evaluate his progression in the Quality of Life program, including objective criteria and an opportunity to participate in the review process; and 3) regular access to the outdoors. In addition, Mr. Anderson seeks nominal damages under the Rehabilitation Act for the discrimination he has endured. Nominal damages are permitted under the RA , and are not foreclosed by the limitations on damages in the Prisoners Litigation Reform Act. See, e.g., Cassidy v. Ind. Dep’t of Corr., 59 F.Supp.2d 787, 793-94 (S.D. Ind. 1999); see also Perkins, 165 F.3d at 808 n.6.
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Respectfully submitted this 23rd of April, 2012
/s/ Brittany Glidden Brittany Glidden
/s/ Laura L. Rovner Laura L. Rovner Brenden Desmond, Student Attorney Katherine Hartigan, Student Attorney Maha Kamal, Student Attorney Student Law Office University of Denver Sturm College of Law 2255 E. Evans Ave. Denver, CO 80208 Ph: 303.871.6140 Fax: 303.871.6847 bglidden@law.du.edu

/s/ Amy F. Robertson Amy F. Robertson Fox & Robertson, P.C. 104 Broadway, Suite 400 Denver, CO 80203 Ph: 303.595.9700 Fax: 303.505.9705 arob@foxrob.com

CERTIFICATE OF SERVICE I hereby certify that on this 23rd day of April, 2012, I electronically filed the foregoing document, Plaintiff’s Trial Brief, with the clerk using the CM/ECF system, which will send notification of such filing to the following email addresses:
Chris Alber Chris.Alber@state.co.us
Jacquelynn Rich Fredericks Jacquelynn.RichFredericks@state.co.us
/s/ Brittany Glidden Brittany Glidden

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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge R. Brooke Jackson
Civil Action No. 10-cv-01005-RBJ-KMT TROY ANDERSON, Plaintiff, v. STATE OF COLORADO, DEPARTMENT OF CORRECTIONS, et al, Defendants.
ORDER
This case is back before this Court on plaintiff’s Motion for Enforcement of Judgment and Further Relief or, in the Alternative, for Hearing on Order to Show Cause, filed September 12, 2014. ECF No. 178. After various extensions of time were granted to facilitate a possible negotiated resolution of the present dispute, the defendants responded in opposition to the motion on December 3, 2014. ECF No. 185. That was followed by an additional brief and supplement filed by the plaintiff. ECF Nos. 186 and 187, the latter filed on January 26, 2015. The Court apologizes to the parties for not turning to this matter more promptly. Having now read and studied the parties’ papers, and for the reasons set forth below, plaintiff’s motion is denied.
BACKGROUND Trial and Judgment. The history of Troy Anderson’s incarceration in the Colorado Department of Corrections and the specific complaints that gave rise to this lawsuit are summarized in this Court’s Final Order and Judgment issued on August 24, 2012. Briefly, for the last 12 years Mr. Anderson had been housed in “administrative segregation” in the Colorado
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State Penitentiary, the most restrictive custody level within the CDOC. He spent 23 to 24 hours a day alone in a small cell. He was supposed to be taken from his cell to an “exercise” room five times each week. The exercise rooms, similarly small and empty except for a chin-up bar, had open windows covered by metal grates that contained quarter-sized holes through which Mr. Anderson could see outside and sometimes feel a breeze or the warmth of the sun. There was no opportunity for outdoor exercise or indeed being outdoors at all during the 12 years preceding the trial in this case.
Mr. Anderson complained in this case of unconstitutional treatment in three areas: (1) the denial of any opportunity for outdoor exercise; (2) inadequate mental health treatment; and (3) the application of an arbitrary demerit system that kept him from progressing out of administrative segregation. Following a seven-day bench trial the Court found that the extended denial of outdoor exercise was a violation of the Eighth Amendment’s prohibition of cruel and unusual punishment and ordered the CDOC to develop, within 60 days,
a plan that ensures that Troy Anderson has access for at least one hour, at least three times per week, to outdoor exercise in an area that is fully outside and that includes overhead access to the elements, e.g., to sunlight, rain, snow and wind, unless inclement weather or disciplinary needs make that impossible. ECF No. 109 at 38-39. The Court found in favor of the defendants on Mr. Anderson’s claim regarding mental health treatment. It found that it was not in a position to second-guess the medical judgment of his physicians with respect to medication prescribed for him, and that the systems in place at the Colorado State Penitentiary, particularly its Offenders with Mental Illness or “OMI” program, offered constitutionally adequate opportunities for multidisciplinary mental health treatment. The Court did order, however, that defendants assign a CDOC physician without previous contact with Mr. Anderson to take a fresh look at his medication and treatment needs. Id. at 39.
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With respect to the demerit or “chronological reporting” system, the Court noted that the CDOC was studying potentially significant changes to that system even while the trial was in progress and left the record open for a little over two additional weeks so that the parties could address the anticipated revisions to Administrative Regulation 650-03. After reviewing the new regulation, the Court found that it appeared to reflect “a significant effort by the CDOC to improve the evaluation and review policies for administrative segregation inmates.” Id. at 38. The Court concluded that the new policies deserved to be given a chance, and therefore resolved that claim in favor of the defendants, reserving the right to modify that conclusion if the changes proved to be form over substance. Id.
Initial Efforts to Comply with Judgment. Defendants’ initial response to the Court’s judgment was to transfer Mr. Anderson to the Sterling Correctional Facility and to declare that he would have an opportunity “to exercise for at least one hour, at least three times (normally five times) per week, in an outdoor area that includes overhead access to the elements.” Defendant’s Notice of Compliance with Final Order and Judgment, filed October 23, 2012 [ECF No. 118] at ¶4. In fact, this “opportunity” turned out to be placement in a 28 by 6 ½ foot concrete cell which, at one end, had a mesh ceiling and mesh walls above an eight-foot concrete base that permitted him to see the sky and be exposed to rain, snow and outdoor temperature. On September 4, 2013 the Court found that these exercise cells at Sterling were unacceptable as a permanent solution. Transcript [ECF No. 166] at 20-21.
With respect to the mental health issue, defendants had complied with the Court’s order to have Mr. Anderson’s situation evaluated by a new doctor. He had been prescribed the Ritalin that he had been seeking. However, the OMI program that the Court had found to offer adequate multidisciplinary mental health treatment had been discontinued and replaced by a new
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“residential treatment program,” which was not available at Sterling. Defendants insisted that adequate mental health treatment was available at Sterling, but that Mr. Anderson was refusing to accept it (and refusing to go to his exercise cell). Id. at 26. The Court indicated that it wanted to hear from the mental health professionals about whether the problem was Mr. Anderson’s stubbornness or something else. Id. at 28.
The parties requested an opportunity to attempt to resolve their differences, and the Court ordered them to report back in 30 days. Id. at 28-29, 40-41. The parties later filed several motions for extensions of time to attempt to resolve their disputes. ECF Nos. 167, 170, 172, 174, 176. Finally plaintiff’s filed the pending motion to enforce the judgment. ECF No. 178.
Mr. Anderson’s Present Situation. Beginning in mid-July 2014 Mr. Anderson has been permitted to exercise in an open-air yard near his living unit, initially with three other inmates, later with seven other inmates. In a September 10, 2014 Declaration he states, “I very much enjoy the ability to be fully outdoors like this, and have not missed many if any opportunities to go to the yard. Earlier this week, I felt the rain on my face for the first time in 15 years. It was a remarkable experience.” ECF No. 178-2 at ¶7.
Mr. Anderson also acknowledges that on June 13, 2014 a psychologist at the Sterling facility, Bryce C. Willson, PhD., put a treatment plan in place for him; that on July 30, 2014 defendants conducted a multi-disciplinary staff meeting; and that “I am able to interact with others and things are going smoothly because CDOC is, at this time, providing the mental health treatment I need and is allowing mental health staff to manage my situation as set forth in Exhibits A, B and C.” Id. at ¶9-11.
In short, although it took longer to put the pieces in place than Mr. Anderson and this Court might have wished, plaintiff agrees that the outdoor exercise and mental health plan
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implemented in mid-summer 2014 satisfy this Court’s final order and judgment and the concerns
the Court later expressed at the September 4, 2013 hearing. See Motion [ECF No. 178] at 7.
Furthermore, neither he nor any other inmate is now in “administrative segregation.”
Plaintiff’s present position. The reason that the matter is before the Court is that Mr.
Anderson and his lawyers are concerned that the CDOC might not continue to provide these
services to him in the future. Plaintiff tenders a proposed form of order (which defendants have
declined to endorse) that would amend this Court’s final judgment to add the following:
1. Troy Anderson will have access for at least one hour, at least three times per week, to outdoor exercise in an area that is fully outside and that includes overhead access to the elements, e.g., to sunlight, rain, snow and wind, unless inclement weather or disciplinary needs make that impossible. 2. While Mr. Anderson is housed in the “Cloverleaf” area of SCF, the outdoor exercise will be provided, pursuant to Paragraph 1 above, in one of the two openair yards adjacent to Units 5 and 6. 3. If Mr. Anderson is transferred to another facility, outdoor exercise will be provided, pursuant to Paragraph 1 above, in an area with exposure to the elements that is equivalent to or greater than that of the yards referenced in Paragraph 2. 4. While classified as MCU, Mr. Anderson will be governed by AR 600-09, Exhibit 1 hereto. With respect to Plaintiff’s conditions of confinement, canteen, and mental health treatment, Defendants will, at a minimum, comply with
a. the Level Review attached as Exhibit 2 hereto; b. the treatment plan attached as Exhibit 3 hereto; c. the Multidisciplinary Staffing attached as Exhibit 4 hereto; d. The list of programs and services attached as Exhibit 5 hereto; e. The MCU/MCUHR/MCUPC Orientation Sheet attached as Exhibit 6 hereto; and f. The canteen list attached as Exhibit 7 hereto. 5. With respect to review of his placement and the use of chronological records, Defendants will, at a minimum, comply with AR 550-01, Exhibit 8 hereto.
ECF No. 178-1 at 2-3. The proposed order has 59 pages of exhibits.
Plaintiff’s argument is that his proposed order memorializes Mr. Anderson’s current
conditions of confinement and ensures that his access to outdoor exercise and adequate mental
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health treatment will not be revoked after the case concludes. Brief [ECF No. 186] at 2. Plaintiff cites Battle v. Anderson, 708 F.2d 1523 (10th Cir. 1983, holding that “[t]he court must exercise
supervisory power over the matter until it can say with assurance that the unconstitutional
practices have been discontinued and that there is no reasonable expectation that unconstitutional practices will recur.” Id. at 1538. Similarly, in Longstreth v. Maynard, 961 F.2d 895 (10th Cir.
1992) the court held that an injunction remained necessary until it became “absolutely clear that
the allegedly wrongful behavior could not be expected to recur.” Id. at 900-01.
Defendants’ present position. Defendants respond that since the September 4, 2014
hearing the CDOC “has undertaken enormous changes in how it manages high-risk offenders.”
Response [ECF No. 185] at 1. These changes include:
• Ending the use of indefinite long-term administrative segregation.
• Implementing Restrictive Housing Maximum Security at the Colorado State Penitentiary to manage the highest risk offenders. Offenders are sent to Restrictive housing for
periods no longer than 12 months and only if they have engaged in specific behaviors described in revised Administrative Regulation (AR) 650-03.1 CDOC is contemplating
another revision to AR 650-3 so that offenders who have been in Restrictive Housing for
more than nine months may have three hours of outdoor exercise in an area located off
the existing gym area.
• Using Close Custody Transition Units at the Colorado State Penitentiary in which offenders may leave their cells for six hours per day to socialize with other offenders in
1 AR 650-3 contains a matrix of behaviors that can result in a placement in Restrictive Housing, some for no more than six months (inciting a riot and possession of dangerous contraband or escape paraphernalia) and others for no more than 12 months (attempted, actual or complicit murder, manslaughter or kidnapping; assault on staff or an offender with intent to cause serious bodily injury; escape with force; engaging in a riot; rape; and arson). ECF No. 185-2 at 4. The regulation contains detailed provisions regarding the rights of inmates placed in Restrictive Housing and the process for progressing out before the expiration of the relevant period.
6

