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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Case No.06-CV-01405 CLARENCE VANDEHEY; WILLIAM LANGLEY; SAMUEL LINCOLN; and JARED HOGUE,
Plaintiffs, on behalf of themselves and all others similarly situated. v. LOU VALLARIO, Sheriff of Garfield County, Colorado, in his official capacity; SCOTT DAWSON, a Commander in the Garfield County Sheriff’s Department, in his official capacity,
Defendants.
FIRST AMENDED CLASS ACTION COMPLAINT
I. INTRODUCTION 1. In this class action, filed on behalf of current and future prisoners in the Garfield
County Jail, Plaintiffs challenge a pervasive practice of subjecting prisoners to threats and use of excessive and disproportionate force.
2. The challenged practice is carried out through the frequent use and threatened use of pepperball guns, restraint chairs, tasers, pepper spray, and electroshock belts in a manner that 1) is not constrained by written policies designed to curb potential abuses; 2) departs from wellestablished standards of law enforcement and corrections professionals; 3) violates the manufacturers’ and venders’ recommendations and training regarding the safe and proper use of the devices; 4) poses substantial and unjustifiable risks to prisoners’ health, safety, physical

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integrity, and lives; 5) has caused extreme mental distress and physical harm, amounting in some
cases to summary corporal punishment; and 6) violates prisoners’ constitutional rights.
3. Plaintiffs also challenge a new policy of Defendants– which they purposely adopted
to thwart and interfere with the investigation that led to this lawsuit – that has prevented and
threatens to continue preventing prisoners from exercising their right to speak with attorneys
who wish to speak with them in a confidential setting.
4. In this First Amended Complaint, Plaintiffs also challenge Defendants’ denial of
mental health care to indigent prisoners with serious mental health needs.
5. Finally, Plaintiffs challenge Defendants’ policy of imposing serious deprivations,
including sentences to the extreme isolation of “supermax” status, to punish prisoners for alleged
disciplinary infractions, without due process of law and without following the procedures in the
jail’s Inmate Handbook.
II. OUTLINE AND INDEX OF ALLEGATIONS
6. The following provides an outline of the allegations of this Complaint, along with the
number of the first paragraph that corresponds to each of the outline headings:
I. Introduction, ¶ 1 II. Outline and index of allegations, ¶ 6 III. Jurisdiction and Venue, ¶ 7 IV. Parties
A. Plaintiffs, ¶ 10 B. Defendants, ¶ 14 V. Threats and use of excessive force, punitive use of restraints, ¶ 17 A. Punitive use of restraints and restraint chairs, ¶ 18 B. Pepper spray or OC spray, ¶ 39 C. Pepperball gun, ¶ 48 D. Tasers, ¶ 71 E. Electroshock belt, ¶ 82 F. Threats and use of disproportionate force and punitive use of restraints
against the named Plaintiffs, ¶ 99 1. Defendants increase prisoners’ tension and escalate potential
conflicts, ¶ 99
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VI. VII. VIII.
IX.
X. XI. XII.

a. Extreme restrictions and deprivations, ¶ 100

b. Arbitrary and harsh disciplinary measures, ¶ 105

c. Absence of meaningful grievance procedure, ¶ 107

d. Failure to defuse potential conflict situations, ¶ 109

2. Plaintiff Clarence Vandehey, ¶ 117

a. The jail’s failure to provide requested mental health care, ¶ 117

b. Disproportionate force and restraints, ¶ 128

3. Plaintiff William Langley, ¶ 140

a. The jail’s failure to provide requested mental health care, ¶ 140

b. Disproportionate force and restraints, ¶150

4. Plaintiff Samuel Lincoln, ¶ 153

5. Plaintiff Jared Hogue, ¶ 165

G. Supervisory Liability, ¶ 175

1. Absence of written policies, ¶ 176

2. Failure to ensure adequate training, ¶ 185

3. Failure to supervise and monitor deputies and control abuses, ¶ 191

Denial of Adequate Mental Health Care to Indigent Prisoners, ¶195

Punishment Without Due Process of Law, ¶212

Interference with prisoners’ right to communicate confidentially with attorneys,

¶ 225

A. Prisoners denied confidential interviews with ACLU attorneys, ¶ 226

B. Additional violations of prisoners’ right to communicate confidentially

with attorneys, ¶ 244

Exhaustion of available administrative remedies, ¶ 248

A. The jail’s published grievance procedure has not been an available

administrative remedy, ¶ 251

B. Plaintiff Clarence Vandehey, ¶ 271

C. Plaintiff William Langley, ¶ 272

D. Plaintiff Samuel Lincoln, ¶ 274

E. Plaintiff Jared Hogue, ¶ 280

Class Action Allegations, ¶ 281

Declaratory and Injunctive Relief, ¶ 290

Claims for Relief, ¶ 293

A. First Claim for Relief, ¶ 293

B. Second Claim for Relief, ¶ 301

C. Third Claim for Relief, ¶ 309

D. Fourth Claim for Relief, ¶ 317

E.

Fifth Claim for Relief, ¶ 323

F.