groups of 16 and participate in structured work, meals, educational programs, library, law library, and showers. They have access to indoor and outdoor exercise, including access to a gym with an attached outdoor courtyard once per week. Offenders do not stay in these units for more than six months. • Using close custody Management Control Units, mostly at the Sterling facility, to facilitate the transition of high risk offenders from Restrictive Housing to general population. Offenders may leave their cells for four hours per day, socialize with other offenders in Day Halls in groups of eight, and utilize outdoor exercise areas. For example, in the Management Control Unit in which Mr. Anderson has been placed, inmates may have exercise in groups in an outdoor courtyard at least three times a week. Id. at 2-13. In support of their response defendants submit, among other things, excerpts from a deposition of Steve Hager taken on August 19, 2014, ECF No. 185-1. Mr. Hager is the Director of Prisons for the CDOC. Mr. Hager explained that these changes began in February 2011 when Tom Clements was the Executive Director of the CDOC and were studied for more than three years. They were implemented on June 30, 2014 in a revised form of AR 650-03. ECF No. 18502. See deposition excerpts at 21-32, 54-56, 73-76, and 81-82. Inmates in a Maximum Control Unit at the Sterling facility, such as Mr. Anderson, have four hours every day out of their cell, including at least three hours per week of indoor or outdoor exercise in groups. Id. at 95. Defendants also submit a Declaration by Mr. Hager. ECF No. 185-7. He indicates that, in addition to other duties, he supervises two Deputy Directors of Prisons who in turn supervise the wardens of 12 CDOC facilities. Id. at ¶¶ 3-5. He was involved in the drafting and implementation of the revised versions of AR 650-03 and AR 600-09 (concerning management
7

of close custody offenders), both of which became effective on June 30, 2014. Id. at ¶7. He again describes the termination of administrative segregation and the changes affecting high risk offenders. Id. at ¶¶ 14-37. The CDOC has also requested funding from the Colorado General Assembly to construct outdoor exercise areas at the Colorado State Penitentiary. Id. at ¶39.
Mr. Hager states that in the four months between the implementation of the revised AR 650-03 and his Declaration the average stay in Restrictive Housing was fewer than 10 months. Id. at ¶46. Those incarcerated in Restrictive Housing at the Colorado State Penitentiary for nine continuous months or more are being offered outdoor exercise in an outdoor area, and upon leaving Restrictive Housing they will be progressed to Management Control Units at Sterling (Mr. Anderson’s present placement) pending construction and completion of the new recreation yards. Id. at 47-50. Mr. Hager describes at some length the features of the Management Control Units. Id. at ¶¶54-58.
Mr. Hager further declares that, while the CDOC will review its Administrative Regulations annually, the CDOC is committed to these changes in the philosophy of how to manage high risk offenders. Id. at ¶¶59-61. The CDOC “has no intention of disallowing access to the outdoor exercise areas at the Sterling Correctional Facility that the offenders in the MCU utilize for outdoor group exercise, nor can I even think of a reason for making that change.” Id. at ¶62.
Defendants also submit excerpts from the deposition of Steve Martin taken on September 10, 2014. ECF No. 185-3. Mr. Martin was the plaintiff’s corrections expert at the trial of this case. In this deposition he testified that he was aware of the changes implemented by the CDOC as of June 30, 2014. Id. at deposition p. 123. He takes Mr. Hager as “a man of his word and he’s honest.” Id. at 124. He perceives the changes as an end to indefinite, long-term administrative
8

segregation.” Id. at 135. The present approach to outdoor recreation is not, in Mr. Martin’s opinion, a “per se constitutional violation.” Id. at 151. Even at the Colorado State Penitentiary, while Mr. Martin does not like the configuration, he agrees that an opportunity for outdoor exercise that meets basic human needs is now being provided. Id. at 159-60.
ANALYSIS To begin, one must remember that this case is not a class action. Mr. Anderson sought equitable relief addressing his lack of access to outdoor exercise, his allegedly inadequate mental health treatment, and the chronological reporting system that had kept him from progressing out of administrative segregation. The Court’s final order and judgment supported Mr. Anderson’s claims as to outdoor exercise. It did not, with the exception of ordering a fresh look at his mental health treatment by a doctor without previous contact with him, agree with his mental health claim. Likewise, primarily because significant changes were being made to the chronological reporting system while the trial was in progress, the Court did not sustain his claim regarding that system. Although it took a while, the Court’s orders have been implemented and then some. Since mid-July 2014 Mr. Anderson has been permitted a quantity and quality of outdoor exercise that is satisfactory to him. He has been prescribed the medication he sought for his mental illness, and he is receiving acceptable, multidisciplinary mental health treatment. He has progressed out of administrative segregation. Overall, he and his lawyers appear to be happy with his present situation. Moreover, there appears to have been something of a sea change in the way in which the CDOC manages high risk offenders, extending far beyond Mr. Anderson’s individual situation. Those changes began under Tom Clements, an enlightened and effective Executive Director.
9

After the tragic murder of Mr. Clements, the direction of the CDOC has continued under Executive Director Rick Raemisch. I have more than once expressed my confidence in what I have seen from Mr. Clements and Mr. Raemisch. Defendants argue that “[t]he CDOC has ‘turned the Titanic around’ and has no intention of changing course.” Response [ECF No. 185] at 16. Like plaintiff’s expert Mr. Martin, I have no reason to doubt the honesty or good faith of Mr. Hager when he relates that the CDOC is committed to these changes of philosophy, and that with respect to outdoor exercise in particular, he can think of no reason to make a change.
As a practical matter, the good faith of strong leaders who “put their money where their mouth is” may be a better guarantor of future conditions than a court order. In any event, it does not seem to me that the way to acknowledge the progressive changes implemented by the CDOC is to place the Department under permanent court supervision. This Court finds after a review of the briefs, deposition testimony, declarations and other materials, that the unconstitutional practices that were the subject of the Court’s final order and judgment issued August 24, 2012 have been discontinued, and that there is no reason to expect that they will recur. See Battle, 708 F.2d at 1538; Longstreth, 961 F.2d at 900-01.
Further, the Prison Litigation Reform Act provides that prospective relief with respect to prison conditions “shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs.” 18 U.S.C. § 3626(a)(1)(A). This Court does not find it to be necessary to provide further prospective relief in order to correct the violation of Mr. Anderson’s rights under the Eighth Amendment. The Court likewise does not find that a hearing on an order to show cause is necessary. If, contrary to my expectation, the CDOC without good cause changes direction to Mr. Anderson’s detriment, he will not be without options.
10

ORDER Plaintiff’s motion for enforcement of judgment or a hearing on an order to show cause [ECF No. 178] is denied. DATED this 7th day of April, 2015.
BY THE COURT: ___________________________________ R. Brooke Jackson United States District Judge
11

 
 Case: 1:10-cv-01005-RBJ-KMT As of: 03/06/2017 02:06 PM MST 1 of 17
NDISPO,TERMED
U.S. District Court District of Colorado (Denver) CIVIL DOCKET FOR CASE #: 1:10−cv−01005−RBJ−KMT

Anderson v. State of Colorado, Department of Corrections et al Assigned to: Judge R. Brooke Jackson Referred to: Magistrate Judge Kathleen M. Tafoya Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 05/03/2010 Date Terminated: 08/28/2012 Jury Demand: None Nature of Suit: 555 Prisoner − Prison Condition (U.S. not a defendant) Jurisdiction: Federal Question

Troy Anderson

represented by Amy Farr Robertson Civil Rights Education and Enforcement Center 104 Broadway Suite 400 Denver, CO 80203 303−757−7901 Fax: 303−595−9705 Email: arobertson@creeclaw.org ATTORNEY TO BE NOTICED

Brittany L. Glidden University of Denver−Sturm College of Law 2255 East Evans Avenue Suite 335 Denver, CO 80208−0632 303−871−6140 Fax: 303−871−6847 Email: bglidden@law.du.edu ATTORNEY TO BE NOTICED

Laura Lee Rovner University of Denver−Sturm College of Law 2255 East Evans Avenue Denver, CO 80208 303−871−6140 Fax: 303−871−6847 Email: lrovner@law.du.edu ATTORNEY TO BE NOTICED

Timothy Patrick Fox Civil Rights Education and Enforcement Center 104 Broadway Suite 400 Denver, CO 80203 303−757−7901 Fax: 303−595−9705 Email: tfox@creeclaw.org ATTORNEY TO BE NOTICED

V.
Defendant
State of Colorado, Department of Corrections

represented by Christopher Wayne Alber Colorado Attorney General's Office Ralph L. Carr Colorado Judicial Center

Case: 1:10-cv-01005-RBJ-KMT As of: 03/06/2017 02:06 PM MST 2 of 17

1300 Broadway Denver, CO 80203 720−508−6612 Fax: 720−508−6032 Email: chris.alber@state.co.us ATTORNEY TO BE NOTICED

Jacquelynn Nichole Rich Fredericks Colorado Attorney General's Office Ralph L. Carr Colorado Judicial Center 1300 Broadway Denver, CO 80203 720−508−6603 Fax: 720−508−6032 Email: Jacquelynn.RichFredericks@coag.gov ATTORNEY TO BE NOTICED

Defendant
Susan Jones in her official capacity as warden of Colorado State Penitentiary

represented by Christopher Wayne Alber (See above for address) ATTORNEY TO BE NOTICED

Jacquelynn Nichole Rich Fredericks (See above for address) ATTORNEY TO BE NOTICED

Defendant
Aristedes W. Zavaras in his official capacity as Executive Director of the Colorado Department of Corrections

represented by Christopher Wayne Alber (See above for address) ATTORNEY TO BE NOTICED
Jacquelynn Nichole Rich Fredericks (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/03/2010
05/06/2010
05/07/2010 05/11/2010 05/25/2010 05/25/2010 05/28/2010

# Docket Text
1 COMPLAINT against Susan Jones, State of Colorado, Department of Corrections, Aristedes W. Zavaras ( Filing fee $ 350, Receipt Number 27887) Summons Issued, filed by Troy Anderson. (Attachments: # 1 Civil Cover Sheet, # 2 Receipt)(jak, ) (Entered: 05/04/2010)
2 SUMMONS Returned Executed by Troy Anderson. Susan Jones served on 5/4/2010, answer due 5/25/2010; State of Colorado, Department of Corrections served on 5/4/2010, answer due 5/25/2010; Aristedes W. Zavaras served on 5/4/2010, answer due 5/25/2010. (Robertson, Amy) (Entered: 05/06/2010)
3 ORDER REFERRING CASE to Magistrate Judge Kathleen M. Tafoya by Chief Judge Wiley Y. Daniel on 5/7/10. (wydcd, rrk) (Entered: 05/07/2010)
4 ORDER Scheduling Conference set for 8/3/2010 09:45 AM in Courtroom C201 before Magistrate Judge Kathleen M. Tafoya. by Magistrate Judge Kathleen M. Tafoya on 5/11/2010. (erv, ) (Entered: 05/11/2010)
5 MOTION to Dismiss by Defendants Susan Jones, State of Colorado, Department of Corrections, Aristedes W. Zavaras. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Alber, Christopher) (Entered: 05/25/2010)
6 NOTICE of Entry of Appearance by Laura Lee Rovner on behalf of Troy Anderson (Rovner, Laura) (Entered: 05/25/2010)
7 Unopposed MOTION for Extension of Time to File Response/Reply as to 5 MOTION to Dismiss by Plaintiff Troy Anderson. (Robertson, Amy) (Entered: 05/28/2010)

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06/01/2010
06/23/2010 07/06/2010 07/08/2010
07/16/2010 07/24/2010 08/03/2010
08/03/2010 08/23/2010 08/23/2010
08/26/2010
08/26/2010 09/28/2010 09/28/2010
10/18/2010 10/18/2010 10/19/2010

8 ORDER granting 7 Motion for Extension of Time to File Response/Reply. Plaintiff shall file a response to the motion to dismiss no later than June 23, 2010. by Chief Judge Wiley Y. Daniel on 06/01/2010.TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydlc3, ) (Entered: 06/01/2010)
9 BRIEF in Opposition to 5 MOTION to Dismiss filed by Plaintiff Troy Anderson. (Robertson, Amy) (Entered: 06/23/2010)
10 Unopposed MOTION for Extension of Time to File Response/Reply as to 5 MOTION to Dismiss by Defendants Susan Jones, State of Colorado, Department of Corrections, Aristedes W. Zavaras. (Alber, Christopher) (Entered: 07/06/2010)
11 ORDER granting 10 Motion for Extension of Time to File Response/Reply. Defendants shall file a response no later than Friday, July 16, 2010. by Chief Judge Wiley Y. Daniel on 07/08/2010.TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydlc3, ) (Entered: 07/08/2010)
12 REPLY to Response to 5 MOTION to Dismiss filed by Defendants Susan Jones, State of Colorado, Department of Corrections, Aristedes W. Zavaras. (Alber, Christopher) (Entered: 07/16/2010)
13 Proposed Scheduling Order by Plaintiff Troy Anderson. (Glidden, Brittany) (Entered: 07/24/2010)
14 Minute Entry for proceedings held before Magistrate Judge Kathleen M. Tafoya: Scheduling Conference held on 8/3/2010. Discovery due by 3/11/2011. Dispositive Motions due by 4/8/2011. Final Pretrial Conference set for 6/7/2011 09:30 AM in Courtroom C201 before Magistrate Judge Kathleen M. Tafoya. (Court Reporter FTR − Kathleen Finney and Nick Richards) (kfinn) (Entered: 08/04/2010)
15 SCHEDULING ORDER: by Magistrate Judge Kathleen M. Tafoya on 8/3/2010. (kfinn) (Entered: 08/04/2010)
16 Joint MOTION for Protective Order by Plaintiff Troy Anderson. (Attachments: # 1 Proposed Order (PDF Only))(Robertson, Amy) (Entered: 08/23/2010)
17 MEMORANDUM regarding 16 Joint MOTION for Protective Order filed by Troy Anderson. Motion referred to Magistrate Judge Kathleen M. Tafoya by Chief Judge Wiley Y. Daniel on 8/23/10. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydcd, rrk) (Entered: 08/23/2010)
18 MINUTE ORDER granting 16 Joint Motion for Entry of Stipulated Protective Order. The proposed protective order will be entered. By Magistrate Judge Kathleen M. Tafoya on 8/26/10.TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (kmtlc1 ) (Entered: 08/26/2010)
19 STIPULATED PROTECTIVE ORDER by Magistrate Judge Kathleen M. Tafoya on 8/26/2010. (erv, ) (Entered: 08/26/2010)
20 Unopposed MOTION for Leave to Appear by Plaintiff Troy Anderson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Glidden, Brittany) (Entered: 09/28/2010)
21 MEMORANDUM regarding 20 Unopposed MOTION for Leave to Appear filed by Troy Anderson. Motion referred to Magistrate Judge Kathleen M. Tafoya by Chief Judge Wiley Y. Daniel on 9/28/10. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydcd, rrk) (Entered: 09/28/2010)
23 NOTICE of Entry of Appearance of Student Attorney Lee Knox by Brittany L. Glidden on behalf of Troy Anderson (erv, ) (Entered: 10/19/2010)
24 NOTICE of Entry of Appearance of Student Attorney Courtney Longtin by Brittany L. Glidden on behalf of Troy Anderson (erv, ) (Entered: 10/19/2010)
22 MINUTE ORDER granting 20 Motion for Leave to Appear, filed September 28, 2010. Coutrney Longtin and Lee Knox are permitted to appear pursuant to the Law Student Appearance Form, signed October 18, 2010. Entered by Chief Judge Wiley Y. Daniel on 10/19/10. (wydcd, rrk) (Entered: 10/19/2010)

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11/09/2010 11/10/2010 11/10/2010
01/13/2011 01/14/2011 01/26/2011 02/10/2011 02/10/2011 02/14/2011
03/10/2011 03/25/2011 03/28/2011 03/28/2011

25 Unopposed MOTION for Extension of Time to Discovery Deadlines by Plaintiff Troy Anderson. (Attachments: # 1 Proposed Order (PDF Only))(Glidden, Brittany) (Entered: 11/09/2010)
26 MEMORANDUM regarding 25 Unopposed MOTION for Extension of Time to Discovery Deadlines filed by Troy Anderson. Motions referred to Magistrate Judge Kathleen M. Tafoya by Chief Judge Wiley Y. Daniel on 11/10/10. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydcd, rrk) (Entered: 11/10/2010)
27 MINUTE ORDER granting 25 Motion to Extend Discovery Deadlines. The expert witness disclosure deadline is extended to February 17, 2011. The rebuttal expert witness disclosure deadline is extended to March 24, 2011. The discovery cutoff is extended to April 28, 2011. The dispositive motions deadline is extended to May 26, 2011. Status reports shall be filed on or before March 10, 2011. Additionally, the Final Pretrial Conference set for 6/07/2011 is VACATED and RESET to 7/28/2011 at 9:00 AM in Courtroom C201 before Magistrate Judge Kathleen M. Tafoya. By Magistrate Judge Kathleen M. Tafoya on 11/10/10.TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (kmtlc1 ) (Entered: 11/10/2010)
28 Unopposed MOTION for Leave to Appear by Plaintiff Troy Anderson. (Attachments: # 1 Exhibit 1)(Glidden, Brittany) (Entered: 01/13/2011)
29 MEMORANDUM regarding 28 Unopposed MOTION for Leave to Appear filed by Troy Anderson. Motion referred to Magistrate Judge Kathleen M. Tafoya by Chief Judge Wiley Y. Daniel on 1/14/11. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydcd, rrk) (Entered: 01/14/2011)
30 MINUTE ORDER granting 28 Plaintiffs Unopposed Motion for Leave to Appear. Student Attorney Matthew Court is permitted to appear pursuant to the Law Student Appearance Form signed January 26, 2011. by Chief Judge Wiley Y. Daniel on 1/26/2011. (Attachments: # 1 Law School Student Entry of Appearance)(erv, ) (Entered: 01/26/2011)
31 Joint MOTION for Extension of Time to Provide Plaintiff's Expert Reports and for the Deadline for Defendants' Rebuttal Expert Disclosures by Plaintiff Troy Anderson. (Glidden, Brittany) (Entered: 02/10/2011)
MEMORANDUM regarding 31 Joint MOTION for Extension of Time to Provide Plaintiff's Expert Reports and for the Deadline for Defendants' Rebuttal Expert Disclosures filed by Troy Anderson. Motion referred to Magistrate Judge Kathleen M. Tafoya by Chief Judge Wiley Y. Daniel on 2/10/11. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydcd, rrk) (Entered: 02/10/2011)
32 ORDER granting 31 Joint Motion for an Extension of Plaintiff's Expert Report Deadline and Defendants' Rebuttal Expert Disclosure Deadline. The date by which Plaintiff shall submit his expert reports is extended to March 31, 2011. Defendants' rebuttal expert disclosures deadline date is extended to April 14, 2011. Entered by Magistrate Judge Kathleen M. Tafoya on 02/14/2011.TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (kmt, ) (Entered: 02/14/2011)
33 Joint STATUS REPORT by Plaintiff Troy Anderson. (Glidden, Brittany) (Entered: 03/10/2011)
34 MOTION to Amend/Correct/Modify Scheduling Order for Additional Requests for Admission by Plaintiff Troy Anderson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Glidden, Brittany) (Entered: 03/25/2011)
35 MEMORANDUM regarding 34 MOTION to Amend/Correct/Modify Scheduling Order for Additional Requests for Admission filed by Troy Anderson. Motion referred to Magistrate Judge Kathleen M. Tafoya by Chief Judge Wiley Y. Daniel on 3/28/11. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydcd, rrk) (Entered: 03/28/2011)
36 MINUTE ORDER: Defendants shall respond to 34 Plaintiff's Motion for Additional Requests for Admission no later than April 4, 2011. By Magistrate Judge Kathleen M. Tafoya on 3/28/11. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED(kmtlc1 ) (Entered: 03/28/2011)