Sixth Claim for Relief, ¶ 329

III. JURISDICTION AND VENUE

7. This action arises under the Constitution and laws of the United States, including

42 U.S.C. § 1983. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. This

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Court has supplemental jurisdiction over the claims based on Colorado law pursuant to 28.U.S.C. § 1367.
8. This Court has jurisdiction to issue the declaratory relief requested pursuant to the Declaratory Relief Act, 28 U.S.C. §§ 2201, 2202.
9. Venue is proper in the District of Colorado pursuant to 28 U.S.C. § 1391(b). All parties reside within the District of Colorado, and the events described in this Complaint occurred in the District of Colorado.
IV. PARTIES A. Plaintiffs
10. Plaintiff Clarence Vandehey is an indigent pretrial detainee in the Garfield County Jail. Since childhood, he has suffered and continues to suffer from serious mental health problems that have not been adequately addressed during his stay at the Garfield County Jail. Since September, 2005, deputies have strapped him into the jail’s restraint chair seven times; they have shot him with a pepperball gun on two occasions; they have forced him to wear an electroshock belt to court; and he has endured numerous additional threats of force from deputies wielding pepper spray, tasers, and the pepperball gun. Mr. Vandehey sues for injunctive and declaratory relief only, on behalf of himself and the Plaintiff class.
11. Plaintiff William Langley is an indigent prisoner who has been confined in the Garfield County Jail since the beginning of October, 2005. Since childhood, he has suffered and continues to suffer from serious mental health problems that have not been adequately addressed during his stay at the Garfield County Jail. Deputies have strapped him into the restraint chair at least five times, have forced him to wear an electroshock belt to court, and he has endured numerous additional threats of force from deputies wielding pepper spray, tasers, and the
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pepperball gun. Mr. Langley sues for injunctive and declaratory relief only, on behalf of himself and the Plaintiff class.
12. Plaintiff Samuel Lincoln is an indigent pretrial detainee who was held in the Garfield County Jail continuously from December, 2005, until April, 2006, when he was moved to the Mesa County Jail. He still faces pending criminal charges in Garfield County, and as a result, he has returned to the Garfield County Jail on multiple occasions. He was housed in the jail from June 15 to June 17, 2006; he returned again on June 24, 2006, and again at the end of July, 2006. He is certain to return to the custody of the Garfield County Sheriff on additional occasions in the near future, where he will be subjected to an imminent risk of harm from the policies and practices that are challenged in this lawsuit. Mr. Lincoln sues for injunctive and declaratory relief only, on behalf of himself and the Plaintiff class.
13. Plaintiff Jared Hogue is a pretrial detainee in the Garfield County Jail. He has been forced to wear the electroshock belt and has been threatened with tasers, pepperball guns and pepper spray. On June 15, 2006, the Defendants prevented him from meeting with an attorney in a confidential setting. He sues for injunctive and declaratory relief on behalf of himself and the Plaintiff class. He also asks this Court to impose, for himself only, the statutory penalty described in C.R.S. § 16-3-404.
B. Defendants 14. Defendant Lou Vallario is the Sheriff of Garfield County, Colorado. He has final policy making authority for all matters relating to management of the Garfield County Jail. His employees and agents include the deputies who work in the jail as well as Defendant Scott Dawson. Sheriff Vallario is sued in his official capacity.
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15. Defendant Scott Dawson holds the rank of Commander in the Garfield County Sheriff’s Department. He is an agent and employee of Defendant Vallario. Defendant Dawson is in charge of the Detention Division of the Garfield County Sheriff’s Department. The deputies at the jail are his agents and subordinates. He has primary responsibility for managing and supervising the day-to-day operations of the jail; for formulating and implementing policies and procedures; for ensuring that those policies and procedures are followed; and for ensuring that deputies are adequately trained to carry out their responsibilities in a manner consistent with the health, safety, welfare, and constitutional rights of prisoners. He is sued in his official capacity.
16. At all times relevant herein and with respect to all actions described herein, all Defendants and their agents and employees were acting under color of state law.
FACTUAL BACKGROUND V. THREATS AND USE OF EXCESSIVE AND DISPROPORTIONATE FORCE
AND PUNITIVE USE OF RESTRAINTS 17. Prisoners in the Garfield County Jail are subjected to a pervasive pattern, practice, and custom, in which deputies regularly escalate conflict and use and threaten to use excessive and disproportionate force. As part of that practice, deputies frequently use and threaten to use restraint chairs, pepper spray, the pepperball gun, tasers, and the electroshock belt, and various combinations of these devices, in a manner that 1) is not constrained by written policies designed effectively to curb potential abuses; 2) departs from widely-accepted standards of corrections and law enforcement professionals; 3) violates the manufacturers’ and venders’ recommendations and training regarding the safe and proper use of the devices; 4) poses substantial and unjustifiable risks to prisoners’ health, safety, physical integrity, and lives; and 5) causes mental
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distress, pain, physical injuries, and has amounted to summary corporal punishment; and 6) violates prisoners’ constitutional rights.
A. Punitive Use of Restraints and Restraint Chairs 18. The restraint chair is a metal framed chair on wheels with seven straps designed to fully immobilize a prisoner’s legs, arms, and body. When used as designed, arms are strapped to horizontal armrests. Legs and ankles are secured. Additional straps go around the prisoner’s waist, and over each shoulder. Only the prisoner’s head and neck retain some mobility. 19. The use of fully-immobilizing restraints such as the restraint chair poses substantial risks to prisoners’ physical and mental health. As a report by the United States government’s General Accounting Office noted in 1999, specific risks include “asphyxia, cardiac complications, drug overdoses or interactions, blunt trauma, strangulation or choking, fire/smoke inhalation, and aspiration (breathing vomit into the lungs).” The report states that a commonly prescribed antidepressant may result in metabolic problems when the person’s movement is restricted, which can lead to life-threatening hypothermia. It also noted that potentially fatal cardiac arrhythmia can result from the combination of certain medications and the adrenaline produce by an individual’s agitation and physical struggle while being restrained. The report noted several specific groups of persons who should be regarded as presenting a particular danger of potential health risks when placed in fully-immobilizing restraints, including persons with mental illness, persons with mental retardation, and persons with a history of substance abuse. 20. In a letter sent to Defendants in June, Amnesty International noted that at least 18 prisoners have died while strapped in restraint chairs in jails and prisoners in the United States.
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Some of those deaths occurred after the prisoners had also been subjected to pepper spray and/or electroshock weapons. One such death occurred in a Colorado jail in the late 1990s.
21. Amnesty International also informed the Defendants that the United Nations Committee Against Torture had expressed its concern that the unregulated use of the restraint chair and electroshock weapons in the United States could lead to violations of this country’s obligations under the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
22. In a response to the UN Committee, the United States acknowledged that use of restraint chairs should be “carefully circumscribed.” The response relied on standards developed by the Department of Justice (DOJ), which state that restraint chairs should only be used to keep a prisoner from hurting himself or others and only when less restrictive means of controlling the prisoner have failed. The DOJ further states that restraint chairs should be “carefully controlled” and the prisoner should be monitored every 15 minutes, and vital signs should be checked. In addition, prisoners should be provided opportunities for movement, eating, and using the toilet. The response to the UN Committee further acknowledged that restraints must be removed “as soon as the inmate is no longer a threat to himself or others.”
23. Amnesty’s letter also informed the Defendants that the United Nations Standard Minimum Rules for the Treatment of Prisoners stipulate that restraints should never be applied as a punishment, and further provide that restraints may be used only when other measures are ineffective and only for so long as is ''strictly necessary''.
24. Widely-accepted standards of correctional associations adopt similar principles. The American Correctional Association (ACA) requires that jails draft written policies that forbid the use of restraints as punishment. Instead, restraints must be used “only in extreme
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instances and only when other types of restraints have proven to be ineffective.” The ACA standards also require that deputies keep a prisoner under continuous visual observation until healthcare authorities arrive and approve the use of restraints. Upon arrival, the healthcare personnel must “assess the inmate’s medical and mental health condition,” and must advise whether the prisoner presents a serious danger to self or others and whether the prisoner should be placed in a medical or mental health unit for medical management and supervision. The ACA standards also require that visual observation of a prisoner held in the restraint chair must be carried out every 15 minutes.
25. Manufacturers and venders of restraint chairs impose even greater restrictions on the use of the devices. For example, one vender of the Emergency Restraint Chair purchased by the Garfield County Jail advises on its web site as follows:
Violent behavior may mask dangerous medical conditions therefore detainees must be monitored for and provided with medical treatment if needed. Detainees should not be left in the Emergency Restraint Chair for more than two hours. The Emergency Restraint Chair should never be used as a means of punishment. http://www.restraintchair.com/diagram.htm, accessed July 4, 2006 (Emphasis in original) 26. The Defendants have not adopted any written policy governing or regulating the use of the restraint chair in the Garfield County Jail. 27. Pursuant to the custom and informal unwritten policy in place at the Garfield County Jail, deputies commonly and frequently use the restraint chair in a manner that violates international and national standards for treatment of prisoners; violates the recommendations of the venders and manufacturers; poses an unreasonable and unjustifiable risk of harm to prisoners’ health and safety; causes mental distress, pain, and physical injuries; and violates prisoners’ constitutional rights.
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28. Indeed, in recent months, the Defendants have stepped up their reliance on the use of the restraint chair. Although the jail typically houses just over 100 prisoners who are under the Sheriff’s direct supervision and control, the Defendants purchased 3 additional restraint chairs in February, 2006, bringing the total to five. After obtaining incident reports regarding only 10 current and former prisoners who signed release-of-information forms, attorneys for Plaintiffs obtained reports describing 23 separate times that deputies strapped prisoners into a restraint chair in the 4-month period between December, 2005, and March, 2006. On information and belief, that small sample represents only a fraction of the Defendants’ regular and repeated use of the restraint chair.
29. Deputies regularly employ the restraint chair in cases where prisoners are not out of control and are not presenting an imminent risk of serious physical injury to themselves or others. Prisoners are regularly strapped into the restraint chair as punishment, and the threshold for such punishment is often only alleged minor breaches of jail discipline, such as kicking the cell door to attract the deputies’ attention; yelling after refusing a deputy’s order to stop; or passive noncompliance with deputies’ orders. Deputies sometimes attempt to disguise the true purpose of their use of the restraint chair by falsely characterizing it, in their written incident reports, as a measure taken for the prisoner’s “safety.”
30. Defendant Dawson has acknowledged in writing that prisoners will be placed in the restraint chair if they “threaten” staff, even, apparently, when prisoners are locked in their cells and have no ability to act on any such threats. He has also acknowledged that prisoners will be strapped into the restraint chair when they “refuse to comply with orders.”
31. Deputies regularly strap prisoners into the restraint chair without attempting to determine whether less restrictive measures would be effective. Deputies regularly keep
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prisoners in the restraint chair long after any arguable need for continued restraint has passed and for far longer than the two-hour maximum time -- reserved for the most extreme cases-- urged by the chair’s venders and manufacturers.
32. Prisoners are regularly strapped into the restraint chair without appropriate medical supervision. Deputies do not consult in advance with medical personnel to determine whether a particular prisoner suffers from any pre-existing medical conditions that pose particular risks when combined with fully-immobilizing restraint.
33. The Defendants do not require the jail’s healthcare contractors to conduct an evaluation of a prisoner’s medical and mental health status immediately after being placed in the restraint chair, and such evaluations are not conducted. Defendants do not require regular 15minute checks of prisoners strapped into the restraint chair, and such regular 15-minute checks are not carried out.
34. Deputies regularly strap prisoners in the restraint chair in unnecessarily painful positions. The chair is designed so that deputies can remove a prisoner’s handcuffs through an opening in the back of the chair and then strap the prisoner’s arms to the chair’s armrests. Instead of following that practice, deputies often strap prisoners into the chair while leaving their hands handcuffed behind their back. When the shoulder straps are then pulled tight, the chest is thrust forward as the arms and handcuffed hands are sandwiched between the prisoner’s back and the back of the restraint chair, causing severe stress on the shoulders and upper chest. This position results in extreme and unnecessary pain, which prisoners have been forced to endure for hours.
35. For prisoners, being strapped into the restraint chair is frequently uncomfortable, painful, and even terrifying. Prisoners feel helpless and vulnerable. While strapped in the
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restraint chair, prisoners have endured panic, mental distress, humiliation, extreme physical pain, and have also suffered physical injuries.
36. Deputies commonly taunt prisoners, ridicule them, and subject them to cruel and humiliating treatment while they are in the restraint chair. While in the booking section of the jail, Mr. Vandehey overheard a woman who was strapped into a restraint chair. She was crying that she wanted an attorney and that she needed to go to the bathroom, and the deputies told her to “go ahead and go” while she was strapped in the chair. The deputies mimicked her and ridiculed her frequent requests to go to the bathroom.
37. Deputies forced another woman to endure the same humiliating and degrading treatment a month before Mr. Vandehey first arrived at the jail. She reports that she was in a mental health crisis, suicidal, and strapped in the restraint chair for hours while deputies would not let her get up to urinate. They told her to shut up and stay in the chair and urinate on herself. She was forced to do so, twice. She said deputies laughed at her and told her “we’ll let you out when we damn please.”
38. Deputies commonly use the restraint chair in combination with the use and threatened use of other devices that present additional risks to prisoners’ health, safety, and constitutional rights, such as the pepperball gun, pepper spray, and tasers.
B. Pepper Spray or OC Spray 39. Deputies at the Garfield County Jail are armed with pepper spray, also known as Oleoresin Capsicum or OC spray. It causes intensely painful burning sensation, disorientation, anxiety, and panic. It causes an involuntary closing of the eyes, mucus to run from the nose, a gagging reflex, and temporary paralysis of the larynx.
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40. Pepper spray poses serious risks to prisoners’ health, safety, and even their lives. It poses a risk of respiratory arrest, particularly among persons with chronic bronchitis, asthma, or respiratory infections. Use of pepper spray on agitated prisoners who are on certain medications or persons with a preexisting heart condition (such as arteriosclerosis) heightens the risk of stroke or heart attack. This is because the pepper spray reduces the body’s ability to deliver oxygen to the heart, while increased agitation and/or certain medications increases the heart’s demand for oxygen.
41. Pepper spray has been associated with dozens of in-custody deaths, especially when used in combination with restraints and/or electroshock weapons such as tasers. In Colorado, a prisoner in the El Paso County Jail died shortly after he was subjected to pepper spray in May, 2000. The medical examiner listed pepper spray as a contributing cause of death.
42. In the mid-1990s, the ACLU of California published an internal memorandum from one of the largest manufacturers of the OC spray that is sold to law enforcement agencies. The manufacturer’s memo warned that OC spray could cause permanent nerve damage. It further explained that law enforcement officers cannot and should not rely on OC spray as a means of incapacitating resistant or non-compliant subjects. Instead, it recommended that officers rely on OC spray only to momentarily distract a subject as officers get him or her under control by other means. The memo noted that persons who are mentally disturbed and/or extremely agitated are less likely to react to the pain of pepper spray and may not become immediately compliant to officers’ commands. The memo noted that law enforcement officers who mistakenly rely on OC spray to incapacitate a subject might be inclined to administer repeated doses when the first spray does not cause the desired incapacitating effect. The memo stated that “[t]his obviously would be an overexposure, which may cause added health risks” and
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“raises the concern of excessive use of force.” The memo warned that law enforcement should confine officers’ use of pepper spray to a single one-second burst.
43. Although the Defendants have adopted a written policy concerning the use of OC spray, the short one-page document does not provide sufficient guidance to prevent deputies from using OC spray in a manner that poses unreasonable risks to prisoners’ health, safety, and constitutional rights. For example, the policy fails to advise against spraying prisoners directly in the face; fails to advise deputies against using OC spray from distances closer than four feet; fails to limit the amount of OC spray or the duration or the number of bursts; fails to advise deputies of medical conditions for which the use of pepper spray is especially dangerous and contraindicated; and fails to advise deputies of any special concerns when using OC spray on prisoners who are extremely agitated and/or mentally disturbed.
44. Deputies regularly threaten to use OC spray in a manner that violates the minimal restrictions contained in the jail’s written policy. For example, deputies regularly threaten to use OC spray to enforce compliance or overcome passive noncompliance with a deputy’s order, in violation of the written policy that purports to limit authorization to cases where prisoners are “exhibiting violent or potentially violent behavior, threatening the security of staff, inmates, the public or the facility.” Incident reports written by deputies confirm that they have also discharged pepper spray in such situations. Similarly, incident reports confirm that deputies have discharged OC spray without complying with the written policy’s directive that “[e]xcept in extreme emergencies offenders will be given verbal orders to surrender before OC Spray is deployed.” Such violations of the Defendants’ written policy have been ratified by the Defendants and are carried out pursuant to the Defendants’ informal custom and practice.
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45. It is the deputies’ informal custom to delay, unjustifiably, the decontamination of prisoners who have been subjected to OC spray. Indeed, deputies have pepper-sprayed prisoners and then strapped them into the restraint chair without providing them any opportunity to decontaminate, either before they are placed in the chair or while they are in the chair. The combination of the restraints and the OC spray intensifies the prisoner’s pain. A prisoner who was strapped into the restraint chair after being pepper-sprayed reported that the straps of the restraint chair, in combination with the pepper spray, caused a line of blisters to develop on his skin underneath the straps. A nurse’s log written while the prisoner was in the restraint chair noted “Body is Red from Pepper spray.”
46. It is common practice in the jail for deputies to use and threaten to use OC spray against prisoners who are known to be asthmatic, such as Plaintiff Langley, or suffering from other preexisting medical conditions that make pepper spray especially dangerous.
47. Deputies commonly use and threaten to use OC spray in combination with the use and threatened use of other devices that pose additional risks to prisoners’ health, safety, and constitutional rights, such as the restraint chair, the pepperball gun, and tasers.
C. Pepperball gun 48. The pepperball gun is similar to a paintball gun, except that it launches highvelocity pellets that explode on impact, releasing a super-irritant called PAVA, or Capsaicin II, which is chemically similar to, but more concentrated than, the irritant in pepper spray. 49. The pepperball gun has a “laser sight” that pinpoints the target. It can shoot six to twelve pellets per second at speeds up to 380 feet per second. Prisoners hit by pepperballs suffer large welts, bruises, and open bleeding wounds. When the pellets break, they release a burst of PAVA powder into the eyes, nose, and lungs. When inhaled, PAVA powder causes
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acute burning of the eyes, temporary blindness, and severe inflammation the mucous membranes and upper respiratory system that in turn leads to uncontrollable coughing fits. It can prompt uncontrollable gagging, gasping or vomiting; intensely painful burning sensations; and panic. The PAVA dust itself poses risks to prisoners’ health and safety that are similar to the risks of OC spray, and the manufacture specifically warns that pepperballs can precipitate asthma attacks. The pepperball gun, however, may be even more dangerous. In Boston, police killed a young woman and seriously injured several others when they fired a pepperball launcher into a crowd of Red Sox fans during the 2004 pennant celebrations.
50. The Defendants have purchased two pepperball guns, and they use and threaten to use them frequently. The incident reports obtained by Plaintiffs’ attorneys after obtaining release-of-information forms from only ten prisoners document deputies firing the pepperball gun at prisoners on seven occasions in the four-month period from December, 2005, through March, 2006. The reports document numerous additional times in which deputies wielded the pepperball gun and threatened its use.
51. Deputies at the Garfield County Jail use and threaten to use the pepperball gun to inflict pain in two different ways: first, through the direct impact of the pepperball pellets striking the prisoner’s body, and second, through the effects of the PAVA dust when the pepperballs burst upon impact.
52. Prisoners feel intense pain when pepperballs hit their bodies from a distance of one to ten feet. Nurses’ reports document open wounds and bleeding, and prisoners have visible scars months later. Photographs of prisoners who have recently been hit with pepperballs show large, half-dollar size open welts and bruises.
53. One prisoner described the effects of the PAVA dust as follows:
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The air looks like you threw a bag of flour in the cell. Mucus is streaming from everywhere, you can’t open your eyes and you’re crying--its irritating your whole body. I was choking and sweating. I got lightheaded and couldn’t breath and started passing out. 54. Another prisoner said: Snot is coming out of your nose like crazy. You can’t see. It’s like jalapenos in your eyes and cayenne in your lungs. Every time you exhale it stirs it up and every time you inhale it’s in your lungs. 55. An asthmatic prisoner who was shot with the pepperball gun also stated: I was shot four (4) times with the pepperball gun. I am an asthmatic of extremely sensitive conditions. I suffered greatly, often in a fight for every breath. 56. Firing the pepperball gun at prisoners is a substantial use of force that, except in extreme emergencies, must always be preceded by a verbal warning that provides a prisoner with a reasonable opportunity to comply with deputies’ orders. Nevertheless, Defendant Dawson has approved the actions of deputies who fired the pepperball gun directly at prisoners’ bodies without first providing a verbal warning and a reasonable opportunity to comply. 57. Defendant Dawson has acknowledged in writing that pepperball guns will be fired at prisoners if they “threaten” staff, even, apparently, when prisoners are locked in their cells and have no ability to act on any such threats. He has also acknowledged that pepperball guns will be fired at prisoners when they “refuse to comply with orders.” 58. Deputies frequently use a pepperball gun in what they call a “cell extraction,” which is usually carried out by the jail’s Corrections Emergency Response Team (CERT) team. The CERT team is the jail’s heavily-armored, black-suited, face-helmeted equivalent of a police riot squad or SWAT team. A cell extraction might be carried out when deputies have already determined that a prisoner will be strapped into the restraint chair. The prisoner is ordered to kneel on the floor and place his hands behind his head or put his hands through the food slot to
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be handcuffed. Deputies often issue such orders in an aggressive and hostile manner instead of trying seriously to talk the prisoner down and defuse the situation. When the already-agitated prisoner does not comply, then the deputies often open fire with pepperballs.
59. When deputies carry out such a cell extraction, they clearly have time to contact the medical staff in advance a) to determine whether the prisoner has asthma or another medical condition for which PAVA is especially risky or contraindicated; and b) to ensure that medical staff are present and prepared to provide immediate medical attention and decontaminate the prisoner as soon as possible. At the Garfield County Jail, however, deputies do not carry out such pre-screening, nor do they advise medical staff in advance.
60. The manufacturer of the pepperball gun instructs that, instead of shooting directly at a prisoner’s body, officers should first aim at a wall, floor, or other hard surface, which will cause the pellets to break and release the PAVA dust. The manufacturer instructs that pepperball pellets should be aimed at a prisoner’s body only if shooting at a wall or floor fails to achieve the desired result.
61. Despite the manufacturer’s instruction, however, it is standard practice for Garfield County Jail deputies to aim the pepperball gun, as a first resort, directly at a prisoner’s body. Deputies do this even when shooting the pepperball gun at very close range into prisoners’ tiny cells. Even if shooting a pepperball gun into a prisoner’s cell were arguably justified, shooting directly at the prisoner’s body as a first resort represents a wanton, malicious, and unnecessary infliction of pain. A prisoner’s tiny cell is quickly saturated with pepper dust when the pepperball gun is aimed at any hard surface. Deputies can easily achieve the same results, with less pain, physical harm, and less danger to prisoners’ health and safety, by shooting pellets at hard cell surfaces rather directly at prisoners’ bodies.
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62. The manufacturer instructs that if officers determine that they must aim the pepperball gun directly at a person’s body, it should not be aimed at the head, face, neck, or groin area. The manufacturer warns that direct hits in those areas can cause serious injury or even death.
63. Nevertheless, deputies have indeed aimed the pepperball gun at these vulnerable portions of prisoners’ bodies. Indeed, one prisoner was injured earlier in 2006 when a deputy fired a pepperball gun at point-blank range and hit the prisoner in the testicles. Prisoners also report that deputies have frequently threatened to shoot them in the head with the pepperball gun. These threats are made silently, but effectively, when deputies train the laser sight of the pepperball gun directly at prisoners’ foreheads. Pointing the laser sight of the pepperball gun at a prisoner’s face poses a serious risk of damage if the laser beam goes into the prisoner’s eyes.
64. The manufacturer states that four to ten rounds should be fired, and then the situation “should be evaluated for compliance.” If the first shots do not work, then four to ten rounds can be fired once again. If two attempts do not achieve the compliance the deputies seek, the manufacturer states that the pepperball gun should be abandoned and another tactic should be employed. Deputies at the Garfield County Jail commonly violate these recommendations.
65. The manufacturer instructs that after use of the pepperball gun, a prisoner should be promptly decontaminated to remove the PAVA chemical.
66. Nevertheless, deputies commonly delay the opportunity for decontamination until long after whatever situation that prompted the use of force, whether justified or not, has clearly been brought under control. Indeed, prisoners subjected to the pepperball gun are commonly forced, unnecessarily and unjustifiably, to lay in the PAVA dust in their cells long after they
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have ended whatever behavior prompted the initial resort to the pepperball gun and long after they have become compliant with deputies’ orders.
67. Incident reports written by deputies commonly show that members of the CERT team will saturate a prisoner’s cell with pepperballs; will then close the food chute to prevent the PAVA dust from escaping; and will then leave the cellblock area for an unspecified period of time to “suit up” before returning to the cell. Deputies have done this even after their own reports acknowledge that the prisoner has already become compliant with deputies’ orders.
68. By leaving the prisoner alone and unobserved in such circumstances, in a cell saturated with PAVA dust, the deputies create an unjustifiable risk of harm to the prisoner’s health and safety. In addition, they unnecessarily and unjustifiably prolong and intensify the prisoner’s pain and unjustifiably delay the time when the prisoner can be decontaminated. Indeed, instead of alerting the medical staff as soon as they have shot a prisoner with pepperballs, deputies refrain from alerting the medical staff until after they have removed the prisoner from the cell, thus delaying medical attention unnecessarily and unjustifiably.
69. In addition, even after deputies have removed a prisoner from a cell contaminated with PAVA, deputies commonly strap the prisoner into a restraint chair and force the prisoner to endure the PAVA dust on his face and clothing, without any opportunity to wash off the chemical and without any other opportunity for decontamination. When pepperballs have broken the skin, prisoners strapped in the restraint chair without decontamination are forced to endure the additional agony of the PAVA dust irritating their open wounds.
70. Deputies commonly use and threaten to use the pepperball gun in combination with the use and threatened use of other devices that present additional risks to prisoners’ health, safety, and constitutional rights, such as the restraint chair, pepper spray, and tasers.
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D. Tasers 71. Tasers deliver a minimum 5-second 50,000-volt electric shock that causes excruciating and unbearable pain. Deputies are able to deliver more than 5 seconds of electricity simply by continuing to press the taser’s trigger. As long as the trigger is depressed, the prisoner continues to be shocked. 72. The manufacturer of tasers overstates the safety of the devices in its marketing and promotions to law enforcement agencies. In recent years, more than 150 in-custody deaths have been associated with law enforcement use of the taser. In a number of cases, medical examiners have listed the taser as the cause or a contributing cause of death. In additional cases, medical examiners have concluded that they could not rule out the possibility that the taser played a role in causing the death of the deceased. 73. When the United States responded to the UN Committee Against Torture last year, it defended electroshock weapons only when used “under limited and closely regulated conditions.” It also stated that in the correctional setting, medical pre-screening is required to ensure that electroshock weapons are not used against prisoners with certain medical conditions. 74. At the Garfield County Jail, however, neither tasers nor electroshock belts are used “under limited and closely regulated conditions.” The Defendants have no written policy to guide detention deputies regarding the appropriate or inappropriate use of the taser or any other electroshock device. 75. The Defendants’ failure to adopt a written policy regulating the use of tasers violates the standards of law enforcement and corrections professionals, who recognize that strict regulation is necessary to curb the risk of harm they pose to prisoners’ health, safety and constitutional rights.
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76. The International Association of Chiefs of Police, which refers to electroshock weapons such as tasers and electroshock belts as Electro-Muscular Disruption Technology (EMDT), strongly recommends that law enforcement agencies develop policies “that clearly describe the circumstances when EMDT may be used. . . . Policies should also be explicit as to when its use is inappropriate.”
77. After conducting extensive research, the Police Executive Research Forum has issued a 52-point list of policy and training guidelines strongly recommending that law enforcement agencies strictly regulate the use of electroshock weapons such as tasers. They recommend that tasers be used only against persons who are “actively resisting or exhibiting active aggression, or to prevent individuals from harming themselves or others.”
78. In August, 2005, Defendant Vallario invited the National Institute of Corrections (NIC) to visit the Garfield County Jail and make recommendations. The Sheriff explained that he was not experienced at running a jail. When it issued its report the following month, the NIC noted that all detention deputies carry tasers. The NIC noted that providing such high-level weapons to all deputies is very unusual. In most detention facilities, only a small speciallytrained team that is trained and equipped for riot-like situations are permitted to deploy tasers.
79. Deputies at the Garfield County Jail regularly use and threaten to use tasers on prisoners in a manner that: 1) is not constrained by written policies designed to curb potential abuses; 2) departs from the standard correctional practices regarding use of force and electroshock weapons; 3) poses substantial and unjustifiable risks to prisoners’ health, safety, physical integrity, and even their lives; and 4) violates prisoners’ constitutional rights.
80. Deputies in the jail regularly threaten the use of tasers in cases of minor noncompliance or passive failure to obey a deputy’s order. Deputies have threatened prisoners
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with the taser simply for banging on the cell door to attract deputies’ attention. One former prisoner wrote that guards had covered the window of his cell so that he could not see outside. He banged on the door attempting to attract the deputies’ attention because he was in excruciating pain and needed medical attention. The former prisoner reports that deputies opened the food tray slot, pointed a taser at him and said, “We’re not fucking with you. You will shut the fuck up and quit kicking the door or we will tase you.”
81. Deputies have shocked prisoners with tasers in situations where such a substantial use of force was unjustified and violated prisoners’ constitutional rights. Nevertheless, the deputies’ use of tasers was carried out pursuant to the Defendants’ informal policy and was ratified and approved by the Defendants.
E. Electroshock belt 82. The electroshock belt, also known as the Nova belt, is strapped around the prisoner’s waist. When activated by a remote-control switch held by a deputy, the belt delivers an 8-second 50,000-volt charge through electrodes placed near the prisoner’s kidneys. Several years ago, one court described the electroshock belt as follows: Once the belt is activated, the electro-shock cannot be shortened. It causes incapacitation in the first few seconds and severe pain during the entire period. Activation may lead to involuntary defecation and urination; immobilization may cause the victim to fall to the ground. The court noted that the belt can cause muscular weakness for up to 45 minutes and that it had been suspected in one case of a fatal cardiac arrhythmia. 83. Although the belt is designed to be activated only when a deputy deliberately presses the remote control, accidental activations have occurred in other detention facilities. 84. Deputies frequently force prisoners to wear an electroshock belt as they walk the short distance to and from hearings in the adjoining courthouse. Deputies force prisoners to wear
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the electroshock belt without making any individualized determination that a particular prisoner is likely to assault courtroom personnel or attempt to escape.
85. Deputies also make the decision to force prisoners to wear the electroshock belt during court hearings. On information and belief, no judge presiding in any courtroom in Garfield County has ordered that any prisoners wear the electroshock belt.
86. The electroshock belt is not necessary to prevent escape or to prevent assaults against court personnel. During transport to court and during non-jury hearings, prisoners are already forced to wear extremely restrictive mechanical restraints. A pair of shackles is locked around each ankle, and a short chain connects the two shackles, severely restricting prisoners’ ability to walk and totally preventing them from walking quickly or running. A leather belt with a metal ring on the front is fastened around the prisoner’s waist. The prisoner’s hands are cuffed together with a short chain that goes through the metal ring on the waist belt, thus restricting the prisoner’s ability to move hands or arms anywhere except a few inches from the prisoner’s waist. When deputies force prisoners to wear the electroshock belt, it is in addition to, not a substitute for, these extremely restrictive mechanical restraints.
87. Defendants have not adopted any written policy governing the use of the electroshock belt. There are no written criteria to guide deputies about when or whether a prisoner will be required to wear the electroshock belt. Deputies do not consult with medical staff to determine whether particular prisoners have medical conditions for which the electroshock belt is contraindicated or particularly dangerous.
88. Deputies at the Garfield County Jail frequently require prisoners to sign a “notification” form. This document states that that prisoner “is being required to wear a remote activated electronic security belt system as a security precaution.”
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89. The form states that deputies will activate the belt “if you do not comply with the instructions of the officers.” Prisoners describe being terrified at the prospect of receiving an eight-second 50,000-volt electric shock if they are perceived to be failing to follow deputies’ orders. One prisoner explained, “If you step to the left when you’re supposed to go to the right, you could go down.”
90. The form states that the prisoner may be shocked for: ANY OUTBURST OR QUICK MOVEMENT ANY PERCEIVED HOLSTILE [sic] MOVEMENT ANT ATTEMPT TO TAMPER WITH THE BELT FAILURE TO COMPLY WITH VERBAL COMMANDS BY THE OFFICER ANY OVER [sic] ACT AGAINST ANY PERSON 91. Deputies claim the authority to shock a prisoner for behavior or perceived behavior that does not even come close to posing an imminent threat of assault or attempted escape. There is a substantial risk that prisoners will be shocked unjustifiably if deputies perceive a statement made in court to be an “outburst.” Prisoners with mental health problems face an especially high risk that their innocent actions may be perceived by deputies, erroneously, as an “outburst” warranting a shock. 92. Wearing the electroshock belt is a nerve-wracking and terrifying experience not only while prisoners are on their way to court but in the courtroom itself. One prisoner described it like this: They [the deputies] hold the remote up and point it at you while you are talking and they smile. You’re scared the whole time . . . You gotta stand up in front of the judge with a sober face, but in the back of your mind you’re thinking I could be going down. 93. Another prisoner, who estimates that he has been forced to wear the electroshock belt over a dozen times, states: One time I was in the preliminary hearing, I made a movement to get my papers, and the deputy whipped out the remote and looked at me. When I was talking to the judge or my
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attorney I was frightened because I didn’t know what they were going to do with that belt. 94. Another prisoner states: The deputies say, “You better be good while you are in court or you are in for 8 seconds of pain.” . . . The deputy keeps looking over at you in court and its hard to even think. 95. Deputies actively promote fear and panic by taunting prisoners about use or potential use of the electroshock belt and playing “mind games” to inflict mental torture. Several prisoners have stated that one deputy has intentionally dropped the stun belt’s remote control and then acted as though it were an accident. After picking up the remote control again, the deputy looked at the prisoners and laughed. Another deputy joked to a prisoner that “That shock belt has been having some problems, its been going off on its own.” Another prisoner described a deputy who warned that with any misstep, the prisoner would “take the 8 second ride; its much tougher than a bull.” 96. In early 2006, a prisoner filed a grievance about being forced to wear the electroshock belt to court. He wrote: “Please take the Nova belt off me when I go to court. I’m at your Mercy, ‘Please.’” The jail’s written response was that all prisoners classified as “supermax” are required to wear the electroshock belt. 97. The same prisoner filed another grievance the following month, pleading once again that the jail not force him to wear the electroshock belt. “I most likely will be having to GET ON THE STAND. Please stop putting that Nova Belt on me. I’ve been very GOOD.” The jail responded as follows: “you are still on super max and you will have the belt on when you go to court.” 98. Prisoners can be classified as “supermax” for reasons that have no connection to any supposed risk of escape or assaulting courtroom personnel. According to the Inmate
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Handbook, prisoners are subject to reclassification for violations such as failing to shower at least once a day; having unauthorized amounts of items from the prison commissary; sitting on the tables in the common area; putting their feet or legs on furniture. Prisoners are regularly disciplined for such infractions as being caught with a newspaper in their cell; giving a cookie or bag of potato chips to another prisoner; or being caught with a pencil. Repeated disciplinary violations of any kind can be grounds for moving a prisoner to supermax. The Inmate Handbook emphasizes that the jail has discretion to classify or reclassify any prisoner at any time.
F. Threats and use of disproportionate force and punitive use of restraints against the named Plaintiffs 1. Defendants increase prisoners’ tension and frustrations and escalate potential conflicts
99. The named Plaintiffs have been subjected to the use and threatened use of disproportionate force through the practices described above. The application of those practices to the Plaintiffs takes place in the context of additional practices of the Defendants that increase prisoners’ tension and increase the potential for conflict with deputies, thus increasing substantially the risk and frequency of deputies resorting to the threatened and actual use of disproportionate force that is challenged in this First Amended Complaint.
a. Extreme restrictions and deprivations 100. Prisoners in any detention facility endure a variety of deprivations that pose the potential for frustration, tension, and conflict. In the Garfield County Jail, however, the Defendants have chosen to ensure that those deprivations are especially harsh, increasing the potential for tension and conflict. That potential is aggravated by policies that increase rather than reduce tension, escalating conflicts rather than defusing them.
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101. Prisoners in the jail’s general population spend the overwhelming majority of their time locked in bare and minimally-furnished cells. They have a sink and toilet but no shower. Prisoners cannot read newspapers or magazines in their cells. The only reading material permitted is three books and religious material. Unlike prisoners in the Department of Corrections, they cannot purchase televisions for their cells, nor radios, nor CD or tape players. They cannot tape a photograph of their loved ones on the wall, and face-to-face visits with family members are forbidden. They are locked in their cells for a minimum of 21 hours and 18 hours on alternating days. When they are not on lockdown, prisoners in the general population can enter a common area (the “daypod”) to shower, use the telephone, watch TV, read the newspaper or exercise.
102. When the NIC evaluated the jail in August, 2005, maximum-security prisoners were confined to their cells 23 hours per day. The NIC suggested that the jail “reduce tension” by permitting additional out-of-cell time to maximum-security prisoners.
103. Defendants began allowing “max” prisoners to leave their cells for three hours a day. At the same time, however, without revising the Inmate Handbook and without distributing any written directives or explanations to prisoners, Defendants began labeling prisoners as “supermax,” on the basis of unknown and unstated criteria. Instead of reducing tension, Defendants increased it as they began imposing the extraordinary restrictions described in the following paragraph.
104. Prisoners classified as “supermax” are subjected to the most onerous and isolating deprivations. Deputies cover their cell windows. Supermax prisoners cannot see into the common area and they are forbidden to speak with any other prisoners through the vents or through their cell doors. They are allowed into the common area for only 15 minutes each day,
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alone. Any showers, personal phone calls, phone calls to attorneys, law library research, or catching up on the newspaper or TV news must be done during this 15 minutes. In addition, the deputies maintain that all “supermax” prisoners must wear an electroshock belt when they go to court. Shortly before this lawsuit was filed, deputies increased the isolation of supermax and max prisoners by frosting the glass of their outside cell windows. While supermax prisoners formerly could see the outside world through their small window, now they cannot see out of their cells at all. Prisoners are subject to being moved to max or supermax status at any time, whether as punishment for alleged minor disciplinary infractions or at the discretion of the deputies.
b. Arbitrary and harsh disciplinary measures 105. In the Garfield County Jail, deputies further escalate tension and conflict by presiding over a regime of arbitrary, inconsistent, unpredictable and harsh disciplinary sanctions. One prisoner spent 8 days in 24-hour lockdown for allegedly passing a piece of toast to another prisoner. Deputies regularly move prisoners to “maximum” or “supermax” status – sometimes for months at a time -- as punishment for alleged minor infractions, without providing prisoners notice of the accusations against them or any opportunity to be heard. Lesser sanctions also create tension when a prisoner believes that a deputy has responded to a minor infraction by summarily declaring that the prisoner has lost his already-minimal out-of-cell time; his phone privileges; and/or his time in the law library. Deputies who dislike particular prisoners have the power to abuse their authority with impunity by summarily imposing harsh and unfair punishments that prisoners cannot challenge and that are not effectively reviewed by supervising officers.
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106. For alleged minor disciplinary infractions, deputies often summarily terminate regular meals and impose as punishment a diet of “nutraloaf.” Nutraloaf is an intentionally tasteless concoction that purportedly contains all essential nutrients but leaves prisoners constipated. As explained in more detail below, in February, 2006, an angry deputy summarily punished the entire general population pod for complaining about their small food portions by announcing they would all be restricted to nutraloaf.
c. Absence of meaningful grievance procedure 107. Ordinarily, administrators in a well-managed detention facility defuse some of the tensions of prison life by maintaining a grievance system that makes prisoners feel that they have a meaningful opportunity for their legitimate complaints to be, at a minimum, at least heard and considered. 108. As this First Amended Complaint explains in more detail below, prisoners at the Garfield County Jail do not believe that they have any meaningful opportunity for their grievances to be heard or considered. The procedure published in the Inmate Handbook is not followed in practice, providing another source of tension and frustration for prisoners.
d. Failure to defuse potential conflict situations 109. It is the custom, policy, and standard operating practice of Garfield County Jail deputies to respond to breaches of jail discipline –even minor infractions and minor disruptions-with threatened and actual use of disproportionate and excessive force. 110. Deputies routinely resort to threats and use of disproportionate force when they believe prisoners may fail to comply with a deputy’s order, including the most minor cases of passive noncompliance where prisoners are not posing any threat to persons or property.
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111. It is standard practice among corrections professionals to attempt to defuse and de-escalate potential conflict situations by talking prisoners down when they are agitated and on the verge of resistance. Instead, deputies in the Garfield County Jail often taunt prisoners in a manner calculated to escalate conflict, tension, and hostilities.
112. In many cases, the prisoners who are the targets of such taunting and the targets of threatened and actual disproportionate force are prisoners with serious mental health problems that the jail has neglected or addressed inadequately. Deputies often respond inappropriately to such prisoners in a manner that escalates conflicts and increases the likelihood of threats and use of excessive force. Deputies often choose to interpret behaviors that are symptoms of the prisoners’ mental health problems as though the prisoners were deliberately defiant and disobedient. Deputies often respond with harsh disciplinary measures to behaviors that are manifestations of prisoners’ medical, mental health and/or psychiatric problems.
113. Deputies compound the problem by taunting prisoners and egging them on, and by threatening the use of excessive and disproportionate force through the frequent display and abusive use of such devices as tasers, the pepperball gun, pepper spray, and the abusive and overly-frequent use of the restraint chair.
114. For example, one former prisoner with serious mental health needs described an incident that began when the nurse did not give him his psychiatric medications. He requested them over the intercom that allows him to communicate from his cell to deputies in the jail’s control room. The deputies responded by ridiculing him for needing what they called “psychopills,” and they contemptuously dismissed the prisoner by stating “you are a joke.” When the prisoner kept asking for his medication, the deputies turned off the intercom. When the prisoner began banging on his cell door to get the deputies’ attention, the situation escalated. The jail’s
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CERT team responded in force. Eventually deputies shot multiple pepperballs at the prisoner and then strapped him into a restraint chair. Reflecting on the situation later, the prisoner stated “with these psychotropics I take, they [the deputies] knew it, they should have been more professional, they should have talked me down.”
115. Deputies sometimes state that they provided a verbal warning and opportunity to comply before resorting to overwhelming physical force. But those warnings are routinely delivered in the form of aggressive ultimatums. They do not function as a reasonable or serious effort to calm a prisoner’s agitation, defuse the situation, or otherwise avoid the use of force.
116. The practices described above, in combination with the supervisory acts and omissions and use-of-force practices challenged in this First Amended Complaint, increase substantially the risk and frequency that deputies will wind up resorting to the threatened and actual use of force that has violated Plaintiffs’ rights in the past and threatens to continue doing so in the future.
2. Plaintiff Clarence Vandehey a. The jail’s failure to provide requested mental health care
117. Clarence Vandehey arrived at the Garfield County Jail in September, 2005, where he remained until mid-December, 2005, when his charges were resolved and he was released. The next day, Mr. Vandehey was arrested and brought to the jail once again. He was not charged for any alleged misconduct during his 30 hours of freedom. Instead, the allegation is based on an incident that allegedly took place in the jail in November, 2005. He remains in the Defendants’ custody while that charge is pending.
118. Mr. Vandehey has had serious mental health problems since he was a child. One manifestation of his mental health problems is a low tolerance for frustration and a low threshold
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for anger that can erupt in episodes where he loses control and lacks judgment about what he is doing.
119. These childhood mental health problems ended his schooling after sixth grade. He spent most of seventh grade in the counselor’s office, and he was eventually expelled from school that year. The same mental health problems have interfered with his ability to maintain steady employment, and he has spent much of his adult life homeless and unemployed.
120. Mr. Vandehey recognizes his mental health problems, and he also acknowledges that it is easy for his interaction with jail authorities to wind up “pushing his buttons.”
121. The policies and practices of the Garfield County Jail substantially increase the risk that Mr. Vandehey’s interaction with jail staff will result in “pushing his buttons.” These practices include the jail’s refusal to provide mental health care to indigent prisoners unless they are hallucinating or suicidal; the practices described in paragraphs 99-116 of this First Amended Complaint; and the deputies’ frequent use and threatened use of excessive force that amounts to summary corporal punishment, including, but not limited to, the punitive use of the restraint chair, and the use and threatened us of pepperball guns, pepper spray, tasers, and the electroshock belt.
122. Soon after he arrived at the jail, Mr. Vandehey filed a kite asking to speak with a mental health professional. He indicated that he had had mental health problems his entire life. The jail refused. The nurse’s response stated that “Mental Health consults costs $90 which you do not have @ this time.”
123. In most cases, prisoners without sufficient money in their accounts for medical co-pays or other medical charges are not denied care; the jail simply carries a negative balance
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on the prisoner’s account. As a matter of policy, however, the Defendants restrict the ability of indigent prisoners to receive mental health care.
124. On information and belief, neither the jail’s nurses nor the jail’s on-call physician are specially trained in psychiatry. Nevertheless, pursuant to the Defendants’ policies, the medical staff are the gatekeepers who determine whether a prisoner’s mental health problems are sufficiently serious to warrant referring an indigent prisoner to a psychiatrist or other mental health professionals.
125. Mr. Vandehey’s criminal defense attorney telephoned the jail. She stated that her client had recently received an evaluation from an outside mental health professional that indicated a need for mental health care. She requested that the jail provide her client with access to that mental health assistance. According to a notation in Mr. Vandehey’s medical file, the attorney was told that the jail does not provide mental health services; it provides only crisis intervention. The jail’s medical staff said that Mr. Vandehey could not see a mental health professional because he was not in a crisis where he was hallucinating or suicidal. The jail’s medical staff inappropriately dismissed Mr. Vandehey’s mental health problems as a simple issue of “anger control.”
126. Relying on the evaluation he received from an outside mental health professional, Mr. Vandehey submitted yet another request for assistance. He explained that his condition is “savierly [sic] efecting [sic] my life. I am a danger to myself and others around me because my depression and paranoia. I can hear people think leads to uncontrollable explosive anger.” The kite stated that he had had the problem his entire life and had previously received treatment at a mental health facility in Oregon.
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127. Mr. Vandehey has never succeeded in obtaining a meeting or an evaluation with any of the jail’s mental health providers. In a letter to ACLU attorneys, Mr. Vandehey wrote:
“I a prisoner with only a 6th grade edgucation [sic] am forced to seek out books and try to provide treatment for my self [sic]. I am so overwhelmed.”
b. Disproportionate force and restraints 128. During the course of Mr. Vandehey’s time in the Garfield County Jail, he has been the subject of numerous incident reports written by Garfield County deputies. He has been strapped into the restraint chair 7 different times. On several occasions, deputies unjustifiably and unnecessarily strapped Mr. Vandehey in a particularly painful position. He has been shot with the pepperball gun on two occasions before being strapped into the restraint chair. In both cases, he was provided no opportunity to decontaminate until after he was released from the restraint chair. Deputies have taunted Mr. Vandehey and threatened him with the use of tasers, pepper spray, and additional shots from the pepperball gun, in some cases while he was already immobilized in the restraint chair. He has been forced to wear the electroshock belt many times. 129. Mr. Vandehey has been strapped into the restraint chair as a punitive measure rather than as a means to prevent harm. He has been confined in the restraint chair when such a drastic measure was not necessary to protect himself or others and when deputies did not bother attempting less drastic means of restraint. Deputies have taunted him while he was restrained, and he has sustained physical injuries. Even in cases in which a deputy’s report presents facts attempting to show that the initial restraint was justified, deputies have forced Mr. Vandehey remain in the restraint chair long after any such justification or necessity had passed. He has been placed in the restraint chair without appropriate medical involvement and monitoring and without periodic 15-minute checks.
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130. Incident reports regarding the restraint of Mr. Vandehey contain obvious red flags that demonstrate the fact that restraints are being used improperly and in a manner that poses a substantial risk of harm to prisoners’ health and safety and constitutional rights. Of the seven times Mr. Vandehey has been in the restraint chair, the deputies’ reports on four occasions fail to reveal how long Mr. Vandehey was restrained, though in one case it was clearly more than six and one-half hours. The reports acknowledge restraining Mr. Vandehey with his hands handcuffed behind his back and sometimes report his regular complaints of extreme pain. The reports fail to document regular checks by either medical or security staff and fail to document appropriate medical involvement. They fail to provide facts documenting that restraint was justified at its inception and only for as long as necessary to prevent imminent physicial harm to persons or to prevent imminent substantial harm to property. When Mr. Vandehey was shot with pepperballs before being strapped into the restraint chair, the reports confirm that deputies unjustifiably delayed any opportunity for decontamination.
131. In one case, deputies said they decided to take Mr. Vandehey out of his cell and strap him into the restraint chair “for his own safety.” A deputy’s report states that Mr. Vandehey was ordered to lie face down, and when he allegedly did not do so, the deputies opened fire with the pepperball gun. The report states “After multiple rounds, Inmate Vandehey stated, ‘I give up’ and layed [sic] face down on the floor.” A second deputy’s report notes Mr. Vandehey’s compliance with the order to lay down and also states that additional rounds were fired at that time to “saturate” the cell with pepper dust.
132. Instead of taking Mr. Vandehey out of the cell at that time, however, the second deputy reports that the deputies left the scene and “went to the CERT room to dress out in our CERT gear.” The report of the first deputy indicates that the deputies waited an additional 12
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minutes before returning to get Mr. Vandehey out of the PAVA-filled cell and into a restraint chair. During this time, Mr. Vandehey’s skin was burning, his eyes were watering, and his lungs were burning. He was in intense pain. The deputies’ reports do not indicate that the medical staff was called until after Mr. Vandehey was put into the restraint chair. Nor do the deputies’ reports indicate how long Mr. Vandehey was forced to spend in the restraint chair while covered with pepper dust. The nurse’s notes show that Mr. Vandehey’s wrist was bleeding; that he had 11 abrasions the size of half dollars that were described as “very red, skin broken,” as well as a “large red area” on Mr. Vandehey’s abdomen. The nurse also noted that there were additional wounds on Mr. Vandehey’s extremities that needed assessment but that such assessment would have to wait until he was released from the restraint chair.
133. On another occasion, Mr. Vandehey spent most 5 hours in the restraint chair as punishment for disobeying a deputy’s order to stop banging on the cell door.
134. On another occasion, deputies strapped Mr. Vandehey into the chair with his hands handcuffed behind his back. They wheeled him into his cell, with the back of the chair against his cell door, and they attached the handcuffs to the outside handle of the cell door with additional restraints strung through the hole in the back of the chair and through the food chute of the cell door.
135. While Mr. Vandehey was fully restrained in this extremely painful position, a deputy placed a taser against his shoulder and told him to “stop moving.” The deputy said that he had tasered prisoners in the restraint chair in the past and he indicated he was prepared to do so again.
136. Mr. Vandehey cried out multiple times that the restraints were extremely painful, were too tight, and were making his hands turn cold. He had welts on his shoulders after the
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several-hour ordeal. None of the deputies’ incident reports reveal how long Mr. Vandehey was immobilized in the restraint chair.
137. Mr. Vandehey filed a grievance several days later describing this incident: “On the 21st of this month I was placed in the restraint chair shackled to the restraint chair, double cuffed in such a matter that my shoulders where [sic] in so much pain my bodie [sic] was shaking and curving out. Also my hands where [sic] cuffed so tight that they where [sic] ice cold and I could not bend my fingers. Wy [sic] is it that I need so much more restraints that the 7 the chair has?”
138. The next day, Mr. Vandehey was subjected to both the pepperball gun and the restraint chair. The jail’s CERT team came to Mr. Vandehey’s cell and ordered him to kneel down and put his hands behind his head. Mr. Vandehey was complying and on his way to the ground when the deputies opened fire and shot him with pepperballs. A grievance filed the next day states “I was on my knees with my hands on my head when I was shot with the high powered air rifle…What order was I given that I did not comply with that justafies [sic] being shot?”
139. After Mr. Vandehey was shot and had complied with new orders to lie on the floor, the incident reports state that the deputies closed the cell’s food chute door to “allow time for the chemical agents to take effect.” One report documents that Mr. Vandehey was forced to lie in the PAVA dust in his cell for 14 minutes before deputies returned. When they returned, they took Mr. Vandehey directly to the restraint chair, strapped him in with his hands still handcuffed behind his back, and did not provide any opportunity for decontamination. The deputy’s report confirms that Mr. Vandehey spent an additional one and one-half hours in this painful position in the restraint chair before he was finally allowed a shower to decontaminate.
3. Plaintiff William Langley a. The jail’s failure to provide requested mental health care
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140. Plaintiff William Langley has suffered from serious mental health problems since he was a child. Upon his arrival to the Garfield County Jail in October of 2005, medical staff noted that he had a long history of a serious bipolar disorder and had previously been prescribed a series of psychotropic medications. They also noted that Mr. Langley had asthma.