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03/30/2011 04/04/2011 04/07/2011 04/08/2011 04/11/2011 04/11/2011 04/11/2011
05/12/2011 05/12/2011 05/12/2011
06/27/2011

37 ORDER denying 5 Defendants' Motion to Dismiss by Chief Judge Wiley Y. Daniel on 03/30/11.(jjh, ) (Entered: 03/30/2011)
38 RESPONSE to 34 MOTION to Amend/Correct/Modify Scheduling Order for Additional Requests for Admission filed by Defendants Susan Jones, State of Colorado, Department of Corrections, Aristedes W. Zavaras. (Alber, Christopher) (Entered: 04/04/2011)
39 ORDER. Order granting 34 Motion for Additional Requests for Admission by Magistrate Judge Kathleen M. Tafoya on 04/07/11.(jjh, ) (Entered: 04/07/2011)
40 Joint MOTION for Extension of Time to Deadlines by Plaintiff Troy Anderson. (Glidden, Brittany) (Entered: 04/08/2011)
41 MEMORANDUM regarding 40 Joint MOTION for Extension of Time to Deadlines filed by Troy Anderson. Motions referred to Magistrate Judge Kathleen M. Tafoya, by Chief Judge Wiley Y. Daniel on 4/11/11. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED(lsw, ) (Entered: 04/11/2011)
42 ANSWER to 1 Complaint by Susan Jones, State of Colorado, Department of Corrections, Aristedes W. Zavaras.(Alber, Christopher) (Entered: 04/11/2011)
43 MINUTE ORDER granting in part 40 Joint Motion for Extension of Deadlines. The rebuttal expert disclosure deadline is extended to 5/26/2011. The discovery deadline, as it relates to rebuttal experts only, is extended to 5/26/2011. The dispositive motions deadline is extended to 6/27/2011. However, as counsel's trials are scheduled for June 2011, there is no reason to extend the deadlines for filing responses and/or replies in support of the dispositive motions. Responses shall be filed no later than 7/21/2011. Replies shall be filed no later than 8/7/2011. Additionally, the Final Pretrial Conference set for 7/28/2011 is VACATED and RESET to 10/6/2011 at 9:15 AM in Courtroom C201 before Magistrate Judge Kathleen M. Tafoya. By Magistrate Judge Kathleen M. Tafoya on 4/11/11.TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (kmtlc1 ) (Entered: 04/11/2011)
44 Unopposed MOTION to Withdraw as Attorney (Student Attorneys) by Plaintiff Troy Anderson. (Glidden, Brittany) (Entered: 05/12/2011)
45 MEMORANDUM regarding 44 Unopposed MOTION to Withdraw as Attorney (Student Attorneys) filed by Troy Anderson. Motion referred to Magistrate Judge Kathleen M. Tafoya by Chief Judge Wiley Y. Daniel on 5/12/11. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydcd, rrk) (Entered: 05/12/2011)
46 MINUTE ORDER granting 44 Motion to Withdraw as Attorney. Student attorneys Lee Knox, Courtney Longtin, and Matthew Court are relieved of any further representation of Plaintiff in the abovecaptioned matter. The Clerk of Court is instructed to remove Mr. Knox, Ms. Longtin, and Mr. Court from the electronic certificate of mailing by Magistrate Judge Kathleen M. Tafoya on 05/12/11.(jjh, ) (Entered: 05/12/2011)
47 MOTION for Partial Summary Judgment by Plaintiff Troy Anderson. (Attachments: # 1 Exhibit 1 − Reid depo transcript (Dunlap), # 2 Exhibit 2 − Declaration of Troy Anderson, # 3 Exhibit 3 − Martin report, # 4 Exhibit 4 − Policy 650−100, # 5 Exhibit 5 − 3rd set of Interrogatories, # 6 Exhibit 6 − Declaration of Keenan Jones PART I, # 7 Exhibit 6 − Declaration of Keenan Jones PART II, # 8 Exhibit 6 − Declaration of Keenan Jones PART III, # 9 Exhibit 7 − Pictures of Canon City Complex, # 10 Exhibit 8 − 2nd Request for Admissions, # 11 Exhibit 9 − Jones depo transcript, # 12 Exhibit 10 − Barr depo transcript, # 13 Exhibit 11 − Shoemaker depo transcript, # 14 Exhibit 12 − Patterson report, # 15 Exhibit 13 − Patterson depo transcript, # 16 Exhibit 14 − Martin depo transcript, # 17 Exhibit 15 − Reid depo transcript, # 18 Exhibit 16 − Policy 1000−01, # 19 Exhibit 17 − Martin depo transcript (Dunlap), # 20 Exhibit 18 − BOP death row policy, # 21 Exhibit 19 − Dennis depo transcript, # 22 Exhibit 20 − 1st Set of Interrogatory Responses, # 23 Exhibit 21 − Anderson grievance, # 24 Exhibit 22 − Shoemaker depo transcript (Dunlap), # 25 Exhibit 23 − Steele depo transcript, # 26 Exhibit 24 − Quarters History, # 27 Exhibit 25 − Clinical Note)(Glidden, Brittany) (Entered: 06/27/2011)

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06/27/2011 07/21/2011
07/21/2011 07/21/2011 08/05/2011 08/05/2011 09/06/2011 09/14/2011 09/26/2011
09/29/2011 09/29/2011 10/05/2011 10/05/2011

48 MOTION for Summary Judgment by Defendants Susan Jones, State of Colorado, Department of Corrections, Aristedes W. Zavaras. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Alber, Christopher) (Entered: 06/27/2011)
49 RESPONSE to 48 MOTION for Summary Judgment filed by Plaintiff Troy Anderson. (Attachments: # 1 Deposition Excerpts − Dennis, # 2 Deposition Excerpts − Frantz, # 3 Deposition Excerpts − Jimenez, # 4 Deposition Excerpts − Jones, Part 1, # 5 Deposition Excerpts − Jones, Part 2, # 6 Deposition Excerpts − Jones, Part 3, # 7 Deposition Excerpts − Jones, Part 4, # 8 Deposition Excerpts − Koprivnikar, # 9 Deposition Excerpts − Lampela, # 10 Deposition Excerpts − Lish, # 11 Deposition Excerpts − Martin, # 12 Deposition Excerpts − Patterson, # 13 Deposition Excerpts − Shoemaker, # 14 Declaration of Troy Anderson, # 15 Declaration of Darrell Biraldi, # 16 Declaration of David Bueno, # 17 Declaration of Jerimia Ekin, # 18 Declaration of Carlos Mondragon, # 19 Declaration of Nathan Thill, # 20 Declaration of Steve Martin, # 21 Declaration of Raymond F. Patterson)(Robertson, Amy) (Entered: 07/21/2011)
50 DECLARATION of Amy F. Robertson regarding Response to Motion,,, 49 by Plaintiff Troy Anderson. (Attachments: # 1 Exhibit 1−10, # 2 Exhibit 11−17, # 3 Exhibit 18−19, # 4 Exhibit 20−24, # 5 Exhibit 25, # 6 Exhibit 26−34, # 7 Exhibit 35−39, # 8 Exhibit 40−41)(Robertson, Amy) (Entered: 07/21/2011)
51 RESPONSE to 47 MOTION for Partial Summary Judgment filed by Defendants Susan Jones, State of Colorado, Department of Corrections, Aristedes W. Zavaras. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Alber, Christopher) (Entered: 07/21/2011)
52 REPLY to Response to 47 MOTION for Partial Summary Judgment filed by Plaintiff Troy Anderson. (Robertson, Amy) (Entered: 08/05/2011)
53 REPLY to Response to 48 MOTION for Summary Judgment filed by Defendants Susan Jones, State of Colorado, Department of Corrections, Aristedes W. Zavaras. (Attachments: # 1 Exhibit D, # 2 Exhibit E, # 3 Exhibit F)(Alber, Christopher) (Entered: 08/05/2011)
54 Unopposed MOTION for Leave to Appear by Plaintiff Troy Anderson. (Attachments: # 1 Exhibit 1)(Glidden, Brittany) (Entered: 09/06/2011)
55 MINUTE ORDER granting 54 Motion for Leave to Appear. Student Attorney Brenden Desmond is permitted to appear pursuant to the Law Student Appearance Form signed September 13, 2011 by Chief Judge Wiley Y. Daniel on 09/14/11. (Attachments: # 1 Attachment 1)(jjh, ) (Entered: 09/14/2011)
56 REASSIGNING JUDGE. This action is reassigned to Judge R. Brooke Jackson, upon his recent appointment to the court. All future pleadings should reference Judge Jackson's initials at the end of the civil action number (such as 08−cv−00001−RBJ). Unless otherwise ordered, the dates and times for all previously scheduled matters will be maintained and will now be handled by Judge Jackson in Courtroom A702. His chambers are located in Room A738 of the Alfred A. Arraj U. S. Courthouse. His chambers telephone number is 303−844−4694. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (gmssl, ) (Entered: 09/26/2011)
57 MINUTE ORDER: The parties are hereby ordered to submit a joint status report initially prepared by plaintiff(s), if represented. For details visit http://www.cod.uscourts.gov/Documents/Judges/RBJ/RBJ_Status%20Report.pdf. by Judge R. Brooke Jackson on 09/29/2011. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED(rbjlc1, ) (Entered: 09/29/2011)
58 Proposed Pretrial Order (Final) by Plaintiff Troy Anderson. (Attachments: # 1 Exhibit 1 − Plaintiff's Exhibit List, # 2 Exhibit 2 − Defendant's Exhibit List)(Glidden, Brittany) (Entered: 09/29/2011)
59 AMENDED 58 Proposed Pretrial Order AMENDED EX. 1 − Plaintiff's Exhibit List by Plaintiff Troy Anderson. (Glidden, Brittany) (Entered: 10/05/2011)
60 Amended Exhibit 2 − Defendants' Exhibit List 58 Proposed Pretrial Order by Defendants Susan Jones, State of Colorado, Department of Corrections, Aristedes

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10/06/2011
10/06/2011 10/06/2011 10/13/2011 12/20/2011
01/06/2012 01/10/2012 01/12/2012 01/13/2012
01/24/2012 02/18/2012 02/20/2012 02/29/2012 02/29/2012 03/01/2012

W. Zavaras. (Alber, Christopher) Modified on 10/6/2011 to create linkage to 58 and correct title(lsw, ). (Entered: 10/05/2011)
61 ORDER Setting Bench Trial and Trial Preparation Conference. Eight−day Bench Trial set to commence on 4/30/2012 at 09:00 AM in Courtroom A 702 before Judge R. Brooke Jackson. Trial Preparation Conference set for 3/30/2012 at 02:00 PM before Judge R. Brooke Jackson, by Judge R. Brooke Jackson on 10/6/11. (lsw, ) (Entered: 10/06/2011)
62 MINUTE ENTRY for Final Pretrial Conference held on 10/6/2011 before Magistrate Judge Kathleen M. Tafoya. (FTR: Nick Richards) (kmtcd) (Entered: 10/07/2011)
63 FINAL PRETRIAL ORDER by Magistrate Judge Kathleen M. Tafoya on 10/6/2011. (kmtcd) (Entered: 10/07/2011)
64 Joint STATUS REPORT by Plaintiff Troy Anderson. (Glidden, Brittany) (Entered: 10/13/2011)
65 MOTION for Order to Reopen Discovery for a Limited Purpose by Plaintiff Troy Anderson. (Attachments: # 1 Exhibit 1 − Defendants' Disclosures, # 2 Exhibit 2 − 30(b)(6) Designations, # 3 Exhibit 3 − February 2011 emails, # 4 Exhibit 4 − Portion of December production, # 5 Exhibit 5 − Conferral emails, # 6 Exhibit 6 − Operational Memo for OMI program)(Glidden, Brittany) (Entered: 12/20/2011)
66 NOTICE of Entry of Appearance by Timothy Patrick Fox on behalf of Troy Anderson (Fox, Timothy) (Entered: 01/06/2012)
67 RESPONSE to 65 MOTION for Order to Reopen Discovery for a Limited Purpose filed by Defendants Susan Jones, State of Colorado, Department of Corrections, Aristedes W. Zavaras. (Attachments: # 1 Exhibit A−1, # 2 Exhibit A−2)(Alber, Christopher) (Entered: 01/10/2012)
68 Unopposed MOTION for Leave to Appear by Plaintiff Troy Anderson. (Attachments: # 1 Exhibit 1 − Kamal Entry of Appearance, # 2 Exhibit 2 − Hartigan Entry of Appearance)(Glidden, Brittany) (Entered: 01/12/2012)
69 ORDER granting 68 Unopposed Motion for Leave to Appear. The Court grants request for leave for student attorneys Maha Kamal and Katherine Hartigan to appear as counsel for Plaintiff in this matter under the supervision of Laura Rovner and Brittany Glidden, by Judge R. Brooke Jackson on 01/13/2012. Text Only Entry(rbjsec. ) (Entered: 01/13/2012)
70 REPLY to Response to 65 MOTION for Order to Reopen Discovery for a Limited Purpose filed by Plaintiff Troy Anderson. (Glidden, Brittany) (Entered: 01/24/2012)
71 NOTICE of Supplemental Authorities re: 65 MOTION for Order to Reopen Discovery for a Limited Purpose by Plaintiff Troy Anderson (Attachments: # 1 Exhibit 1 − Jama v. City and Cty of Denver)(Glidden, Brittany) (Entered: 02/18/2012)
72 MOTION for Writ of Habeas Corpus ad testificandum by Plaintiff Troy Anderson. (Attachments: # 1 Exhibit 1 − Conferral emails, # 2 Exhibit 2 − USMS Directives)(Glidden, Brittany) (Entered: 02/20/2012)
73 MEMORANDUM regarding 72 MOTION for Writ of Habeas Corpus ad testificandum filed by Troy Anderson. Motion (72) referred to Magistrate Judge Kathleen M. Tafoya by Judge R. Brooke Jackson on 02/29/2012. Text Only Entry (rbjsec. ) (Entered: 02/29/2012)
74 ORDER granting 72 Motion for Writ of Habeas Corpus ad Testificandum. Please submit a proposed Writ of Habeas Corpus ad Testificandum for the Courts approval by Judge R. Brooke Jackson on 02/29/2012. Text Only Entry(rbjsec. ) (Entered: 02/29/2012)
75 Unopposed MOTION for Leave to Appear as Student Attorneys by Plaintiff Troy Anderson. (Attachments: # 1 Proposed Order (PDF Only) Student Attorney Appearance − Dusti, # 2 Proposed Order (PDF Only) Student Attorney Appearance

Case: 1:10-cv-01005-RBJ-KMT As of: 03/06/2017 02:06 PM MST 8 of 17

03/02/2012 03/07/2012 03/19/2012 03/19/2012 03/26/2012
03/28/2012 03/29/2012 03/29/2012 03/29/2012 03/29/2012 03/29/2012 03/30/2012
04/05/2012 04/23/2012 04/23/2012

− Shapiro, # 3 Proposed Order (PDF Only) Student Attorney Appearance − Doyle)(Rovner, Laura) (Entered: 03/01/2012)
76 ORDER granting 75 Unopposed Motion for Leave to Appear as Student Attorneys: Lindsey Dusti, Lauren Shapiro, and Joseph Doyle, by Judge R. Brooke Jackson on 03/02/2012. Text Only Entry(rbjsec. ) (Entered: 03/02/2012)
77 MOTION in Limine Concerning the Admissibility of Portions of the Depositions of Defendants' Employees and Experts by Plaintiff Troy Anderson. (Attachments: # 1 Proposed Order (PDF Only), # 2 Declaration of Timothy P. Fox)(Fox, Timothy) (Entered: 03/07/2012)
78 WRIT of of Habeas Corpus Ad Testificandum issued as to Troy Anderson. (sah, ) (Entered: 03/19/2012)
79 CERTIFICATE of Service by D.C.Box by Clerk of Court re 78 Writ Issued to Writ of Habeas Corpus Ad Testificandum to U.S.Marshal, via D.C. Box. Text Only Entry (sah, ) (Entered: 03/19/2012)
80 ORDER.Plaintiffs motion for partial summary judgment 47 is DENIED. Defendants motion for summary judgment 48 is GRANTED IN PART (as to denial of Strattera in 2004) AND DENIED IN PART (in all other respects). Plaintiffs motion to reopen discovery 65 is GRANTED IN PART (regarding a one−hour deposition of Dr. Tuakoi) AND DENIED IN PART (regarding the request to depose Dr. Lenocker). The Court does not address plaintiffs motion in limine concerning the admissibility of portions of depositions of defendants employees and experts 77 . However, the Court directs counsel to confer again, before the trial preparation conference, concerning these designations, bearing in mind (1) that the Court expects counsel reasonably to accommodate reasonable requests of opposing counsel, but (2) the Court generally prefers live testimony to deposition transcripts. By Judge R. Brooke Jackson on 3/26/2012.(sah, ) (Entered: 03/26/2012)
81 RESPONSE to 77 MOTION in Limine Concerning the Admissibility of Portions of the Depositions of Defendants' Employees and Experts filed by Defendants Susan Jones, State of Colorado, Department of Corrections, Aristedes W. Zavaras. (Alber, Christopher) (Entered: 03/28/2012)
82 Witness List by Plaintiff Troy Anderson. (Robertson, Amy) (Entered: 03/29/2012)
83 Exhibit List by Plaintiff Troy Anderson. (Robertson, Amy) (Entered: 03/29/2012)
84 Exhibit List by Defendants Susan Jones, State of Colorado, Department of Corrections, Aristedes W. Zavaras. (Attachments: # 1 Exhibit Exhibit List)(Alber, Christopher) (Entered: 03/29/2012)
85 Witness List by Defendants Susan Jones, State of Colorado, Department of Corrections, Aristedes W. Zavaras. (Attachments: # 1 Exhibit Witness List)(Alber, Christopher) (Entered: 03/29/2012)
86 Unopposed MOTION for Leave to Present Testimony of Witnesses Via Videoconference, Or, In the Alternative, Petition for Writ of Habeas Corpus Ad Testificandum by Plaintiff Troy Anderson. (Rovner, Laura) (Entered: 03/29/2012)
87 MINUTE ENTRY − Courtroom Minutes for Trial Preparation Conference held on 3/30/2012 before Judge R. Brooke Jackson. ORDER granting as set forth on the record 77 Plaintiff's Motion in Limine Concerning the Admissibility of Portions of the Depositions of Defendants' Employees and Experts; granting in part and denying in part 86 Plaintiff's Unopposed Motion for Leave to Take Testimony of Nonparty Witnesses by Videoconference. (Court Reporter: Kara Spitler) (lbush) (Entered: 04/02/2012)
88 NOTICE of Entry of Appearance by Jacquelynn Nichole Rich Fredericks on behalf of All Defendants (Rich Fredericks, Jacquelynn) (Entered: 04/05/2012)
89 Witness List by Plaintiff Troy Anderson. (Robertson, Amy) (Entered: 04/23/2012)
90 TRIAL BRIEF by Defendants Susan Jones, State of Colorado, Department of Corrections, Aristedes W. Zavaras. (Alber, Christopher) (Entered: 04/23/2012)

Case: 1:10-cv-01005-RBJ-KMT As of: 03/06/2017 02:06 PM MST 9 of 17

04/23/2012 04/27/2012 04/27/2012 04/27/2012 04/29/2012 04/30/2012 05/01/2012
05/02/2012 05/03/2012 05/03/2012
05/04/2012 05/07/2012 05/07/2012 05/08/2012
05/08/2012 05/25/2012 05/25/2012