141. From the beginning of his stay in the Garfield County Jail, Mr. Langley has repeatedly, but unsuccessfully, pleaded for an appointment with a psychiatrist who could evaluate his psychiatric disorders and stabilize him on his psychiatric medications.
142. Mr. Langley has filed at least ten grievances and medical kites requesting to see a psychiatrist. For example, one grievance stated “I have had an extensive history with pychiatric [sic] care. I am by polar [sic] manic depressent [sic] with sychaphrenia [sic]. I took multiple meds for this over the years and have seen many therapists. I need one now please before I get worse.”
143. The jail responded that any appointment with a psychiatrist would cost $90 per hour. Mr. Langley had no money, and because the jail refused to debit his inmate account, he could not see a psychiatrist.
144. In additional grievances, Mr. Langley linked his mental health issues to his frequent disciplinary problems in the jail:
“I am bi-polar manic depressant w/ psychziphrania [sic] I need this Dr. I’m feeling like I’m about to come unwound. Please! I’m tired of getting in trouble. I’m begging don’t let this happen to me. Please.” 145. Mr. Langley wrote another kite complaining that the Inmate Handbook “says I won’t be denied because I’m poor.” The jail responded that he couldn’t see a psychiatrist without a referral from “the facility doctor,” which Mr. Langley did not have and never received.
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146. Mr. Langley persisted in filing additional grievances requesting access to psychiatric care. In response, the jail told Mr. Langley that the jail staff would “accept no more kites on this issue” and that “[a]ny more kites on this issue would be considered abuse of the KITE system.” The Inmate Handbook lists “abuse of the kite system” as a “major” disciplinary infraction.
147. The jail’s on-call physician authorized certain psychiatric medications for Mr. Langley, but the jail provided no monitoring by a psychiatrist or, on information and belief, any other medical professional with psychiatric training. Mr. Langley filed numerous grievances requesting changes in his psychiatric medications.
148. For months, jail authorities knew that Mr. Langley was complaining that the type and dosage of his psychiatric medication needed to be adjusted. For example, one grievance said, “I need to get this under control-PLEASE assign me morning meds;” “I have experienced headaches, irritability, frustration & anger;” “I am in constant emotional changes. I am snapping angrily at people. I am frustrated & edgy all the time.”
149. Mr. Langley has never been able to obtain psychiatric care while in the Garfield County Jail. The failure to attend effectively to Mr. Langley’s mental health problems has contributed to tension and conflict that has escalated on multiple occasions to disciplinary sanctions, including long sentences to a diet of “nutraloaf”; months-long “sentences” to supermax status; and the threats and use of force and punitive use of restraints challenged in this lawsuit.
b. Disproportionate force and restraints 150. Mr. Langley has been strapped into the restraint chair at least five times. He has been strapped into the restraint chair as a punitive measure rather than as a means to prevent
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imminent harm. He has been strapped into the restraint chair when such a drastic measure was not necessary to protect himself or others and when deputies did not bother to attempt less drastic means of restraint. Although in several cases the incident reports fail to reveal how long Mr. Langley was restrained, he has been forced to spend over four hours in the chair. Deputies have taunted him while he was restrained, and he has sustained physical injuries. Even in cases in which a deputy’s report presents facts attempting to show that the initial restraint was justified, Mr. Langley has been forced to remain in the restraint chair long after any such justification or necessity had passed. He has been placed in the restraint chair without appropriate medical involvement and monitoring and without periodic 15-minute checks.
151. Mr. Langley has also been threatened on numerous occasions with the use of unjustifiable and excessive force in the form of tasers, pepper spray, and the pepperball gun, which has been aimed directly at his head. He has been forced to wear the electroshock belt on multiple occasions.
152. On at least one occasion, Mr. Langley had an asthma attack while strapped in the chair. A nurse gave him some whiffs from an inhaler while deputies kept him strapped into the chair. Another time, when Mr. Langley needed to urinate, deputies refused to release him from the chair. Instead, they wheeled the restraint chair to a toilet. They undid all the straps except the ones binding Mr. Langley’s feet to the chair. Mr. Langley was then ordered to stand up and urinate while a deputy watched and while Mr. Langley was still physically bound to the restraint chair. Then the deputies strapped Mr. Langley back into the restraint chair.
3. Plaintiff Samuel Lincoln 153. Plaintiff Samuel Lincoln arrived at the Garfield County Jail as a pretrial detainee at the end of December, 2005. He immediately submitted a medical kite asking to speak with a
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“mental doctor.” Although Mr. Lincoln was never permitted to speak with a psychiatrist or other mental health professional, the jail’s records show that the on-call physician authorized giving Mr. Lincoln a powerful anti-psychotic drug, Thorazine, for paranoia and hallucinations. In mid-January, the dose of Thorazine was doubled.
154. Mr. Lincoln was in the custody of the Garfield County Sheriff continuously until the end of March, 2006. During that time, Mr. Lincoln was subjected to the policies and practices described in this First Amended Complaint. After his transfer to the Mesa County Jail, he has returned to the custody of the Garfield County Sheriff on several occasions for court appearances on his still-pending charges in Garfield County. During his return trips, he has once again been subject to the polices and practices of the Garfield County Sheriff’s Department.
155. Mr. Lincoln has been subjected to the pepperball gun, the restraint chair, and has been forced to wear the jail’s electroshock belt. He has also been threatened with use of tasers and pepper spray.
156. On January 21, 2006, when housed in the cell next to Mr. Vandehey, Mr. Lincoln heard and saw part of the scene when the deputies strapped Mr. Vandehey painfully in the restraint chair with his hands handcuffed behind his back. Mr. Lincoln began to protest vociferously, yelling and pounding on the cell door to get the deputies’ attention. The jail deputies told Mr. Lincoln that if he did not shut up, they would use force on him. He declined to shut up, and deputies responded with the pepperball gun.
157. Mr. Lincoln tied a towel around his head to protect himself, and he hid behind a plastic chair to shield his face from the pepperball pellets. One deputy’s report said that 7 pepperball rounds were fired at the ceiling “to saturate the room.” The pepperball gun was passed to a second deputy who reportedly “had a better angle.” The second deputy then reported
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firing an additional 6 pepperball rounds at the floor just in front of Mr. Lincoln, “spraying the OC powder into Inmate Lincoln’s face.” A different deputy reported that the second barrage totaled 10 pepper pellets.
158. According to the reports, all of the deputies then left the area to obtain their CERT team equipment and “suit up” in their riot-squad gear and to “allow time for the chemical agents to take effect.” During this time, Mr. Lincoln was left unattended in a cell saturated with pepper dust. The jail’s records indicate that the deputies did not return until fourteen minutes later. At that time, Mr. Lincoln was unresponsive and close to passing out. One report states that Mr. Lincoln was lying on his back. The deputies ordered Mr. Lincoln to turn over and lie face down in the pepper dust. When Mr. Lincoln did not immediately move to comply, the deputies reportedly fired the pepperball gun again, launching “2-3 rounds into the wall beside him.”
159. Mr. Lincoln rolled over, as ordered, and the deputies came into the cell and applied handcuffs and leg shackles. Mr. Lincoln remembers that at one point, the officer in charge told the deputies to wait and “make him lay in it” before taking Mr. Lincoln out of the cell.
160. When Mr. Lincoln was finally removed from his cell, handcuffed behind his back and legs shackled, the deputies reported that he was “very limp and unresponsive.” Deputies reported that he “was having difficulty breathing.” One report states that Mr. Lincoln finally “took a big gasp of air and asked ‘what is going on? Who are you guys?’”
161. Instead of calling the medical staff at the time they first fired the pepperballs, the deputies waited until they had removed Mr. Lincoln from his cell. The nurse did not arrive until 22 minutes after the first pepperballs were fired, and the equipment to check Mr. Lincoln’s vital
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signs did not arrive for an additional five minutes. When the nurse finally arrived, she noted that Mr. Lincoln’s physical distress was the result of “suffering from the pepper ball chemicals.”
162. In early March, 2006, deputies accused Mr. Lincoln of stuffing up his toilet and flushing it repeatedly to cause water to flood onto the floor. Although Mr. Lincoln denied the accusation, deputies strapped Mr. Lincoln into the restraint chair as punishment. They did so in a particularly painful manner, handcuffing Mr. Lincoln’s hands behind his back instead of strapping them to the chair’s arm rests. The incident reports clearly show the deputies’ punitive intent. One states that Mr. Lincoln was strapped into the chair “because he had flooded his cell.” Another states that “it was determined that Inmate Lincoln would be placed in the restraint chair for his actions.” It was not until several hours later that deputies finally responded to Mr. Lincoln’s complaints of pain by uncuffing his hands and strapping them to the chair’s arm rests.
163. When Mr. Lincoln was finally released from the restraint chair after three and one-half hours, a deputy allowed Mr. Lincoln to return to his cell but refused to return his mattress, sheets, or blankets. Mr. Lincoln pointed out that the Inmate Handbook states that bedding can never be taken from a prisoner as a disciplinary measure. The deputy responded that he “didn’t give a shit” what it said in the Inmate Handbook.
164. On June 15, 2006, Mr. Lincoln returned to the jail for a preliminary hearing that was scheduled for the following day in his pending case in Garfield County. He was immediately assigned to supermax status and taken to the maximum-security pod on the third floor of the jail. After he violated “supermax” rules by exchanging communications with other prisoners who informed him how he could obtain an interview with ACLU attorneys who were present at the jail that day, Mr. Lincoln was moved to an isolation cell on a different floor.
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4. Plaintiff Jared Hogue 165. In February, 2006, Plaintiff Jared Hogue and other prisoners in the jail’s general population section became the target of a massive use of excessive and disproportionate force, including spraying prisoners with pepper spray, shooting them with multiple rounds from pepperball guns, and discharging tasers. None of the prisoners had posed any threat of violence or physical resistance. 166. The incident began when prisoners’ complaints about overly-small portions of food prompted them to make a statement. They did not believe that the jail’s grievance procedure provided any meaningful opportunity to be heard. Instead, on February 19, 2006, nearly all the prisoners in the general population section of the jail declined to come out of their cells for breakfast. 167. A deputy with the rank of corporal eventually brought the prisoners out of their cells to discuss the situation. The prisoners explained some of their concerns, and the corporal said she could not do anything about them. She stated that if the prisoners wanted to discuss it further, they would have to speak with the sergeant. She said “if you can be good, you can wait for him to get here.” 168. Suddenly, the corporal changed her mind. She ordered “total lockdown” and declared “nutraloaf permanently” for the entire general population of the jail. 169. Not all the prisoners moved immediately to their cells, and the jail’s CERT team then burst into the pod wielding pepperball guns, tasers, and pepper spray. The deputies began issuing conflicting orders, such as “don’t move!” and “lock down!” and “get on the floor, now!” One deputy threatened that any prisoner who moved would be tased, while other deputies
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ordered prisoners to lay on the floor or to go to their cells. The prisoners could not comply with the conflicting orders.
170. Deputies approached one prisoner and yelled at him alternately “not to move” and to “get on the floor.” When the prisoner stayed motionless, not knowing which order to obey, a deputy unleashed a long burst of pepper spray into the prisoner’s face.
171. A prisoner seated at a daypod table saw the laser beam of a pepperball gun pointed at the table. He put his face down on the table and tried to cover his head. Without giving the prisoner a clear order or attempting to escort him to his cell, deputies immediately resorted to overwhelming force. One deputy discharged OC spray on the prisoner’s arms and head from a distance of only a few inches (after attempting unsuccessfully to reach under the prisoner’s arms and spray him directly in the face). Another deputy opened fire with the pepperball gun, shooting at least 14 direct hits, while the first deputy sprayed the prisoner again with the OC spray until it appeared that deputy’s canister was empty.
172. Another prisoner had begun walking to his cell to comply with the order to lock down when the CERT team burst into the pod. When the CERT deputies ordered prisoners to hit the floor, he did so, and he was lying on his stomach half-in and half-out of his cell. Deputies grabbed the prisoner’s legs and began dragging him out of his cell as he laid face-down on the floor. Although he was not resisting and was not posing any threat, deputies discharged a taser into the prisoner’s back. As Mr. Hogue wrote in a grievance he filed, the prisoner “was pulled from his cell…on his belly and tazed for no reason.”
173. Although Mr. Hogue and other prisoners were exposed to PAVA dust and pepper spray, they were locked down and denied showers for several days. In response to grievances Mr. Hogue filed over the deputies’ disproportionate response, Mr. Hogue was told that the
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deputies’ use and threatened use of force was justified. Mr. Hogue was told that all prisoners on the general population pod had failed to comply with orders.
174. Mr. Hogue has been forced to wear the electroshock belt to court, and he is at risk of being forced to wear it again in the future.
G. Supervisory Liability 175. All of the foregoing acts and omissions of Garfield County Jail deputies were carried out pursuant to the informal policies, customs, and practices of the Defendants and the Garfield County Sheriff’s Department. In the alternative and in combination, Defendants have been and remain deliberately indifferent to the risk that their deputies will violates prisoners’ constitutional rights.
1. Absence of written policies 176. The potential abuse of restraints chairs, electroshock devices, and pepperball guns poses a serious and obvious risk to prisoners’ health and safety and a risk that their constitutional rights will be violated. Law enforcement authorities typically attempt to address the potential risks of such devices by drafting written policies designed to mitigate the potential for abuse and mitigate the potential risk to health and safety. 177. In this case, however, Defendants have failed to adopt written policies to regulate the detention deputies’ use of force on prisoners. 178. On June 14-16, 2006, attorneys for the Plaintiffs reviewed various jail documents at the Defendants’ office. They reviewed what the Defendants represented to be the complete policy and procedure manual for the Detention Division of the Garfield County Jail. 179. At that time, the Defendants had no written policy for the Detention Division regarding the continuum of permissible force that deputies can use on prisoners. In addition,
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they had no written policy for the Detention Division that regulates the use of the restraint chair; the use of the pepperball gun; the use of the electroshock belt, or the use of tasers.
180. The absence of written policies represents a deliberate and conscious choice on the part of the Defendants.
181. Defendant Vallario was elected Sheriff in November, 2002, and took office in January, 2003. Before formally taking office, Defendant Vallario notified the civilian jail administrator and the highest-ranking deputy in charge of the detention division that they would no longer be employed at the jail. The two discharged employees together had a total of 35 years experience in jail administration.
182. Defendant Vallario appointed an undersheriff and assigned him the task of administering the jail. One day after beginning work in January, 2003, the new undersheriff resigned. Subsequently, Defendant Vallario promoted Defendant Dawson from his former rank of sergeant to his current position as Commander and administrator of the jail. Dawson had little or no experience in jail administration.
183. Until Sheriff Vallario took office, the Detention Division was regulated by written policies that established a continuum of force. A written policy governed the use of the restraint chair. On information and belief, Defendants deliberately chose to discard the written policies adopted by the previous jail administrators.
184. When the NIC presented a brief written evaluation of the jail in 2005, it stated the Detention Division lacked sufficient written guidance in the form of written policies and procedures. It strongly advised that the Sheriff draft a comprehensive policy and procedure manual. At the time, the Sheriff’s policy and procedure manual contained only 11 policies applicable to the Detention Division, none of which addressed the use of force in general or the
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use of the restraint chair, pepperball gun, tasers, or the electroshock belt specifically. As of June 16, 2006, when Plaintiffs’ attorneys reviewed what the Defendant represented to be the complete policy and procedure manual, no additional written policies had been adopted.
2. Failure to ensure adequate training 185. The Defendants have failed to ensure that deputies at the Garfield County Jail are adequately trained in the use of force in general and in the safe and appropriate use of such devices as the restraint chair, the pepperball gun, pepper spray, tasers, and the electroshock belt. 186. The lack of adequate training is manifested in part by the absence of written policies. It is further manifested by the informal custom and policy of using the restraint chair, pepper spray, the pepperball gun, tasers, and the electroshock belt in a manner that poses an unjustifiable risk of substantial harm to prisoners’ health and safety; violates widely-accepted correctional standards; violates the recommendations or instructions of the manufacturers or venders regarding the proper and safe use of the devices; and/or violates prisoners’ constitutional rights. 187. The lack of adequate training is further manifested by the Defendants’ failure to maintain any documentary materials that describe or memorialize the content of any training sessions or training curricula regarding the safe and appropriate use of the pepperball gun or pepper spray. In a request made under the Colorado open records laws, attorneys for Plaintiffs asked to inspect all training materials regarding use of pepper spray or the pepperball gun, including any materials provided by the manufacturer or vender. In a written response dated June 14, 2006, the Defendants’ responded that the Sheriff’s Department had no responsive documentary materials.
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188. On information and belief, the Defendants’ only training materials relating to the safe and appropriate use of tasers is a CD supplied by the manufacturer, Taser International, Inc. Those training materials contain misleading information that erroneously overstate the purported safety of tasers and erroneously encourage law enforcement officers to use them in situations in which such a substantial use of force is disproportionate, excessive, poses unreasonable risks to prisoners’ health and safety, and violates constitutional rights. The Police Executive Research Forum has recommended that law enforcement agencies ensure that they do not rely solely on the training materials supplied by the manufacturer of electroshock weapons.
189. Defendants are aware of the need for adequate training in the use of force in general and the safe and appropriate use of the pepperball gun, pepper spray, the restraint chair, tasers, and the electroshock belt. There is an obvious risk that inadequate training poses a substantial risk to prisoners’ health and safety and a substantial risk that prisoners’ constitutional rights will be violated. Nevertheless, Defendants have deliberately disregarded that risk.
190. The Defendants’ failure to ensure adequate training has caused and threatens to cause violations of the constitutional rights of the named Plaintiffs and other members of the Plaintiff class.
3. Failure to supervise and monitor deputies and control abuses 191. The Defendants have failed to implement and maintain systems to supervise and monitor their deputies in a manner that will detect and minimize improper use of force and violations of prisoners’ constitutional rights. Those failures include, but are not limited to, the following: 192. Deputies write narrative incident reports to document the use of force and the reasons why force was applied. These forms include check-off boxes to indicate review by
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supervising officers all the way up the chain of command. The incident reports provided to Plaintiffs’ attorneys fail to indicate that supervisory officers reviewed and approved the reports. The check-off boxes are not checked.
193. The narrative descriptions in many of the incident reports fail to provide sufficient detail for a supervisory officer to determine whether the use of force was appropriate. Defendants have failed to require that deputies draft use-of-force reports that contain sufficient detail.
194. Despite the deficiencies in the narrative reports, many contain sufficient details to serve as glaring red flags to any reasonable supervisor who is concerned about curbing inappropriate uses of force that are excessive and disproportionate; violate standard correctional practices; violate the (rare) written policies governing the Detention Division; pose an unreasonable risk of harm to the health safety and lives of prisoners; and/or violate or pose an unjustifiable risk of violating prisoners’ constitutional rights. Nevertheless, the Defendants have not established procedures that effectively detect and act on reports that contain such red flags. On the contrary, the incident reports reflect deputies’ acting pursuant to and consistent with the standard operating procedure of the Garfield County Jail and the informal policies of the Defendants. Alternatively, Defendants are deliberately indifferent to the risk that their failure to effectively monitor and supervise has caused and threatens to continue causing violations of prisoners’ constitutional rights. VI. DENIAL OF ADEQUATE MENTAL HEALTH CARE TO INDIGENT
PRISONERS 195. Pursuant to the practice and policy of the Defendants, indigent prisoners with serious mental health needs are regularly denied their right to appropriate mental health care delivered by qualified mental health professionals.
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196. The Defendants have contracted with Correctional Healthcare Management (CHM) to provide for medical care, dental care, and prescription drugs for prisoners, but the contract excludes mental health services.
197. The Defendants have a separate contract with Colorado West Regional Mental Health Center (“Colorado West”) to provide mental health services to prisoners at the jail.
198. Nevertheless, the Defendants have delegated to CHM staff the role of gatekeeper to determine whether indigent prisoners with serious mental health needs will be able to see a psychiatrist or other qualified and appropriately-trained mental health professional. Thus, an indigent prisoner cannot obtain care from any mental health professionals at Colorado West unless the CHM staff determines that it is necessary.
199. When prisoners request mental health care, they are advised that they can see a mental health professional from Colorado West only if they can pay $100 and have the funds in their inmate accounts. Unlike medical care, the jail refuses to allow prisoners to run a negative balance in their accounts to pay for mental health services.
200. CHM provides a nursing staff and an on-call physician, who visits the jail periodically. The nursing staff determines which prisoners will see the on-call physician. On information and belief, neither the nursing staff nor the on-call physician are specially trained in psychiatry or mental health care.
201. Mr. Langley has been on suicide watch five times since he has been to the Garfield County Jail. He has been in the restraint chair five times. Mr. Vandehey has been in the restraint chair seven times. Mr. Langley, Mr. Vandehey, and other jail prisoners have repeatedly requested mental health care for their serious mental health needs. They have
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repeatedly been refused because they do not have enough money in their jail account to pay for an appointment with a qualified mental health professional.
202. The medical staff told Mr. Vandehey’s criminal defense attorney that mental health professionals will be called to see indigent jail prisoners only for crisis intervention, which the staff defined as occasions when a prisoner is suicidal or hallucinating.
203. Even when a prisoner is hallucinating, however, the jail’s on-call physician has refused to allow the prisoner to see a psychiatrist or other qualified mental health professional.
204. For example, among Mr. Vandehey’s multiple requests for mental health care are several kites that report that he hears voices and can hear other people’s thoughts. In a request dated June 12, 2006, he wrote:
It is getting close to court and as always when my stress level gets high the voices (other peoples thoughts) get louder and harder to controll wich [sic] makes me verry adjitated wich [sic] in turn causes me to loose amotional controll [sic] as I have told you in the past on severial ocaisions[sic]. . . . I have not slept for 2 nights and have been moved out of med. Pod because I am gona loose controll [sic]. 205. The jail’s physician declined to approve Mr. Vandehey seeing a psychiatrist or any other mental health professional. The physician’s notes do not mention or memorialize any inquiry into the auditory hallucinations Mr. Vandehey reported. 206. When a prisoner’s statements or a prisoner’s actions prompt jail authorities to place a prisoner on suicide watch, the medical staff call a crisis intervention counselor from Colorado West. The counselor, however, who is not a psychiatrist or psychologist, simply assesses whether the prisoner should remain on suicide watch. The counselor provides no counseling, no therapy, and no mental health care. On one occasion when Mr. Langley was placed on suicide watch, the counselor’s notes indicate that the medical staff “cautions that we need to focus on need for crisis intervention, not therapy session.”
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207. In some cases, the jail’s on-call physician approves psychiatric medications for a prisoner’s mental health needs. Pursuant to the policies of the Defendants, however, the physician is limited to prescribing medications on a list supplied by CHM. Thus, prisoners with a history of successful adjustment to medications prescribed by previous doctors often cannot obtain those medications even when the jail’s on-call physician acknowledges the need. In such cases, the physician’s prescription choice is influenced inappropriately by nonmedical factors.
208. For example, the jail physician acknowledged one prisoner’s prior diagnoses that included bipolar disorder. The physician’s notes state that the prisoner reported having taken various medications that produced adverse reactions, but he had done well when taking Seroquel, a drug that is prescribed for persons suffering from bipolar disorder. The jail’s doctor, however, ruled out Seroquel because it is not on the jail’s formulary. His notes state: “Tegretol is the only unrestricted remaining choice on formulary which is used for mania.” The doctor prescribed Tegretol.
209. The prisoner, who had previously been treated for his psychiatric problems at Colorado West, subsequently requested to speak with a psychiatrist or other mental health professional:
I need to speak to some one from Colorado West Mental Health Service. I’ve spoken to the jail doctor and he can not or doesn’t understand what is happening. This doctor has put me on medication doesn’t work [sic] with my body and mind. This is why I need to speak to some one that can prescribed psychotropics, a psychologist!!! The prisoner submitted additional medical requests reporting that his mind would not stop racing and that he needed changes in his medications or additional psychiatric help. The prisoner never got to see a psychiatrist or other qualified mental health professional.
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210. Appropriate medical and psychiatric care includes monitoring the effects of psychiatric medications. This is especially important when a patient is switched to a new medication or new combination of medications. At the Garfield County Jail, however, prisoners who receive psychiatric medications from the jail’s on-call physician are not monitored by qualified mental health professionals with appropriate training and experience.
211. Defendants are deliberately indifferent to the risk that their policies and practices will violate the rights of prisoners with serious mental health needs. VII. PUNISHMENT WITHOUT DUE PROCESS OF LAW
212. It is standard operating procedure in the Garfield County Jail for deputies to “sentence” prisoners to significant punishments for alleged disciplinary infractions, including minor breaches of jail rules, without due process and without following the procedures in the Inmate Handbook.
213. In many cases, the punishment is imposed on prisoners for alleged actions that are most appropriately understood as symptoms of the prisoners’ serious mental health problems, which, through the Defendants’ deliberate indifference, the jail has failed to treat or has treated inadequately.
214. The jail’s Inmate Handbook lists a variety of disciplinary infractions for which prisoners can be subjected to punishment. The current version lists 29 separate “Class I” offenses that are classified as “minor violations.” An additional 37 offenses are listed as “Class II” offenses that are classified as “major violations.” Finally, an additional 29 offenses are listed as “Class III” violations, which are classified as “serious violations.”
215. Minor violations listed in the Inmate Handbook include making “unnecessary noise,” having newspapers and magazines in a prisoner’s cell, using profanity, sharing
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commissary purchases with other prisoners, or failure to obey a direct order from a deputy. According to the handbook, “repeated” minor offenses elevate the infraction from Class I to Class II, and repeated Class II violations become a Class III offense.
216. The Inmate Handbook provides that punishment for disciplinary violations is imposed “if the hearing board finds the inmate guilty of a rule or regulation violation.” It is standard operating procedure, however, to impose punishment for disciplinary violations without notice, without a hearing, and without any opportunity for prisoners to rebut, deny, or explain the accusations against them. In addition, in the very rare cases in which some prisoners receive some kind of process before punishment is imposed, the procedures employed do not comport with the minimal requirements of due process. For example, prisoners do not receive adequate notice of what they are accused of doing, thus interfering with their ability to prepare a defense. In addition, when prisoners receive a “sentence” after the very rare disciplinary hearing, they are forced to sign a paper with the text covered up; they cannot read the paper until after they have signed.
217. Mr. Vandehey has been punished for disciplinary infractions on multiple occasions. He has received notice of a disciplinary hearing only once. The notice he received simply listed the numbers assigned to the alleged infractions in the Inmate Handbook; it did not describe what Mr. Vandehey allegedly did that violated the jail’s rules. When the date of the hearing approached, Mr. Vandehey was in an emotional state where he knew that his mental health problems would interfere substantially with his ability to communicate effectively with the hearing board. He asked that the hearing be continued to give him time to calm down. Despite Mr. Vandehey’s reasonable request for a continuance based on his serious mental health problems, the deputies conducted the “hearing” in Mr. Vandehey’s absence. They concluded
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that Mr. Vandehey’s absence was “an admission of guilt on all counts.” He was “sentenced” to 60 days in supermax.
218. Prisoners are regularly and summarily punished with “sentences” to a diet of nutraloaf for a specified number of days or sentences to “max” or “supermax” for a specified number of days, without due process and without being afforded the hearing described in the Inmate Handbook. Mr. Langley and Mr. Vandehey have been sentenced repeatedly to these punishments without any hearing and without due process.
219. Prisoners who have filed grievances asking for hearings have been told that they have no right to a hearing or that no hearing is required.
220. Prisoners on “supermax” status have been disciplined for violating rules that are unique to the “supermax” classification, such as the rule that prohibits speaking to another prisoner. These rules are not contained in the Inmate Handbook or in any other written document to which prisoners have access. One prisoner filed a kite, saying "Please give me a supermax rule book so I can follow your rules." A deputy responded by writing “There is no such thing.” Although the Defendants began sentencing prisoners to “supermax” punishments in the fall of 2005, it was not until May or June, 2006 that any of the Plaintiffs received a new version of the Inmate Handbook that acknowledges the existence of “supermax” status, although it still fails to reveal any the rules governing “supermax” or any of the specific deprivations that supermax prisoners are forced to endure. The Inmate Handbook that the Plaintiffs first received in May or June, 2006, states on the cover that it was revised in March, 2006.
221. Prisoners on “supermax” status are permitted an hour of recreation time, one-at-atime, in a small fenced-in outdoor patio that adjoins the common area. They cannot use this out-of-cell time for showering, watching TV, reading magazines or newspapers, or using the
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legal reference materials in the common area. In addition, supermax prisoners are required to take their one hour of recreation time whenever deputies decide to provide it. Last winter, deputies added an additional punishment for supermax prisoners by deliberately calling their recreation time while it was still dark outside, when temperatures outside were below freezing and sometimes below zero. The jail does not provide coats or jackets, so prisoners were forced to go outside without appropriate clothing or forfeit their recreation time for the day. Mr. Vandehey was faced with this choice in January at a time when he did not have any shoes.
222. The Inmate Handbook states that prisoners cannot be deprived of bedding as a disciplinary sanction, yet mattresses, sheets and blankets have been confiscated as punishment. The Handbook states that food cannot be withdrawn as punishment. Nevertheless, prisoners’ meals are withheld and they are “sentenced” to a diet of nutraloaf, which is not mentioned in the Inmate Handbook. Defendants have no written policies governing the substitution of nutraloaf for regular meals.
223. The forgoing punishments and deprivations are imposed, without due process and without following the procedures in the Inmate Handbook, pursuant to the policies and practices of the Defendants. Alternatively, and in combination, these violations of due process are caused by Defendants’ deliberately indifferent failure to adequately monitor, supervise, and correct their subordinates’ actions.
224. Plaintiffs and the members of the proposed class have suffered or are at imminent risk of suffering the deprivations described above, without due process of law.
VIII. INTERFERENCE WITH PRISONERS’ RIGHT TO COMMUNICATE CONFIDENTIALLY WITH ATTORNEYS
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225. Defendants and deputies at the Garfield County Jail have infringed, interfered with, and threaten to continue infringing and interfering with, the right of prisoners to communicate confidentially with attorneys whose advice and counsel they seek.
A. Prisoners denied confidential interviews with ACLU attorneys 226. On June 16, 2006, Plaintiff Jared Hogue learned that on the previous day, the Defendants had denied him and two other prisoners an opportunity to participate in a confidential face-to-face interview with Taylor Pendergrass, a staff attorney with the ACLU Foundation of Colorado and one of the attorneys for Plaintiffs in this case. 227. Mr. Hogue had previously written to the ACLU requesting legal assistance, and the other two prisoners had also supplied written communications to the ACLU indicating their interest in legal assistance from the organization’s attorneys. 228. Mr. Pendergrass was present at the jail and had requested the opportunity to meet with Mr. Hogue and the two other prisoners. 229. In refusing to permit Mr. Hogue and the other prisoners to meet with Mr. Pendergrass, Defendants relied on what they described as their “policy.” According to that “policy,” which did not exist in writing, a deputy contacts the prisoner whom the attorney asks to interview. The deputy asks “Who is your attorney?” If the prisoner does not identify the attorney requesting the interview, then the interview is not permitted. 230. Pursuant to Defendants’ instructions, neither Mr. Hogue nor the other two prisoners were informed that an ACLU attorney was present at the jail and willing to meet with the prisoners. When deputies asked “Who is your attorney?,” Mr. Hogue and the other two prisoners understandably responded by providing the names of their criminal defense attorneys.
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They did not know the potential consequences of their answer. They did not know that they were being asked a “trick question.”
231. Mr. Hogue wanted to meet with Mr. Pendergrass. Had the deputies informed Mr. Hogue that an ACLU attorney was at the jail and asking for a confidential meeting, Mr. Hogue would have said he wanted to participate. The same is true with regard to the other two prisoners who were denied the opportunity to meet with Mr. Pendergrass.
232. The undersigned attorneys for Plaintiffs had been to the Garfield County Jail on one earlier occasion, on May 11, 2006. At that time, they met with Mr. Vandehey, Mr. Lincoln, and a third prisoner in a confidential setting, without any problems. Deputies did not ask the prisoners “Who is your attorney?” as a prerequisite to permitting the confidential interview.
233. The “policy” that prevented Mr. Hogue from participating in an attorney visit on June 15, 2006, did not exist when ACLU attorneys first visited the jail on May 11, 2006. In early June, Defendants learned that the undersigned attorneys planned to return to the jail from June 14-16 to review documents requested under the Colorado open records laws and to interview additional prisoners. Defendants were furnished with a list, in advance, of prisoners whom the attorneys intended to interview.
234. Defendants invented the “policy” because of, and in anticipation of, the expected return of ACLU attorneys on June 14-16, 2006.
235. The newly-invented “policy” almost prevented Mr. Vandehey from meeting with Mr. Pendergrass on June 14-16, 2006. Mr. Vandehey had previously written to the ACLU seeking legal assistance, and he knew that his request was under investigation. He had signed a release-of-information form and knew that ACLU attorneys had obtained incident reports regarding the occasions on which Mr. Vandehey had been subjected to the use-of-force practices
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described in this Complaint. ACLU attorneys had previously interviewed him at the jail on May 11, 2006, and he had received a letter from Mr. Pendergrass indicating that ACLU staff would return to speak with Mr. Vandehey again on June 14-16.
236. Nevertheless, when a deputy asked Mr. Vandehey “Who is your attorney?” Mr. Vandehey responded with the name of his criminal defense attorney. Pursuant to the Defendants’ newly-minted “policy,” Mr. Vandehey would have been denied the opportunity to meet with ACLU staff. Fortunately, Mr. Langley, who was housed nearby, overheard the deputy’s question and Mr. Vandehey’s response. Mr. Langley took the risk of incurring a disciplinary sanction by communicating with Mr. Vandehey. Mr. Langley yelled out to Mr. Vandehey to “say the ACLU too.” Mr. Vandehey did so, and he was able to meet with ACLU staff.
237. Mr. Lincoln returned to the Garfield County Jail on June 15, 2006. As deputies brought him to the housing unit, he passed by the attorney room where Mr. Pendergrass was speaking with Mr. Langley. Mr. Lincoln shouted though the glass window that he wanted to speak with Mr. Pendergrass. Mr. Langley shouted back that Mr. Lincoln would have to say “the ACLU” if and when the deputies asked “Who is your attorney?” Had Mr. Lincoln not been informed of the “correct” answer to the “trick question,” he, too, would have been denied the opportunity to meet with an ACLU attorney.
238. Mr. Hogue and the other two prisoners who were denied the opportunity to meet with an attorney were housed in a different section of the jail. No one told them the “correct” answer to the “trick question.”
239. Defendant Dawson later stated that he changed the “policy” in the week after June 15. According to Defendant Dawson, “[t]he revised policy is that Jail staff members ask inmates
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for the name of their attorney, or the name of any group or attorney from whom the inmate is seeking legal representation.” The revised “policy” also requires prisoners to provide the “correct” answer to a “trick question” as a prerequisite to exercising their right to meet with an attorney who is willing to speak with them.
240. Defendant Dawson stated that the revised “policy” did not exist in written form. 241. The Defendants’ new “policy,” whether in its original or in its “revised” form, poses a substantial risk of denying Plaintiffs and other prisoners the opportunity to meet with attorneys who are present and willing to speak with them. 242. For example, it denies prisoners the opportunity to meet with attorneys when the attorney has appeared at the jail at the request of friends or family members who have retained the attorney or have asked the attorney to consider representing the prisoner. Prisoners do not always know the name of an attorney who has been retained or contacted by friends or family. Indeed, prisoners may not even know beforehand that friends or family have retained or contacted an attorney who has been retained or is considering representation. 243. In addition, many prisoners write to a number of attorneys and organizations seeking legal representation. A prisoner who is suddenly asked for the names of any organizations or attorneys from whom the prisoner has sought assistance may be unable to produce a complete list, orally, on the spot. Mr.Vandehey’s experience in nearly missing the opportunity for an attorney visit demonstrates the risk that a prisoner could easily fail to provide the “correct” answer to the open-ended “trick question.” B. Additional violations and threatened violations of prisoners’ right to
communicate confidentially with attorneys 244. Shortly after deputies shot Plaintiff Samuel Lincoln with pepperballs in January, 2006, he wrote to the ACLU of Colorado to complain about his treatment by the Garfield County
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Sheriff’s Department. He followed the procedure in the Inmate Handbook for sending confidential letters to attorneys, which permits prisoners to seal a letter that is designated as “privileged” mail before handing it to the deputies for mailing. A deputy refused to mail the letter however, unless Mr. Lincoln agreed to open it for the deputy to inspect its contents. Mr. Lincoln refused to do so. Although the deputy took the letter, Mr. Lincoln did not know whether the deputy would mail it or not. The ACLU never received the letter. The first communication the ACLU received from Mr. Lincoln was several months later, in May, 2006, when Mr. Lincoln wrote from the Mesa County Jail.
245. In a meeting on June 15, 2006, Defendants were advised that a prisoner had reported that a deputy had refused to mail a prisoner’s letter to the ACLU unless the prisoner first opened it and allowed the deputy to inspect its contents. Defendant Vallario dismissed the prisoner’s complaint, saying “He’s in jail. He’s a friggin’ criminal.”
246. On June 15, 2006, Plaintiff Samuel Lincoln returned to the Garfield County Jail. He had a preliminary hearing scheduled in his Garfield County case the next day. He asked for a telephone call so that he could contact his criminal defense attorney about the preliminary hearing. He was not allowed a telephone call. Mr. Lincoln asked for writing materials so that he could write his attorney a letter. He was denied writing materials.
247. On information and belief, deputies’ interference with prisoners’ right to communicate confidentially with attorneys is carried out pursuant to the informal policy, custom, or practice of the Defendants. Alternatively, Defendants are aware of the deputies’ practices and, though deliberate indifference to the risk of further violations of prisoners’ rights, have failed to intervene or correct the deputies’ practices.
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IX. EXHAUSTION OF ADMINISTRATIVE REMEDIES 248. The named Plaintiffs have exhausted all available administrative remedies with
respect to the legal claims in this First Amended Complaint. They have attached the documentation that is available to memorialize their exhaustion of all available administrative remedies. They cannot attach complete documentation in all cases, however, because the prisoners do not always receive copies of such documentation, and the jail’s grievance procedure does not actually operate in the manner described in the Inmate Handbook.
249. The grievance procedure for the Garfield County Jail is spelled out in the Inmate Handbook. The grievance procedure reads as follows:
The Detention Officer on duty will provide an Inmate Request/Grievance Form “KITE” for all inmates wishing to file a grievance. The Inmate Request/Grievance Form “KITE” will be reviewed to see if there were prohibited acts by a staff member, a civil rights violation has occurred, or if there has been an abridgement of an inmate’s privilege. If the grievance is of an emergency nature, it should be so noted. If not, the grievance will be answered within 15 days. An inmate has the right to appeal the decision to the grievance review board and then to the Jail Commander. The Jail Commander’s decision is FINAL. It should be noted that abuse of the kite system will not be tolerated. If a deputy can answer an inmate’s question a kite should not be submitted, however if the deputy cannot answer the request or problem then a kite should be submitted up the chain of command to the corporal. Garfield County Detention Center, Inmate Handbook, page 20 (bolded, capitalized, and underlined text in original). 250. The Inmate Handbook describes a 3-step procedure. The prisoner first files a grievance. If the prisoner is not satisfied with the response, the prisoner can then appeal first to the “Grievance Review Board,” and then to the Jail Commander. A. The jail’s published grievance procedure has not been an available
administrative remedy
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251. The procedure described in the Inmate Handbook, however, is not actually followed in practice. The three-step procedure described in the Inmate Handbook has not been an “available administrative remedy” to the named Plaintiffs and other prisoners in the jail.
252. The Inmate Handbook contains no written guidance about how prisoners can file an appeal of a grievance or how they can advance to the second or third steps of the published grievance procedure. The only written guidance regarding appeals is provided in the text of the “Inmate Request/Grievance Form ‘KITE’” that is referenced in the published grievance procedure.
253. The “Inmate Request/Grievance Form ‘KITE’” is a blank form that ordinarily consists of four colored sheets. Anything written on the top sheet is intended to be reproduced on the lower sheets as a carbon copy. The form indicates at the bottom that the white sheet goes into the prisoner’s file; the yellow sheet is the “inmate copy”; the pink sheet is the “inmate initial copy” and the goldenrod sheet goes to the housing unit file.
254. The form indicates that the jail’s response to a prisoner’s initial grievance is regarded as an “informal resolution.” The form contains a box that a prisoner can sign and date if the informal resolution is not acceptable. Below that box is another box that states “This Request/Grievance Has Been Submitted to the Grievance Review Board.” Below that box is yet another box to indicate that the Grievance Review Board has replied to the prisoner.
255. The organization of the “Inmate Request/Grievance Form ‘KITE’” suggests that prisoners have appealed the result of their first-level grievance when they sign the box that indicates that they are not satisfied with the informal resolution and they return the form to a deputy. When prisoners do that, however, they do not receive any response from the
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Grievance Review Board. Indeed, there is nothing that prisoners can do that will ensure that they receive a response from the Grievance Review Board.
256. The fine print on the “Inmate Request/Grievance Form ‘KITE’” suggests that filing an appeal requires that the prisoner also file an additional “Inmate Request/Grievance Form ‘KITE’” explaining why the informal resolution is not acceptable. When prisoners do that, however, the grievance is not sent to the Grievance Review Board. Instead, the prisoners simply receive another informal response, often from the same deputy who had already responded to the initial first-level grievance. Some prisoners have tried again and again to appeal to the Grievance Review Board, and each time they have either received no response or they received an “informal resolution” at the first level of the grievance procedure. It is the standard practice at the Garfield County Jail to prevent prisoners from appealing the denial of their first-level grievances to the Grievance Review Board.
257. Contrary to the text of the Inmate Handbook, the “Grievance Review Board” does not function or fulfill the role of a second-stage forum for prisoner grievances. On June 14, 2006, in response to requests under the Colorado open records laws, the Defendants permitted the Plaintiffs’ attorneys to inspect what the Defendants represented as all kites and grievances, and responses to those kites and grievances, regarding 10 current and former prisoners who had signed release-of-information forms. The Defendants produced more than 125 “Inmate Request/Grievance Form ‘KITE’” forms on which prisoners indicated they were dissatisfied with the response to their first-level grievance. The files contained dozens of examples of cases in which prisoners also tried to file a separate appeal to the Grievance Review Board. In all cases, the prisoners either received no response at all, or they received another informal response that
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erroneously treated their attempt to appeal as a first-level grievance. In no case did a prisoner ever receive a written response from the jail’s Grievance Review Board.
258. The Defendants’ response to another request under the Colorado open records laws further demonstrates that the “Grievance Review Board” does not function as the secondlevel forum described in the Inmate Handbook. Attorneys for Plaintiffs asked to inspect all documents “that relate to or discuss the operation, membership, and procedures of the jail’s Grievance Review Board.” Attorneys for Plaintiffs further elaborated by specifying that the requested documents include any that would reflect the membership of the jail’s Grievance Review Board; any documents memorializing the policies, procedures, or decision-making process of the Grievance Review Board; any documents that would reveal any dates on which the Grievance Review Board had met in the past 12 months; any documents that would reveal the number of occasions that the Grievance Review Board had met in the last year; and documents that would reveal how many decisions were considered or made by the Grievance Review Board in the past year. The Defendants reported that no responsive documentary materials existed.
259. Various deputies have told prisoners on different occasions a) that the grievance board does not exist; b) that the grievance board is composed of three specific sergeants; c) that the grievance board consists of any three jail staff who can convene on any given day; and d) that the grievance board meets only to consider disciplinary cases and investigations. These conflicting statements further demonstrate that the Grievance Review Board does not function as the second stage of a regularly-functioning grievance procedure. An appeal to the Grievance Review Board is not an available administrative remedy.
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260. Prisoners are often frustrated by the jail’s failure to follow the grievance procedures in the Inmate Handbook. Among the prisoners, it is widely known that the secondstage appeal to the “Grievance Review Board” is not actually available to them. Accordingly, many prisoners simply give up after their first-level grievance is denied. In such cases, they have nevertheless exhausted the administrative remedies that are available to them.
261. Although some prisoners persist in trying to file multiple additional kites in a fruitless attempt to appeal to the Grievance Review Board, they also eventually give up. Nevertheless, these prisoners have exhausted the administrative remedies that are available to them.
262. In some cases, prisoners are required to give up their attempt to file grievances or appeals because deputies threaten them with a charge of “abuse of the kite system,” which the Inmate Handbook lists as a “major” disciplinary violation, punishable by up to 30 days of disciplinary status for each “offense.” Prisoners contemplating the filing of a grievance do so under the threat that they will be charged with a “major” disciplinary violation if their grievance is deemed, by unknown standards, to constitute “abuse.” In cases where the threat of a disciplinary charge chills prisoners from filing grievances or grievance appeals, the prisoners have exhausted the administrative remedies that are available to them.
263. Occasionally, a prisoner’s grievance or a prisoner’s appeal has been answered directly by Jail Commander Scott Dawson. In such situations, the grievance has been decided by the individual identified in the grievance policy as the final decisionmaker. In those situations, the prisoner has exhausted all available administrative remedies.
264. In addition, prisoners are sometimes denied access to the grievance procedure entirely. A document in Mr. Vandehey’s file confirms that for some period of time in February,
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2006, he was prohibited from obtaining the forms necessary for initiating the grievance process. For several months preceding the filing of this lawsuit, Mr. Langley has been prohibited from receiving any grievance forms unless his request for a form is first reviewed and approved by a supervisor. Similarly, Mr. Lincoln has requested grievance forms and been refused. When prisoners are refused access to the grievance forms, there are no available administrative remedies for the prisoner to exhaust.
265. The jail’s published grievance procedure is not an available remedy for prisoners whose complaint is the denial of adequate medical or mental health care. When prisoners submit a request or a grievance regarding medical care on the form that is titled Inmate Request/Grievance Form “KITE,” they are often told that they must submit a “medical kite” instead. When prisoners submit such a form, whether they label it a grievance or a request, the form is forwarded to the jail’s medical staff. When the jail’s medical staff denies the grievance or the request, the jail’s published grievance procedure does not describe any process for appeal. Accordingly, prisoners who have filed a grievance with the jail’s medical staff have exhausted all available administrative remedies.
266. Although the jail’s Grievance Review Board has not functioned as the secondlevel forum described in the Inmate Handbook, in at least one case in February, 2006, a grievance filed by Plaintiff Hogue eventually resulted in some kind of a meeting with three officers, and Mr. Hogue actually received a written response rejecting his grievance. That response, however, stated that there would be no more kites allowed on the issue, thus making unavailable the third-level appeal to the Jail Commander that is described in the Inmate Handbook. Nevertheless, in that particular case, Mr. Hogue also received a response directly from Defendant Dawson.
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267. After the Defendants stated on June 14-16, 2006, that they had no documents regarding the jail’s Grievance Review Board, Defendants appear to have modified how they respond to grievances and attempted grievance appeals filed by the Plaintiffs in this case.
268. Until the end of June, 2006, deputies regularly responded to prisoners’ first-level grievances within one or two days. In recent weeks, however, the named Plaintiffs have not received responses to first-level grievances until 15 days after they have been submitted. Deputies have deliberately delayed giving their responses to prisoners even when those responses had been completed long before 15 days has elapsed.
269. In addition, after Mr. Hogue appealed the denial of his grievance regarding the new “policy” for attorney visits, three deputies met with Mr. Hogue. They said that they were the jail’s Grievance Review Board. Although other grievance appeals have not resulted in faceto-face meetings with any review board, some prisoners have now, for the first time, received responses to their appeals that are signed by three deputies. In these cases, too, the deputies have deliberately delayed delivering their written responses to the prisoners until 15 days have elapsed since the filing of the grievance appeal. The deputies have delayed delivering these responses even when the responses have been completed and dated up to a week earlier.
270. On information and belief, the deputies’ delay in delivering responses to prisoners’ grievances has been carried out pursuant to orders from the Defendants. On information and belief, the Defendants have issued such orders for the sole purpose of delaying or denying prisoners’ ability to fully exhaust available administrative remedies and thereby thwart their ability to raise their legal claims in court.
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B. Plaintiff Clarence Vandehey 271. A number of Mr. Vandehey’s grievances and attempts to file appeals were eventually answered directly by Defendant Dawson, the highest-level decisionmaker in the jail’s grievance procedure. Documentation of Mr. Vandehey’s exhaustion of all available administrative remedies is attached to this First Amended Complaint. C. Plaintiff William Langley 272. A number of Mr. Langley’s grievances and attempts to file appeals were eventually answered directly by Defendant Dawson, the highest-level decisionmaker in the jail’s grievance procedure. Accordingly, Mr. Langley has exhausted all available administrative remedies. 273. On June 16, 2006, Mr. Langley filed a grievance about the use of the electroshock belt. The grievance was denied on June 19. Mr. Langley indicated on that kite that the firstlevel response was not acceptable to him. A copy of Mr. Langley’s grievance and the jail’s response are attached. Mr. Langley asked for another kite so that he could appeal the denial of his grievance. The deputy refused to allow Mr. Langley another kite to appeal the denial. Accordingly, the remainder of the published grievance procedure was not available to Mr. Langley, and he has exhausted all available administrative remedies on the electroshock belt issue. Documentation of Mr. Langley’s exhaustion of available administrative remedies is attached to this First Amended Complaint. C. Plaintiff Samuel Lincoln 274. This First Amended Complaint is filed at a time when Mr. Lincoln is not housed in the Garfield County Jail, although he is certain to return to the jail in the near future. At the
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present time, there are no administrative remedies of the Garfield County Jail available to Mr. Lincoln.
275. When Mr. Lincoln was housed in the Garfield County Jail, he did exhaust all available administrative remedies. He is unable to attach full documentation, however, for the reasons that follow.
276. Mr. Lincoln was housed continuously in the Garfield County Jail from December, 2005 through the beginning of April, 2006. During that time Mr. Lincoln filed multiple grievances challenging the punitive use of the restraint chair and the confiscation of his bedding as punishment. He appealed the denial of his first-level grievance, and he never received a response. Those documents are attached.
277. Mr. Lincoln returned to the Garfield County Jail on June 15, 2006 and stayed until June 17, 2006. During that time, Mr. Lincoln attempted to file several grievances in order to exhaust administrative remedies with regard to the legal claims raised in this First Amended Complaint. On June 16, 2006, Mr. Lincoln requested grievance forms, and a deputy said he would provide them. That deputy never provided a kite, however, and Mr. Lincoln’s additional requests for grievance forms were denied by jail staff.
278. On the evening of June 16, 2006, Mr. Lincoln was able to secure one grievance form from a new deputy who was working on the late-night shift. Mr. Lincoln wrote out a grievance about the jail’s arbitrary and inconsistent disciplinary practices. A copy of Mr. Lincoln’s grievance about arbitrary disciplinary practices is attached to this First Amended Complaint. When Mr. Lincoln turned the grievance in, however, the deputy read the grievance and stated that Mr. Lincoln could not file a grievance on that issue. Mr. Lincoln’s requests for additional kites to file additional grievances were denied.
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279. Had Mr. Lincoln been allowed access to the grievance process, he would have
filed grievances challenging the jail’s use of 1) the electroshock belt, 2) the use and threatened
use of the pepperball gun, pepper spray and the taser, and 3) the jail’s use of the restraint chair.
Mr. Lincoln had already written out the text of the grievances he intended to file if he had not
been denied access to the jail’s administrative remedies. He has exhausted all available
administrative remedies with regard to the following grievances:
Restraint chair: I want to grieve the jail’s practice of strapping prisoners in the restraint chair. Prisoners are placed in the chair without adequate reason, for too long, and without adequate medical involvement. Prisoners who have been subjected to pepper spray or pepperballs are forced to remain strapped in the chair without any opportunity to wash off the pepper. This has happened to me and could happen again.
Use and threatened use of tasers, pepper spray, and pepperballs I want to grieve the jail’s use of tasers and pepper spray and pepperballs. Officers use or threaten to use these weapons in situations where such drastic force is not justified, and without adequate medical involvement. I have been threatened with unjust use of one or more of these devices and this could happen again.
Prisoners’ right to communicate confidentially with attorneys I want to grieve the jail’s practice of interfering with prisoners’ ability to communicate with attorneys and obtain access to legal assistance. I wrote to the ACLU to ask for legal assistance regarding the violations of prisoners constitutional rights in the jail. I sealed the letter and marked it as “legal mail” and followed the procedures in the inmate handbook. An officer brought it back and said I had to open it for their inspection. I refused and said it was legal privileged mail. The officer took the letter but I learned later that the letter did not get sent to the ACLU. This could happen again.
D. Plaintiff Jared Hogue
280. Documentation of Mr. Hogue’s exhaustion of the available administrative
remedies is attached to this First Amended Complaint.
X. CLASS ACTION ALLEGATIONS
281. Plaintiffs bring this action on behalf of themselves and all others similarly
situated, pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure.
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282. All Plaintiffs represent a class of persons defined as follows: All persons who, now or at any time in the future, are or will be prisoners in the custody of the Garfield County Sheriff’s Department.
283. Plaintiffs Vandehey, Lincoln, and Hogue represent a subclass of persons (Subclass A) defined as follows:
All pretrial detainees who, now or at any time in the future, are or will be prisoners in the custody of the Garfield County Sheriff’s Department. 284. Plaintiff William Langley represents a subclass of persons (Subclass B) defined as follows: All post-conviction prisoners who, now or at any time in the future, are or will be prisoners in the custody of the Garfield County Sheriff’s Department. 285. The proposed classes are so numerous that joinder of all members is impracticable. In 2004, the average daily population of the jail was 150 prisoners, but the majority of prisoners are released within 72 hours. Another large group is released within 3-10 days. 286. There are questions of law and fact common to the members of each of the plaintiff classes. 287. The claims of the named Plaintiffs are typical of the claims of the members of the class. 288. The named Plaintiffs will fairly and adequately protect the interests of the class. Plaintiffs have no interest that is now or may be potentially antagonistic to the interests of the class. Plaintiffs are represented by attorneys employed by and working in cooperation with the
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ACLU Foundation of Colorado, which has extensive experience in litigating federal court class

action cases involving federal civil rights claims.

289. Defendants have acted or refused to act on grounds generally applicable to the

classes, thereby making appropriate injunctive and declaratory relief to the class as a whole.

XI.

DECLARATORY AND INJUNCTIVE RELIEF

290. An actual and immediate controversy exists between Plaintiffs and Defendants.

Plaintiffs contend that the challenged policies and practices violate their constitutional rights.

Defendants contend that the challenged policies and practices comply with the law.

291. Plaintiffs are therefore entitled to a declaration of rights with respect to this

controversy. Without such a declaration, Plaintiffs will be uncertain of their rights and

responsibilities under the law.

292. Plaintiffs are entitled to injunctive relief. Defendants have enforced and

threatened to continue enforcing the challenged policies and practices against the Plaintiffs.

Defendants have acted and are threatening to act under color of state law to deprive Plaintiffs of

their constitutional rights. Plaintiffs have suffered irreparable injury and will continue to suffer a

real and immediate threat of irreparable injury as a result of the existence, operation, and

implementation of the challenged policies and practices. Plaintiffs have no plain, adequate or

speedy remedy at law.

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XII. CLAIMS FOR RELIEF A. FIRST CLAIM FOR RELIEF
(Threats and use of excessive and disproportionate force; punitive use of restraints) (Eighth and Fourteenth Amendments; Colo. Const. Art. II Secs. 20, 25) (Plaintiffs Vandehey, Lincoln, Langley, and Hogue)
293. Deputies at the Garfield County Jail have subjected and threatened to subject Plaintiffs Vandehey, Lincoln, and Hogue, and the subclass of pretrial detainees, to the use of force, including the use of restraint chairs, pepperball guns, tasers and/or pepper spray, in a manner that constitutes excessive and disproportionate physical force; unnecessarily and wantonly inflicts mental and physical pain; shocks the conscience; inflicts corporal punishment and mental suffering as retaliation or punishment for past conduct; poses an unreasonable and unjustifiable risk of harm to their health and safety; and that is not reasonably related to any legitimate governmental objective, in violation of the Due Process Clause of the Fourteenth Amendment and Article II, Section 25 of the Colorado Constitution.
294. Deputies at the Garfield County Jail have subjected and/or threatened to subject Plaintiff Langley, and the subclass of convicted prisoners, to the use of force, including the use of restraint chairs, pepperball guns, tasers and/or pepper spray, in a manner that constitutes excessive and disproportionate physical force imposed maliciously and sadistically for the purpose of causing harm; intentionally inflicts corporal punishment and physical and mental pain as retaliation or punishment for past conduct; unnecessarily and wantonly inflicts mental and physical pain; poses an unreasonable and unjustifiable risk of harm to their health and safety; is not reasonably related to any legitimate penological interest; and inflicts cruel and unusual punishment, in violation of the Eighth Amendment and Article II, Section 20 of the Colorado Constitution.
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295. The deputies’ acts and omissions, and threatened acts and omissions, were carried out pursuant to the policies, customs, and practices of the Defendants. In adopting, authorizing, and ratifying those policies customs and practices, Defendants have been and continue to be deliberately indifferent to the risk of violating the constitutional rights of the Plaintiffs and members of the Plaintiff class.
296. Alternatively and in combination, Defendants’ deliberately indifferent failure to ensure adequate training of their deputies has caused and threatens to continue causing, violations of the Plaintiffs’ constitutional rights.
297. Alternatively and in combination, Defendants’ deliberately indifferent failure to ensure adequate monitoring and supervision of their deputies’ conduct has caused, and threatens to continue causing, violations of the Plaintiffs’ constitutional rights.
298. Plaintiffs Vandehey, Lincoln and Hogue, and the member of the subclass of pretrial detainees, face a continuing and imminent risk that they will be subjected to the use and threatened use of force, including the use of restraint chairs, pepperball guns, tasers and/or pepper spray, in a manner that constitutes excessive and disproportionate physical force; unnecessarily and wantonly inflicts mental and physical pain; shocks the conscience; poses an unreasonable and unjustifiable risk of harm to their health and safety; and inflicts unconstitutional punishment that is not reasonably related to any legitimate governmental objective.
299. Plaintiff Langley, and the subclass of convicted prisoners, face a continuing and imminent risk that they will be subjected to the use and threatened use of force, including the pepperball gun and/or the restraint chair, in a manner that constitutes excessive and disproportionate physical force imposed maliciously and sadistically for the purpose of causing
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harm; purposely inflicts corporal punishment, and physical and mental pain as retaliation or punishment for past conduct; unnecessarily and wantonly inflicts mental and physical pain; poses an unreasonable and unjustifiable risk of harm to their health and safety; is not reasonably related to any legitimate penological interest; and inflicts cruel and unusual punishment.
300. WHEREFORE, Plaintiffs seek declaratory and injunctive relief, attorneys’ fees, and such other relief as the Court deems just.
B. SECOND CLAIM FOR RELIEF (Eighth and Fourteenth Amendments; Colo. Const. Art. II, Secs. 20, 25)
(Electroshock belt; Plaintiffs Lincoln, Langley and Vandehey) 301. Deputies at the Garfield County Jail have subjected and threatened to subject Plaintiffs Vandehey and Lincoln, and the subclass of pretrial detainees, to the use of the electroshock belt in a manner that unnecessarily and wantonly inflicts fear, anxiety, mental pain and torture; shocks the conscience; poses an unreasonable risk of inflicting unjustified excruciating pain; poses an unreasonable and unjustifiable risk of harm to their health and safety; and inflicts unconstitutional punishment that is not reasonably related to any legitimate governmental objective, in violation of the Due Process Clause of the Fourteenth Amendment and Article II. Section 25 of the Colorado Constitution. 302. Deputies at the Garfield County Jail have subjected and threatened to subject Plaintiff Langley and the subclass of convicted prisoners to the electroshock belt in a manner that unnecessarily and wantonly inflicts fear, anxiety, mental pain and torture; inflicts mental pain and torture maliciously and sadistically for the purpose of causing harm; poses an unreasonable and unjustifiable risk of inflicting unjustified excruciating pain; poses an unreasonable and unjustifiable risk of harm to their health and safety; is not reasonably related to any legitimate
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penological interests; and inflicts cruel and unusual punishment, in violation of the Eighth Amendment and Article II, Section 20 of the Colorado Constitution.
303. Plaintiff Langley and the subclass of convicted prisoners have a liberty interest, protected by the Due Process Clause, in being free of the restraint and terror prompted by being forced to wear the electroshock belt. Deputies have deprived and threaten to continue depriving Mr. Langley of that liberty interest without due process of law, in violation of the Due Process Clause and Article II, Section 25 of the Colorado Constitution.
304. The deputies’ acts and omissions, and threatened acts and omissions, were carried out pursuant to the policies, customs, and practices of the Defendants. In adopting, authorizing, and ratifying those policies customs and practices, Defendants have been and continue to be deliberately indifferent to the risk of violating the constitutional rights of the Plaintiffs and members of the Plaintiff class.
305. Alternatively and in combination, Defendants’ deliberately indifferent failure to ensure adequate training of their deputies has caused and threatens to continue causing, violations of the Plaintiffs’ constitutional rights.
306. Alternatively and in combination, Defendants’ deliberately indifferent failure to ensure adequate monitoring and supervision of their deputies’ conduct has caused, and threatens to continue causing, violations of the Plaintiffs’ constitutional rights.
307. Plaintiffs and members of the Plaintiff class face a continuing and imminent risk that they will be subjected to the electroshock belt in the future in a manner that violates their constitutional rights.
308. WHEREFORE, Plaintiffs seek declaratory and injunctive relief, attorneys’ fees, and such other relief as the Court deems just.
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C. THIRD CLAIM FOR RELIEF (Eighth and Fourteenth Amendments; Colo. Const. Art. II, Secs. 20, 25) (Freedom from Bodily Restraint; Plaintiffs Vandehey, Langley, and Lincoln) 309. Even when they are legitimately confined as pre-trial detainees or after a criminal conviction, Plaintiffs retain a liberty interest in freedom from bodily restraint, which is protected by the Due Process Clause of the Fourteenth Amendment and Article II, Section 25 of the Colorado Constitution. 310. Prisoners who are strapped in a restraint chair experience an atypical and significant hardship in relation to the ordinary incidents of life in a detention facility or a prison. 311. Deputies at the Garfield County Jail have subjected and threatened to subject the Plaintiffs and the plaintiff class to confinement in the restraint chair under circumstances that have deprived them of their liberty interest in freedom from bodily restraint, without due process of law. 312. The deputies’ acts and omissions, and threatened acts and omissions, were carried out pursuant to the policies, customs, and practices of the Defendants. In adopting, authorizing, and ratifying those policies customs and practices, Defendants have been and continue to be deliberately indifferent to the risk of violating the constitutional rights of the Plaintiffs and members of the Plaintiff class. 313. Alternatively and in combination, Defendants’ deliberately indifferent failure to ensure adequate training of their deputies has caused and threatens to continue causing, violations of the Plaintiffs’ constitutional rights. 314. Alternatively and in combination, Defendants’ deliberately indifferent failure to ensure adequate monitoring and supervision of their deputies’ conduct has caused, and threatens to continue causing, violations of the Plaintiffs’ constitutional rights.
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315. Plaintiffs and member of the Plaintiff class face a continuing and imminent risk that they will be subjected to the restraint chair in the future in a manner that violates their constitutional rights.
316. WHEREFORE, Plaintiffs seek declaratory and injunctive relief, attorneys’ fees, and such other relief as the Court deems just.
D. FOURTH CLAIM FOR RELIEF (First, Sixth, and Fourteenth Amendments) (Colo. Const., Art. II, Secs. 10, 16, 25; C.R.S. §§ 16-3-403, 404) (Confidential communications with attorneys; Plaintiffs Hogue and Vandehey) 317. The right of prisoners to seek legal assistance and communicate confidentially with attorneys and their staff is protected by various provisions of the United States Constitution. Those provisions include the First Amendment, the Sixth Amendment, and the Due Process Clause of the Fourteenth Amendment. 318. The same right is protected by similar provisions in the Colorado Constitution, including Article II, sections 10, 16, and 25. The right is further protected by two specific Colorado statutes, C.R.S. §§ 16-3-403 and 16-3-404. 319. Defendants have adopted what they call a “policy” that interferes with, prevents, and denies prisoners’ right to communicate confidentially with attorneys. The “policy” has prevented Mr. Hogue and other prisoners from meeting with attorneys who were present at the jail and willing to meet with the prisoners. 320. In preventing Mr. Hogue from meeting with an attorney on June 15, 2006, Defendants violated C.R.S. § 16-3-403. Pursuant to C.R.S. § 16-3-404, each of the Defendants “shall forfeit and pay not less than one hundred dollars nor more than one thousand dollars to the person imprisoned or to his attorney for the benefit of the person imprisoned.”
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321. The continued operation of the Defendants’ “policy” threatens to violate the statutory and constitutional rights of Mr. Hogue , Mr. Vandehey, and the Plaintiff class in the future.
322. WHEREFORE, Plaintiff requests declaratory and injunctive relief; the statutory penalty in C.R.S. §16-3-404, attorneys’ fees, and such additional relief as the court deems just.
E. FIFTH CLAIM FOR RELIEF (Eighth and Fourteenth Amendments) (Colo. Const., Art. II, Secs. 20, 25; C.R.S. § 17-26-104.5) (Access to mental health care; Plaintiff Langley) 323. The Eighth and Fourteenth Amendments, and Article II, Sections 20 and 25 of the Colorado Constitution, require the Defendants to provide appropriate care and treatment for prisoners with serious mental health needs, even when the prisoners have no money. 324. In addition, Section 17-26-104.5 of the Colorado Revised Statutes, which deals with medical care in county jails, states that “in no case shall a person’s inability to pay be the basis for not providing medical treatment equivalent to the community standard of care.” 325. Mr. Langley has a history of serious mental health problems. He alerted the jail’s medical staff to those problems, including a history of bipolar disorder and schizophrenia. Because of Mr. Langley’s inability to pay, the Defendants have repeatedly denied him medical treatment that is equivalent to the community standard of care. 326. The denial of mental health care to prisoners with serious mental health needs is and has been carried out pursuant to the policies, customs, and practices of the Defendants. Defendants have been and continue to be deliberately indifferent to the serious mental health needs of Mr. Langley and other prisoners with serious mental health needs. Mr. Langley and other prisoners have suffered from unnecessary mental anguish and physical pain as a result of Defendants’ deliberate indifference.
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327. Plaintiff Langley and members of the Plaintiff class face a continuing and imminent risk that they will be denied mental health care in the future in a manner that violates their constitutional and statutory rights.
328. Wherefore, Mr. Langley requests injunctive and declaratory relief on behalf of himself and the Plaintiff class, as well as attorney’s fees and such additional relief as the Court deems just.
F. SIXTH CLAIM FOR RELIEF (Punishment without due process; 14th Amendment; Colo. Const. Art. II, Sec. 25
(Plaintiffs Langley, Vandehey, Hogue, Lincoln) 329. The deprivations of supermax status represent an atypical and significant deprivation compared to the normal incidents of incarceration in the Garfield County Jail. 330. The Plaintiffs have been punished and are at risk of being punished in the future for alleged disciplinary violations, without notice and without a meaningful opportunity to be heard. 331. Plaintiffs have been punished, and are at risk of being punished in the future, without being afforded the hearing described in the Inmate Handbook. 332. In the rare cases in which Defendants provide a hearing before subjecting a prisoner to punishment, Defendants fail to provide the minimal procedural protections required by the Due Process Clause and Article II, Section 25 of the Colorado Constitution. 333. Plaintiffs have been punished, and are at risk of being punished in the future, without due process of law, in violation of the Due Process Clause of the 14th Amendment and Article II, Section 25 of the Colorado Constitution.
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334. The imposition of punishment without due process and without following the procedures in the Inmate Handbook has been carried out pursuant to the informal policies of the Defendants. Alternatively and in combination, Defendants have been and continue to be deliberately indifferent to the risk that their failure adequately to supervise their subordinates has resulted, and will continue resulting, in depriving Plaintiffs and class members of their right to due process of law.
335. Wherefore, Plaintiffs ask this Court for a declaratory judgment, injunctive relief, attorney’s fees, and such other relief as the Court deems just.
PRAYER FOR RELIEF 336. WHEREFORE, Plaintiffs request that the Court order each of the Defendants to pay, for the benefit of Mr. Hogue, the statutory penalty described in C.R.S. § 16-3-404. 337. Plaintiffs also request that this Court certify this case as a class action and grant declaratory and injunctive relief on all claims on behalf of the Plaintiffs and the Plaintiff class; attorney’s fees, and such other relief as the Court deems just. Dated August 1, 2006
Respectfully submitted, s/Mark Silverstein Mark Silverstein American Civil Liberties Union Foundation of Colorado 400 Corona Street Denver, CO 80218 Telephone: (303) 777-5482 FAX: (303) 777-1773 E-mail: msilver2@att.net s/Taylor S. Pendergrass Taylor S. Pendergrass
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American Civil Liberties Union Foundation of Colorado 400 Corona Street Denver, CO 80218 Telephone: (303) 777-5482 FAX: (303) 777-1773 E-mail: tpendergrass@aclu-co.org s/John D. Phillips John D. Phillips Shugart Thomson & Kilroy, P.C. 1050 17th Street, Suite 2300 Denver, CO 80265 Telephone: (303) 572-9300
In Cooperation with American Civil Liberties Union Foundation of Colorado ATTORNEYS FOR PLAINTIFFS
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Case No. 06-cv-01405-PSF-MJW CLARENCE VANDEHEY; WILLIAM LANGLEY; SAMUEL LINCOLN; and JARED HOGUE,
Plaintiffs, on behalf of themselves and all others similarly situated. v. LOU VALLARIO, Sheriff of Garfield County, Colorado, in his official capacity; SCOTT DAWSON, a Commander in the Garfield County Sheriff’s Department, in his official capacity,
Defendants.
PLAINTIFFS’ AMENDED MOTION TO CERTIFY CLASS
D.C.Colo.LR 7.1 Conference Plaintiffs’ counsel has not consulted opposing counsel with respect to this motion because no counsel has yet appeared.
INTRODUCTION 1. Pursuant to Fed. R. Civ. P. 23, Plaintiffs respectfully move the Court for an order certifying this proceeding as a class action. Plaintiffs ask that the Court certify, pursuant to Fed. R. Civ. P. 23(b)(2), a plaintiff class comprising:
All persons who, now or at any time in the future, are or will be prisoners in the custody of the Garfield County Sheriff’s Department. 2. Plaintiffs further ask the Court to certify two subclasses, defined as follows: Subclass A: All pretrial detainees who, now or at any time in the future, are or will be prisoners in the custody of the Garfield County Sheriff’s Department.

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Subclass B: All post-conviction prisoners who, now or at any time in the future, are or will be prisoners in the custody of the Garfield County Sheriff’s Department. 3. As the First Amended Class Action Complaint (“First Amended Complaint”) explains, Plaintiffs and the proposed class are subject to an imminent risk of harm from the Defendants’ acts, omissions, policies and practices, and their deliberate indifference to prisoners’ health, safety, welfare, and their constitutional and statutory rights. The Plaintiffs seek only injunctive and declaratory relief on behalf of the class. Plaintiffs do not seek damages on behalf of the class.1 4. Prisoners in the Garfield County Jail are short-term detainees. On information and belief, the average length of detention is less than one month. Very few prisoners stay in the jail more than a year. It is extremely unlikely that any one prisoner will remain in the jail long enough to litigate until final judgment a claim for injunctive and declaratory relief. Long before the trial-level and appellate proceedings are completed, the prisoner will be either released or convicted and transferred to the Colorado Department of Corrections. “Pretrial detention is by nature temporary, and it is most unlikely that any given individual could have his constitutional claim decided on appeal before he is either released or convicted.” Gerstein v. Pugh, 420 U.S. 103, 111 n.11 (1975). When the prisoner is released from the jail in such cases without any certainty of return, the Tenth Circuit has held that the prisoner’s individual claim for prospective relief has become moot and must be dismissed. See, e.g., Green v. Branson, 108 F.3d 1296, 1300 (10th Cir. 1997).
1 Plaintiff Jared Hogue is the only plaintiff seeking any form of monetary relief in addition to declaratory and injunctive relief on behalf of the class. Mr. Hogue asks the Court to impose against Defendants the monetary penalty provided by C.R.S. § 16-3-404, for violation of his right to meet with an attorney on June 15, 2006. He seeks that relief individually and not on behalf of the proposed class.
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5. Thus, unless a class is certified, the policies and practices of the Garfield County Jail will be effectively immunized from judicial scrutiny to determine whether prospective relief is warranted. For this reason, and because the requirements of Fed. R. Civ. P. 23(a) and (b)(2) are amply satisfied, the motion for class certification should be granted.
ARGUMENT I. Applicable principles of class certification.
6. In ruling on a motion for class certification, “the district court must determine whether the four threshold requirements of Rule 23(a) are met. If the court determines that they are, it must then examine whether the action falls within one of three categories of suits set forth in Rule 23(b).” Adamson v. Bowen, 855 F.2d 668, 675 (10th Cir. 1988) (footnote omitted).
7. Class certification is solely a procedural issue, and the court’s inquiry is limited to determining whether the proposed class satisfies the requirements of Rule 23. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974); Anderson v. City of Albuquerque, 690 F.2d 796, 799 (10th Cir. 1982). In ruling on the motion for class certification, the court must take the substantive allegations of the complaint as true. J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1290 n.7 (10th Cir. 1999). If the court has some doubt, it should err in favor of certification, since the decision is subject to later modification. Esplin v. Hirschi, 402 F.2d 94, 99 (10th Cir. 1968); see also Anderson v. Boeing Co., 222 F.R.D. 521, 531 (N.D. Okla. 2004) (same, citing Esplin); Harrington v. City of Albuquerque, 222 F.R.D. 505, 508-09 (D. N.M. 2004) (same) II. The requirements of Rule 23(a) are satisfied.
8. In order for a class to be certified, the following requirements must be satisfied: (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
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Fed. R. Civ. P. 23(a). As Plaintiffs demonstrate below, all four requirements of Rule 23(a) are easily met in this case.
A. Impracticability of Joinder – Rule 23(a)(1). 9. Rule 23(a)(1) requires that “the class [be] so numerous that joinder of all members is impracticable.” There can be no doubt that the proposed class satisfies this requirement. The jail’s average daily population is about 150 prisoners. 10. Thus, based only on the number of class members in the jail at any one time, the requirements of Rule 23(a)(1) are satisfied. See Rex v. Owens ex rel. State of Okla., 585 F.2d 432, 436 (10th Cir. 1978) (“Class actions have been deemed viable in instances where as few as 17 to 20 persons are identified as the class”); Horn v. Associated Wholesale Grocers, Inc., 555 F.2d 270, 276 (10th Cir. 1977) (trial court erred in denying class certification on numerosity grounds where class consisted of between 41 and 46 persons). 11. Moreover, the proposed class includes not only current prisoners, but future prisoners as well. In any given year, the jail books hundreds and hundreds of prisoners, many of whom stay for only a short time. The fluid nature of the class, and the inclusion in the class of future prisoners, whose identities obviously cannot now be ascertained, makes joinder of all class members not just impracticable but literally impossible. See Skinner v. Uphoff, 209 F.R.D. 484, 488 (D. Wyo. 2002) (finding certification appropriate for class of current and future prisoners seeking injunctive relief; “[a]s members in futuro, they are necessarily unidentifiable, and therefore joinder is clearly impracticable”). The requirements of Rule 23(a)(1) are satisfied. B. Commonality – Rule 23(a)(2). 12. Rule 23(a)(2) requires only a single issue of law or fact common to the class. J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1288 (10th Cir. 1999); see also Anderson, 222 F.R.D. at
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537 (finding commonality requirement satisfied based on two common questions of fact). For that reason, the commonality requirement is “easily met.” 1 Herbert B. Newberg, Newberg on Class Actions § 3.10, at 274 (4th ed. 2002) (hereinafter “Newberg”).
13. There is no requirement that each class member be identically affected by the challenged conditions or practices. In Milonas v. Williams, 691 F.2d 931 (10th Cir. 1982), two boys challenged conditions of confinement at a juvenile detention facility, including policies regarding the use of force. The Tenth Circuit rejected the argument that the commonality requirement was not met, and held that a class was properly certified under Rule 23(b)(2). “Regardless of … their individual disability or behavioral problems, all of the boys at the school were in danger of being subjected to” the challenged conditions and practices. Id. at 938. See also Adamson, 855 F.2d at 676 (where a case involves “a common policy,” the fact “[t]hat the claims of individual class members may differ factually should not preclude certification under Rule 23(b)(2)”).
14. In this case, the members of the proposed class are housed in a single facility, and all of them are subject to the Defendants’ policies, practices, acts, and omissions that are challenged in this lawsuit. Accordingly, there are numerous questions of fact that are common to the class, including (but not limited to) the following:
a. Whether the Defendants have failed to adopt a written policy governing use of force within the Detention Division?
b. Whether the Defendants have failed to adopt written policies governing their deputies’ use of the restraint chair, the pepperball gun; tasers; and the electroshock belt?
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c. Whether the Defendants’ written policy on the use of pepper spray fails to provide adequate guidance to prevent violations of prisoners’ constitutional rights?
d. Whether Defendants have failed to ensure adequate training of their deputies on the proper and improper use of force, including the restraint chair, the pepperball gun; pepper spray, tasers; and/or the electroshock belt?
e. Whether Defendants have been failed effectively to monitor and supervise their deputies’ use of force, including the restraint chair, the pepperball gun; pepper spray, tasers; and/or the electroshock belt?
f. Whether the acts and omissions of the Defendants and their deputies with regard to the use of force, including the restraint chair, the pepperball gun; pepper spray, tasers; and/or the electroshock belt, pose unreasonable risks of harm to prisoners’ health, safety, welfare, and constitutional rights?
g. Whether prisoners are receiving adequate mental health care for their serious mental health needs?
15. The two subclasses are proposed because the phrasing of the Eighth Amendment standard that applies to prisoners who have been convicted of a criminal offense may differ, with regard to certain claims, from the phrasing of the Fourteenth Amendment standard that applies to pretrial detainees. Pretrial detainees have not been convicted of a crime and therefore, under the Fourteenth Amendment, cannot be subjected to punishment. Bell v. Wolfish, 441 U.S. 520, 539 (1979). Prisoners who have been convicted can be punished, but cruel and unusual punishment violates the Eighth Amendment. With regard to disciplinary sanctions for alleged violations of jail rules, the rights of post-conviction prisoners must be evaluated in light of Sandin v. Conner,
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515 U.S. 472 (1995), which does not apply to pretrial detainees. Peoples v. CCA Detention Centers, 422 F.3d 1090, 1106 n.12 (10th Cir. 2005), vacated on other grounds, 449 F.3d 1097 (2006) (en banc). Similarly, when convicted prisoners contend that an application of force was excessive or disproportionate, the phrasing of the Eighth Amendment standard that applies may differ from the phrasing of the Fourteenth Amendment standard that applies to pretrial detainees.
16. With regard to at least some claims, courts have evaluated the rights of pretrial detainees and convicted prisoners by the same legal standard. For example, both the Eighth and Fourteenth Amendment are violated when jail or prison officials are deliberately indifferent to prisoners’ serious medical or mental health needs. Olsen v. Layton Hills Mall, 312 F.3d 1304, 1315 (10th Cir. 2002). Similarly, the rights of both pretrial detainees and convicted prisoners are violated when their custodians are deliberately indifferent to conditions of confinement that pose a substantial risk of serious harm to prisoners. Helling v. McKinney, 509 U.S. 25, 35-36 (1993) (exposure to environmental tobacco smoke can violate the Eighth Amendment); DeSpain v. Uphoff, 262 F.3d 965, 973-75 (10th Cir. 2001) (lack of working toilets for thirty-six hours, exposing prisoners to human waste); Shannon v. Graves, 257 F.3d 1164, 1168 (10th Cir. 2001) (one-time exposure to raw sewage); County of Sacramento v. Lewis, 523 U.S. 833, 849-50 (1998) (explaining that the rights of pretrial detainees are at least as great as the rights of convicted prisoners). The right of prisoners to meet with attorneys in a confidential setting does not turn on their pretrial or post-conviction status. Accordingly, questions of law common to the entire class include, but are not limited to, the following:
a. Whether the alleged policies and practices and alleged acts and omissions of the Defendants exhibit deliberate indifference to the risk that deputies will violate prisoners’ rights under the Eighth and Fourteenth
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Amendments and Article II, Sections 20 and 25 of the Colorado Constitution? b. Whether the alleged policies and practices and alleged acts and omissions of the Defendants pose unreasonable risks of harm to prisoners’ health, safety, and welfare, in violation of the Eighth and Fourteenth Amendments and Article II, Sections 20 and 25 of the Colorado Constitution? c. Whether Defendants’ policy regarding attorney visits violates the constitutional and statutory rights of prisoners? d. Whether Defendants are deliberately indifferent to prisoners’ serious mental health needs? 17. Questions of law common to the subclass of pretrial detainees include, but are not limited to, the following: a. Whether pretrial detainees are at risk of being subjected to the use of excessive and disproportionate force that violates their rights under the Due Process Clause of the Fourteenth Amendment and Article II, Section 25 of the Colorado Constitution? b. Whether the alleged practices and policies with regard to the use of the electroshock belt inflict unconstitutional punishment that is not reasonably related to any legitimate governmental objective, in violation of both the substantive and procedural components of the Due Process Clause of the Fourteenth Amendment and Article II, Section 25 of the Colorado Constitution?
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c. Whether the alleged practices and policies with regard to the use of the restraint chair inflict unconstitutional punishment that is not reasonably related to any legitimate governmental objective, in violation of both the procedural and substantive components of Due Process Clause of the Fourteenth Amendment and Article II, Section 25 of the Colorado Constitution?
d. Whether Defendants impose punishment for alleged disciplinary violations without due process of law?
18. Questions of law common to the subclass of convicted prisoners include, but are not limited to, the following:
a. Whether the alleged policies and practices and Defendants’ acts and omissions threaten to subject convicted prisoners to wanton and unnecessary infliction of physical or mental pain, in violation of the Eighth Amendment and Article II, Section 20 of the Colorado Constitution?
b. Whether convicted prisoners retain a liberty interest in freedom of bodily movement, protected by the Due Process Clause and Article II, Section 25 of the Colorado Constitution, that is infringed by fully-immobilizing restraints such as the restraint chair?
c. Whether the alleged practices and policies and Defendants’ acts and omissions with regard to the use of the restraint chair violate and threaten to violate the rights of convicted prisoners under the Due Process Clause and Article II, Section 25 of the Colorado Constitution?
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d. Whether convicted prisoners retain a liberty interest, protected by the Due Process Clause and Article II, Section 25 of the Colorado Constitution, in freedom from the conditions of confinement imposed by being forced to wear the electroshock belt?
e. Whether the alleged practices and policies and Defendants’ acts and omissions with regard to the use of the electroshock belt violate and threaten to violate the rights of convicted prisoners under the Due Process Clause and Article II, Section 25 of the Colorado Constitution?
f. Whether deprivations imposed as punishment for alleged disciplinary infractions are atypical and significant deprivations in light of the normal incidents of incarcerations in the Garfield County Jail?
g. Whether Defendants impose disciplinary sanctions that deprive convicted prisoners of liberty interests without due process of law?
19. Plaintiffs have alleged that the injuries and threatened injuries detailed in the First Amended Complaint—both those of the named Plaintiffs and those of the class—stem from the challenged policies and procedures and the acts and omissions of the Defendants. This fact alone requires a finding of commonality. See Skinner, 209 F.R.D. at 488 (commonality requirement satisfied where “this case revolves around a common nucleus of operative facts, namely the policies and customs of the prison regarding inmate-on-inmate violence”).
20. The controlling questions of fact in this case are common to the entire class, and the controlling questions of law are either common to the entire class or common to either of the two proposed subclasses.
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C. Typicality – Rule 23(a)(3). 21. Fed. R. Civ. P. 23(a)(3) requires that “the claims or defenses of the representative parties [be] typical of the claims or defenses of the class.” In this case, the claims asserted by the class representatives coincide precisely with the claims asserted on behalf of the class and the subclasses. 22. In this case, all of the Plaintiffs named as class representatives in the First Claim for Relief allege that they are at risk of being subjected to the use of force, including the use of restraint chairs, pepperball guns, tasers, pepper spray and/or the electroshock belt, in a manner that violates their constitutional rights. With regard to this claim, the claims of Mr. Langley are typical of the claims of the subclass of convicted prisoners. The claims of Mr. Vandehey, Mr. Lincoln, and Mr. Hogue are typical of the claims of the subclass of pretrial detainees. 23. The Second Claim for Relief regards the use of the electroshock belt. With regard to this claim, the claims of Plaintiffs Langley, Vandehey, and Lincoln are typical of the claims of the entire class of prisoners. Similarly, the claims of Mr. Langley are typical of the claims of the subclass of convicted prisoners. The claims of Mr. Vandehey and Mr. Lincoln are typical of the claims of the entire subclass of pretrial detainees.2 24. The Third Claim for Relief is a separate claim regarding the use of the restraint chair. With respect to this claim, the claims of Plaintiffs Vandehey, Langley, and Lincoln are typical of the claims of the entire class of prisoners. Similarly, the claims of Mr. Langley are
2 Although Mr. Hogue is a member of the proposed class and the proposed subclass of pretrial detainees with regard to the separate claim regarding the electroshock belt, he does not seek at this time to be named as class representative regarding this claim.
11

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typical of the claims of the subclass of convicted prisoners. The claims of Mr. Vandehey and Mr. Lincoln are typical of the claims of the entire subclass of pretrial detainees.3
25. The Fourth Claim for Relief is a separate claim challenging Defendants’ policy regarding confidential communications between prisoners and attorneys, including face-to-face interviews at the jail. The claims of Plaintiffs Hogue and Vandehey are typical of the claims of the entire class of prisoners.4
26. With regard to the Fifth Claim for Relief, the claims of Mr. Langley are typical of the claims of class members who have serious mental health needs.
27. The Sixth Claim for Relief alleges that Defendants impose punishments for alleged disciplinary infractions in violations of prisoners’ rights to due process of law. The claims of Mr. Langley are typical of the claims of the subclass of post-conviction prisoners. The claims of Mr. Vandehey, Mr. Hogue, and Mr. Lincoln are typical of the claims of the subclass of pretrial detainees.
28. Although the challenged policies and practices may affect different class members in different ways, that does not defeat a finding of typicality. As the leading treatise on class actions explains, the typicality requirement is met, notwithstanding the inevitable differences in the factual circumstances of each individual class member:
Typicality refers to the nature of the claim or defense of the class representative and not to the specific facts from which it arose or to the relief sought. Factual differences will not render a claim atypical if the claim arises from the same event or practice or course of conduct that gives rise to the claims of the class members, and if it is based on the same legal theory.
3 Although Mr. Hogue is a member of the proposed class and the proposed subclass of pretrial detainees with regard to the separate claim regarding the restraint chair, Mr. Hogue does not seek at this time to be named as a class representative regarding this claim. 4 With regard to the Fourth Claim for Relief, Mr. Lincoln, and Mr. Langley are members of the proposed class. They do not seek at this time to be named as class representatives regarding this particular claim.
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1 Newberg, § 3.15, at 335. The Tenth Circuit has reiterated the well-settled principle that individual factual differences do not defeat typicality. As the court explained in Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir. 1988), “differing fact situations of class members do not defeat typicality under Rule 23(a)(3) so long as the claims of the class representatives and class members are based on the same legal or remedial theory”). That is precisely the case here. The claims of the class representatives are based on the same legal or remedial theory as the claims of the class members. The typicality requirement is met.
D. Adequacy of Representation – Rule 23(a)(4). 29. Adequacy of representation involves two inquiries: “(1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?” Rutter & Willbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1187-88 (10th Cir. 2002). These criteria are clearly satisfied in this case. There is no conflict between plaintiffs or their counsel and other class members. Plaintiffs are represented by attorneys associated with the ACLU of Colorado who are experienced in class action cases in general and class-action challenges to prison and jail practices in particular. III. Class certification is appropriate pursuant to Fed. R. Civ. P. 23(b)(2). 30. Certification is appropriate pursuant to Fed. R. Civ. P. 23(b)(2) when the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. Fed. R. Civ. P. 23(b)(2). “[I]t is well established that civil rights actions are the paradigmatic 23(b)(2) class suits, for they seek classwide structural relief that would clearly redound equally to the benefit of each class member.” Marcera v. Chinlund, 595 F.2d 1231, 1240 (2d Cir. 1979)
13

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(allowing class certification in suit seeking visitation for jail prisoners), vacated on other grounds, 442 U.S. 915 (1979). More specifically, “[t]he writers of Rule 23 intended that subsection (b)(2) foster institutional reform by facilitating suits that challenge widespread rights violations of people who are individually unable to vindicate their own rights.” Baby Neal v. Casey, 43 F.3d 48, 64 (3d Cir. 1994). Recognizing these principles, the Tenth Circuit explained that Rule 23(b)(2) is “well suited” to cases in which “plaintiffs attempt to bring suit on behalf of a shifting prison population.” Shook v. El Paso County, 386 F.3d 963, 972 (10th Cir. 2004).
31. Indeed, the leading treatise on class actions explains that Rule 23(b)(2) was drafted with this kind of civil rights case in mind:
Rule 23(b)(2) was drafted specifically to facilitate relief in civil rights suits. Most class actions in the constitutional and civil rights areas seek primarily declaratory and injunctive relief on behalf of the class and therefore readily satisfy Rule 23(b)(2) class action criteria. 8 Newberg, § 25.20, at 550. In this case there can be no doubt that the First Amended Complaint challenges policies and practices that apply to the entire population of the Garfield County Jail. Thus this is clearly a case in which the Defendants have “acted or refused to act on grounds generally applicable to the class,” Fed. R. Civ. P. 23(b)(2). As the Rule explains, that renders it appropriate to pursue “final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Id.; see Coley v. Clinton, 635 F.2d 1364, 1378 (8th Cir. 1980) (Rule 23(b)(2) “is an especially appropriate vehicle for civil rights actions seeking … declaratory relief ‘for prison and hospital reform’”) (quoting 3B J. Moore & J. Kennedy, Moore’s Federal Practice 23.-40[1]); Knapp v. Romer, 909 F. Supp. 810, 812 n.1 (D. Colo. 1995) (challenge to prison conditions is “a classic Rule 23(b)(2) civil rights action”)
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CONCLUSION
Wherefore, Plaintiffs respectfully request that the Court grant Plaintiffs’ motion to certify
the proposed class and subclasses.
Dated August 1, 2006
Respectfully submitted,
s/Mark Silverstein Mark Silverstein American Civil Liberties Union Foundation of Colorado 400 Corona Street Denver, CO 80218 Telephone: (303) 777-5482 FAX: (303) 777-1773 E-mail: msilver2@att.net
s/Taylor S. Pendergrass Taylor S. Pendergrass American Civil Liberties Union Foundation of Colorado 400 Corona Street Denver, CO 80218 Telephone: (303) 777-5482 FAX: (303) 777-1773 E-mail: tpendergrass@aclu-co.org
s/John D. Phillips John D. Phillips Shugart Thomson & Kilroy, P.C. 1050 17th Street, Suite 2300 Denver, CO 80265 Telephone: (303) 572-9300
In Cooperation with American Civil Liberties Union Foundation of Colorado
ATTORNEYS FOR PLAINTIFFS
15

 
 Case: 08-502 Document: 01017603321 Date Filed: 0U2n/0it4e/d20S0t9ateFsIPCLaoEgueDr:t1of Appeals Tenth Circuit

February 4, 2009

PUBLISH

Elisabeth A. Shumaker

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LOU VALLARIO, Sheriff of Garfield County, Colorado, in his official capacity; SCOTT DAWSON, a Commander in the Garfield County Sheriff’s Department, in his official capacity,
Petitioners,
v.
CLARENCE VANDEHEY; WILLIAM LANGLEY; SAMUEL LINCOLN; JARED HOGUE, on behalf of themselves and all others similarly situated,
Respondents.

No. 08-502

PETITION FOR PERMISSION TO APPEAL A CLASS CERTIFICATION ORDER OF THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF COLORADO (D.C. No. 06-1405)
Josh A. Marks (Melanie B. Lewis and Kim A. Tomey with him on the briefs), Berg Hill Greenleaf & Ruscitti LLP, Boulder, Colorado, for Petitioners.
Mark Silverstein (Taylor S. Pendergrass, American Civil Liberties Union Foundation of Colorado, J. Gregory Whitehair, Taggart Hansen, and Marisa B. Hudson-Arney, Gibson Dunn & Crutcher LLP, with him on the briefs), American Civil Liberties Union of Colorado, Denver, Colorado, for Respondents.
Before KELLY, BALDOCK, and O’BRIEN, Circuit Judges.