91 TRIAL BRIEF by Plaintiff Troy Anderson. (Glidden, Brittany) (Entered: 04/23/2012)
92 Witness List by Plaintiff Troy Anderson. (Robertson, Amy) (Entered: 04/27/2012)
93 Exhibit List Joint Exhibit List by Plaintiff Troy Anderson. (Robertson, Amy) (Entered: 04/27/2012)
94 STIPULATION by Plaintiff Troy Anderson. (Robertson, Amy) (Entered: 04/27/2012)
95 Exhibit List Joint Exhibit List by Plaintiff Troy Anderson. (Robertson, Amy) (Entered: 04/29/2012)
96 MINUTE ENTRY for Bench Trial− Day One held before Judge R. Brooke Jackson on 4/30/2012. Evidence entered. Trial continued. (Court Reporter: Kara Spitler) (lag) (Entered: 05/01/2012)
97 MINUTE ENTRY for Bench Trial− Day Two held before Judge R. Brooke Jackson on 5/1/2012. Evidence entered, trial continued. (Court Reporter: Kara Spitler) (lag) Modified on 5/3/2012 to indiciate the day of the trial. (sahsl, ). (Entered: 05/02/2012)
98 MINUTE ENTRY for Bench Trial− Day Three held before Judge R. Brooke Jackson on 5/2/2012. Evidence entered. Trial continued. (Court Reporter: Kara Spitler) (lag) (Entered: 05/03/2012)
99 MINUTE ENTRY for Bench Trial − Day Four held before Judge R. Brooke Jackson on 5/3/2012. Evidence entered. Trial continued. (Court Reporter: Kara Spitler) (lag) (Entered: 05/04/2012)
100 AMENDED MINUTE ENTRY re 99 Bench Trial− Day Four for proceedings held before Judge R. Brooke Jackson. Minutes amended to correct typo on time to correctly read, "4:08 p.m." (Court Reporter: Kara Spitler) (lag) (Entered: 05/04/2012)
101 MINUTE ENTRY for Bench Trial − Day Five held before Judge R. Brooke Jackson on 5/4/2012. Evidence entered. Trial continued. (Court Reporter: Kara Spitler) (lag) (Entered: 05/07/2012)
102 STATEMENT (Proposed Order) by Plaintiff Troy Anderson. (Glidden, Brittany) (Entered: 05/07/2012)
103 MINUTE ENTRY for Bench Trial − Day Six held before Judge R. Brooke Jackson on 5/7/2012. Evidence entered. Plaintiff rests. Defense rests. Trial continued. (Court Reporter: Kara Spitler) (lag) (Entered: 05/08/2012)
104 MINUTE ENTRY for Bench Trial − Day Seven completed before Judge R. Brooke Jackson on 5/8/2012. Closing argument. ORDERED: Court orders that the evidence is reopened until May 25, 2012. The Court will receive any information that the defense wishes to provide to the Court and Plaintiffs concerning changes that might affect the chron system or the administrative review. The parties may submit a brief not to exceed five pages concerning those changes and their significance. The Court will issue a written opinion. (Court Reporter: Kara Spitler) (Attachments: # 1 Exhibit List) (lag) (Additional attachment(s) added on 5/11/2012: # 2 Plaintiff's Witness List, # 4 Defendant's Witness List) (lag, ). (Entered: 05/08/2012)
105 Stipulation and Order Regarding Custody of Exhibits and Depositions by Judge R. Brooke Jackson on 5/8/12. (lag) (Entered: 05/08/2012)
106 TRIAL BRIEF PLAINTIFFS BRIEF ON NEW CDOC REGULATION by Plaintiff Troy Anderson. (Robertson, Amy) (Entered: 05/25/2012)
107 TRIAL BRIEF (Supplemental) by Defendants Susan Jones, State of Colorado, Department of Corrections, Aristedes W. Zavaras. (Attachments: # 1 Exhibit A−1; AR 650−03)(Alber, Christopher) (Entered: 05/25/2012)

Case: 1:10-cv-01005-RBJ-KMT As of: 03/06/2017 02:06 PM MST 10 of 17

06/01/2012 08/24/2012
08/28/2012 09/02/2012 09/06/2012 09/11/2012

108 Partial TRANSCRIPT of Excerpt, Trial to Court, Day 4, Testimony of David Bueno held on 5−3−12 before Judge Jackson. Pages: 1−55. <P> NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.</P> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 9/4/2012. (Spitler, Kara) (Entered: 06/01/2012)
109 FINAL ORDER AND JUDGMENT re: 104 Bench Trial − Completed, The Court enters judgment in favor of the plaintiff and against defendants on plaintiffs Fourth Claim for Relief. The Court orders that within 60 days the CDOC, must develop and present to plaintiffs counsel and the Court a plan that ensures that Troy Anderson has access for at least one hour, at least three times per week, to outdoor exercise in an area that is fully outside and that includes overhead access to the elements, e.g., to sunlight, rain, snow and wind, unless inclement weather or disciplinary needs make that impossible. Plaintiff may file objections, if any, to the plan within 21 days. Defendants may reply within 14 days following plaintiffs submission of objections. The Court orders defendants to assign a CDOC physician to take a fresh look at Mr. Andersons medication and treatment needs as set forth in this Order. With that exception, the Court enters judgment in favor of the defendants on plaintiffs Third Claim for Relief. Plaintiff has brought to the Courts attention legitimate concerns about how chronological reporting and administrative reviews have functioned in the past. Administrative Regulation 650−03 has addressed some of those concerns expressly, and it appears to the Court that others are addressed implicitly. In the spirit of giving the new policy and those who will implement it a fair chance, the Court enters judgment in favor of the defendants on plaintiffs First Claim for Relief. The Court enters judgment in favor of the defendants on plaintiffs Fifth and Sixth Claims for Relief. Plaintiffs Second Claim for Relief has been withdrawn. The plaintiff prevailed on the outdoor exercise issue, which was a central focus of the case; the relief ordered will directly and materially benefit Mr. Anderson (and perhaps others). The plaintiff prevailed in obtaining an order that his medical and treatment needs must be looked at afresh by a physician, and that the possibility that he might abuse any particular medication may not trump a decision concerning care he needs based on medical judgment. While the plaintiff did not convince the Court to order the elimination of the chronological reporting system, the plaintiffs expressions of concern about certain things not expressly covered in AR 650−03 have been noted. Accordingly, while both parties prevailed on some claims, the Court finds that the plaintiff is the overall prevailing party for purposes of costs and attorneys fees. Counsel are directed to confer and attempt in good faith to reach agreement on the amount of costs and attorneys fees. If agreement is not reached, then plaintiff will proceed in accord with the requirements of Fed. R. Civ. P. 54(d) and D.C.Colo.LCivR 54.1., by Judge R. Brooke Jackson on 8/24/2012. (ervsl, ) (Entered: 08/24/2012)
110 FINAL JUDGMENT by Clerk in favor of State of Colorado, Department of Corrections, Aristedes W. Zavaras, Susan Jones against Troy Anderson re: 109 Order, on 8/28/2012. (ervsl, ) (Entered: 08/28/2012)
111 Unopposed MOTION for Extension of Time to File Bill of Costs and Motion for Attorney's Fees by Plaintiff Troy Anderson. (Rovner, Laura) (Entered: 09/02/2012)
112 ORDER granting 111 Unopposed MOTION for Extension of Time to File Bill of Costs and Motion for Attorney's Fees. Bill of costs and motion for attorney's fees due by September 14, 2012. By Judge R. Brooke Jackson on 09/06/2012. Text Only Entry(rbjsec. ) (Entered: 09/06/2012)
113 Joint MOTION for Extension of Time to Submit Fee Petition by Plaintiff Troy Anderson. (Attachments: # 1 Proposed Order (PDF Only))(Robertson, Amy) (Entered: 09/11/2012)

Case: 1:10-cv-01005-RBJ-KMT As of: 03/06/2017 02:06 PM MST 11 of 17

09/13/2012 09/21/2012 10/11/2012 10/12/2012 10/23/2012 10/26/2012 11/08/2012 11/09/2012 11/13/2012 11/16/2012 11/20/2012 11/27/2012
11/27/2012

114 ORDER granting 113 Joint MOTION for Extension of Time to Submit Fee Petition. By Judge R. Brooke Jackson on 09/13/2012. Text Only Entry(rbjsec. ) (Entered: 09/13/2012)
115 MOTION to Alter Judgment re 109 Order,,,,,,,,,,, 110 Clerk's Judgment by Plaintiff Troy Anderson. (Attachments: # 1 Exhibit 1 − AR 650−03, # 2 Exhibit 2 − Anderson Decl., # 3 Exhibit 3 − Cleghorn Decl., # 4 Exhibit 4 − Baraldi Decl., # 5 Exhibit 5 − Wade Decl., # 6 Exhibit 6 − Mondragon Decl.)(Rovner, Laura) (Entered: 09/21/2012)
116 Unopposed MOTION for Extension of Time to File Response/Reply as to 115 MOTION to Alter Judgment re 109 Order,,,,,,,,,,, 110 Clerk's Judgment by Defendants Susan Jones, State of Colorado, Department of Corrections, Aristedes W. Zavaras. (Alber, Christopher) (Entered: 10/11/2012)
117 ORDER granting 116 Unopposed MOTION for Extension of Time to File Response/Reply as to 115 MOTION to Alter Judgment. Response is now due October 26, 2012. By Judge R. Brooke Jackson on 10/12/2012. Text Only Entry(rbjsec. ) (Entered: 10/12/2012)
118 NOTICE of Compliance with Final Order and Judgment by Defendants Susan Jones, State of Colorado, Department of Corrections, Aristedes W. Zavaras (Alber, Christopher) (Entered: 10/23/2012)
119 RESPONSE to 115 MOTION to Alter Judgment re 109 Order,,,,,,,,,,, 110 Clerk's Judgment filed by Defendants Susan Jones, State of Colorado, Department of Corrections, Aristedes W. Zavaras. (Attachments: # 1 Exhibit A−1; Declaration of Dan Dennis, # 2 Exhibit A−2; Affidavit of Joshua Wegner, # 3 Exhibit A−3; Affidavit of Daniel Miell)(Alber, Christopher) (Entered: 10/26/2012)
120 MOTION for Extension of Time to File Objection to Defendants' Notice of Compliance by Plaintiff Troy Anderson. (Attachments: # 1 Proposed Order (PDF Only))(Robertson, Amy) (Entered: 11/08/2012)
121 REPLY to Response to 115 MOTION to Alter Judgment re 109 Order,,,,,,,,,,, 110 Clerk's Judgment filed by Plaintiff Troy Anderson. (Rovner, Laura) (Entered: 11/09/2012)
122 ORDER granting 120 MOTION for Extension of Time to File Objection to Defendants' Notice of Compliance. Plaintiff will have until January 12, 2013 to file an objection. By Judge R. Brooke Jackson on 11/13/2012. Text Only Entry(rbjsec. ) (Entered: 11/13/2012)
123 MOTION for Discovery by Plaintiff Troy Anderson. (Attachments: # 1 Declaration of Troy Anderson, # 2 Declaration of Amy F. Robertson)(Robertson, Amy) (Entered: 11/16/2012)
124 MOTION to Expedite Briefing and Discovery by Plaintiff Troy Anderson. (Robertson, Amy) (Entered: 11/20/2012)
125 Partial TRANSCRIPT of Excerpt, Trial to Court, Day 2, Lish Testimony held on 5−1−12 before Judge Jackson. Pages: 1−58. <P> NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.</P> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 2/28/2013. (Spitler, Kara) (Entered: 11/27/2012)
126 Partial TRANSCRIPT of Excerpt of Trial to Court, Day 3, Koprivnikar, Tuakoi, Lampela Testimony held on 5−2−12 before Judge Jackson. Pages: 1−151. <P> NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic

Case: 1:10-cv-01005-RBJ-KMT As of: 03/06/2017 02:06 PM MST 12 of 17

11/27/2012 11/27/2012 11/27/2012 11/27/2012 12/04/2012 12/07/2012

transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.</P> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 2/28/2013. (Spitler, Kara) (Entered: 11/27/2012)
127 Partial TRANSCRIPT of Excerpt, Trial to Court, Day 4, Jones Testimony held on 5−3−12 before Judge Jackson. Pages: 1−92. <P> NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.</P> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 2/28/2013. (Spitler, Kara) (Entered: 11/27/2012)
128 Partial TRANSCRIPT of Excerpt, Trial to Court, Day 5, Jones Testimony held on 5−4−12 before Judge Jackson. Pages: 93−167. <P> NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.</P> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 2/28/2013. (Spitler, Kara) (Entered: 11/27/2012)
129 Partial TRANSCRIPT of Excerpt, Trial to Court, Day 6, Lenocker, Lish, Reid testimony held on 5−7−12 before Judge Jackson. Pages: 1−118. <P> NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.</P> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 2/28/2013. (Spitler, Kara) (Entered: 11/27/2012)
130 Partial TRANSCRIPT of Excerpt, Trial to Court, Day 7, Defendants' Closing Argument held on 5−8−12 before Judge Jackson. Pages: 1−20. <P> NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.</P> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 2/28/2013. (Spitler, Kara) (Entered: 11/27/2012)
131 NOTICE re 123 MOTION for Discovery − Withdrawal of Request for Rule 34 Inspection by Plaintiff Troy Anderson (Rovner, Laura) (Entered: 12/04/2012)
132 RESPONSE to 123 MOTION for Discovery filed by Defendants Susan Jones, State of Colorado, Department of Corrections, Aristedes W. Zavaras. (Attachments: # 1 Exhibit A−1; Clinical Note, # 2 Exhibit A−2; Ambulatory

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12/10/2012 12/11/2012 12/13/2012 12/14/2012 12/31/2012 01/02/2013 01/02/2013
01/15/2013 01/16/2013
01/24/2013 01/25/2013 01/28/2013 03/25/2013 03/26/2013 04/30/2013

Health Record)(Alber, Christopher) (Entered: 12/07/2012)
133 RESPONSE to 124 MOTION to Expedite Briefing and Discovery filed by Defendants Susan Jones, State of Colorado, Department of Corrections, Aristedes W. Zavaras. (Alber, Christopher) (Entered: 12/10/2012)
134 REPLY to Response to 123 MOTION for Discovery Plaintiff's Reply Brief in Support of Motion for Post−Judgment Discovery filed by Plaintiff Troy Anderson. (Robertson, Amy) (Entered: 12/11/2012)
135 Unopposed MOTION for Leave to Appear As Student Attorney (Stuart Rubinstein) by Plaintiff Troy Anderson. (Attachments: # 1 Proposed Order (PDF Only))(Rovner, Laura) (Entered: 12/13/2012)
136 ORDER granting 135 Unopposed MOTION for Leave to Appear As Student Attorney (Stuart Rubinstein). By Judge R. Brooke Jackson on 12/14/2012. Text Only Entry(rbjsec. ) (Entered: 12/14/2012)
137 SUPPLEMENT/AMENDMENT to 123 MOTION for Discovery by Plaintiff Troy Anderson. (Robertson, Amy) (Entered: 12/31/2012)
138 NOTICE of Resolution of Attorneys' Fees by Plaintiff Troy Anderson (Robertson, Amy) (Entered: 01/02/2013)
139 ORDER granting 123 Motion for Discovery; denying as moot 124 Motion to Expedite. Counsel are directed to confer and set a new briefing schedule commensurate with the limited additional discovery requested in motion # 123 . The Court requests that the discovery be provided cooperatively and with reasonable promptness, and that the briefing schedule be set accordingly. If agreement cannot be reached, please do not file more motions, responses, and replies. Contact Chambers and set a telephone hearing. By Judge R. Brooke Jackson on 01/02/13. (alvsl) (Entered: 01/03/2013)
140 Proposed Scheduling Order for Post−Judgment Discovery and Briefing by Plaintiff Troy Anderson. (Rovner, Laura) (Entered: 01/15/2013)
141 ORDER: Schedule for Post−Judgment Discovery and Briefing re: 140 Proposed Scheduling Order. Discovery requests served: January 16, 2013; Responses to written discovery requests due: February 15, 2013; 30(b)(6) deposition conducted: Within thirty days after the completion of written discovery; Plaintiff's Objections to Notice of Compliance filed: Within thirty days after the completion of Rule 30(b)(6) depositions; and Defendants Response to Objections filed: Within twenty−one days after the filing of Plaintiff's Objections. By Judge R. Brooke Jackson on 01/16/13. (alvsl) (Entered: 01/16/2013)
142 Unopposed MOTION for Leave to Appear As Student Attorney (Tracy Ostlie) by Plaintiff Troy Anderson. (Attachments: # 1 Proposed Order (PDF Only))(Rovner, Laura) (Entered: 01/24/2013)
143 ORDER granting 142 Unopposed MOTION for Leave to Appear As Student Attorney (Tracy Ostlie). By Judge R. Brooke Jackson on 01/25/2013. Text Only Entry(rbjsec. ) (Entered: 01/25/2013)
144 NOTICE of Change of Address/Contact Information by Christopher Wayne Alber (Alber, Christopher) (Entered: 01/28/2013)
145 Unopposed MOTION for Extension of Time to File Answer or Otherwise Respond re 118 Notice (Other) by Plaintiff Troy Anderson. (Attachments: # 1 Proposed Order (PDF Only))(Robertson, Amy) (Entered: 03/25/2013)
146 ORDER granting 145 Unopposed MOTION for Extension of Time to File Answer or Otherwise Respond re 118 Notice. The response is now due April 30, 2013. By Judge R. Brooke Jackson on 03/26/2013. Text Only Entry(rbjsec. ) (Entered: 03/26/2013)
147 OBJECTIONS to 118 Notice (Other) by Plaintiff Troy Anderson. (Attachments: # 1 Declaration of Amy F. Robertson − part 1, # 2 Declaration of Amy F. Robertson − part 2, # 3 Declaration of Amy F. Robertson − part 3, # 4 Declaration of Amy F. Robertson − part 4, # 5 Declaration of Brittany Glidden, # 6 Declaration of Steve

Case: 1:10-cv-01005-RBJ-KMT As of: 03/06/2017 02:06 PM MST 14 of 17

05/16/2013
05/20/2013 05/21/2013 06/10/2013 06/11/2013 06/25/2013 07/15/2013 08/05/2013
08/06/2013
08/07/2013 08/12/2013

Martin, # 7 Declaration of Troy Anderson, # 8 Declaration of Daniel Gallegos, # 9 Declaration of Lincoln Lucero, # 10 Declaration of Carlos Mondragon)(Robertson, Amy) (Entered: 04/30/2013)
148 Partial TRANSCRIPT of Excerpt, Trial to Court, Day 7, Plaintiff's Closing Argument held on 5−8−12 before Judge Jackson. Pages: 1−55. <P> NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.</P> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 8/19/2013. (Spitler, Kara) (Entered: 05/16/2013)
149 Unopposed MOTION for Extension of Time to File Reply in Support of the Notice of Compliance by Defendants Susan Jones, State of Colorado, Department of Corrections, Aristedes W. Zavaras. (Alber, Christopher) (Entered: 05/20/2013)
150 ORDER granting 149 Unopposed MOTION for Extension of Time to File Reply in Support of the Notice of Compliance. Reply due June 11, 2013. By Judge R. Brooke Jackson on 05/21/2013. Text Only Entry(rbjsec. ) (Entered: 05/21/2013)
151 Unopposed MOTION for Extension of Time to File a Reply in Support of the Notice of Compliance by Defendants Susan Jones, State of Colorado, Department of Corrections, Aristedes W. Zavaras. (Alber, Christopher) (Entered: 06/10/2013)
152 ORDER granting 151 Unopposed MOTION for Extension of Time to File a Reply in Support of the Notice of Compliance. By Judge R. Brooke Jackson on 06/11/2013. Text Only Entry(rbjsec ) (Entered: 06/11/2013)
153 REPLY to 118 Notice (Other) of Complaince with Final Order and Judgment by Defendants Susan Jones, State of Colorado, Department of Corrections, Aristedes W. Zavaras. (Attachments: # 1 Exhibit A−1, # 2 Exhibit A−2, # 3 Exhibit A−3, # 4 Exhibit A−4, # 5 Exhibit A−5, # 6 Exhibit A−6, # 7 Exhibit A−7, # 8 Exhibit A−8, # 9 Exhibit A−9, # 10 Exhibit A−10, # 11 Exhibit A−11, # 12 Exhibit A−12)(Alber, Christopher) (Entered: 06/25/2013)
154 MOTION to Enforce Settlement Agreement Regarding Attorneys' Fees by Plaintiff Troy Anderson. (Attachments: # 1 Declaration of Amy F. Robertson, # 2 Declaration of Laura Rovner)(Robertson, Amy) (Entered: 07/15/2013)
155 RESPONSE to 154 MOTION to Enforce Settlement Agreement Regarding Attorneys' Fees filed by Defendants Susan Jones, State of Colorado, Department of Corrections, Aristedes W. Zavaras. (Attachments: # 1 Exhibit A−1, # 2 Exhibit A−2, # 3 Exhibit A−3, # 4 Exhibit A−4, # 5 Exhibit A−5, # 6 Exhibit A−6, # 7 Exhibit A−7, # 8 Exhibit A−8, # 9 Exhibit A−9, # 10 Exhibit A−10, # 11 Exhibit A−11, # 12 Exhibit A−12, # 13 Exhibit A−13, # 14 Exhibit A−14, # 15 Exhibit A−15)(Alber, Christopher) (Entered: 08/05/2013)
156 MINUTE ORDER re: 115 MOTION to Alter Judgment re 109 Order 110 Clerk's Judgment filed by Troy Anderson and 154 MOTION to Enforce Settlement Agreement Regarding Attorneys' Fees filed by Troy Anderson. The Court directs that counsel jointly contact Chambers at (303) 844−4694 or jackson_chambers@cod.uscourts.gov, within seven days, to set motions 115 and 154 for a hearing. By Judge R. Brooke Jackson on 08/06/2013. Text Only Entry (rbjsec. ) (Entered: 08/06/2013)
157 NOTICE of Change of Address/Contact Information by Amy Farr Robertson (Robertson, Amy) (Entered: 08/07/2013)
158 MINUTE ORDER re: 115 MOTION to Alter Judgment re 109 Order, 110 Clerk's Judgment filed by Troy Anderson and 154 MOTION to Enforce Settlement Agreement Regarding Attorneys' Fees filed by Troy Anderson. A hearing on motions 115 and 154 is set for September 4, 2013 at 2:00 p.m. in Courtroom A 902