Case: 08-502 Document: 01017603321 Date Filed: 02/04/2009 Page: 2
BALDOCK, Circuit Judge.
The Eighth Amendment, as incorporated against the states through the Fourteenth Amendment, precludes state prison officials from “knowingly and unreasonably disregarding an objectively intolerable risk of harm” to inmate health or safety. See Farmer v. Brennan, 511 U.S. 825, 846 (1994). Respondents, four prior inmates, contend they were exposed to, among other things, such an unconstitutional risk of harm at the Garfield County Jail.1 Accordingly, Respondents brought an official capacity suit for equitable relief against Petitioners Lou Vallario, the Sheriff of Garfield County, and Scott Dawson, the commander charged with administering jail operations.
Respondents recite a number of jail customs and policies, or the lack thereof, that contribute to the alleged violation of inmates’ constitutional rights. Only five are relevant to this appeal. First, Respondents challenge the authorized use of compliance devices; including (1) restraint chairs, (2) pepperball guns, (3) tasers, and (4) pepper spray; in a manner that allegedly poses an unjustifiable risk of serious harm to inmates. Second, Respondents contest a jail policy requiring inmates to wear an electroshock belt to court.2 Third, Respondents claim deputies’ authorized
1 Respondents also raise several claims under Colorado law, which we do not discuss here.
2 Respondents contend that the use of the belt (1) unduly terrorizes inmates, thus inflicting unconstitutional punishment, (2) that a lack of deputy training in
(continued...) 2

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use of restraint chairs contravenes inmates’ “liberty interest in freedom from bodily restraint without due process of law” and places inmates at an unjustifiable risk of serious harm. Fourth, Respondents allege Petitioners’ policies unconstitutionally deny indigent inmates access to psychiatric care. Fifth, Respondents contend Petitioners routinely place inmates on supermax status without due process of law. To remedy these inequities, Respondents requested the district court provide them with such “declaratory and injunctive relief . . . as the Court deems just.”
Faced with the prospective mooting of their claims by their imminent release, see Green v. Branson, 108 F.3d 1296, 1300 (10th Cir. 1997), Respondents requested the district court certify their case as a class action. See Fed. R. Civ. P. 23. The district court obliged as to all of the foregoing claims, certifying a class composed of “[a]ll persons who, now or at any time in the future, are or will be prisoners in the custody of the Garfield County Sheriff’s Department.” Petitioners now seek our permission to file an interlocutory appeal of the district court’s class certification ruling. We have jurisdiction under 28 U.S.C. § 1292(e) and Federal Rule of Civil Procedure 23(f). After careful consideration, we grant the petition for review and remand for further proceedings not inconsistent with this opinion.
2(...continued) regard to the belt puts inmates at an unjustifiable risk of serious harm, and (3) that requiring inmates to wear the belt violates inmates’ liberty interest “in being free of . . . restraint and terror.”
3

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I. Federal Rule of Civil Procedure 23(f) provides that a “court of appeals may permit an appeal from an order granting or denying class-action certification . . . if a petition for permission to appeal is filed with the circuit clerk within 10 days after the order is entered.” Our circuit has not yet addressed the standard it will use in determining whether to grant such a petition. Accordingly, we proceed to consider this question as a matter of first impression. Some historical context is in order. No appeal as of right exists from a district court’s class certification order unless that order dismisses the action or renders a decision on the merits. See 7B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1802 (3d ed. 2005) (Federal Practice and Procedure); see also 5 James William Moore et al., Moore’s Federal Practice § 23.88[1] (3d ed. 2008) (noting that a district court’s “certification decision is not immediately appealable as a matter of right”). Despite courts’ best efforts to discover more immediate avenues for appellate review of class certification decisions, see 7B Federal Practice and Procedure § 1802, the traditional rule that a party must raise all claimed errors “in a single appeal following” a “final judgment on the merits” generally prevailed. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981); 7B Federal Practice and Procedure § 1802 (noting that prior to 1998 “an appeal of a class-certification determination typically was available only from a determination that disposed of the action”).
4

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In 1998, the Supreme Court significantly altered the legal landscape by adopting Federal Rule of Civil Procedure 23(f), which grants appellate courts the discretionary power to permit interlocutory appeals of class certification orders. See Fed. R. App. P. 5 (laying out the procedural requirements for such permissive appeals). In so doing, the Court opened up the restrictive review practices that historically applied to class certification decisions. See Lienhart v. Dryvit Sys., Inc., 255 F.3d 138, 145 (4th Cir. 2001). Appellate courts’ discretion, under Rule 23(f), is “unfettered” and “akin to the discretion exercised by the Supreme Court in acting on a petition for certiorari.”3 Fed. R. Civ. P. 23(f) advisory committee’s note. Courts of appeals may, therefore, grant or deny permission to appeal a class certification order based on “any consideration” they “find[] persuasive.” Id.
That said, courts of appeals have remained ever mindful that interlocutory appeals are traditionally disfavored and for good reason. See, e.g., Carpenter v. Boeing Co., 456 F.3d 1183, 1189 (10th Cir. 2006); Chamberlan v. Ford Motor Co., 402 F.3d 952, 959 (9th Cir. 2005); In re Lorazepam & Clorazepate Antitrust Litig., 289 F.3d 98, 105 (D.C. Cir. 2002). Such appeals are necessarily “disruptive, time-consuming, and expensive” for the parties and the courts. Waste Mgmt.
3 As part of the general restyling of the civil rules in 2007, the rules committee deleted Rule 23(f)’s explicit reference to the court of appeals’ discretion in determining whether to grant a petition for interlocutory review. See Fed. R. Civ. P. 23 2007 Amendment advisory committee note. The committee notes make clear, however, that this “omission does not in any way limit the unfettered discretion established by the original rule.” Id.
5

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Holdings, Inc. v. Mowbray, 208 F.3d 288, 294 (1st Cir. 2000); see also In re Lorazepam, 289 F.3d at 105. In the class action context, interlocutory appeals may also serve, quite wrongfully, to discourage district courts from reconsidering their class certification orders under Federal Rule of Civil Procedure 23(c)(1)(C). See Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1273 (11th Cir. 2000); see also id. (recognizing that class certification determinations are “fluid and fact-sensitive”).
As a result, we join our sister circuits in recognizing that the grant of a petition for interlocutory review constitutes “the exception rather than the rule.” Chamberlan, 402 F.3d at 959; see also Prado-Steiman, 221 F.3d at 1273; Mowbray, 208 F.3d at 294. We will exercise “restraint” in accepting Rule 23(f) petitions and will not accept such petitions “as a matter of course.” Prado-Steiman, 221 F.3d at 1277; see also In re Lorazepam, 289 F.3d at 105 (noting that “it is understood, if not presumed, that appellate courts will act with cognizance” of the concerns associated with interlocutory appeals). Parties are still generally required to raise all claims of error, in a single proceeding, after the district court renders a final judgment. See Chamberlan, 402 F.3d at 959; In re Lorazepam, 289 F.3d at 104-05. This rule recognizes “the limited capacity of appellate courts to consider interlocutory appeals, as well as the institutional advantage possessed by district courts in managing the course” of class litigation. Lienhart, 255 F.3d at 145.
Certain instances exist, however, in which interlocutory review of a district court’s class certification decision is appropriate. See Carpenter, 456 F.3d at 1189
6

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(noting that sometimes “countervailing considerations predominate”). Indeed, the Supreme Court enacted Rule 23(f) specifically to permit such appeals, pursuant to an “express grant of authority by Congress to create appellate jurisdiction over nonfinal judgments.” Lienhart, 255 F.3d at 145; see also 28 U.S.C. § 1292(e). True to the broad grant of authority Rule 23(f) provides the courts of appeals in this matter, no rigid test should govern the exercise of our discretion to grant a petition for interlocutory review. See Chamberlan, 402 F.3d at 960; Newton v. Merill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 165 (3d Cir. 2001); Prado-Steiman, 221 F.3d at 1276. We, therefore, simply set forth a set of principles that may prove useful in evaluating the merits of a Rule 23(f) petition.4
Interlocutory review of a district court’s class certification order is generally appropriate in three types of cases. The first such category is comprised of “death knell cases,” which refers to situations in which a questionable class certification order is likely to force either a plaintiff or a defendant to resolve the case based on considerations independent of the merits. See Chamberlan, 402 F.3d at 959; In re Lorazepam, 289 F.3d at 105; see also Fed. R. Civ. P. 23(f) advisory committee’s note. For example, where the high costs of litigation grossly exceed an individual plaintiff’s potential damages, the denial of class certification sounds the death knell of that plaintiff’s claims. See Blair v. Equifax Check Servs., Inc., 181 F.3d 832, 834
4 Our approach to Rule23(f) relates most closely to those articulated by the D.C. Circuit in In re Lorazepam and the Ninth Circuit in Chamberlan.
7

Case: 08-502 Document: 01017603321 Date Filed: 02/04/2009 Page: 8
(7th Cir. 1999). In the same vein, if class certification is granted, a defendant’s potential liability may be so enormous that settlement “becomes the only prudent course.” Carpenter, 456 F.3d at 1189.
An interest in facilitating the development of the law may also justify granting a petition for interlocutory review. See Blair, 181 F.3d at 835; see also Fed. R. Civ. P. 23(f) advisory committee’s note. But this second category of cases is narrow. See Fed. R. Civ. P. 23(f) advisory committee’s note (recognizing that “many suits with class-action allegations present familiar and almost routine issues that are no more worthy of immediate appeal than many other interlocutory rulings”). To come within its bounds, a certification decision must involve an unresolved issue of law relating to class actions that is likely to evade end-of-case review, and this issue must be significant to the case at hand, as well as to class action cases generally. See Chamberlan, 402 F.3d at 959; In re Lorazepam, 289 F.3d at 105. Because law may develop through affirmances as well as reversals, the merits of the district court’s certification ruling has not factored into our consideration of this type of interlocutory appeal. See Blair, 181 F.3d at 835.
Immediate review of a district court’s class certification ruling may also be fitting when that decision is manifestly erroneous. See Chamberlan, 402 F.3d at 959; In re Lorazepam, 289 F.3d at 105. Not every error will meet this threshold. See Chamberlan, 402 F.3d at 959. To be clear, we will not use this third category of cases as a vehicle to micromanage class actions as they evolve in the district court.
8

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See Prado-Steiman, 221 F.3d at 1273. But where the deficiencies of a certification order are both significant and readily ascertainable, taking into account the district court’s discretion in matters of class certification, interlocutory review is appropriate to save the parties from a long and costly trial that is potentially for naught. See Chamberlan, 402 F.3d at 959-60; Prado-Steiman, 221 F.3d at 1274-75. In most instances, a manifest error will be one of law, rather than an incorrect application of the law to a given set of facts. See Chamberlan, 402 F.3d at 959.
Although cases ripe for consideration under Rule 23(f) will normally fall into one of these three categories, see In re Lorazepam, 289 F.3d at 105-06, we emphasize that our discretion in granting or denying a petition for interlocutory review is broad, and necessarily so. See Newton, 259 F.3d at 165; Mowbray, 208 F.3d at 294. The limits of human foresight simply preclude the formulation of a rule that would clearly delineate every instance in which our interlocutory review of a class certification order is appropriate. See In re Lorazepam, 289 F.3d at 106; Newton, 259 F.3d at 165. Appellate courts must simply exercise their “best judgment in making these decisions.” Newton, 259 F.3d at 165; see also Blair, 181 F.3d at 834 (noting that it would be a mistake to draw up a “list” to determine how appellate courts’ power under Rule 23(f) should be exercised). As such, special circumstances may lead us to deny a Rule 23(f) petition in a case that seems to fit into one of the three categories we have described. See In re Lorazepam, 289 F.3d at 103. Conversely, unique circumstances may lead us to grant a Rule 23(f) petition in a case
9

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that falls outside of these bounds. See Chamberlan, 402 F.3d at 960. II.
We review the standard the district court used in making its Rule 23 determination de novo and the merits of that determination for an abuse of discretion. See Shook v. El Paso County, 386 F.3d 963, 967 (10th Cir. 2004) (Shook I). Because class certification decisions are necessarily case specific, see Trevizo v. Adams, 455 F.3d 1155, 1163 (10th Cir. 2006), district courts possess significant latitude in deciding whether or not to certify a class. See Shook v. Bd. of County Comm’rs, 543 F.3d 597, 603 (10th Cir. 2008) (Shook II). As long as the district court applies the proper Rule 23 standard, we will defer to its class certification ruling provided that decision falls within the bounds of rationally available choices given the facts and law involved in the matter at hand. See id.
The abuse of discretion standard, while forgiving, is not without teeth. See In re New Motor Vehicles Canadian Export Antitrust Litig., 522 F.3d 6, 17 (1st Cir. 2008). As the Supreme Court has recognized, some boundaries exist. See Gulf Oil Co. v. Bernard, 452 U.S. 89, 100 (1981) (noting that the district court’s discretion in certifying a class is “bounded by the relevant provisions of the Federal Rules”); see also In re Initial Public Offering Sec. Litig., 471 F.3d 24, 40 (2d Cir. 2006). A district court abuses its discretion when it bases a decision on either a clearly erroneous finding of fact or an erroneous conclusion of law, or when its ruling manifests a clear error of judgment. See Kilgore v. Attorney Gen. of Co., 519 F.3d
10

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1084, 1086 (10th Cir. 2008). In this case, the district court committed three such
errors, which are both substantial and manifestly erroneous. This matter thus falls
within the third category of cases in which interlocutory review is generally
appropriate. As Petitioners requested leave to appeal within the ten-day period
prescribed by Rule 23(f), we grant the petition for review and proceed to address
each error in turn. See Carpenter, 456 F.3d at 1190 (acknowledging that we treat
Rule 23(f)’s timeliness requirement as jurisdictional and apply Rule 6(a) to calculate
this ten-day period).
A.
The district court misconstrued Respondents’ allegations in regard to
inadequate psychiatric care in determining to certify this claim for the class.
Respondents’ First Amended Class Action Complaint raises the unconstitutionality
of the restrictions Petitioners allegedly placed on the ability of indigent inmates to receive mental healthcare.5 Nonetheless, the district court rested its Rule 23 analysis
5 See, e.g., First Amended Class Action Complaint at 34 (“As a matter of policy, . . . Defendants restrict the ability of indigent prisoners to receive mental health care.”); id. at 51 (“Pursuant to the practice and policy of the Defendants, indigent prisoners with serious mental health needs are regularly denied their right to appropriate mental health care delivered by qualified mental health professionals.”); id. at 82 (stating that the Constitution requires Petitioners to “provide appropriate care and treatment for prisoners with serious mental health needs, even when the prisoners have no money”); see also id. at 52 (noting that the jail has a contract with Colorado West Regional Mental Health Center “to provide mental health services to prisoners at the jail”); id. (explaining that “an indigent prisoner cannot obtain care from any mental health professionals at Colorado West
(continued...) 11

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of this claim on its understanding that “there is no mental health treatment available to any of the inmates” in the Garfield County Jail. See Order on Amended Motion to Certify Plaintiff Class and Objection to Magistrate Judge’s Recommendation (Class Certification Order) at 33.
Our precedent is clear that at the class certification stage a district court must generally accept the substantive, non-conclusory allegations of the complaint as true. See Shook I, 386 F.3d at 968; J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1290 n.7 (10th Cir. 1999). Moreover, we have required district courts, in making a class certification ruling, to conduct a “rigorous analysis” of Rule 23’s requirements. Trevizo, 455 F.3d at 1163; J.B., 186 F.3d at 1287. The district court cannot conduct this searching inquiry with a clearly erroneous view of the alleged facts. See In re Initial Public Offering, 471 F.3d at 38 (recognizing that the district court has an “obligation” to make a “determination that the requirements of Rule 23 are met”). As such, the district court abused its discretion. See Newton, 259 F.3d at 165 (noting that a district court abuses its discretion by resting its decision on “a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact”).
B. On a broader scale, the district court applied an erroneous view of our
5(...continued) unless” the jail’s medical staff “determines that it is necessary”).
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precedents governing the proper standard for class certification analysis under Rule 23. Specifically, the district court viewed the scope of its Rule 23 inquiry as unduly limited by our disposition of Shook I. In Shook I, a factually similar case, we concluded the district court improperly denied class certification based on an inquiry into the merits of the movant’s claims. See 386 F.3d at 972 (stating that the “district court erred” by “focus[ing] on whether the court could ultimately fashion a remedy” under the Prison Litigation Reform Act, rather than “specifically addressing the traditional Rule 23 factors in denying class certification”). We subsequently clarified the import of this decision in Shook II, which issued after the district court filed its certification order in this matter. See Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1086 n.5 (recognizing that an “appellate court must apply the law in effect at the time it renders its decision”). Shook II affirmed the district court’s denial of class certification because the court’s reconsidered ruling comported with the requirements of Rule 23. See 583 F.3d at 613-14.
In this case, the district court discussed, in some detail, a portion of the Rule 23(b)(2) analysis Judge Matsch conducted on remand after our disposition of Shook I. See Class Certification Order at 37-38. Because the district court found that Judge Matsch’s reasoning “impermissibly considered the merits of the plaintiffs’ claims,” it declined to address similar concerns raised by Petitioners here. See id. at 38 n.18. Our decision in Shook II, however, specifically affirmed Judge Matsch’s ruling on the basis of his cogent Rule 23(b)(2) analysis. See 543 F.3d at 611 (“The
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only question we pass on today is the narrow question whether the relationship between the class proposed and the relief sought in this suit satisfies Rule 23(b)(2).”).
The district court’s error in Shook I was fundamental in that the court completely ignored the requirements of Rule 23. See id. at 601 (noting that the “district court denied class certification without providing any analysis of the factors relevant to class certification set forth in Fed. R. Civ. P. 23”). Instead, the district court’s decision focused solely on the merits of the movant’s claims. See Shook I, 386 F.3d at 969 n.2. Given the Supreme Court’s instruction that compliance with the requirements of Rule 23 “remains . . . indispensable,” our reversal in that case is unsurprising. See Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982). The Supreme Court has also recognized, however, that no “impermeable wall” exists between the merits of a case and a district court’s decision whether to certify a class. See Shook II, 543 F.3d at 612; see also Gen. Tel. Co., 457 U.S. at 160 (stating that class certification determinations “generally involve[] considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action”); Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 n.12 (1978) (“Evaluation of many of the questions entering into determination of class action questions is intimately involved with the merits of the claims.” (quoting 15 Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 3911 (1976))).
The district court in this case correctly noted that the merits of a movant’s 14

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claims may not serve as the focal point of its class certification analysis. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974). But this does not mean that a district court is categorically prohibited from considering any factor, in conjunction with its Rule 23 analysis, that touches upon the merits of a movant’s claims. See Initial Public Offering, 471 F.3d at 41 (noting that appellate courts have generally required district courts to engage in a “definitive assessment of Rule 23 requirements, notwithstanding their overlap with merits issues”). To the contrary, we have specifically acknowledged that the “merits” of the claims at bar may be “intertwined with” the “proper consideration of other issues germane to whether the case should be certified as a class action.” Shook I, 386 F.3d at 974 (quoting Adamson v. Bowen, 855 F.2d 668, 677 n.12 (10th Cir. 1988)).
Put simply, before a district court certifies a class it must ensure that the requirements of Rule 23 are met. See In re Initial Public Offering, 471 F.3d at 41. District courts ensure Rule 23’s provisions are satisfied by conducting a “rigorous analysis,” Shook I, 386 F.3d at 968, addressing the rule’s requirements “through findings,” regardless of whether these findings necessarily “overlap with issues on the merits.” Shook II, 543 F.3d at 612 (quoting Gariety v. Grant Thornton, LLP, 368 F.3d 356, 366 (4th Cir. 2004)); see also Oscar Private Equity Invs. v. Allegiance Telecom, Inc., 487 F.3d 261, 268 (5th Cir. 2007). We, of course, adhere to the principle that class certification does not depend on the merits of a suit. See Shook I, 386 F.3d at 971; see also In re Initial Public Offering, 471 F.3d at 41 (explaining
15

Case: 08-502 Document: 01017603321 Date Filed: 02/04/2009 Page: 16
that “a district judge should not assess any aspect of the merits unrelated to a Rule 23 requirement”). But we will not allow this principle to be “talismanically invoked to artificially limit” a district court’s “reasoned determination” of whether Rule 23’s requirements have been met. In re Initial Public Offering, 471 F.3d at 38 (quoting Love v. Turlington, 733 F.2d 1562, 1564 (11th Cir. 1984)). As we acknowledged in Shook II, “a district court “may not evaluate the strength of a cause of action at the class certification stage,” but it must determine, “without passing judgment on whether plaintiffs will prevail on the merits,” whether a plaintiff has satisfied the provisions of Rule 23. 543 F.3d at 612.
Here, the district court was unable to profit from the additional guidance we offered in Shook II. Consequently, the district court – through little fault of its own – based its class certification ruling on an unduly constrained view of the inquiry authorized by Rule 23. Because this misconception precluded the district court from conducting the rigorous analysis our precedents require, we conclude the district court abused its discretion. See Henning v. Union Pacific R.R. Co., 530 F.3d 1206, 1217 (10th Cir. 2008) (recognizing that a “district court abuses its discretion when it bases its ruling on an erroneous view of the law”).
C. The district court also erred in failing to hold Respondents to their burden under Rule 23(b)(2). See Shook I, 386 F.3d at 968 (recognizing that “the party seeking to certify a class bears the burden of proving that all the requirements of
16

Case: 08-502 Document: 01017603321 Date Filed: 02/04/2009 Page: 17
Rule 23 are met”). Once a district court concludes the requirements of Rule 23(a) are satisfied, the court may certify a class if it finds the movant has also satisfied the conditions of either Rule 23(b)(1), (2), or (3). See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997). In this case, Respondents requested certification under Rule 23(b)(2). Rule 23(b)(2) requires the movant to show that the party opposing class certification “acted or refused to act” on grounds generally applicable to the class, such that final injunctive or declaratory relief is appropriate as to “the class as a whole.” See Shook II, 543 F.3d at 604.
Ensuring the provisions of Rule 23(b)(2) are met requires the district court take a close look at the “relationship between” a proposed class, “its injuries, and the relief sought.” Id. Ultimately, if equitable relief is not uniformly applicable to the class, and thus time-consuming inquiry into individual circumstances or characteristics is required, little is gained from the case proceeding as a class action. See id.; see also Gen. Tel. Co., 457 U.S. at 155 (explaining that the purpose of class actions is to “save[] the resources of both the courts and the parties”). For the district court to make this case-specific inquiry, a motion for class certification must describe the equitable relief sought in sufficient detail that the district court can conceive of an injunction that comports with the requirements of Rules 23(b)(2) and 65(d). See Shook II, 543 F.3d at 605-06; see also id. at 605 n.4 (noting that “the degree of specificity with which plaintiffs must describe the injunctive relief requested becomes more exacting as the litigation progresses”).
17

Case: 08-502 Document: 01017603321 Date Filed: 02/04/2009 Page: 18
Under Rule 23(b)(2), the injuries sustained by the class must be “sufficiently similar that they can be addressed” in a “single injunction that need not differentiate between class members.” Id. at 604. We noted in Shook II that a “class consisting of all present and future inmates,” as Respondents request here, “introduces considerable “variation into the class with respect to the relief sought,” raising “questions about whether injunctive relief is justified for the class as a whole.” Id. at 606 n.5. Moreover, Rule 65(d) mandates that every injunction order “state its terms specifically” and “describe in reasonable detail” the “act or acts restrained or required.” Movants may not make an end-run around this rule by requesting an injunction that operates at some “stratospheric level of abstraction.” Shook II, 543 F.3d at 604. Injunctions simply requiring a defendant “to obey the law” are generally “too vague” to satisfy Rule 65(d). Monreal v. Potter, 367 F.3d 1224, 1236 (10th Cir. 2004) (citing Keyes v. Sch. Dist. No. 1, 895 F.2d 659, 668 (10th Cir. 1990)); see also Shook II, 543 F.3d at 604.
Respondents here seek to enjoin a “wide range of behavior” against the “broad class framed in the complaint.” Id. at 607. At the same time, they “eschew[] any effort to give content” to the equitable relief they request. Id. at 605. Indeed, Respondents’ class certification motion merely relies on the plea in their complaint for such “declaratory and injunctive relief . . . as the Court deems just.”6 See Class
6 Respondents argue they need not give content to the equitable relief they (continued...)
18

Case: 08-502 Document: 01017603321 Date Filed: 02/04/2009 Page: 19
Certification Order at 6 (“[N]either the declaration sought, nor the contours of the
requested injunctive relief, are set forth in the Amended Complaint.”). Respondents
cannot demonstrate, without more, that “injunctive relief – relative to the class – is
conceivable and manageable without embroiling” the district court “in disputes over
individualized situations and constantly shifting class contours.” Shook II, 543 F.3d
at 608; see also id. at 606 (recognizing that seeking certification of “a single broad
class . . . without explaining how injunctive relief could deal with many variations
within the class” invites “concerns about the appropriateness of class-wide relief”).
In failing to require Respondents to carry their burden of showing such relief is
plausible, the district court abused its discretion.7 See Elephant Butte Irr. Dist. v.
6(...continued) request, citing Califano v. Yamasaki, 442 U.S. 682, 702 (1979), which states that “the scope of injunctive relief is dictated by the extent of the violation established.” But this statement does not stand for the broad proposition Respondents suggest. In Califano, the Court merely explained that, provided “a class action is otherwise proper,” the fact that a resulting injunction is nationwide in scope does not automatically establish a violation of the principle that equitable relief should “be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” 442 U.S. at 702. In the instant case, unlike in Califano, questions remain as to the propriety of class certification and the geographic scope of any resulting injunctive relief is not at issue. Thus, the statement on which Respondents so heavily rely is clearly inapposite.
7 This error is striking in light of Petitioners’ repeated assertion that the district court lacked the capacity to provide Respondents with their requested relief. Although the Prison Litigation Reform Act does not inform class certification analysis under Rule 23, see Shook I, 386 F.3d at 971, “Rule 23’s requirements must be interpreted in keeping with Article III constraints.” Amchem Prods., 521 U.S. at 613; see also Prado-Steiman, 221 F.3d at 1280 (noting that any “analysis of class certification must begin with the issue of standing”). Redressability remains an
(continued...)
19

Case: 08-502 Document: 01017603321 Date Filed: 02/04/2009 Page: 20
U.S. Dep’t of Interior, 538 F.3d 1299, 1301 (10th Cir. 2008) (noting that a “district
court abuses its discretion where it commits a legal error”).
III.
We offer a few additional comments to guide the district court on remand.
Respondents’ pleadings are, in many instances, plagued by generalities. For
instance, Respondents rely heavily on the fact that Rule 23(b)(2) was intended to
facilitate civil rights cases to justify class certification here. See Plaintiffs’
Amended Motion to Certify Class at 13-14. No doubt exists that Rule 23(b)(2) was
intended, in large part, “to enable civil rights class actions,” Shook II, 543 F.3d at
610, and that district courts have certified classes of prisoners “broadly challenging”
the conditions of their confinement. Shook I, 386 F.3d at 970. But the simple fact
that Respondents bring such a suit does not establish that they have satisfied the
provisions of Rule 23. See Shook II, 543 F.3d at 610; see also E. Tex. Motor Freight
Sys. Inc. v. Rodriguez, 431 U.S. 395, 405 (1977).
7(...continued) integral part of constitutional standing. See Habecker v. Town of Estes Park, 518 F.3d 1217, 1224 (10th Cir. 2008). Thus, plaintiffs are always required to demonstrate that their alleged injuries are “apt to be redressed by a remedy the court is prepared to give.” Latino Officers Ass’n v. Safir, 170 F.3d 167, 170 (2d Cir. 1999); see also Bd. of County Comm’rs v. Geringer, 297 F.3d 1108, 1112 (10th Cir. 2002) (“[C]onstitutional standing requires a court to ask not only whether an injury has occurred, but whether the injury that has occurred may serve as the basis for a legal remedy in the federal courts.”). The district court could have addressed some of Petitioners’ remedial concerns on this basis. See Gail v. United States, 58 F.3d 580, 583 (10th Cir. 1995) (acknowledging that notice pleading, under the rules of civil procedure, emphasizes function over form).
20

Case: 08-502 Document: 01017603321 Date Filed: 02/04/2009 Page: 21
In every case, the district court must conduct a “careful certification inquiry,” Unger v. Amedisys Inc., 401 F.3d 316, 319 (5th Cir. 2005), to ensure “the requirements of Rule 23 are met.” See Anderson v. City of Albuquerque, 690 F.2d 796, 799 (10th Cir. 1982). For it is the district court’s superior ability to deal with the intensely practical considerations informing class certification decisions, which justifies vesting it with substantial discretion to make these determinations in the first instance. See Trevizo, 455 F.3d at 1163. As such, we emphasize that the district courts must decide each case “on its own facts,” taking into account whatever practical and “prudential considerations” apply to the matter at hand. Id. Only if the district court is convinced that the requirements of the federal rules are satisfied may it certify a class. See Fed. R. Civ. P. 23 2003 Amendment advisory committee note (“A court that is not satisfied that the requirements of Rule 23 have been met should refuse certification until they have been met.”).
We also caution the district court against giving undue weight to Respondents’ claims that they will be unable to obtain judicial review of Petitioners’ jail practices absent certification of their requested class. See Class Certification Order at 23 (“The danger of mootness . . . cuts in favor of class certification here.”). Respondents retain the ability to institute a damages action against Petitioners for the unconstitutional harms they allegedly suffered in their care. See Shook II, 543 F.3d at 610; see also Green, 108 F.3d at 1300. While not affording Respondents the whole-sale injunctive remedy they currently request, an action for damages would
21

Case: 08-502 Document: 01017603321 Date Filed: 02/04/2009 Page: 22 allow a court to review the constitutionality of Petitioners’ policies. See Shook II, 543 F.3d at 610. Damages actions also provide substantial incentives for public officials to modify their future conduct. See id.; Dotson v. Chester, 937 F.2d 920, 932 (4th Cir. 1991). Accordingly, the district court should view Respondents’ bald assertions in this regard with some skepticism.
With these observations, we GRANT the petition for review and REMAND for the district court to reconsider its class certification order.
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Case: 08-502 Document: 01017603321 Date Filed: 02/04/2009 Page: 23
No. 08-502, Lou Vallario et al., v. Clarence Vandehey et al. KELLY, Circuit Judge, concurring in result.
I concur in the result. I agree with the court that this case requires us to remand for clarification to be sure that the district court had an accurate view of the facts with regard to Respondents’ claims of inadequate psychiatric care. However, I write separately to indicate my understanding of how district courts should negotiate the complex analysis required under Rule 23 for class certification while avoiding a consideration of the merits under the PLRA.
In Shook v. El Paso County, we reversed a district court’s denial of class certification in a similar case because the court “prematurely focused on whether the court could ultimately fashion a remedy that satisfied the strictures of [the PLRA],” rather than engaging in an analysis that specifically addressed the factors required under Rule 23. 386 F.3d 963, 972 (10th Cir. 2004) (Shook I). In a second iteration of Shook v. El Paso County, which affirmed a district court’s denial of class certification in an opinion issued after the district court’s opinion in this case, we further elaborated on the analysis required. 543 F.3d 597 (10th Cir. 2008) (Shook II). Specifically, we stated that, “Rule 23(b)(2) authorizes an inquiry into the relationship between the class framed in the complaint and injunctive relief requested.” Id. at 614. Essentially, a district court is “required to consider whether the remedies the class sought applied equally to all cases pending within the class.” Shook I, 386 F.3d at 971 (citation and alterations omitted).

Case: 08-502 Document: 01017603321 Date Filed: 02/04/2009 Page: 24
This analysis necessarily requires district courts to walk a fine line between permissibly assessing whether the relief requested could alleviate the complaints of the class as a whole and impermissibly assessing the merits of the case under the PLRA. “In other words, while a district court may not evaluate the strength of a cause of action at the class certification stage, it must consider, without passing judgment on whether plaintiffs will prevail on the merits, whether remedying the harm alleged can be done on a class-wide basis in conformity with Rule 23(b)(2).” Shook II, 543 F.3d at 612; see also Maj. Op. at 16. The court now warns against an “end-run” around Rule 65(d), and explains that “[i]njunctions simply requiring a defendant to obey the law are generally too vague to satisfy Rule 65(d).” Maj. Op. at 18 (internal quotation marks and citation omitted). While this is no doubt correct, I am concerned by this court’s suggestion, as well as the dicta in Shook II, 543 F.3d at 605, that apparently seeks to impose significantly more than is called for under Rule 23(b)(2) upon those seeking class certification. The rule merely requires pleading facts that would reflect “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief . . . is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). It is up to the district court to construct an appropriate order after hearing the evidence and neither Rule 23(b)(2) or Rule 65(d) impose any “specificity requirement” on the moving party other than as above noted.
-2-

Case: 08-502 Document: 01017603321 Date Filed: 02/04/2009 Page: 25 In any event, as discussed, Shook II, which clarified the extent to which a
district court must inquire into whether the relief requested is appropriate, was decided after the district court opinion in this case. Because the trial judge did not have the benefit of Shook II, it appears that he felt unnecessarily constrained from making any inquiry into the mechanics of the injunction requested, and because the Respondents did not provide such information, I concur in the result that this case be remanded for clarification as to whether the injunctive relief requested would alleviate the various complaints alleged.
-3-

Case: 08-502 Document: 01017603325 Date Filed: 02U/0n4it/e2d0S0t9ateFsPICLaoEguDer:t1of Appeals Tenth Circuit

UNITED STATES COURT OF APPEALS February 4, 2009

FOR THE TENTH CIRCUIT

Elisabeth A. Shumaker Clerk of Court

LOU VALLARIO, Sheriff of Garfield County, Colorado, in his official capacity; SCOTT DAWSON, a Commander in the Garfield County sheriff's Department, in his official capacity,

Petitioners,

v.
CLARENCE VANDEHEY; WILLIAM LANGLEY; SAMUEL LINCOLN; JARED HOGUE, on behalf of themselves and all others similarly situated,

No. 08-502 (D.C. No. 1:06-cv-01405-WYD-MJW)

Respondents.

JUDGMENT

Before KELLY, BALDOCK, O’BRIEN, Circuit Judges.
This case originated in the District of Colorado and was argued by counsel. The petition for review is granted. The case is remanded to the United States

Case: 08-502 Document: 01017603325 Date Filed: 02/04/2009 Page: 2 District Court for the District of Colorado for further proceedings in accordance with the opinion of this court.
Entered for the Court, ELISABETH A. SHUMAKER, Clerk
2

Case: 08-502 Document: 01017603322 Date Filed: 02/04/2009 Page: 1

Elisabeth A. Shumaker Clerk of Court

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT OFFICE OF THE CLERK
Byron White United States Courthouse 1823 Stout Street
Denver, Colorado 80257 (303) 844-3157
February 04, 2009

Douglas E. Cressler Chief Deputy Clerk

To all counsel of record:

RE: 08-502, Vallario, et al v. Vandehey, et al Dist/Ag docket: 1:06-cv-01405-WYD-MJW
Dear Counsel: Enclosed is a copy of the opinion of the court in the captioned case. Judgment was entered today. Please contact this office if you have questions.
Sincerely,

EAS/klp

Elisabeth A. Shumaker Clerk of the Court

 
 United States District Court, D. Colorado.
Clarence VANDEHEY; William Langley; Samuel Lincoln; and Jared Hogue, on behalf of themselves
and all others similarly situated, Plaintiffs, v.
Lou VALLARIO, Sheriff of Garfield County, Colorado, in his official capacity; and Scott Dawson,
a Commander in the Garfield County Sheriff's Department, in his official capacity, Defendants.
Civil Action No. 06-cv-01405-WYD-MJW.
March 13, 2008.
J. Gregory Whitehair, Taggart Hansen, Marisa B. Hudson-Arney, Gibson Dunn & Crutcher, LLP, Mark Silverstein, Taylor Scott Pendergrass, American Civil Liberties Union, Denver, CO, for Plaintiffs.
Deborah Quinn, Don K. Deford, Garfield County Attorney's Office, Glenwood Springs, CO, Josh Adam Marks, Kim Arquette Tomey, Melanie Bailey Lewis, Berg Hill Greenleaf & Ruscitti, LLP, Boulder, CO, for Defendants.
ORDER ON AMENDED MOTION TO CERTIFY PLAINTIFF CLASS AND OBJECTION TO MAGISTRATE JUDGE'S
RECOMMENDATION
WILEY Y. DANIEL, District Judge.
*1 This matter comes before the Court on Plaintiffs' Amended Motion to Certify a Plaintiff Class (Dkt.# 7), filed August 2, 2006, and Plaintiffs' Objection to a portion of the Magistrate Judge's order on plaintiffs' motion to permit discovery (Dkt.# 76), filed July 24, 2007, which is interrelated with the class action certification motion.
This matter was reassigned to the undersigned in January 2008 after the untimely death of Judge Phillip S. Figa, to whom this case was originally assigned. During his long illness, Judge Figa, although working in his office, was physically unable to hold a hearing on plaintiff's motion to certify a class, and therefore it did not get decided. After transfer to the undersigned, a hearing on plaintiffs' motion and objection to the discovery order was held before me on February 14, 2008. On February 12,

2008, just two days before the hearing on plaintiffs' motion, defendants submitted a supplemental response brief in opposition to plaintiff's motion (Dkt.# 111). At the hearing, plaintiffs were given until March 4, 2008 to file a further supplemental response brief, and they did file a supplemental response on February 28, 2004 (Dkt.# 118). The briefing has been completed, and I now enter the following rulings.
I. BACKGROUND
A. Plaintiffs' Substantive Claims
The four plaintiffs in this case, inmates at the Garfield County Jail when they filed their original complaint in this civil rights case on July 19, 2006 and an Amended Complaint on August 1, 2006, allege, in six claims for relief, a pervasive practice of subjecting prisoners in the county jail to threats and use of excessive and disproportionate force in violation of their Eighth Amendment rights and rights under the Colorado Constitution (First, Second and Third Claims), an interference with their ability to communicate with their attorneys in violation of the Sixth Amendment (Fourth Claim), a denial of access to mental health care (Fifth Claim), and punishment without due process in violation of the Fourteenth Amendment and the Colorado Constitution (Sixth Claim). The named defendants are the Sheriff of Garfield County, Lou Vallario, sued in his official capacity, and the commander in the County Sheriff's Department, Scott Dawson, who is alleged to be in charge of the detention division of the Department and primarily responsible for managing and supervising the operations of the jail (Amended Complaint ¶¶ 14-15).
In their 85-page, 337-paragraph class action Amended Complaint, the four plaintiffs allege that the excessive force, detailed in Section V of the complaint, consisted of the punitive use of, and the threat to use, restraints and restraint chairs FN1(Id. ¶¶ 18-38), pepper spray or OC spray FN2(Id. ¶¶ 39-47), pepper ball guns FN3(Id. ¶¶ 48-70), tasers FN4(Id. ¶¶ 71-81) and electroshock belts FN5(Id. ¶¶ 82-98). The First Claim for Relief appears to address primarily the use of disproportionate force arising from the restraint chair, pepper ball guns, tasers and pepper spray (Id. ¶¶ 293-99). The Second Claim appears to address primarily claims of excessive force arising

from the use of the electroshock belt and the inadequate training in connection with its use (Id. ¶¶ 301-07). The Third Claim appears to address primarily the use of disproportionate force arising from the restraint chair (Id. ¶¶ 309-16).
FN1. This device is a metal framed chair on wheels with seven straps designed to fully immobilize a prisoner's legs, arms and body. The arms are strapped to horizontal armrests, and the legs and ankles are secured. Only the prisoner's head and neck retains some mobility (Amended Complaint ¶ 18).
FN2. Pepper spray, also known as OC spray, causes intensely painful burning sensations, disorientation, anxiety and panic, and can cause an involuntary closing of the eyes, a gagging reflex and temporary paralysis of the larynx. Plaintiffs allege that pepper spray poses serious risks to prisoners' health, safety and even their lives (Id. ¶¶ 39-40).
FN3. This device is similar to a paintball gun, except that it launches high-velocity pellets that explode on impact, releasing a super irritant called PAVA, which is chemically similar to but more concentrated than the irritant in pepper spray (Id. ¶ 48).
FN4. Tasers deliver a minimum five-second, 50,000 volt electric shock that causes excruciating and unbearable pain. Deputies are able to deliver more than five seconds of electricity simply by continuing to press the taser's trigger (Id. ¶ 71).
FN5. This device, also known as the Nova Belt, is strapped around the prisoner's waist and when activated by a remote control switch delivers an eight-second, 50,000 volt charge through electrodes placed near the prisoner's kidneys (Id. ¶ 82).
*2 In addition, Plaintiffs Vandehey and Langley allege a failure to provide requested mental health care (Id. ¶¶ 117-27; 140-49). In Section VI of the Amended Complaint, a section not contained in the original complaint, plaintiffs allege a denial of adequate mental health care to indigent prisoners (Id.

¶¶ 195-211). In the Fifth Claim for Relief in the Amended Complaint, plaintiffs assert that the failure to provide mental health care, and the denial of care to indigents, violates the Eighth and Fourteenth Amendments, the Colorado Constitution, and C.R.S. § 17-26-104.5, a statute which states that a person's inability to pay shall not be the basis for denying medical treatment.
In Section VII of the Amended Complaint, a section also not contained in the original complaint, plaintiffs allege that they are subject to punishment without due process of law. Specifically, they assert that it is standard operating procedure in the county jail for the deputies to “sentence” prisoners to significant punishment for alleged disciplinary infractions, including minor breaches of jail rules, without due process and without following the procedures in the Inmate Handbook (Amended Complaint ¶¶ 212-24). In the Sixth Claim for Relief of the Amended Complaint, plaintiffs assert that such punishment violates the Fourteenth Amendment and the Colorado Constitution (Id. ¶¶ 329-34).
Plaintiffs allege in Section VIII of their Amended Complaint, and in their Fourth Claim for Relief, that defendants interfered with prisoners' rights to communicate confidentially with their attorneys (Id. ¶¶ 225-43; 317-21).
The four named plaintiffs also allege that they have either exhausted the available administrative remedies with respect to their grievances or that a meaningful grievance procedure is not available (Id. ¶¶ 248-80).
B. Class Action Allegations
The class action allegations (Id. ¶¶ 281-89), assert that the four named plaintiffs seek to represent a class of persons defined as: “All persons who, now or at any time in the future, are or will be prisoners in the custody of the Garfield County Sheriff's Department.”(Id. ¶ 282). Plaintiffs Vandehey, Lincoln and Hogue, who were pretrial detainees at the time the Complaint was filed,FN6 seek to represent a subclass of persons (Subclass A) defined as follows: “All pretrial detainees who, now or at any time in the future, are or will be prisoners in the custody of the Garfield County Sheriff's Department.”(Id. ¶ 283). Plaintiff William Langley, a

post-conviction prisoner when the Complaint was filed, seeks to represents a subclass of persons (Subclass B) defined as follows: “All post-conviction prisoners who, now or at any time in the future, are or will be prisoners in the custody of the Garfield County Sheriff's Department.”(Id. ¶ 284). However, in a supplemental filing by plaintiffs on February 20, 2008 (Dkt.# 116), they indicate that they no longer believe subclasses are necessary. Thus, I deem the request for certification of subclasses to be withdrawn.
FN6. As discussed below, all four named plaintiffs have been released from the custody of the county jail after the filing of the Amended Complaint.
*3 The Amended Complaint further alleges compliance with the requirements of Fed.R.Civ.P. 23 as to numerosity, common questions of law and fact, and typicality of the claims as to the named plaintiffs (Amended Complaint ¶¶ 285-87). The complaint further alleges that plaintiffs will fairly and adequately represent the interests of the class, and that they are represented by attorneys employed by and working in cooperation with the ACLU Foundation, which has extensive experience in litigating federal court class action cases involving federal civil rights claims (Id . ¶ 288).
C. Relief Requested
As to the First, Second, Third, Fifth and Sixth Claims for Relief, the Amended Complaint seeks only declaratory and injunctive relief, and not damages (Id. ¶¶ 290-92, 300, 308, 316, 328 and 335). However, neither the declaration sought, nor the contours of the requested injunctive relief, are set forth in the Amended Complaint. The Complaint also seeks attorney's fees. (Id. ¶ 337).
With respect to the Fourth Claim for Relief, the Amended Complaint seeks the imposition of a statutory fine in favor of Plaintiff Hogue, pursuant to C.R.S. § 16-3-404, of not less than $100 or more than $1000 due to the interference with attorney communications.FN7(Id. ¶ 320).
FN7.C.R.S. § 16-3-404 provides, in pertinent part: “All peace officers or persons having in custody any person committed,

imprisoned, or arrested for any alleged cause shall forthwith admit any attorney-at-law in this state, upon the demand of the prisoner ... to see and consult the person so imprisoned, alone and in private, at the jail or other place of custody.... (2) Any peace officer or person violating the duty imposed by this section or section 16-3-403 shall forfeit and pay not less than one hundred dollars nor more than one thousand dollars to the person imprisoned or to his attorney for the benefit of the person imprisoned, to be recovered in any court of competent jurisdiction.”
II. PLAINTIFFS' MOTION TO CERTIFY AND DEFENDANTS' RESPONSES
A. Plaintiffs' Argument
Plaintiffs' amended motion for class certification (Dkt.# 7) argues initially that a plaintiff class is necessary because prisoners in the Garfield County Jail are short-term detainees, stating that the average length of detention is less than one month. Because very few prisoners stay in the jail more than a year, plaintiffs argue it is extremely unlikely that any one prisoner will remain in the jail long enough to litigate a claim for injunctive and declaratory relief until final judgment. Citing to Tenth Circuit precedent, plaintiffs contend that a prisoner's individual claim for prospective injunctive relief will become moot upon the prisoner's release from jail. See, e.g., Green v. Branson, 108 F.3d 1296, 1300 (10th Cir.1997). Thus, unless a class is certified, the policies and practices of the County Jail may be effectively immunized from judicial scrutiny when the named plaintiffs are released.
Further, plaintiffs argue the following questions of fact are common to all members of the putative class:
a. Whether defendants have failed to adopt a written policy governing use of force within the Detention Division?
b. Whether defendants have failed to adopt written policies governing their deputies' use of the restraint chair, the pepperball gun, tasers, and the electroshock belt?

c. Whether defendants' written policy on the use of pepper spray fails to provide adequate guidance to prevent violations of prisoners' constitutional rights?
d. Whether defendants have failed to ensure adequate training of their deputies on the proper and improper use of force, including the restraint chair, the pepperball gun, pepper spray, tasers, and/or the electroshock belt?
*4 e. Whether defendants have failed effectively to monitor and supervise their deputies' use of force, including the restraint chair, the pepperball gun, pepper spray, tasers, and/or the electroshock belt?
f. Whether the acts and omissions of defendants and their deputies with regard to the use of force, including the restraint chair, the pepperball gun, pepper spray, tasers, and/or the electroshock belt, pose an unreasonable risks of harm to prisoners' health, safety, welfare, and constitutional rights?
g. Whether prisoners are receiving adequate mental health care for their serious mental health needs? (Plaintiff's Motion at 5-6.)
In addition, plaintiffs assert that the following questions of law are common to the entire putative class, whether pretrial detainees or convicted prisoners:
a. Whether the alleged policies and practices and alleged acts and omissions of defendants exhibit deliberate indifference to the risk that deputies will violate prisoners' rights under the Eighth and Fourteenth Amendments and Article II, Sections 20 and 25 of the Colorado Constitution?
b. Whether the alleged policies and practices and alleged acts and omissions of defendants pose unreasonable risks of harm to prisoners' health, safety, and welfare, in violation of the Eighth and Fourteenth Amendments and Article II, Sections 20 and 25 of the Colorado Constitution?
c. Whether defendants' policy regarding attorney visits violates the constitutional and statutory rights of prisoners?

d. Whether defendants are deliberately indifferent to prisoners' serious mental health needs? (Id. at 7-8).
Plaintiffs identify the following questions of law common to the pretrial detainees:
a. Whether pretrial detainees are at risk of being subjected to the use of excessive and disproportionate force that violates their rights under the Due Process Clause of the Fourteenth Amendment and Article II, Section 25 of the Colorado Constitution?
b. Whether the alleged practices and policies with regard to the use of the electroshock belt inflict unconstitutional punishment that is not reasonably related to any legitimate governmental objective, in violation of both the substantive and procedural components of the Due Process Clause of the Fourteenth Amendment and Article II, Section 25 of the Colorado Constitution?
c. Whether the alleged practices and policies with regard to the use of the restraint chair inflict unconstitutional punishment that is not reasonably related to any legitimate governmental objective, in violation of both the procedural and substantive components of the Due Process Clause of the Fourteenth Amendment and Article II, Section 25 of the Colorado Constitution?
d. Whether defendants impose punishment for alleged disciplinary violations without due process of law? (Id. at 8-9).
Plaintiffs identify the following questions of law as common to the convicted inmates:
a. Whether the alleged policies and practices and defendants' acts and omissions threaten to subject convicted prisoners to wanton and unnecessary infliction of physical or mental pain, in violation of the Eighth Amendment and Article II, Section 20 of the Colorado Constitution?
*5 b. Whether convicted prisoners retain a liberty interest in freedom of bodily movement, protected by the Due Process Clause and Article II, Section 25 of the Colorado Constitution, that is infringed by fully-immobilizing restraints such as the

restraint chair?
c. Whether the alleged practices and policies and defendants' acts and omissions with regard to the use of the restraint chair violate and threaten to violate the rights of convicted prisoners under the Due Process Clause and Article II, Section 25 of the Colorado Constitution?
d. Whether convicted prisoners retain a liberty interest, protected by the Due Process Clause and Article II, Section 25 of the Colorado Constitution, in freedom from the conditions of confinement imposed by being forced to wear the electroshock belt?
e. Whether the alleged practices and policies and defendants' acts and omissions with regard to the use of the electroshock belt violate and threaten to violate the rights of convicted prisoners under the Due Process Clause and Article II, Section 25 of the Colorado Constitution?
f. Whether deprivations imposed as punishment for alleged disciplinary infractions are atypical and significant deprivations in light of the normal incidents of incarceration in the Garfield County Jail?
g. Whether defendants impose disciplinary sanctions that deprive convicted prisoners of liberty interests without due process of law? (Id. at 9-10).
Plaintiffs contend that the injuries and threatened injuries detailed in their Amended Complaint, both those of the named plaintiffs and those of the putative class, stem from the policies and procedures, acts and omissions of the defendants, and that even if these plaintiffs were released from the jail the conduct would continue and could not be challenged. Thus, they argue, controlling questions of fact and law in this case are common to the entire class, or are common to either the pretrial detainees or the convicted inmates.
Plaintiffs' motion asserts “typicality” of their claims, however, in only the most general way, stating that all of the plaintiffs are “at risk of being subjected to the use of force, including the use of restraint chairs, pepperball guns, tasers, pepper spray and/or the

electroshock belt, in a manner that violates their constitutional rights.”(Plaintiffs' Motion at 11). Defendants argue the motion does not expressly assert that all or any of the four named plaintiffs has actually been subjected to any of the punitive measures referenced in the complaint. However, the Amended Complaint does specify the punitive measures and treatment to which each plaintiff has allegedly been subjected.
Plaintiff Vandehey
The Amended Complaint details Plaintiff Vandehey's requests for mental health treatment and the jail's denial of same (Amended Complaint ¶¶ 118-27), and specifically alleges the use of disproportionate force and restraints upon him, including being strapped into the restraint chair at least seven times, being shot with a pepperball gun on two occasions, being taunted and threatened with the use of the taser, and being forced to wear the electroshock belt many times (Id. ¶¶ 128-39).
Plaintiff Langley
*6 The Amended Complaint details Plaintiff Langley's requests for mental health treatment and the jail's denial of same (Id. ¶¶ 140-49), and specifically alleges the use of disproportionate force and restraints upon him, including being strapped into the restraint chair at least five times, being taunted and threatened with the use of the taser, pepper spray and the pepperball gun, and being forced to wear the electroshock belt on multiple occasions (Id. ¶¶ 150-52).
Plaintiff Lincoln
The Amended Complaint details Plaintiff Lincoln's requests for mental health treatment and the jail's denial of same (Id. ¶¶ 153-54), and specifically alleges the use of disproportionate force and restraints upon him when he was housed at the jail as a pretrial detainee, including being subjected to the pepperball gun, the restraint chair and the electroshock belt, and being threatened with the use of the taser and pepper spray (Id. ¶ 155). The Complaint also relates in detail an incident in January 2006 when he was subjected to the pepperball gun in a manner that allegedly endangered his health (Id. ¶¶ 156-63). Plaintiff Lincoln separately alleges that he

was subjected to assignment in the county jail at what he refers to as “supermax” status without justification (Id. ¶ 164).
Plaintiff Hogue
Plaintiff Hogue's allegations of excessive force arise primarily from an incident that occurred in February 2006 when a prison guard apparently suddenly ordered a “total lockdown,” and deputies in the sheriff's department began using pepper spray and the pepperball gun (Id. ¶¶ 165-72). On this occasion, Plaintiff Hogue witnessed a prisoner subjected to the taser gun, but was not himself a victim (Id. ¶ 172), although it appears that Plaintiff Hogue was exposed to pepper spray and on another occasion was forced to wear the electroshock belt (Id. ¶¶ 173-74). The Amended Complaint does not allege that this plaintiff was subject to the other disciplinary measures discussed above, or to disciplinary measures at all other than on these occasions. On the other hand, this plaintiff alleges what appears to be the primary basis of the claim that defendants interfered with communications with attorneys (see Amended Complaint ¶¶ 226-34), and it is this plaintiff who seeks the statutory fine mentioned above. The Amended Complaint details other occasions where communications between plaintiffs and their attorneys were made difficult, but it is not clear that the communications were actually prohibited (Id. ¶¶ 235-37).
B. Defendants' Response
Defendants' response relies heavily on the three decisions in Shook v. Board of County Com'rs of County of El Paso, 216 F.R.D. 644 (D.Colo.2003) ( “Shook 1” ) (denying class certification), reversed and remanded by Shook v. El Paso County, 386 F.3d 963 (10th Cir.2004) (“Shook 2” ), and Shook v. Board of County Com'rs of County of El Paso, 2006 WL 1801379 (D.Colo.2006) ( “Shook 3” ) (again denying class certification after remand).
*7 In Shook 1, Judge Richard P. Matsch denied certification of a putative plaintiff class of inmates, defined as “all persons with serious mental health needs who are now, or in the future will be, confined in the El Paso County Jail,” and alleging deliberate indifference by the defendants to those health needs. 216 F.R.D. at 645. The plaintiffs there, like plaintiffs

here, sought only declaratory and injunctive relief, and not damages. Id. at 646.
Although he discussed the Rule 23 factors, Judge Richard P. Matsch appeared to have based his ruling primarily on his concern with the breadth of the relief sought by the plaintiffs and his view that he could not fashion prospective injunctive relief for the putative class in accordance with the provisions of the PLRA, 18 U.S .C. § 3626(a)(1)(A),FN8 or at least that is how the Tenth Circuit perceived his ruling.FN9
FN8. This statute provides: “Prospective relief in any civil action 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. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.”18 U.S.C. § 3626(a)(1)(A).
FN9. The Tenth Circuit described Judge Matsch's ruling as concluding that “the PLRA limited the federal court's ability to address such a complaint. Since it concluded that under the PLRA it could neither ‘prescribe jail practices for humane treatment of prisoners' nor interfere with the executive and legislative branches' ability to structure prisons as they saw fit, the relief the plaintiffs sought was ‘beyond the competence and the jurisdiction of [the] court.’ “ 386 F.3d at 969.
The Tenth Circuit reversed the denial of class certification, stating that “[t]he question for us, then, is whether courts may consider the relief the prisoners seek in determining whether to certify a class under the PLRA. Our review of the PLRA leads us to conclude that it does not limit class certification decisions in this way.” 386 F.3d at 969. Having held that the PLRA does not add new elements to the class certification analysis, the court stated that Rule 23

remains the appropriate analytical framework for class certification questions. Id. at 971.
In discussing the application of Rule 23, the Tenth Circuit reiterated its previous holding that “[i]n determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.”Id. (quoting Anderson v. City of Albuquerque, 690 F.2d 796, 799 (10th Cir.1982) (quotation marks omitted). It further stated that “nothing in either the language or history of Rule 23... gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.”Id. Accordingly, under Shook 2 I may not deny class action status soley because of the limitations of the PLRA, and in applying Rule 23I may not make a preliminary determination of the merits of plaintiffs' claims. The Tenth Circuit found that Judge Matsch erred by denying class certification without addressing Rule 23(a)'s threshold requirements or assessing Rule 23(b)(2)'s requirement of general applicability. Id. at 974.The court remanded the case to Judge Matsch for further consideration of the prisoners' complaint, stating that it expressed no view on the ultimate decision of whether to certify a class. Id.
On remand, in the case referenced above as Shook 3, Judge Matsch applied the Rule 23 factors and again entered an order denying class certification. Shook v. Board of County Com'rs of County of El Paso, 2006 WL 1801379 (D. Colo. June 28, 2006). That decision is on appeal to the Tenth Circuit, case number 061454, but has yet to be decided.FN10In opposing the motion for class certification in the instant case, defendants have argued that the Rule 23 factors are not satisfied here.
FN10. Oral argument was heard on January 23, 2008.
Rule 23(a)
*8 Defendants contend that the class should not be certified because the definitions of the class are over inclusive and extend to actual and potential prisoners with no justiciable claim, there are no questions of fact or law common to all members of the classes, the claims of the named plaintiffs are not typical, and the

proposed class representatives are not adequate representatives of the entire class (Defendants' Response 7-25).
Defendants' argument as to the criteria under Rule 23(a) appears to boil down to the following essential points, which are made repeatedly in their response as to each of the Rule 23(a) criteria.FN11
FN11. Defendants have submitted an affidavit from Defendant Dawson in support of some of their factual assertions. See Exhibit A-2 to Response.
First, defendants argue that not every inmate in the Garfield County Jail has been subjected to the various punitive disciplinary means alleged by the named plaintiffs, nor have they been denied mental health treatment or denied visitation with counsel. In fact, defendants argue, most inmates comply with orders issued to them so that the use of disciplinary devices is not necessary (Defendants' Response at 13, 15; Affidavit of Dawson, ¶ 6). Thus, defendants argue, plaintiffs' claims do not involve common questions of fact with respect to all inmates, nor do they satisfy the requirements of typicality or numerosity.
Second, defendants argue that not even the named plaintiffs have been exposed to application of the various disciplinary devices described in the complaint. For example, with respect to the electroshock belt, defendants correctly state that none of the named plaintiffs claim the belt has actually been discharged while they were wearing it. In fact, defendants contend, the belt has never been activated.FN12(See Affidavit of Dawson, ¶ 7). Defendants also point out that no named plaintiff alleges the taser has actually been discharged against him, but only that he has been “threatened” with the use of such device. Defendants argue that the threat to use disciplinary measures is not sufficient to constitute an actionable injury (Defendants' Response at 19-20).
FN12. In Hawkins v. Comparet-Cassani, 33 F.Supp.2d 1244 (C.D.Cal.1999), the district court certified a class of all persons in the custody of the Los Angeles County Sheriff who are appearing in state court and may be subjected to use of the stun belt. Id. at 1260

(emphasis added). The court found common issues of law and fact because “the issue is whether using stun belts is a per se constitutional violation.” Id. at 1259.On appeal, the Ninth Circuit reversed the class certification, but only because it found that plaintiff, a convicted prisoner, could not represent pretrial detainees, and remanded for determination of an appropriate subclass or appointment of another representative. Hawkins v. Comparet-Cassani, 251 F.3d 1230, 1238 (9th Cir.2001).
They further argue that Plaintiff Langley, who is a convicted prisoner, cannot adequately represent the pretrial detainees, and conversely that the named plaintiffs who are pretrial detainees (Vandehey, Lincoln and Hogue) cannot adequately represent a proposed class of convicted prisoners.
With respect to the Fifth Claim for Relief, defendants argue there is no evidence that the population of inmates with “serious mental health needs” is too numerous to permit joinder, or that there is any evidence of a systematic denial of access to mental health treatment. With respect to the allegations that there is a lack of policies or procedures regarding the use of disciplinary measures, defendants argue that the absence of policies does not give rise to a constitutional violation, and in any event there is no identified deficiency of policies applicable to every current and future inmate at the jail; thus, commonality is lacking. With respect to the alleged attorney visitation policy, defendants assert the complaint lacks allegations of a single application of the policy to actually deny counsel visitation, other than with respect to Plaintiff Hogue, and in his case, defendants assert, the policy was erroneously misapplied (Defendants' Response at 10-11). In the absence of a constitutionally infirm policy applied across-the-board to all members of the putative class, argue defendants, certification is not warranted.
Rule 23(b)(2)
*9 Defendants further contend that this case cannot proceed as a class action under Rule 23(b)(2) because plaintiffs have not specified the injunctive or declaratory relief they seek, and this Court cannot determine whether or not the remedy being sought is equally applicable to all members of the putative

class consistent with this rule. Defendants argue, as was true in Shook 3, that given the systemic deficiencies alleged by plaintiffs, any conceivable injunctive or declaratory relief would have to be so broad as to violate the injunction limitations of the PLRA.
Of course, as the Tenth Circuit held in Shook 2, considerations under the PLRA do not supplant analysis of the Rule 23 considerations. Nonetheless, defendants argue, whether the use of a particular disciplinary device with a particular prisoner comports with the requirements of the Eighth Amendment must be evaluated on the basis of individual circumstances, and if a violation occurred, a remedy to address the harm suffered by the affected prisoner may be fashioned. But, defendants argue, an overall rule or prohibitive injunction would be difficult to fashion.
Defendants further argue that the court may consider, pursuant to Rule 23(b)(2), whether the plaintiffs' claims are manageable as a class action, citing to Shook 2, 386 F.3d at 973. Defendants argue that the proposed class action here would be unmanageable due to the highly particularized claims of the individual plaintiffs, stating that the inquiry into each of these claims is highly fact-specific and in some instances varies depending on whether the class member is a convicted prisoner or a pretrial detainee (Defendants' Response at 28-29).
Finally, defendants argue that they will need discovery on the issue of numerosity, arguing such discovery may reveal that the number of inmates that have, in fact, been subjected to the abuses alleged in the complaint is actually quite small so as to fail the numerosity requirement (Id. at 30). This argument, however, appears to assume that an inmate who is merely threatened with the disciplinary measures, but who has not actually encountered them, cannot be a member of the class.
The defendants supplemental response brief (Dkt.# 111), filed February 12, 2008, repeats many of the arguments described above, but for the first time argues that plaintiffs' claims, and presumably the motion to certify a class, have been mooted because all four of the named plaintiffs have been released from the Garfield County Jail. Plaintiffs moved to strike the supplemental response as untimely filed

and in violation of this Court's practice standards (Dkt.# 112). While I agreed with plaintiffs' position regarding the procedural deficiencies in the filing of the supplemental brief, I denied the motion to strike and allowed the plaintiffs to file a response to the supplemental brief (Dkt.# 115). Plaintiffs' response was timely filed.
III. ANALYSIS
A. Mootness
*10 Citing to Clark v. State Farm Mutual Automobile Insurance Co., 245 F.R.D. 478 (D.Colo.2007), and other cases, defendants argue in their supplemental response that this case is moot, and presumably so is the motion to certify the class, because all four of the named plaintiffs have been released from the Garfield County Jail since the filing of the Amended Complaint and while the motion to certify a class was pending. Clark, however, actually states that when a plaintiff's claim is moot, it makes him “presumptively-though not conclusively-inadequate [as a class representative] unless the defendant has procured the mootness of the plaintiff's claim as part of its underlying strategy.” 245 F.R .D. at 485. I do not not find that defendants here procured the release of plaintiffs as part of a strategy to moot this case, but do find that the presumption of mootness does not apply here.
Instead, the instant case fits the framework discussed in Milonas v. Williams, 691 F.2d 931, 937 (10th Cir.1982), where the court stated:
[A] named plaintiff may continue to represent a class that has been certified as such even after the named plaintiff's personal stake in the outcome of the litigation has been mooted. Sosna v. Iowa, 419 U.S. 393, 399, 95 S.Ct. 553, 557, 42 L.Ed.2d 532 (1975). Furthermore, “(t)here may be cases in which the controversy involving the named plaintiffs is such that it becomes moot as to them before the district court can reasonably be expected to rule on a certification motion.” Id. at 402 n. 11,95 S.Ct. 559 n. 11. In such instances, the district court may apply a “relation back” theory and grant late certification in an otherwise moot case and thereby prevent mootness. Id.
Id. I find that, in the instant case, the controversy is

one that could become moot before I could reasonably be expected to rule on the class certification motion. As the named plaintiffs were inmates in a county jail, the duration of their confinement there was naturally expected to be shortterm. As stated by defendants, and not disputed by plaintiffs, named plaintiffs Vandehey and Langley were released by October 2006, named plaintiff Hogue was released by November 2007, and named plaintiff Lincoln apparently had not been housed at the Garfield County Jail since April 2006 (see Supplemental Brief at 2-4). Given the timing of the motion for class certification, it is unlikely that a determination could have been reached before plaintiffs (or some of them) were released, even if Judge Figa had been physically capable of conducting such a hearing.
More significantly, Milonas cites to the Supreme Court's decision in Gerstein v. Pugh, 420 U.S. 103 (1975), a case which involved a fact pattern quite similar to the instant case. In Gerstein, pretrial detainees were released from the county jail before their constitutional claims could be litigated and before they could be certified for class status. The Supreme Court stated, albeit in a footnote, as follows:
*11 At oral argument counsel informed us that the named respondents have been convicted. Their pretrial detention therefore has ended. This case belongs, however, to that narrow class of cases in which the termination of a class representative's claim does not moot the claims of the unnamed members of the class. See Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). Pretrial detention is by nature temporary, and it is most unlikely that any given individual could have his constitutional claim decided on appeal before he is either released or convicted. The individual could nonetheless suffer repeated deprivations, and it is certain that other persons similarly situated will be detained under the allegedly unconstitutional procedures. The claim, in short, is one that is distinctly ‘capable of repetition, yet evading review.’
At the time the complaint was filed, the named respondents were members of a class of persons detained without a judicial probable cause determination, but the record does not indicate whether any of them were still in custody awaiting

trial when the District Court certified the class. Such a showing ordinarily would be required to avoid mootness under Sosna.But this case is a suitable exception to that requirement. See Sosna, supra, 419 U.S. at 402 n. 11, 95 S.Ct. at 559 n. 11;cf. Rivera v. Freeman, 469 F.2d 1159, 11621163 (CA9 1972). The length of pretrial custody cannot be ascertained at the outset, and it may be ended at any time by release on recognizance, dismissal of the charges, or a guilty plea, as well as by acquittal or conviction after trial. It is by no means certain that any given individual, named as plaintiff, would be in pretrial custody long enough for a district judge to certify the class. Moreover, in this case the constant existence of a class of persons suffering the deprivation is certain. The attorney representing the named respondents is a public defender, and we can safely assume that he has other clients with a continuing live interest in the case.
420 U.S. at 110 n. 11. Thus, while Sosna held that rendering the named plaintiff's claim moot after the certification of a class does not defeat jurisdiction, Gerstein appears to hold that, even if the action that renders the case moot occurs before class certification, the case may proceed as a class action under the narrow exception as a case where the claim is “capable of repetition yet evading review.”
I find that this case, like the situation in Gerstein, is one in which the release of pretrial detainees during the pendency of their motion to certify the class does not defeat this court's jurisdiction to decide that motion or preclude me from certifying the case as a class action because plaintiffs had a live interest in the claims advanced at the time they filed their motion. Therefore, the claims relate back to that time, and, because the policies and practices are alleged to be ongoing at the Garfield County Jail, there continue to be inmates at the Garfield County Jail who are members of the putative class who have a live stake in this controversy. See United States Parole Comm'n v. Geraghty, 445 U .S. 388, 396 (1980) and County of Riverside v. McLaughlin 500 U.S. 44, 51-52 (1991).FN13 It may be, as suggested in Geraghty, that additional plaintiff representatives should be added to the complaint. But at this stage I will not find that due to the named plaintiffs' release from custody this case is moot.

FN13. In Lusardi v. Xerox Corp., 975 F.2d 964, 977 (2d Cir.1992), a case upon which defendants rely, the Second Circuit interpreted Geraghty's relation back doctrine as follows: “the named plaintiff has the requisite personal stake in class certification only if (1) he has a live individual claim when the district court decides the class certification issue, or, at the very least, he had a live claim when he filed for class certification ...” As noted, here plaintiffs had a live claim when they filed for class certification.
*12 Defendants have also argued that since the filing of the Amended Complaint they have instituted a mental health program for the inmates, thus rendering a class action claim unnecessary or moot (Defendants' Supplemental Response at 5). Plaintiffs have responded that they are not in a satisfactory position to evaluate the asserted implemented plan (Plaintiffs' Supplemental Response at 3-4). To deny a class on the basis of such an assertion by defendants would improperly prejudge the plaintiffs' claims and this Court declines to do so.
On the other hand, it does appear that, if this case does not proceed as a class action, it would be mooted by the release from custody of the four named plaintiffs. As the Tenth Circuit held in Green v. Branson, 108 F.3d 1296, 1300 (10th Cir.1997), an individual inmate's claims for injunctive and declaratory relief as to the conduct of prison officials becomes moot if the inmate is no longer within the control of the prison. However, once a class has been certified, mooting of the class representative's claims does not moot the entire action because the class “acquire[s] a legal status separate from the interest asserted [by its named plaintiff].” Sosna, 419 U.S. at 399. The danger of mootness of these claims cuts in favor of class certification here. Nonetheless, whatever policy concerns may favor class certification, the factors of Rule 23(a) and (b) must be considered.
B. Application of Rule 23
Although the party seeking to certify a class bears the burden of proving that all the requirements of Rule 23 are met, the district court must engage in its own rigorous analysis of whether the prerequisites of Rule

23(a) have been satisfied. In doing so, the court must accept the substantive allegations of the complaint as true, although it need not blindly rely on conclusory allegations which parrot Rule 23 and may consider the legal and factual issues presented by plaintiffs' complaint. Shook 2, 386 F.3d at 968 (citations and internal quotations omitted).
Rule 23(a) provides that a case may proceed as a class action only if the four elements of that rule are satisfied, namely numerosity, commonality, typicality and adequacy of the named parties to represent the class. Id. If the prerequisites of Rule 23(a) are met, the court must then look to the category of class action under Rule 23(b) for additional prerequisites involving certification of a class. Id. Here, plaintiffs assert only that this case meets the prerequisites of Rule 23(b)(2), namely that defendants have acted on grounds generally applicable to the class, thereby making appropriate final injunctive or corresponding declaratory relief with respect to the class as a whole.
Analysis under Rule 23(a)
1. Numerosity
Plaintiffs contend that the numerosity requirement is met, and that joinder is impracticable here with respect to all six of their claims for relief, primarily because the putative class is fluid and future inmates cannot be identified given that as many as 150 prisoners pass through the county jail each day (Amended Complaint ¶ 285). In Skinner v. Uphoff, 209 F.R.D. 484 (D.Wyo.2002), Judge Clarence Brimmer conditionally certified a class consisting of 700 inmates then confined in the Wyoming State Penitentiary and any persons who will be confined in the future, stating that the proposed class is sufficiently numerous. The court stated that, since the proposed class included individuals who will be confined in the future, they were necessarily unidentifiable and therefore joinder was impracticable. Id.
*13 Defendants' argument against numerosity in the instant case, at least as to the First, Second and Third Claims for Relief, appears to rely mainly on their argument that neither the plaintiffs, nor any members of the putative class, have been subjected to actual shock by the Nova Belt or the infliction of the taser (Defendants' Response at 8-9). They do not appear to

argue that the other disciplinary devices have not been used against plaintiffs, but rather appear to contend that here is no singular policy with respect to the use of such devices that is applied to numerous inmates or which could be the subject of injunctive relief (Id. at 10-11).
Defendants' position appears to be based on the mistaken belief that the threat of harm, as opposed to the actual infliction of harm, is not sufficient to raise an Eighth Amendment claim. However, as the Supreme Court has held, prison and jail officials violate the Eighth Amendment when, acting with deliberate indifference, they subject prisoners to a “substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 828 (1994). The threatened harm need not be imminent. See Helling v. McKinney, 509 U.S. 25, 33 (1993) ( “We have great difficulty agreeing that prison authorities ... may ignore a condition of confinement that is sure or very likely to cause serious illness (second hand cigarette smoke) and needless suffering [in the future] .”). For purposes of injunctive relief, the threatened harm need never materialize; it is the substantial risk of harm that violates the Eighth Amendment and entitles the plaintiffs to injunctive relief. “[I]t would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.”Id.
Likewise, the Tenth Circuit has stated that “an inmate does have a right to be reasonably protected from constant threats of violence and sexual assault from other inmates.... Moreover, he does not need to wait until he is actually assaulted before obtaining relief.” Ramos v. Lamm, 639 F.2d 559, 572 (10th Cir.1980).See also Riley v. Jeffes, 777 F.2d 143, 147 (3d Cir.1985) (finding constitutional violation in prisoners being subjected to constant threat of violence and sexual assault, and rejecting contention that plaintiff must actually be assaulted before obtaining relief).
What plaintiffs have alleged in the First, Second and Third Claims is not merely an excessive use of force against any one or a number of inmates, but rather policies or practices employed generally throughout the Jail, or a lack of such policies and practices, such that all inmates are subject to a substantial risk of harm from improper or excessive force. Whether

plaintiffs can ultimately prove such a claim remains to be seen, but I cannot evaluate the merits of the claim at this stage of the case. Rather, I may only consider whether the number of pretrial detainees and inmates at the Jail who are subject to the alleged practices is so numerous as to render joinder impracticable. As to the first three claims for relief, I find that the requirement of numerosity is satisfied given the fluid and transitory nature of the putative class.
*14 As to the Fourth Claim for Relief, defendants argue that Plaintiff Hogue is the only inmate who was allegedly harmed by the supposed policy regarding attorney access (Defendants' Response at 8). Plaintiffs' counsel stated at the hearing that the alleged policy consists of asking inmates a “trick question,” namely, “who is your attorney?” When the inmate answers by providing the name of his public defender, the inmate is denied access to the ACLU attorneys seeking to represent him in this civil case. Plaintiffs' counsel asserted that this occurred on more than one occasion, but the anecdotal evidence provided by counsel does not satisfy me that joinder of those who may have been subject to this purported practice is impracticable. Accordingly, I find that the numerosity requirement is not met with respect to the Fourth Claim for Relief.
I note, however, that the individual claim of Plaintiff Hogue as contained in the Fourth Claim for Relief does remain in the case. The claim is not mooted by his release from the Garfield County Jail, as he is seeking damages pursuant to C.R.S. § 16-3-404.FN14
FN14. In their supplemental brief submitted on February 12, 2008, defendants suggested that plaintiff Hogue no longer wishes to participate in this suit, attaching a handwritten note apparently signed by him on October 18, 2007 (Exhibit B to Dkt. # 111). Plaintiffs have supplied an affidavit signed by Plaintiff Hogue dated February 21, 2008 (Exhibit 1 to Plaintiffs' Supplemental Brief), indicating that he did not intend by his October 18 note to “drop out of the lawsuit.” Id. at ¶ 7. I accept Plaintiff Hogue's affidavit as indicative of his desire to continue his participation in this case.