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before Judge R. Brooke Jackson. By Judge R. Brooke Jackson on 08/12/2013. Text Only Entry (rbjsec. ) (Entered: 08/12/2013)
159 REPLY to Response to 154 MOTION to Enforce Settlement Agreement Regarding Attorneys' Fees filed by Plaintiff Troy Anderson. (Robertson, Amy) (Entered: 08/19/2013)
160 Unopposed MOTION to Withdraw as Attorney /Student Attorneys Tracy Ostlie &Stuart Rubinstein by Plaintiff Troy Anderson. (Rovner, Laura) (Entered: 08/27/2013)
161 ORDER granting 160 Unopposed MOTION to Withdraw as Attorney /Student Attorneys Tracy Ostlie &Stuart Rubinstein. By Judge R. Brooke Jackson on 08/27/2013. Text Only Entry(rbjsec. ) (Entered: 08/27/2013)
162 NOTICE of Supplemental Authorities re: 147 Objections,, by Plaintiff Troy Anderson (Robertson, Amy) (Entered: 08/27/2013)
163 MINUTE ENTRY for Motion Hearing held before Judge R. Brooke Jackson on 9/4/2013. Denying without prejudice 115 Motion to Alter Judgment; Denying without prejudice 154 Motion to Enforce. Court Reporter: Kara Spitler. (lag) (Entered: 09/04/2013)
164 Partial TRANSCRIPT of Excerpt, Trial to Court, Day 1, Martin Testimony held on 4−30−13 before Judge Jackson. Pages: 1−68. <br><br> NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 12/9/2013. (Spitler, Kara) (Entered: 09/05/2013)
165 Partial TRANSCRIPT of Excerpt, Trial to Court, Day 2, Martin, Steele Testimony held on 5−1−13 before Judge Jackson. Pages: 69−219. <br><br> NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 12/9/2013. (Spitler, Kara) (Entered: 09/05/2013)
166 TRANSCRIPT of Hearing on Pending Motions held on 9−4−13 before Judge Jackson. Pages: 1−44. <br><br> NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 12/9/2013. (Spitler, Kara) (Entered: 09/05/2013)
167 Joint MOTION for Extension of Time to Meet and Confer by Plaintiff Troy Anderson. (Robertson, Amy) (Entered: 11/04/2013)
168 ORDER granting 167 Joint MOTION for Extension of Time to Meet and Confer. By Judge R. Brooke Jackson on 11/6/2013. Text Only Entry(rbjsec. ) (Entered:

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11/06/2013)
169 NOTICE OF CASE ASSOCIATION by Plaintiff Troy Anderson (Robertson, Amy) (Entered: 12/17/2013)
170 Unopposed MOTION for Extension of Time to Pursue Settlement and Report to the Court by Plaintiff Troy Anderson. (Rovner, Laura) (Entered: 01/30/2014)
171 ORDER granting 170 Unopposed MOTION for Extension of Time to Pursue Settlement and Report to the Court. By Judge R. Brooke Jackson on 01/30/2014. Text Only Entry(rbjsec. ) (Entered: 01/30/2014)
172 Joint MOTION for Extension of Time to Meet &Confer and Status Report by Plaintiff Troy Anderson. (Rovner, Laura) (Entered: 04/28/2014)
173 ORDER granting 172 Joint MOTION for Extension of Time to Meet &Confer and Status Report. By Judge R. Brooke Jackson on 05/01/2014. Text Only Entry(rbjsec. ) (Entered: 05/01/2014)
174 Joint MOTION for Extension of Time to Meet and Confer by Plaintiff Troy Anderson. (Robertson, Amy) (Entered: 06/30/2014)
175 ORDER granting 174 Joint MOTION for Extension of Time to Meet and Confer. The Court grants until August 26, 2014 for the parties to continue settlement discussions and report back to the Court. By Judge R. Brooke Jackson on 07/07/2014. Text Only Entry(rbjsec. ) (Entered: 07/07/2014)
176 Joint MOTION for Extension of Time to Meet and Confer and Status Report by Plaintiff Troy Anderson. (Robertson, Amy) (Entered: 08/26/2014)
177 ORDER granting 176 Joint MOTION for Extension of Time to Meet and Confer and Status Report. Granted. But, the Court is not going to grant extensions ad infinitum. Please roll up your sleeves and get this resolved. By Judge R. Brooke Jackson on 08/26/2014. Text Only Entry(rbjsec. ) (Entered: 08/26/2014)
178 MOTION to Enforce Judgment and Further Relief or, In The Alternative, For Hearing On Order To Show Cause by Plaintiff Troy Anderson. (Attachments: # 1 Proposed Order (PDF Only) Addendum to Final Order and Judgment, # 2 Declaration of Troy Anderson, # 3 Declaration of Amy F. Robertson)(Robertson, Amy) (Entered: 09/12/2014)
179 NOTICE of Filing of Corrected Exhibits to Motion for Enforcement of Judgment and Further Relief Or, In the Alternative, For Hearing on Order to Show Cause 178 by Plaintiff Troy Anderson (Attachments: # 1 Exhibit)(Robertson, Amy) Modified on 9/29/2014 to add linkage (trlee, ). (Entered: 09/29/2014)
180 Unopposed MOTION for Extension of Time to File Response/Reply as to 178 MOTION to Enforce Judgment and Further Relief or, In The Alternative, For Hearing On Order To Show Cause by Defendants Susan Jones, State of Colorado, Department of Corrections, Aristedes W. Zavaras. (Alber, Christopher) (Entered: 10/06/2014)
181 ORDER granting 180 Unopposed MOTION for Extension of Time to File Response/Reply as to 178 MOTION to Enforce Judgment and Further Relief or, In The Alternative, For Hearing On Order To Show Cause. The Court strongly urges (1) the parties to engage in mediation with a professional mediator, (2) in that context, the CDOC to counter plaintiff's most recent settlement proposal, and (3) that Mr. Raemisch, in whom personally this Court has substantial confidence, to participate in the mediation. This would, in the Court's view, be a more valuable expenditure of time and resources than the preparation of a response by counsel to the pending motion and another round of litigation in this Court. The plaintiff too must be prepared to discuss reasonable compromises. By Judge R. Brooke Jackson on 10/07/2014. Text Only Entry(rbjsec. ) (Entered: 10/07/2014)
182 MOTION for Extension of Time to File Response/Reply as to 178 MOTION to Enforce Judgment and Further Relief or, In The Alternative, For Hearing On Order To Show Cause by Defendants Susan Jones, State of Colorado, Department of Corrections, Aristedes W. Zavaras. (Alber, Christopher) (Entered: 11/03/2014)

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183 RESPONSE to 182 MOTION for Extension of Time to File Response/Reply as to 178 MOTION to Enforce Judgment and Further Relief or, In The Alternative, For Hearing On Order To Show Cause filed by Plaintiff Troy Anderson. (Attachments: # 1 Declaration of Laura L. Rovner)(Robertson, Amy) (Entered: 11/04/2014)
184 ORDER granting 182 MOTION for Extension of Time to File Response/Reply as to 178 MOTION to Enforce Judgment and Further Relief or, In The Alternative, For Hearing On Order To Show Cause. The Court is not impressed with what appears to be foot dragging on the defendant's side. The Court will give the CDOC director the benefit of the doubt and assume that counsel's request for additional time implicitly represents that if the additional time is granted, the CDOC will respond substantively, completely and in good faith to the motion, including to the plaintiff's proposals regarding settlement and mediation. If the Court is not assured by December 3, 2014 that this has occurred, it will grant plaintiff's request at paragraph 23(b). By Judge R. Brooke Jackson on 11/12/2014. Text Only Entry(rbjsec. ) (Entered: 11/12/2014)
185 RESPONSE to 178 MOTION to Enforce Judgment and Further Relief or, In The Alternative, For Hearing On Order To Show Cause filed by Defendants Susan Jones, State of Colorado, Department of Corrections, Aristedes W. Zavaras. (Attachments: # 1 Exhibit A−1, # 2 Exhibit A−2, # 3 Exhibit A−3, # 4 Exhibit A−4, # 5 Exhibit A−5, # 6 Exhibit A−6, # 7 Exhibit A−7, # 8 Exhibit A−8)(Alber, Christopher) (Entered: 12/03/2014)
186 BRIEF in Support of 178 MOTION to Enforce Judgment and Further Relief or, In The Alternative, For Hearing On Order To Show Cause filed by Plaintiff Troy Anderson. (Attachments: # 1 Robertson Declaration)(Robertson, Amy) (Entered: 12/18/2014)
187 SUPPLEMENT/AMENDMENT to 178 MOTION to Enforce Judgment and Further Relief or, In The Alternative, For Hearing On Order To Show Cause by Plaintiff Troy Anderson. (Robertson, Amy) (Entered: 01/26/2015)
188 ORDER denying 178 Motion to Enforce Judgment by Judge R. Brooke Jackson on 4/7/15.(jdyne, ) (Entered: 04/07/2015)