As to the Fifth Claim for Relief, defendants argue there is no evidence that the population of jail inmates with serious mental health needs is too numerous to permit joinder (Defendants' Response at 9). Plaintiffs, on the other hand, assert that the inmate population in any institution is recognized to have a large percentage of inmates with serious mental health needs. Although the number of inmates with serious mental health needs cannot be quantified precisely, I find that the numerosity requirement is satisfied with respect to the Fifth Claim for Relief, particularly given the information set forth in Exhibits 17, 18 and 19 attached to Plaintiffs' Supplemental Brief.
As to the Sixth Claim for Relief, defendants do not make a specific argument as to numerosity, other than to state that there is no express showing as to how many inmates have been disciplined without the due process alleged to be required. However, as I now understand this claim, plaintiffs are alleging that the Jail has no policies in connection with disciplinary infractions that meet the minimum requirements established by Wolff v. McDonnell, 418 U.S. 539, 556-58 (1974), and its progeny. According to that theory, all inmates in the jail are subject to the lack of constitutional protections, and a showing of a specific number of inmates who have not received the protections is not required. Again, whether the plaintiff can prove this claim remains to be seen, but at this stage of the case I find that the numerosity requirement is satisfied with respect to the Sixth Claim for Relief.
2. Definition of Class
Defendants additionally argue, citing to Shook 3, that the definition of the proposed class is overbroad. However, as plaintiffs point out, the definition of the class they propose is quite similar to the definition of the class approved for certification in Ramos v. Lamm, 639 F.2d 559, 562 (10th Cir.1980) (“all persons who are now or in the future may be incarcerated in the maximum security unit of the Colorado State Penitentiary at Canon City, Colorado”), and a class certified by Judge Lewis T. Babcock in Neiberger v. Hawkins, 208 F.R.D. 301, 314-18 (D.Colo.2002) (“all adult patients who are now or in the future will be involuntarily committed to the Institute of Forensic Psychiatry (‘IFP’) of the Colorado Mental Health Institute at Pueblo

(‘CMHIP’)”).FN15 Defendants do not distinguish these two cases. While in Shook 3 Judge Matsch did find a similar class definition to be overbroad, I do not agree with his reasoning there and note that the decision is again on appeal before the Tenth Circuit. I find that the definition of the proposed class is not overbroad.
FN15. The relief requested in this case consisted of declaratory and injunctive relief for violation of Colorado's Care and Treatment of the Mentally Ill Act, C.R.S. § 27-10-101, without any request for damages. 208 F.R.D. at 307. The complaint apparently also sought declaratory relief that defendants violated regulatory standards promulgated pursuant to the Act, as well as under 42 C.F.R. § 482 et seq., and Title V of the Public Health Services Act, 42 U.S.C. § 290ii, which relate in part to prohibiting the use of restraint devices. Id. at 309-10.
3. Common questions of fact
*15 As noted above, plaintiffs identify eight common questions of fact. Three of those questions relate to defendants' policies regarding use of the disciplinary devices, or lack thereof, and two relate to the alleged failure to provide adequate training or supervision of the deputies' use of the disciplinary devices. Defendants argue that the absence of a written policy does not constitute a fact common to the entire class (Defendants' Response at 13), and that the other alleged common facts simply relate to isolated incidents that do not apply to “every single inmate at the jail.”(Id. at 14).
However, one common question of fact alleged by plaintiffs is whether the acts and omissions of defendants with respect to the disciplinary devices “pose unreasonable risks of harm to prisoners' health, safety, welfare and constitutional rights?”A second question of fact asserted to be common is whether inmates are receiving adequate mental health care for their serious mental health needs? (Plaintiffs' Amended Motion at 6). Although defendants argue, as noted above, that the threat of harm is not sufficient to raise a constitutional concern, I have already determined that plaintiffs have the better argument here. Although defendants assert that whether an inmate is receiving adequate mental

health care is a particularized question dependent on the inmate's mental condition, here the issue is whether any mental health care at all is being provided.
As stated by Judge Babcock in Neiberger, supra,Rule 23(a)(2) does not require that all the questions of law or fact raised by the dispute be common, nor does it establish any quantitative or qualitative test of commonality. Rather the existence of significant common legal or factual issues is enough to satisfy Rule 23(a)(2)'s threshold commonality requirement. 208 F.R.D. at 315. Or, as stated by Judge Matsch, “[t]his prerequisite is met if there is single issue of law or fact common to the class.” Shook 3, 2006 W L 1801379, at * 9 (citing J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1288 (10th Cir.1999)). At least the above two questions regarding the risk of substantial harm from the disciplinary measures and the absence of any mental health care appear to satisfy the commonality requirement here.
4. Common questions of law
Plaintiffs have identified at least four questions of law purportedly common to all the putative class members and at least four questions of law purportedly common to the members of the putative subclasses.
Defendants argue not one of the identified questions of law is common to all putative class members, since not all members have been, or are imminently likely to be, subjected to the use of compliance devices (Defendants' Response at 15). But again, this argument ignores that plaintiffs' allegations relate to the threatened use of such devices, and the policies and practices related to such use, and not necessarily the actual use of such devices.
*16 Defendants also argue that the Tenth Circuit decision in Hart, supra, stands for the proposition that the commonality requirement cannot be satisfied by generalized allegations of systematic violation of various laws, citing to 186 F.3d at 1289 (Defendants' Response at 16-17). While it is true that the court made a statement to that effect in Hart, as plaintiffs here point out, the holding of the case was merely that the district court did not abuse its discretion in finding that the plaintiffs failed to demonstrate a single issue of law common to all class members

(Plaintiffs' Reply at 22-24). While the Tenth Circuit held that the allegations of systematic violation of various laws does not “automatically” meet Rule 23(a)(2), it also emphasized that the district court retained discretion to determine commonality. 186 F.3d at 1289. Hart thus does not appear to have a determinative effect on the case at bar. I find that there are common questions of fact and law relating to the claims of all putative class members such that Rule 23(a)(2) is met.
5. Typicality
Defendants' argument that the typicality requirement is not met is again based on their assertions that, since plaintiffs have not been subject to discharge of the taser gun or the Nova Belt, they cannot show that they suffered the same type of harm as that of the putative class (Defendants' Response at 19). But this argument overlooks the fact that plaintiffs' complaint relates to the threat to use such devices, and the lack of policies with respect to such use, rather than the particular application of such devices to the class members. Moreover, as stated in Neiberger, supra,“[s]o long as there is a nexus between the class representatives' claims or defenses and the common questions of fact or law which unite the class, the typicality requirement is satisfied. The circumstances of the named plaintiffs and the potential class members do not have to be identical.” 208 F.R.D. at 315 (citation omitted). I find that the named plaintiffs' claims are typical of the putative class members as to all claims, with the exception of the Fourth Claim.
With respect to the Fourth Claim for Relief, alleged denial of access to counsel, defendants correctly point out that only Plaintiff Hogue has alleged actual denial of access, and thus the claims of the other three plaintiffs are not typical. As I have already found, the circumstances of Plaintiff Hogue's claim regarding his counsel's visit do not appear to have been repeated, much less are they typical of what has occurred with other inmates. Accordingly, I find that the typicality requirement is not met as to the Fourth Claim for Relief.
With respect to the Fifth Claim for Relief, alleged denial of access to mental health care, it appears from the Amended Complaint that only plaintiff Langley is alleged to be a typical plaintiff (See Amended Complaint ¶ 325).FN16 Defendants correctly argue, in

part as set forth by Judge Matsch in Shook 3, that whether an inmate has been denied access to mental health care in violation of the Eighth Amendment is a particularized determination that may not lend itself to satisfying the typicality requirement. However, as noted above, I now understand this claim to allege that there is no mental health treatment available to any of the inmates in the Jail, such that any inmate's particularized needs do not determine whether or not he gets treatment. Accordingly, a denial of mental health treatment to Plaintiff Langley, based on the absence of any mental health program, is typical of the denial to all other inmates seeking such treatment. Thus, the typicality requirement is met as to the Fifth Claim for Relief.
FN16. The allegations in paragraphs 195 through 200 of the Amended Complaint relate to the denial of mental health treatment with respect to plaintiff Vandehey, but he is not expressly named in the Fifth Claim.
*17 Moreover, to the extent plaintiffs allege that denial of mental health care to inmates who are unable to afford such treatment violates the Colorado statute, C.R.S. § 17-26-104.5,FN17 that is certainly a question that lends itself to classwide determination and with respect to which Plaintiff Langley may be a typical plaintiff (see Plaintiffs' Reply at 27-28).
FN17. This statute provides, in pertinent part, that the county jail “may assess any such medical treatment charge against the person's jail account.... In no case shall a person's inability to pay be the basis for not providing medical treatment equivalent to the community standard of care.”C.R.S. § 17-26-104.5(1).
6. Adequacy of representatives
Defendants argue that the named plaintiffs cannot adequately represent the entire class, first repeating again their argument that none of the named plaintiffs has ever been subjected to activation of the Nova Belt. The flaw in this argument has been identified above and will not be repeated here.
Defendants next argue that Plaintiffs Hogue and Vandehey, the only named plaintiffs with respect to

the Fourth Claim for Relief, are not adequate representatives because they have not suffered actual injury from the application of the jail's purported attorney visitation policy (Defendants' Response at 23-24). As noted above, I find that the numerosity and typicality requirements are not met here, and for the same reasons find that these named plaintiffs are not adequate representatives with respect to this claim.
Defendants next argue that the pretrial detainees cannot adequately represent a class including convicted prisoners, and vice versa. Although plaintiffs have argued that the standards for imposition of disciplinary measures may differ as between pretrial detainees and convicted prisoners, they argue here that, in the context of challenges to conditions of confinement, the Eighth and Fourteenth Amendments have equivalent standards, citing to Craig v.. Eberly, 164 F.3d 490, 495 (10th Cir.1998) (“Although the Due Process Clause governs a pretrial detainee's claim of unconstitutional conditions of confinement, ... the Eighth Amendment standard provides the benchmark for such claims. The Eighth Amendment requires jail officials to provide humane conditions of confinement by ensuring that inmates receive the basic necessities of adequate food, clothing, shelter, and medical care and by taking reasonable measures to guarantee the inmates' safety.”) (internal quotations and citations omitted). The Craig case involved the claims of pretrial detainees, yet the Tenth Circuit held that “[t]o hold a jailer personally liable for violating an inmate's right to humane conditions of confinement, a plaintiff must satisfy two requirements, consisting of an objective and subjective component.”Id. It thus appears that the standard of proof for violation of the Eighth Amendment does not differ as between pretrial detainees and convicted prisoners.
Defendants argue that Plaintiff Lincoln is not an adequate representative of a subclass of pretrial detainees because he is no longer confined in the Garfield County Jail. Apparently, as a pretrial detainee awaiting trial in Garfield County, Lincoln is sometimes held in the Garfield County Jail when he has been brought for hearings, but spends most of his time in the Mesa County Jail (See Amended Complaint ¶ 12). Plaintiffs argue this is a matter of standing, as opposed to adequacy of representation or mootness, and that Lincoln remains subject to the

challenged policies and practices because he is certain to be returned to the Garfield County Jail. Plaintiffs also argue that his release from the Garfield County Jail does not moot his claims that arose while he was in the jail, citing Milonas v. Williams, 691 F.3d 931, 937 (10th. Cir.1982) and the relation back theory discussed above. This argument, however, does not really address whether Plaintiff Lincoln can be an adequate representative of the pretrial detainees housed in the Garfield County Jail, since it appears that he is not there on a full-time basis. In any event, since plaintiffs have withdrawn their request for subclasses it is no longer necessary to reach this issue.
Analysis under Rule 23(b)(2)
*18 Defendants argue this case cannot proceed as a class action under Rule 23(b)(2) because it is not possible for me to fashion appropriate final injunctive relief or corresponding declaratory relief with respect to the putative class as a whole. This is so, they argue, because of the limitations of the PLRA as well as the asserted prohibition against this court's entering an injunction prohibiting systematic constitutional violations.
On the other hand, plaintiffs correctly point out that the Tenth Circuit in Shook 2 commented that courts have continued to allow prison condition cases to be certified as class actions so long as the elements of Rule 23 have been met, “even cases broadly challenging conditions of confinement.” 386 F.3d at 970. The Shook 2 decision cites several cases in which such certification has occurred.
Plaintiffs also cite cases from other districts where courts have certified classes seeking declaratory and injunctive relief to remedy systemic constitutional deficiencies. See, e.g., Hargett v.. Baker, 2002 WL 1433729, at *1 (N.D.Ill.2002) (court certified class of plaintiff inmates, classified as “sexually violent persons (SVP),” who sought declaratory judgment that the conditions of confinement and mental health treatment of the SVPs violated the Fourteenth Amendment and a permanent injunction against the defendants compelling them to implement a plan correcting the alleged constitutional deficiencies in the current program for treatment of SVPs); Hiatt v. County of Adams, Ohio, 155 F.R.D. 605, 607-09 (S.D.Ohio 1994) (court certified a class defined as

“all inmates housed in the jail at the time this lawsuit was filed and all inmates housed in the jail thereafter” who were challenging practices of the defendant jailers alleged in the complaint to be unconstitutional, including claims of: lack of classification, overcrowding, lack of sufficient inmate exercise facilities, lack of trained staff, inadequate medical care and staff, lack of mental health programs, lack of ventilation, lack of adequate plumbing, basic sanitation and the general disrepair of the facility, problems of safety and security and lack of social service programs).
In addition, plaintiffs cite several cases where courts have certified classes of plaintiffs seeking injunctive relief regarding the use of restraints or other disciplinary devices (Plaintiffs' Reply at 34). For example, in Von Colln v. County of Ventura, 189 F.R.D. 583, 594 (C.D.Cal.1999), the court certified a class of inmates only with respect to the injunctive portion of the case, defining the class as “all individuals who are currently incarcerated, or will be incarcerated during the pendency of this lawsuit in the ... county jail and who are subject to be restrained in the Pro-straint chair in violation of the Eighth Amendment rights.”The plaintiffs sought an injunction that would prohibit the use of the restraint chair “for purposes for which it was not designed.” Id. at 587.
*19 In denying class certification in Shook 3, Judge Matsch found that Rule 23(b)(2) could not be satisfied because the plaintiffs did not complain of “a written policy or standard procedure or practice to which all class members were subject.” 2006 WL 1801379, at *11. He found that the plaintiffs contended that a number of separate incidents collectively showed administrative deficiencies amounting to deliberate indifference, but that such allegations did not support final injunctive relief with respect to the class as a whole. Id. He concluded that, while the PLRA did not add new elements to the class certification process, nonetheless its limitations on broad prospective relief could not be ignored. Id. at *12.Thus, he held, if the court did not have the authority to grant the injunctive relief requested the purpose of proceeding as a class action was defeated.FN18
FN18. Judge Matsch specifically denied class certification in Shook 3 because he

found the plaintiffs did not meet the requirements of Rule 23(a)(2) (common questions of fact and law) and (3) (typicality). 2006 WL 1801379, at *1. Judge Matsch found an absence of common questions of fact and law because he held that the plaintiffs misapprehended the established law with respect to the prisoners' constitutional rights to mental health services. Id. at *5. He found the plaintiffs' case was based on the assumption that the Constitution affirmatively creates a right to mental health services, when it does not. He stated the Constitution prohibits denial of treatment for medical needs, including mental health needs of which jail officials are aware. He found that interest, to the extent protected by the Eighth Amendment, is highly individualistic and case specific, depending as it does on each inmate's mental health needs, and therefore not susceptible to class action treatment. Id. Thus, he concluded:
Whether an inmate is obviously suffering from a serious medical condition due to a mental disorder depends on the events and circumstances giving rise to that prisoner's claim of deliberate indifference. “All persons with serious mental health needs who are now, or in the future will be, confined in the El Paso County Jail” is a group that is too amorphous to proceed as a class, even one under Rule 23(b)(2).
Id. at *8.
I find that this analysis by Judge Matsch may have impermissibly considered the merits of the plaintiffs' claims, an inquiry which I believe is not permitted at the class certification stage under Shook 2. Accordingly, I decline to follow Judge Matsch's analysis.
In the instant case, plaintiffs' Amended Complaint did not cite to any written policy or standard procedure or practice, but rather contended the fact that defendants' actions are not constrained by written policies, or operate only under unenforced oral policies, leads to the abuses alleged in the complaint

(see Amended Complaint ¶¶ 2, 17, 26, 75, 87, 17683). Accordingly, as Judge Matsch found in Shook 3, entering an injunction against undefined policies or standards may present a difficulty under the PLRA.
Now, plaintiffs have advised the Court that in February 2007, after the filing of the Amended Complaint, the defendants adopted a written policy as to “use of force.” Exhibit 10 to Plaintiffs' Supplemental Brief. Although plaintiffs argue that this written policy does not provide any “meaningful guidance regarding the use of force,” the plaintiffs have not stated exactly what injunctive relief they seek with respect to such a policy, nor do they identify what injunctive relief could be entered consistent with the PLRA. Nonetheless, as the Tenth Circuit held in Shook 2, this Court cannot deny class certification based on the possibility that injunctive relief consistent with the PLRA may not be feasible. If it develops during the course of this case that injunctive relief is not authorized due to the limitations of the PLRA, the Court can revisit the class determination.
On the other hand, I note that plaintiffs are also seeking declaratory relief. As counsel pointed out at the hearing, plaintiffs may be entitled to a declaration that some practices of defendants violated the constitutional rights of the inmates. At that point in the case, the appropriate injunctive relief, if any, can be considered. Thus, denying class certification at this stage because of the hypothetical difficulty of fashioning injunctive relief consistent with the PLRA would not only contradict the holding in Shook 2, but would unjustly deny class status without regard to the scope of the relief actually sought.
Accordingly, I find that this case may proceed as a class action under Rule 23(b)(2), as final injunctive or declaratory relief suitable to the class as a whole may be appropriate.
Manageability
*20 As stated in Shook 2,“[e]lements of manageability and efficiency are not categorically precluded in determining whether to certify a 23(b)(2) class.” 386 F.3d at 973. Defendants here argue that this case would not be manageable as a class action because it would require individualized, particularized trials of each inmate's claims, and thus

class action status should be denied under Rule 23(b)(3)(D). I disagree.
I understand, and plaintiffs' counsel has represented to me, that this case will be a trial of defendants' practices and policies in general, or the lack thereof, and not a trial of the application of those policies in every given instance. Of course, plaintiffs will have to demonstrate that the policies and practices are in fact applied to the inmates. But they will not be permitted, or required, to make a showing of every incident where an inmate has been subjected to the alleged policies. I understand that the burden will be on plaintiffs to make a showing of typical situations, but not to exhaustively demonstrate every instance of alleged violations. With these guidelines in place, I conclude that this case will be manageable within the meaning of Rule 23(b)(3)(D).
IV. PLAINTIFFS' OBJECTION TO ORDER OF MAGISTRATE JUDGE
Plaintiffs appeal (Dkt.# 76) from an order entered on the record by Magistrate Judge Michael J. Watanabe on July 10, 2007 (Dkt.# 73) in which he granted defendants' motion for protective order (Dkt.# 64) and denied plaintiffs' motion to “permit standard discovery” (Dkt.# 65). The minutes of the hearing reflect the Magistrate Judge's order as follows:
Counsel are advised that the scope of the case is outlined in the scheduling order, meaning discovery is limited to the four named plaintiffs. In addition, Plaintiffs may inquire into Garfield County Jail's policies and practices, as applied to and relating to the four named plaintiffs, during the time frame in which the four named plaintiffs were incarcerated there. Should Judge Figa grant the motion for class certification, this Court will address the need to amend the scheduling order (Dkt. # 73 at 2).
Plaintiffs object to this order “because it limited the scope of discovery to the policies and procedures of the Garfield County Jail regarding the four main plaintiffs and only them during the time each was present at the Jail,” arguing that such limitation is erroneous and contrary to law (Plaintiffs' Objection at 2).
As indicated by the Magistrate Judge's order, if I

were to grant the plaintiffs' motion for class certification he would apparently reconsider the scope of discovery. As I have granted the motion to certify the class as to five of the claims asserted by the plaintiffs, Plaintiffs' Appeal from the discovery order (Dkt.# 76) is granted and the discovery order entered by Magistrate Judge Watanabe is vacated. The parties may return to the Magistrate Judge for any necessary orders regarding the scope of discovery.
V. CONCLUSION
*21 Plaintiffs' Amended Motion to Certify a Class (Dkt. # 7 is Granted in part and Denied in part.
I find that the requirements of Rule 23(a) and 23(b)(2) have been met with respect to the First, Second, Third, Fifth and Sixth Claims for Relief in the Amended Complaint. Those claims may proceed as a class action with the named plaintiffs representing a class defined as “All persons who, now or at any time in the future, are or will be prisoners in the custody of the Garfield County Sheriff's Department.”
The requirements of Rule 23(a) have not been met as to the Fourth Claim for Relief, and that claim may not proceed as a class action. However, Plaintiff Hogue's individual claim under the Fourth Claim for Relief remains in the case.
Plaintiffs' Appeal from the discovery order (Dkt.# 76) is Granted and the discovery order entered by Magistrate Judge Watanabe is vacated.
D.Colo.,2008. Vandehey v. Vallario Slip Copy, 2008 WL 697428 (D.Colo.)
END OF DOCUMENT

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 06-cv-01405-WYD-MJW
CLARENCE VANDEHEY; WILLIAM LANGLEY; SAMUEL LINCOLN; and JARED HOGUE;
Plaintiffs on behalf of themselves and all others similarly situated,
v.
LOU VALLARIO, Sheriff of Garfield County Colorado, in his official capacity; and STEPHEN HOPPLE, a Commander in the Garfield County Sheriff’s Department, in his official capacity;
Defendants.
MINUTE ORDER
ORDER ENTERED BY CHIEF JUDGE WILEY Y. DANIEL
Plaintiffs’ Second Amended Motion for Class Certification [ECF No. 177], filed October 2, 2009 is DENIED without prejudice. If the Settlement Agreement referenced in the recent Joint Status Report [ECF No. 231] is not finalized, Plaintiffs may re-file the Motion for Class Certification.
Dated: March 22, 2011

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Wiley Y. Daniel
Civil Action No. 06-cv-01405-WYD-MJW
CLARENCE VANDEHEY; WILLIAM LANGLEY; SAMUEL LINCOLN; and JARED HOGUE;
Plaintiffs on behalf of themselves and all others similarly situated,
v.
LOU VALLARIO, Sheriff of Garfield County Colorado, in his official capacity; and STEPHEN HOPPLE, a Commander in the Garfield County Sheriff’s Department, in his official capacity;
Defendants.
ORDER
UPON CONSIDERATION of the Plaintiffs’ Unopposed Motion for Voluntary
Dismissal With Prejudice Pursuant to Fed. R. Civ. P. 41(a)(2) [ECF No. 234], the Court
being advised in the premises, and good cause being shown, it is hereby
ORDERED that the Unopposed Motion for Voluntary Dismissal [ECF No. 234],
filed April 25, 2011, is GRANTED. It is further ORDERED that this matter is dismissed with prejudice, each party to bear its
own attorneys’ fees, costs and expenses.

Dated: April 28, 2011

BY THE COURT:
s/ Wiley Y. Daniel Wiley Y. Daniel Chief United States District Judge

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 Case 1:06-cv-01405-WYD-MJW Document 231 Filed 03/18/11 USDC Colorado Page 1 of 3
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 06-cv-01405-WYD-MJW
CLARENCE VANDEHEY, WILLIAM LANGLEY, SAMUEL LINCOLN, and JARED HOGUE,
Plaintiffs, on behalf of themselves and all others similarly situated, v. LOU VALLARIO, Sheriff of Garfield County, Colorado, in his official capacity; and STEPHEN HOPPLE, a Commander in the Garfield County Sheriff’s Department, in his official capacity,
Defendants.
JOINT STATUS REPORT
Pursuant to the Court’s Minute Order dated January 21, 2011, the parties, through respective counsel, hereby file this Joint Status Report.
1. The Defendants, counsel for Defendants and counsel for Plaintiffs attended a settlement conference with Judge Watanabe on January 20, 2011, at which counsel for the Plaintiffs and Defendants reached agreement, subject to approval by the four named Plaintiffs, on a preliminary Memorandum of Understanding outlining the terms of a settlement of the above-captioned action.
2. Plaintiffs’ counsel agreed to seek the approval and consent to the Memorandum of Understanding from each of the named plaintiffs so that a Settlement Agreement could be prepared and executed on behalf of the named Plaintiffs by their counsel and by the Defendants.
3. Plaintiffs have obtained the written consent to the Memorandum of Understanding and obtained authority to sign the Settlement Agreement on behalf of three of the named Plaintiffs – Clarence Vandehey, Samuel Lincoln and Jared Hogue.

Case 1:06-cv-01405-WYD-MJW Document 231 Filed 03/18/11 USDC Colorado Page 2 of 3

4. Plaintiffs’ counsel is continuing to communicate with Plaintiff William Langley, who has received a copy of the Memorandum of Understanding and is considering its terms. Plaintiffs’ counsel expects a response from Plaintiff Langley within the next week.

5. In the meantime, a proposed final Settlement Agreement has been drafted by Plaintiffs’ counsel and has been submitted to Defendants’ counsel for review and comment. It is expected that a draft of the Settlement Agreement will be finalized within the next week.

6. Plaintiffs’ counsel is considering alternative procedures in the event that Plaintiff Langley does not provide his consent to the Memorandum of Understanding and will pursue an alternative path to the finalization of the Settlement Agreement should Plaintiff Langley choose to opt out of the settlement within the next week. Plaintiffs; counsel will keep Defendants’ counsel informed of Mr. Langley’s decision.

7. The Parties do not anticipate that the Settlement Agreement will require Court approval under Fed. R. Civ. P. 23(e), but will seek the Court’s approval of a voluntary dismissal of the action under Rule 41(a)(2) once the Settlement Agreement is fully executed.

Dated this 18th day of March, 2011.

BAKER & HOSTETLER LLP

BERG HILL GREENLEAF & RUSCITTI, LLP

/s/ Holli L. Hartman
Paul G. Karlsgodt Holli L. Hartman Casie D. Collignon Tina U. Amin 303 East 17th Avenue, Suite 1100 Denver, Colorado 80203-1264 Tel: 303.861.0600 Fax: 303.861.7805

/s/ Josh A. Marks
Josh A. Marks Berg Hill Greenleaf & Ruscitti, LLP 1712 Pearl Street Boulder, CO 80302 Tel: 303.402.1600 Fax: 303.402.1601 jam@bhgrlaw.com kim@bhgrlaw.com

In cooperation with the ACLU Foundation of Attorneys for Defendant Colorado

Mark Silverstein American Civil Liberties Union Foundation of Colorado 400 Corona Street Denver, Colorado 80218 Tel: 303.777.5482 Fax: 303.777.1773

Attorneys for Plaintiffs

-2-

Case 1:06-cv-01405-WYD-MJW Document 231 Filed 03/18/11 USDC Colorado Page 3 of 3
CERTIFICATE OF SERVICE I hereby certify that on March 18, 2011, I electronically filed the foregoing JOINT STATUS REPORT with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following addresses:
Josh A. Marks Berg Hill Greenleaf & Ruscitti, LLP 1712 Pearl Street Boulder, CO 80302 jam@bhgrlaw.com kim@bhgrlaw.com Deborah Quinn Don K. DeFord Garfield County Attorney’s Office 108 8th Street, #219 Glenwood Springs, CO 81601 dquinn@garfield-county.com
/s/ Holli L. Hartman
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Case No.________________ CLARENCE VANDEHEY; WILLIAM LANGLEY; SAMUEL LINCOLN; and JARED HOGUE,
Plaintiffs, on behalf of themselves and all others similarly situated. v. LOU VALLARIO, Sheriff of Garfield County, Colorado, in his official capacity; capacity; SCOTT DAWSON, a Commander in the Garfield County Sheriff’s Department, in his official capacity,
Defendants.
CLASS ACTION COMPLAINT
I. INTRODUCTION 1. In this class action, filed on behalf of current and future prisoners in the Garfield
County Jail, Plaintiffs challenge a pervasive practice of subjecting prisoners to threats and use of excessive and disproportionate force.
2. The challenged practice is carried out through the frequent use and threatened use of pepperball guns, restraint chairs, tasers, pepper spray, and electroshock belts in a manner that 1) is not constrained by written policies designed to curb potential abuses; 2) departs from wellestablished standards of law enforcement and corrections professionals; 3) violates the manufacturers’ and venders’ recommendations and training regarding the safe and proper use of the devices; 4) poses substantial and unjustifiable risks to prisoners’ health, safety, physical

integrity, and lives; 5) has caused extreme mental distress and physical harm, amounting in some
cases to summary corporal punishment; and 6) violates prisoners’ constitutional rights.
3. Plaintiffs also challenge a new policy of Defendants– which they purposely adopted
to thwart and interfere with the investigation that led to this lawsuit – that has prevented and
threatens to continue preventing prisoners from exercising their right to speak with attorneys
who wish to speak with them in a confidential setting.
II. OUTLINE AND INDEX OF ALLEGATIONS
4. The following provides an outline of the allegations of this Complaint, along with the
number of the first paragraph that corresponds to each of the outline headings:
I. Introduction, ¶ 1 II. Outline and index of allegations, ¶ 4 III. Jurisdiction and Venue, ¶ 5 IV. Parties
A. Plaintiffs, ¶ 8 B. Defendants, ¶ 12 V. Threats and use of excessive force, punitive use of restraints, ¶ 15 A. Punitive use of restraints and restraint chairs, ¶ 16 B. Pepper spray or OC spray, ¶ 37 C. Pepperball gun, ¶ 46 D. Tasers, ¶ 69 E. Electroshock belt, ¶ 80 F. Threats and use of disproportionate force and punitive use of restraints
against the named Plaintiffs, ¶ 96 1. Defendants increase prisoners’ tension and escalate potential
conflicts, ¶ 96 a. Extreme restrictions and deprivations, ¶ 97 b. Arbitrary and harsh disciplinary measures, ¶ 100 c. Absence of meaningful grievance procedure, ¶ 102 d. Failure to defuse potential conflict situations, ¶ 104 2. Plaintiff Clarence Vandehey, ¶ 112 a. The jail’s failure to provide requested mental health care, ¶ 112 b. Disproportionate force and restraints, ¶ 123 3. Plaintiff William Langley, ¶ 135 a. The jail’s failure to provide requested mental health care, ¶ 135 b. Disproportionate force and restraints, ¶145 4. Plaintiff Samuel Lincoln, ¶ 148 5. Plaintiff Jared Hogue, ¶ 160
2

VI.
VII.
VIII. IX. X.

G. Supervisory Liability, ¶ 170 1. Absence of written policies, ¶ 171 2. Failure to ensure adequate training, ¶ 180 3. Failure to supervise and monitor deputies and control abuses, ¶ 186
Interference with prisoners’ right to communicate confidentially with attorneys, ¶ 190
A. Prisoners denied confidential interviews with ACLU attorneys, ¶ 191 B. Additional violations of prisoners’ right to communicate confidentially
with attorneys, ¶ 209 Exhaustion of available administrative remedies ¶ 213
A. The jail’s published grievance procedure has not been an available administrative remedy, ¶ 216
B. Plaintiff Clarence Vandehey, ¶ 235 C. Plaintiff William Langley, ¶ 236 D. Plaintiff Samuel Lincoln, ¶ 238 E. Plaintiff Jared Hogue, ¶ 244 Class Action Allegations, ¶ 245 Declaratory and Injunctive Relief, ¶ 254 Claims for Relief, ¶ 257 A. First Claim for Relief, ¶ 257 B. Second Claim for Relief, ¶ 265 C. Third Claim for Relief, ¶ 273 D. Fourth Claim for Relief, ¶ 281

III. JURISDICTION AND VENUE

5. This action arises under the Constitution and laws of the United States, including

42 U.S.C. § 1983. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. This

Court has supplemental jurisdiction over the claims based on Colorado law pursuant to 28.U.S.C.

§ 1367.

6. This Court has jurisdiction to issue the declaratory relief requested pursuant to the

Declaratory Relief Act, 28 U.S.C. §§ 2201, 2202.

7. Venue is proper in the District of Colorado pursuant to 28 U.S.C. § 1391(b). All

parties reside within the District of Colorado, and the events described in this Complaint

occurred in the District of Colorado.

3

IV. PARTIES A. Plaintiffs
8. Plaintiff Clarence Vandehey is an indigent pretrial detainee in the Garfield County Jail. Since childhood, he has suffered and continues to suffer from serious mental health problems that have not been adequately addressed during his stay at the Garfield County Jail. Since September, 2005, deputies have strapped him into the jail’s restraint chair seven times; they have shot him with a pepperball gun on two occasions; they have forced him to wear an electroshock belt to court; and he has endured numerous additional threats of force from deputies wielding pepper spray, tasers, and the pepperball gun. Mr. Vandehey sues for injunctive and declaratory relief only, on behalf of himself and the Plaintiff class.
9. Plaintiff William Langley is an indigent prisoner who has been confined in the Garfield County Jail since the beginning of October, 2005. Since childhood, he has suffered and continues to suffer from serious mental health problems that have not been adequately addressed during his stay at the Garfield County Jail. Deputies have strapped him into the restraint chair at least five times, have forced him to wear an electroshock belt to court, and he has endured numerous additional threats of force from deputies wielding pepper spray, tasers, and the pepperball gun. Mr. Langley sues for injunctive and declaratory relief only, on behalf of himself and the Plaintiff class.
10. Plaintiff Samuel Lincoln is an indigent pretrial detainee who was held in the Garfield County Jail continuously from December 2005 until April, 2006, when he was moved to the Mesa County Jail. He still faces pending criminal charges in Garfield County, and as a result, he has returned to the Garfield County Jail on multiple occasions. He was housed in the jail from June 15 to June 17, 2006; he returned again on June 24, 2006; and he is scheduled to
4

return once again on July 20, 2006. He is certain to return to the custody of the Garfield County Sheriff on additional occasions in the near future, where he will be subjected to an imminent risk of harm from the policies and practices that are challenged in this lawsuit. Mr. Lincoln sues for injunctive and declaratory relief only, on behalf of himself and the Plaintiff class.
11. Plaintiff Jared Hogue is a pretrial detainee in the Garfield County Jail. He has been forced to wear the electroshock belt and has been threatened with tasers, pepperball guns and pepper spray. On June 15, 2006, the Defendants prevented him from meeting with an attorney in a confidential setting. He sues for injunctive and declaratory relief on behalf of himself and the Plaintiff class. He also asks this Court to impose, for himself only, the statutory penalty described in C.R.S. § 16-4-404.
B. Defendants 12. Defendant Lou Vallario is the Sheriff of Garfield County, Colorado. He has final policy making authority for all matters relating to management of the Garfield County Jail. His employees and agents include the deputies who work in the jail as well as Defendant Scott Dawson. Sheriff Vallario is sued in his official capacity. 13. Defendant Scott Dawson holds the rank of Commander in the Garfield County Sheriff’s Department. He is an agent and employee of Defendant Vallario. Defendant Dawson is in charge of the Detention Division of the Garfield County Sheriff’s Department. The deputies at the jail are his agents and subordinates. He has primary responsibility for managing and supervising the day-to-day operations of the jail; for formulating and implementing policies and procedures; for ensuring that those policies and procedures are followed; and for ensuring that deputies are adequately trained to carry out their responsibilities in a manner consistent with
5

the health, safety, welfare, and constitutional rights of prisoners. He is sued in his official capacity.
14. At all times relevant herein and with respect to all actions described herein, all Defendants and their agents and employees were acting under color of state law.
FACTUAL BACKGROUND V. THREATS AND USE OF EXCESSIVE AND DISPROPORTIONATE FORCE
AND PUNITIVE USE OF RESTRAINTS 15. Prisoners in the Garfield County Jail are subjected to a pervasive pattern, practice, and custom, in which deputies regularly escalate conflict and use and threaten to use excessive and disproportionate force. As part of that practice, deputies frequently use and threaten to use restraint chairs, pepper spray, the pepperball gun, tasers, and the electroshock belt, and various combinations of these devices, in a manner that 1) is not constrained by written policies designed effectively to curb potential abuses; 2) departs from widely-accepted standards of corrections and law enforcement professionals; 3) violates the manufacturers’ and venders’ recommendations and training regarding the safe and proper use of the devices; 4) poses substantial and unjustifiable risks to prisoners’ health, safety, physical integrity, and lives; and 5) causes mental distress, pain, physical injuries, and has amounted to summary corporal punishment; and 6) violates prisoners’ constitutional rights. A. Punitive Use of Restraints and Restraint Chairs 16. The restraint chair is a metal framed chair on wheels with seven straps designed to fully immobilize a prisoner’s legs, arms, and body. When used as designed, arms are strapped to horizontal armrests. Legs and ankles are secured. Additional straps go around the prisoner’s waist, and over each shoulder. Only the prisoner’s head and neck retain some mobility.
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17. The use of fully-immobilizing restraints such as the restraint chair poses substantial risks to prisoners’ physical and mental health. As a report by the United States government’s General Accounting Office noted in 1999, specific risks include “asphyxia, cardiac complications, drug overdoses or interactions, blunt trauma, strangulation or choking, fire/smoke inhalation, and aspiration (breathing vomit into the lungs).” The report states that a commonly prescribed antidepressant may result in metabolic problems when the person’s movement is restricted, which can lead to life-threatening hypothermia. It also noted that potentially fatal cardiac arrhythmia can result from the combination of certain medications and the adrenaline produce by an individual’s agitation and physical struggle while being restrained. The report noted several specific groups of persons who should be regarded as presenting a particular danger of potential health risks when placed in fully-immobilizing restraints, including persons with mental illness, persons with mental retardation, and persons with a history of substance abuse.
18. In a letter sent to Defendants in June, Amnesty International noted that at least 18 prisoners have died while strapped in restraint chairs in jails and prisoners in the United States. Some of those deaths occurred after the prisoners had also been subjected to pepper spray and/or electroshock weapons. One such death occurred in a Colorado jail in the late 1990s.
19. Amnesty International also informed the Defendants that the United Nations Committee Against Torture had expressed its concern that the unregulated use of the restraint chair and electroshock weapons in the United States could lead to violations of this country’s obligations under the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
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20. In a response to the UN Committee, the United States acknowledged that use of restraint chairs should be “carefully circumscribed.” The response relied on standards developed by the Department of Justice (DOJ), which state that restraint chairs should only be used to keep a prisoner from hurting himself or others and only when less restrictive means of controlling the prisoner have failed. The DOJ further states that restraint chairs should be “carefully controlled” and the prisoner should be monitored every 15 minutes, and vital signs should be checked. In addition, prisoners should be provided opportunities for movement, eating, and using the toilet. The response to the UN Committee further acknowledged that restraints must be removed “as soon as the inmate is no longer a threat to himself or others.”
21. Amnesty’s letter also informed the Defendants that the United Nations Standard Minimum Rules for the Treatment of Prisoners stipulate that restraints should never be applied as a punishment, and further provide that restraints may be used only when other measures are ineffective and only for so long as is ''strictly necessary''.
22. Widely-accepted standards of correctional associations adopt similar principles. The American Correctional Association (ACA) requires that jails draft written policies that forbid the use of restraints as punishment. Instead, restraints must be used “only in extreme instances and only when other types of restraints have proven to be ineffective.” The ACA standards also require that deputies keep a prisoner under continuous visual observation until healthcare authorities arrive and approve the use of restraints. Upon arrival, the healthcare personnel must “assess the inmate’s medical and mental health condition,” and must advise whether the prisoner presents a serious danger to self or others and whether the prisoner should be placed in a medical or mental health unit for medical management and supervision. The ACA
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standards also require that visual observation of a prisoner held in the restraint chair must be carried out every 15 minutes.
23. Manufacturers and venders of restraint chairs impose even greater restrictions on the use of the devices. For example, one vender of the Emergency Restraint Chair purchased by the Garfield County Jail advises on its web site as follows:
Violent behavior may mask dangerous medical conditions therefore detainees must be monitored for and provided with medical treatment if needed. Detainees should not be left in the Emergency Restraint Chair for more than two hours. The Emergency Restraint Chair should never be used as a means of punishment. http://www.restraintchair.com/diagram.htm, accessed July 4, 2006 (Emphasis in original) 24. The Defendants have not adopted any written policy governing or regulating the use of the restraint chair in the Garfield County Jail. 25. Pursuant to the custom and informal unwritten policy in place at the Garfield County Jail, deputies commonly and frequently use the restraint chair in a manner that violates international and national standards for treatment of prisoners; violates the recommendations of the venders and manufacturers; poses an unreasonable and unjustifiable risk of harm to prisoners’ health and safety; causes mental distress, pain, and physical injuries; and violates prisoners’ constitutional rights. 26. Indeed, in recent months, the Defendants have stepped up their reliance on the use of the restraint chair. Although the jail typically houses just over 100 prisoners who are under the Sheriff’s direct supervision and control, the Defendants purchased 3 additional restraint chairs in February, 2006, bringing the total to five. After obtaining incident reports regarding only 10 current and former prisoners who signed release-of-information forms, attorneys for Plaintiffs obtained reports describing 23 separate times that deputies strapped prisoners into a restraint chair in the 4-month period between December, 2005, and March, 2006. On
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information and belief, that small sample represents only a fraction of the Defendants’ regular and repeated use of the restraint chair.
27. Deputies regularly employ the restraint chair in cases where prisoners are not out of control and are not presenting an imminent risk of serious physical injury to themselves or others. Prisoners are regularly strapped into the restraint chair as punishment, and the threshold for such punishment is often only alleged minor breaches of jail discipline, such as kicking the cell door to attract the deputies’ attention; yelling after refusing a deputy’s order to stop; or passive noncompliance with deputies’ orders. Deputies sometimes attempt to disguise the true purpose of their use of the restraint chair by falsely characterizing it, in their written incident reports, as a measure taken for the prisoner’s “safety.”
28. Defendant Dawson has acknowledged in writing that prisoners will be placed in the restraint chair if they “threaten” staff, even, apparently, when prisoners are locked in their cells and have no ability to act on any such threats. He has also acknowledged that prisoners will be strapped into the restraint chair when they “refuse to comply with orders.”
29. Deputies regularly strap prisoners into the restraint chair without attempting to determine whether less restrictive measures would be effective. Deputies regularly keep prisoners in the restraint chair long after any arguable need for continued restraint has passed and for far longer than the two-hour maximum time -- reserved for the most extreme cases-- urged by the chair’s venders and manufacturers.
30. Prisoners are regularly strapped into the restraint chair without appropriate medical supervision. Deputies do not consult in advance with medical personnel to determine whether a particular prisoner suffers from any pre-existing medical conditions that pose particular risks when combined with fully-immobilizing restraint.
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31. The Defendants do not require the jail’s healthcare contractors to conduct an evaluation of a prisoner’s medical and mental health status immediately after being placed in the restraint chair, and such evaluations are not conducted. Defendants do not require regular 15minute checks of prisoners strapped into the restraint chair, and such regular 15-minute checks are not carried out.
32. Deputies regularly strap prisoners in the restraint chair in unnecessarily painful positions. The chair is designed so that deputies can remove a prisoner’s handcuffs through an opening in the back of the chair and then strap the prisoner’s arms to the chair’s armrests. Instead of following that practice, deputies often strap prisoners into the chair while leaving their hands handcuffed behind their back. When the shoulder straps are then pulled tight, the chest is thrust forward as the arms and handcuffed hands are sandwiched between the prisoner’s back and the back of the restraint chair, causing severe stress on the shoulders and upper chest. This position results in extreme and unnecessary pain, which prisoners have been forced to endure for hours.
33. For prisoners, being strapped into the restraint chair is frequently uncomfortable, painful, and even terrifying. Prisoners feel helpless and vulnerable. While strapped in the restraint chair, prisoners have endured panic, mental distress, humiliation, extreme physical pain, and have also suffered physical injuries.
34. Deputies commonly taunt prisoners, ridicule them, and subject them to cruel and humiliating treatment while they are in the restraint chair. While in the booking section of the jail, Mr. Vandehey overheard a woman who was strapped into a restraint chair. She was crying that she wanted an attorney and that she needed to go to the bathroom, and the deputies told her
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to “go ahead and go” while she was strapped in the chair. The deputies mimicked her and ridiculed her frequent requests to go to the bathroom.
35. Deputies forced another woman to endure the same humiliating and degrading treatment a month before Mr. Vandehey first arrived at the jail. She reports that she was in a mental health crisis, suicidal, and strapped in the restraint chair for hours while deputies would not let her get up to urinate. They told her to shut up and stay in the chair and urinate on herself. She was forced to do so, twice. She said deputies laughed at her and told her “we’ll let you out when we damn please.”
36. Deputies commonly use the restraint chair in combination with the use and threatened use of other devices that present additional risks to prisoners’ health, safety, and constitutional rights, such as the pepperball gun, pepper spray, and tasers.
B. Pepper Spray or OC Spray 37. Deputies at the Garfield County Jail are armed with pepper spray, also known as Oleoresin Capsicum or OC spray. It causes intensely painful burning sensation, disorientation, anxiety, and panic. It causes an involuntary closing of the eyes, mucus to run from the nose, a gagging reflex, and temporary paralysis of the larynx. 38. Pepper spray poses serious risks to prisoners’ health, safety, and even their lives. It poses a risk of respiratory arrest, particularly among persons with chronic bronchitis, asthma, or respiratory infections. Use of pepper spray on agitated prisoners who are on certain medications or persons with a preexisting heart condition (such as arteriosclerosis) heightens the risk of stroke or heart attack. This is because the pepper spray reduces the body’s ability to deliver oxygen to the heart, while increased agitation and/or certain medications increases the heart’s demand for oxygen.
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39. Pepper spray has been associated with dozens of in-custody deaths, especially when used in combination with restraints and/or electroshock weapons such as tasers. In Colorado, a prisoner in the El Paso County Jail died shortly after he was subjected to pepper spray in May, 2000. The medical examiner listed pepper spray as a contributing cause of death.
40. In the mid-1990s, the ACLU of California published an internal memorandum from one of the largest manufacturers of the OC spray that is sold to law enforcement agencies. The manufacturer’s memo warned that OC spray could cause permanent nerve damage. It further explained that law enforcement officers cannot and should not rely on OC spray as a means of incapacitating resistant or non-compliant subjects. Instead, it recommended that officers rely on OC spray only to momentarily distract a subject as officers get him or her under control by other means. The memo noted that persons who are mentally disturbed and/or extremely agitated are less likely to react to the pain of pepper spray and may not become immediately compliant to officers’ commands. The memo noted that law enforcement officers who mistakenly rely on OC spray to incapacitate a subject might be inclined to administer repeated doses when the first spray does not cause the desired incapacitating effect. The memo stated that “[t]his obviously would be an overexposure, which may cause added health risks” and “raises the concern of excessive use of force.” The memo warned that law enforcement should confine officers’ use of pepper spray to a single one-second burst.
41. Although the Defendants have adopted a written policy concerning the use of OC spray, the short one-page document does not provide sufficient guidance to prevent deputies from using OC spray in a manner that poses unreasonable risks to prisoners’ health, safety, and constitutional rights. For example, the policy fails to advise against spraying prisoners directly in the face; fails to advise deputies against using OC spray from distances closer than four feet;
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fails to limit the amount of OC spray or the duration or the number of bursts; fails to advise deputies of medical conditions for which the use of pepper spray is especially dangerous and contraindicated; and fails to advise deputies of any special concerns when using OC spray on prisoners who are extremely agitated and/or mentally disturbed.
42. Deputies regularly threaten to use OC spray in a manner that violates the minimal restrictions contained in the jail’s written policy. For example, deputies regularly threaten to use OC spray to enforce compliance or overcome passive noncompliance with a deputy’s order, in violation of the written policy that purports to limit authorization to cases where prisoners are “exhibiting violent or potentially violent behavior, threatening the security of staff, inmates, the public or the facility.” Incident reports written by deputies confirm that they have also discharged pepper spray in such situations. Similarly, incident reports confirm that deputies have discharged OC spray without complying with the written policy’s directive that “[e]xcept in extreme emergencies offenders will be given verbal orders to surrender before OC Spray is deployed.” Such violations of the violations of the Defendants’ written policy have been ratified by the Defendants are carried out pursuant to the Defendants’ informal custom and practice.
43. It is the deputies’ informal custom to delay, unjustifiably, the decontamination of prisoners who have been subjected to OC spray. Indeed, deputies have pepper-sprayed prisoners and then strapped them into the restraint chair without providing them any opportunity to decontaminate, either before they are placed in the chair or while they are in the chair. The combination of the restraints and the OC spray intensifies the prisoner’s pain. A prisoner who was strapped into the restraint chair after being pepper-sprayed reported that the straps of the restraint chair, in combination with the pepper spray, caused a line of blisters to develop on his
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skin underneath the straps. A nurse’s log written while the prisoner was in the restraint chair noted “Body is Red from Pepper spray.”
44. It is common practice in the jail for deputies to use and threaten to use OC spray against prisoners who are known to be asthmatic, such as Plaintiff William Langley, or suffering from other preexisting medical conditions that make pepper spray especially dangerous.
45. Deputies commonly use and threaten to use OC spray in combination with the use and threatened use of other devices that pose additional risks to prisoners’ health, safety, and constitutional rights, such as the restraint chair, the pepperball gun, and tasers.
C. Pepperball gun 46. The Pepperball gun is similar to a paintball gun, except that it launches highvelocity pellets that explode on impact, releasing a super-irritant called PAVA, or Capsaicin II, which is chemically similar to, but more concentrated than, the irritant in pepper spray. 47. The pepperball gun has a “laser sight” that pinpoints the target. It can shoot six to twelve pellets per second at speeds up to 380 feet per second. Prisoners hit by pepperballs suffer large welts, bruises, and open bleeding wounds. When the pellets break, they release a burst of PAVA powder into the eyes, nose, and lungs. When inhaled, PAVA powder causes acute burning of the eyes, temporary blindness, and severe inflammation the mucous membranes and upper respiratory system that in turn leads to uncontrollable coughing fits. It can prompt uncontrollable gagging, gasping or vomiting; intensely painful burning sensations; and panic. The PAVA dust itself poses risks to prisoners’ health and safety that are similar to the risks of OC spray, and the manufacture specifically warns that pepperballs can precipitate asthma attacks. The pepperball gun, however, may be even more dangerous. In Boston, police killed a
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young woman and seriously injured several others when they fired a pepperball launcher into a crowd of Red Sox fans during the 2004 pennant celebrations.
48. The Defendants have purchased two pepperball guns, and they use and threaten to use them frequently. The incident reports obtained by Plaintiffs’ attorneys after obtaining release-of-information forms from only ten prisoners document deputies firing the pepperball gun at prisoners on seven occasions in the four-month period from December, 2005, through March, 2006. The reports document numerous additional times in which deputies wielded the pepperball gun and threatened its use.
49. Deputies at the Garfield County Jail use and threaten to use the pepperball gun to inflict pain in two different ways: first, through the direct impact of the pepperball pellets striking the prisoner’s body, and second, through the effects of the PAVA dust when the pepperballs burst upon impact.
50. Prisoners feel intense pain when pepperballs hit their bodies from a distance of one to ten feet. Nurses’ reports document open wounds and bleeding, and prisoners have visible scars months later. Photographs of prisoners who have recently been hit with pepperballs show large, half-dollar size open welts and bruises.
51. One prisoner described the effects of the PAVA dust as follows: The air looks like you threw a bag of flour in the cell. Mucus is streaming from everywhere, you can’t open your eyes and you’re crying--its irritating your whole body. I was choking and sweating. I got lightheaded and couldn’t breath and started passing out. 52. Another prisoner said: Snot is coming out of your nose like crazy. You can’t see. It’s like jalapenos in your eyes and cayenne in your lungs. Every time you exhale it stirs it up and every time you inhale it’s in your lungs. 53. An asthmatic prisoner who was shot with the pepperball gun also stated:
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I was shot four (4) times with the pepperball gun. I am an asthmatic of extremely sensitive conditions. I suffered greatly, often in a fight for every breath. 54. Firing the pepperball gun at prisoners is a substantial use of force that, except in extreme emergencies, must always be preceded by a verbal warning that provides a prisoner with a reasonable opportunity to comply with deputies’ orders. Nevertheless, Defendant Dawson has approved the actions of deputies who fired the pepperball gun directly at prisoners’ bodies without first providing a verbal warning and a reasonable opportunity to comply. 55. Defendant Dawson has acknowledged in writing that pepperball guns will be fired at prisoners if they “threaten” staff, even, apparently, when prisoners are locked in their cells and have no ability to act on any such threats. He has also acknowledged that pepperball guns will be fired at prisoners when they “refuse to comply with orders.” 56. Deputies frequently use a pepperball gun in what they call a “cell extraction,” which is usually carried out by the jail’s Corrections Emergency Response Team (CERT) team. The CERT team is the jail’s heavily-armored, black-suited, face-helmeted equivalent of a police riot squad or SWAT team. A cell extraction might be carried out when deputies have already determined that a prisoner will be strapped into the restraint chair. The prisoner is ordered to kneel on the floor and place his hands behind his head or put his hands through the food slot to be handcuffed. Deputies often issue such orders in an aggressive and hostile manner instead of trying seriously to talk the prisoner down and defuse the situation. When the already-agitated prisoner does not comply, then the deputies often open fire with pepperballs. 57. When deputies carry out such a cell extraction, they clearly have time to contact the medical staff in advance a) to determine whether the prisoner has asthma or another medical condition for which PAVA is especially risky or contraindicated; and b) to ensure that medical staff are present and prepared to provide immediate medical attention and decontaminate the
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prisoner as soon as possible. At the Garfield County Jail, however, deputies do not carry out such pre-screening, nor do they advise medical staff in advance.
58. The manufacturer of the pepperball gun instructs that, instead of shooting directly at a prisoner’s body, officers should first aim at a wall, floor, or other hard surface, which will cause the pellets to break and release the PAVA dust. The manufacturer instructs that pepperball pellets should be aimed at a prisoner’s body only if shooting at a wall or floor fails to achieve the desired result.
59. Despite the manufacturer’s instruction, however, it is standard practice for Garfield County Jail deputies to aim the pepperball gun, as a first resort, directly at a prisoner’s body. Deputies do this even when shooting the pepperball gun at very close range into prisoners’ tiny cells. Even if shooting a pepperball gun into a prisoner’s cell were arguably justified, shooting directly at the prisoner’s body as a first resort represents a wanton, malicious, and unnecessary infliction of pain. A prisoner’s tiny cell is quickly saturated with pepper dust when the pepperball gun is aimed at any hard surface. Deputies can easily achieve the same results, with less pain, physical harm, and less danger to prisoners’ health and safety, by shooting pellets at hard cell surfaces rather directly at prisoners’ bodies.
60. The manufacturer instructs that if officers determine that they must aim the pepperball gun directly at a person’s body, it should not be aimed at the head, face, neck, or groin area. The manufacturer warns that direct hits in those areas can cause serious injury or even death.
61. Nevertheless, deputies have indeed aimed the pepperball gun at these vulnerable portions of prisoners’ bodies. Indeed, one prisoner was injured earlier in 2006 when a deputy fired a pepperball gun at point-blank range and hit the prisoner in the testicles. Prisoners also
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report that deputies have frequently threatened to shoot them in the head with the pepperball gun. These threats are made silently but effectively when deputies train the laser sight of the pepperball gun directly at prisoners’ foreheads. Pointing the laser sight of the pepperball gun at a prisoner’s face poses a serious risk of damage if the laser beam goes into the prisoner’s eyes.
62. The manufacturer states that four to ten rounds should be fired, and then the situation “should be evaluated for compliance.” If the first shots don’t work, then four to ten rounds can be fired once again. If two attempts do not achieve the compliance the deputies seek, the manufacturer states that the pepperball gun should be abandoned and another tactic should be employed. Deputies at the Garfield County Jail commonly violate these recommendations.
63. The manufacturer instructs that after use of the pepperball gun, a prisoner should be promptly decontaminated to remove the PAVA chemical.
64. Nevertheless, deputies commonly delay the opportunity for decontamination until long after whatever situation that prompted the use of force, whether justified or not, has clearly been brought under control. Indeed, prisoners subjected to the pepperball gun are commonly forced, unnecessarily and unjustifiably, to lay in the PAVA dust in their cells long after they have ended whatever behavior prompted the initial resort to the pepperball gun and long after they have become compliant with deputies’ orders.
65. Incident reports written by deputies commonly show that members of the CERT team will saturate a prisoner’s cell with pepperballs; will then close the food chute to prevent the PAVA dust from escaping; and will then leave the cellblock area for an unspecified period of time to “suit up” before returning to the cell. Deputies have done this even after their own reports acknowledge that the prisoner has already become compliant with deputies’ orders.
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66. By leaving the prisoner alone and unobserved in such circumstances, in a cell saturated with PAVA dust, the deputies create an unjustifiable risk of harm to the prisoner’s health and safety. In addition, they unnecessarily and unjustifiably prolong and intensify the prisoner’s pain and unjustifiably delay the time when the prisoner can be decontaminated. Indeed, instead of alerting the medical staff as soon as they have shot a prisoner with pepperballs, deputies refrain from alerting the medical staff until after they have removed the prisoner from the cell, thus delaying medical attention unnecessarily and unjustifiably.
67. In addition, even after deputies have removed a prisoner from a cell contaminated with PAVA, deputies commonly strap the prisoner into a restraint chair and force the prisoner to endure the PAVA dust on his face and clothing, without any opportunity to wash off the chemical and without any other opportunity for decontamination. When pepperballs have broken the skin, prisoners strapped in the restraint chair without decontamination are forced to endure the additional agony of the PAVA dust irritating their open wounds.
68. Deputies commonly use and threaten to use the pepperball gun in combination with the use and threatened use of other devices that present additional risks to prisoners’ health, safety, and constitutional rights, such as the restraint chair, pepper spray, and tasers.
D. Tasers 69. Tasers deliver a minimum 5-second 50,000-volt electric shock that causes excruciating and unbearable pain. Deputies are able to deliver more than 5 seconds of electricity simply by continuing to press the taser’s trigger. As long as the trigger is depressed, the prisoner continues to be shocked. 70. The manufacturer of tasers overstates the safety of the devices in its marketing and promotions to law enforcement agencies. In recent years, more than 150 in-custody deaths
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have been associated with law enforcement use of the taser. In a number of cases, medical examiners have listed the taser as the cause or a contributing cause of death. In additional cases, medical examiners have concluded that they could not rule out the possibility that the taser played a role in causing the death of the deceased.
71. When the United States responded to the UN Committee Against Torture last year, it defended electroshock weapons only when used “under limited and closely regulated conditions.” It also stated that in the correctional setting, medical pre-screening is required to ensure that electroshock weapons are not used against prisoners with certain medical conditions.
72. At the Garfield County Jail, however, neither tasers nor electroshock belts are used “under limited and closely regulated conditions.” The Defendants have no written policy to guide detention deputies regarding the appropriate or inappropriate use of the taser or any other electroshock device.
73. The Defendants’ failure to adopt a written policy regulating the use of tasers violates the standards of law enforcement and corrections professionals, who recognize that strict regulation is necessary to curb the risk of harm they pose to prisoners’ health, safety and constitutional rights.
74. The International Association of Chiefs of Police, which refers to electroshock weapons such as tasers and electroshock belts as Electro-Muscular Disruption Technology (EMDT), strongly recommends that law enforcement agencies develop policies “that clearly describe the circumstances when EMDT may be used. . . . Policies should also be explicit as to when its use is inappropriate.”
75. After conducting extensive research, the Police Executive Research Forum has issued a 52-point list of policy and training guidelines strongly recommending that law
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enforcement agencies strictly regulate the use of electroshock weapons such as tasers. They recommend that tasers be used only against persons who are “actively resisting or exhibiting active aggression, or to prevent individuals from harming themselves or others.”
76. When the National Institute of Corrections (NIC) evaluated the Garfield County Jail in 2005, it noted that all detention deputies carry tasers. The NIC noted that providing such high-level weapons to all deputies is very unusual. In most detention facilities, only a small specially-trained team that is trained and equipped for riot-like situations are permitted to deploy tasers.
77. Deputies at the Garfield County Jail regularly use and threaten to use tasers on prisoners in a manner that: 1) is not constrained by written policies designed to curb potential abuses; 2) departs from the standard correctional practices regarding use of force and electroshock weapons; 3) poses substantial and unjustifiable risks to prisoners’ health, safety, physical integrity, and even their lives; and 4) violates prisoners’ constitutional rights.
78. Deputies in the jail regularly threaten the use of tasers in cases of minor noncompliance or passive failure to obey a deputy’s order. Deputies have threatened prisoners with the taser simply for banging on the cell door to attract deputies’ attention. One former prisoner wrote that guards had covered the window of his cell so that he could not see outside. He banged on the door attempting to attract the deputies’ attention because he was in excruciating pain and needed medical attention. The former prisoner reports that deputies opened the food tray slot, pointed a taser at him and said “We’re not fucking with you. You will shut the fuck up and quit kicking the door or we will tase you.”
79. Deputies have shocked prisoners with tasers in situations where such a substantial use of force was unjustified and violated prisoners’ constitutional rights. Nevertheless, the
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deputies’ use of tasers was carried out pursuant to the Defendants’ informal policy and was ratified and approved by the Defendants.
E. Electroshock belt 80. The electroshock belt, also known as the Nova belt, is strapped around the prisoner’s waist. When activated by a remote-control switch held by a deputy, the belt delivers an 8-second 50,000-volt charge through electrodes placed near the prisoner’s kidneys. Several years ago, one court described the electroshock belt as follows: Once the belt is activated, the electro-shock cannot be shortened. It causes incapacitation in the first few seconds and severe pain during the entire period. Activation may lead to involuntary defecation and urination; immobilization may cause the victim to fall to the ground. The court noted that the belt can cause muscular weakness for up to 45 minutes and that it had been suspected in one case of a fatal cardiac arrhythmia. 81. Although the belt is designed to be activated only when a deputy deliberately presses the remote control, accidental activations have occurred in other detention facilities. 82. Deputies frequently force prisoners to wear an electroshock belt as they walk the short distance to and from hearings in the adjoining courthouse. Deputies force prisoners to wear the electroshock belt without making any individualized determination that a particular prisoner is likely to assault courtroom personnel or attempt to escape. 83. Deputies also make the decision to force prisoners to wear the electroshock belt during court hearings. On information and belief, no judge presiding in any courtroom in Garfield County has ordered that any prisoners wear the electroshock belt. 84. Defendants have not adopted any written policy governing the use of the electroshock belt. There are no written criteria to guide deputies about when or whether a prisoner will be required to wear the electroshock belt. Deputies do not consult with medical
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staff to determine whether particular prisoners have medical conditions for which the electroshock belt is contraindicated or particularly dangerous.
85. Deputies at the Garfield County Jail frequently require prisoners to sign a “notification” form. This document states that that prisoner “is being required to wear a remote activated electronic security belt system as a security precaution.”
86. The form states that deputies will activate the belt “if you do not comply with the instructions of the officers.” Prisoners describe being terrified at the prospect of receiving an eight-second 50,000-volt electric shock if they are perceived to be failing to follow deputies’ orders. One prisoner explained, “If you step to the left when you’re supposed to go to the right, you could go down.”
87. The form states that the prisoner may be shocked for: ANY OUTBURST OR QUICK MOVEMENT ANY PERCEIVED HOLSTILE [sic] MOVEMENT ANT ATTEMPT TO TAMPER WITH THE BELT FAILURE TO COMPLY WITH VERBAL COMMANDS BY THE OFFICER ANY OVER [sic] ACT AGAINST ANY PERSON 88. Deputies claim the authority to shock a prisoner for behavior or perceived behavior that does not even come close to posing an imminent threat of assault or attempted escape. There is a substantial risk that prisoners will be shocked unjustifiably if deputies perceive a statement made in court to be an “outburst.” Prisoners with mental health problems face an especially high risk that their innocent actions may be perceived by deputies, erroneously, as an “outburst” warranting a shock. 89. Wearing the electroshock belt is a nerve-wracking and terrifying experience not only while prisoners are on their way to court but in the courtroom itself. One prisoner described it like this:
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They [the deputies] hold the remote up and point it at you while you are talking and they smile. You’re scared the whole time…You gotta stand up in front of the judge with a sober face, but in the back of your mind you’re thinking I could be going down. 90. Another prisoner, who estimates that he has been forced to wear the electroshock belt over a dozen times, states: One time I was in the preliminary hearing, I made a movement to get my papers, and the deputy whipped out the remote and looked at me. When I was talking to the judge or my attorney I was frightened because I didn’t know what they were going to do with that belt. 91. Another prisoner states: The deputies say, “You better be good while you are in court or you are in for 8 seconds of pain.” . . . The deputy keeps looking over at you in court and its hard to even think. 92. Deputies actively promote fear and panic by taunting prisoners about use or potential use of the electroshock belt and playing “mind games” to inflict mental torture. Several prisoners have stated that one deputy has intentionally dropped the stun belt’s remote control and then acted as though it were an accident. After picking up the remote control again, the deputy looked at the prisoners and laughed. Another deputy joked to a prisoner that “That shock belt has been having some problems, its been going off on its own.” Another prisoner described a deputy who warned that with any misstep, the prisoner would “take the 8 second ride; its much tougher than a bull.” 93. In early 2006, a prisoner filed a grievance about being forced to wear the electroshock belt to court. He wrote: “Please take the Nova belt off me when I go to court. I’m at your Mercy, ‘Please.’” The jail’s written response was that all prisoners classified as “supermax” are required to wear the electroshock belt. 94. The same prisoner filed another grievance the following month, pleading once again that the jail not force him to wear the electroshock belt. “I most likely will be having to
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GET ON THE STAND. Please stop putting that Nova Belt on me. I’ve been very GOOD.” The jail responded as follows: “you are still on super max and you will have the belt on when you go to court.”
95. Prisoners can be classified as “supermax” for reasons that have no connection to any supposed risk of escape or assaulting courtroom personnel. According to the Inmate Handbook, prisoners are subject to reclassification for violations such as failing to shower at least once a day; having unauthorized amounts of items from the prison commissary; sitting on the tables in the common area; putting their feet or legs on furniture. Prisoners are regularly disciplined for such infractions as being caught with a newspaper in their cell; giving a cookie or bag of potato chips to another prisoner; or being caught with a pencil. Repeated disciplinary violations of any kind can be grounds for moving a prisoner to supermax. The Inmate Handbook emphasizes that the jail has discretion to classify or reclassify any prisoner at any time.
F. Threats and use of disproportionate force and punitive use of restraints against the named Plaintiffs 1. Defendants increase prisoners’ tension and frustrations and escalate potential conflicts
96. The named Plaintiffs have been subjected to the use and threatened use disproportionate force through the practices described above. The application of those practices to the Plaintiffs takes place in the context of additional practices of the Defendants that increase prisoners’ tension and increase the potential for conflict with deputies, thus increasing substantially the risk and frequency of deputies resorting to the threatened and actual use of disproportionate force that is challenged in this Complaint.
a. Extreme restrictions and deprivations
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97. Prisoners in any detention facility endure a variety of deprivations that pose the potential for frustration, tension, and conflict. In the Garfield County Jail, however, the Defendants have chosen to ensure that those deprivations are especially harsh, increasing the potential for tension and conflict. That potential is aggravated by policies that increase rather than reduce tension, escalating conflicts rather than defusing them.
98. Prisoners in the jail’s general population spend the overwhelming majority of their time locked in bare and minimally-furnished cells. They have a sink and toilet but no shower. Prisoners cannot read newspapers or magazines in their cells. The only reading material permitted is three books and religious material. Unlike prisoners in the Department of Corrections, they cannot purchase televisions for their cells, nor radios, nor CD or tape players. They cannot tape a photograph of their loved ones on the wall, and face-to-face visits with family members are forbidden. They are locked in their cells for a minimum of 21 hours and 18 hours on alternating days. When they are not on lockdown, prisoners in the general population can enter a common area ( the “daypod”) to shower, use the telephone, watch TV, read the newspaper, or exercise. Prisoners moved to “maximum” status are locked down for 21 hours each day.
99. Prisoners classified as “supermax” are subjected to the most onerous and isolating deprivations. Deputies cover their cell windows. Supermax prisoner cannot see into the common area and they are forbidden to speak with any other prisoners through the vents or through their cell doors. They are allowed into the common area for only 15 minutes each day, alone. Any showers, personal phone calls, phone calls to attorneys, law library research, or catching up on the newspaper or TV news must be done during this 15 minutes. In addition, the deputies maintain that all “supermax” prisoners must wear an electroshock belt when they go to
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court. Prisoners are subject to being moved to max or supermax status at any time, whether for alleged minor disciplinary infractions or at the discretion of the deputies.
b. Arbitrary and harsh disciplinary measures 100. In the Garfield County Jail, deputies further escalate tension and conflict by presiding over a regime of arbitrary, inconsistent, unpredictable and harsh disciplinary sanctions. One prisoner spent 8 days in 24-hour lockdown for allegedly passing a piece of toast to another prisoner. Deputies regularly move prisoners to “maximum” or “supermax” status – sometimes for months at a time -- as punishment for alleged minor infractions, without providing prisoners an opportunity to rebut the accusations against them. Lesser sanctions also create tension when a prisoner believes that a deputy has responded to a minor infraction by summarily declaring that the prisoner has lost his already-minimal out-of-cell time; his phone privileges; and/or his time in the law library. Deputies who dislike particular prisoners have the power to abuse their authority with impunity by summarily imposing harsh and unfair punishments that prisoners cannot challenge and that are not effectively reviewed by supervising officers. 101. For alleged minor disciplinary infractions, deputies often summarily terminate regular meals and impose as punishment a diet of “nutraloaf.” Nutraloaf is an intentionally tasteless concoction that purportedly contains all essential nutrients but leaves prisoners constipated. As explained in more detail below, in February, 2006, an angry deputy summarily punished the entire general population pod for complaining about their small food portions by announcing they would all be restricted to nutraloaf.
c. Absence of meaningful grievance procedure 102. Ordinarily, administrators in a well-managed detention facility defuse some of the tensions of prison life by maintaining a grievance system that makes prisoners feel that they have
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a meaningful opportunity for their legitimate complaints to be, at a minimum, at least heard and considered.
103. As this Complaint explains in more detail below, prisoners at the Garfield County Jail do not believe that they have any meaningful opportunity for their grievances to be heard or considered. The procedure published in the Inmate Handbook is not followed in practice, providing another source of tension and frustration for prisoners.
d. Failure to defuse potential conflict situations 104. It is the custom, policy, and standard operating practice of Garfield County Jail deputies to respond to breaches of jail discipline –even minor infractions and minor disruptions-with threatened and actual use of disproportionate and excessive force. 105. Deputies routinely resort to threats and use of disproportionate force when they believe prisoners may fail to comply with a deputy’s order, including the most minor cases of passive noncompliance where prisoners are not posing any threat to persons or property. 106. It is standard practice among corrections professionals to attempt to defuse and de-escalate potential conflict situations by talking prisoners down when they are agitated and on the verge of resistance. Instead, deputies in the Garfield County Jail often taunt prisoners in a manner calculated to escalate conflict, tension, and hostilities. 107. In many cases, the prisoners who are the targets of such taunting and the targets of threatened and actual disproportionate force are prisoners with serious mental health problems that the jail has neglected or addressed inadequately. Deputies often respond inappropriately to such prisoners in a manner that escalates conflicts and increases the likelihood of threats and use of excessive force. Deputies often choose to interpret behaviors that are symptoms of the prisoners’ mental health problems as though the prisoners were deliberately defiant and
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disobedient. Deputies often respond with harsh disciplinary measures to behaviors that are manifestations of prisoners’ medical, mental health and/or psychiatric problems.
108. Deputies compound the problem by taunting prisoners and egging them on, and by threatening the use of excessive and disproportionate force through the frequent display and abusive use of such devices as tasers, the pepperball gun, pepper spray, and the abusive and overly-frequent use of the restraint chair.
109. For example, one former prisoner with serious mental health needs described an incident that began when the nurse did not give him his psychiatric medications. He requested them over the intercom that allows him to communicate from his cell to deputies in the jail’s control room. The deputies responded by ridiculing him for needing what they called “psychopills,” and they contemptuously dismissed the prisoner by stating “you are a joke.” When the prisoner kept asking for his medication, the deputies turned off the intercom. When the prisoner began banging on his cell door to get the deputies’ attention, the situation escalated. The jail’s CERT team responded in force. Eventually deputies shot multiple pepperballs at the prisoner and then strapped him into a restraint chair. Reflecting on the situation later, the prisoner stated “with these psychotropics I take, they [the deputies] knew it, they should have been more professional, they should have talked me down.”
110. Deputies’ reports sometimes state that they provided a verbal warning and opportunity to comply before resorting to overwhelming physical force. But those warnings are routinely delivered in the form of aggressive ultimatums. They do not function as a reasonable or serious effort to calm a prisoner’s agitation, defuse the situation, or otherwise avoid the use of force.
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111. The practices described above, in combination with the supervisory acts and omissions and use-of-force practices challenged in this Complaint, increase substantially the risk and frequency that deputies will wind up resorting to the threatened and actual use of force that has violated Plaintiffs’ rights in the past and threatens to continue doing so in the future.
2. Plaintiff Clarence Vandehey a. The jail’s failure to provide requested mental health care
112. Clarence Vandehey arrived at the Garfield County Jail in September, 2005, where he remained until mid-December, 2005, when his charges were resolved and he was released. The next day, Mr. Vandehey was arrested and brought to the jail once again. He was not charged for any alleged misconduct during his 30 hours of freedom. Instead, the allegation is based on an incident that allegedly took place in the jail in November, 2005. He remains in the Defendants’ custody while that charge is pending.
113. Mr. Vandehey has had serious mental health problems since he was a child. One manifestation of his mental health problems is a low tolerance for frustration and a low threshold for anger that can erupt in episodes where he loses control and lacks judgment about what he is doing.
114. These childhood mental health problems ended his schooling after sixth grade. He spent most of seventh grade in the counselor’s office, and he was eventually expelled from school that year. The same mental health problems have interfered with his ability to maintain steady employment, and he has spent much of his adult life homeless and unemployed.
115. Mr. Vandehey recognizes his mental health problems, and he also acknowledges that it is easy for his interaction with jail authorities to wind up “pushing his buttons.”
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116. The policies and practices of the Garfield County Jail substantially increase the risk that Mr. Vandehey’s interaction with jail staff will result in “pushing his buttons.” These practices include the jail’s refusal to provide mental health care to indigent prisoners unless they are hallucinating or suicidal; the practices described in paragraphs 96-111 of this Complaint; and the deputies’ frequent use and threatened use of excessive force that amounts to summary corporal punishment, including but not limited to the punitive use of the restraint chair, and the use and threatened us of pepperball guns, pepper spray, tasers, and the electroshock belt.
117. Soon after he arrived at the jail, Mr. Vandehey filed a kite asking to speak with a mental health professional. He indicated that he had had mental health problems his entire life. The jail refused. The nurse’s response stated that “Mental Health consults costs $90 which you do not have @ this time.”
118. In most cases, prisoners without sufficient money in their accounts for medical co-pays or other medical charges are not denied care; the jail simply carries a negative balance on the prisoner’s account. As a matter of policy, however, the Defendants restrict the ability of indigent prisoners to receive mental health care.
119. On information and belief, neither the jail’s nurses nor the jail’s on-call physician are specially trained in psychiatry. Nevertheless, pursuant to the Defendants’ policies, the medical staff are the gatekeepers who determine whether a prisoner’s mental health problems are sufficiently serious to warrant referring an indigent prisoner to a psychiatrist or other mental health professionals.
120. Mr. Vandehey’s criminal defense attorney telephoned the jail. She stated that her client had recently received an evaluation from an outside mental health professional that indicated a need for mental health care. She requested that that jail provide her client with access
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to that mental health assistance. According to a notation in Mr. Vandehey’s medical file, the attorney was told that the jail does not provide mental health services; it provides only crisis intervention. The jail’s medical staff said that Mr. Vandehey could not see a mental health professional because he was not in a crisis where he was hallucinating or suicidal. The jail’s medical staff inappropriately dismissed Mr. Vandehey’s mental health problems as a simple issue of “anger control.”
121. Relying on the evaluation he received from an outside mental health professional, Mr. Vandehey submitted yet another request for assistance. He explained that his condition is “savierly [sic] efecting [sic] my life. I am a danger to myself and others around me because my depression and paranoia. I can hear people think leads to uncontrollable explosive anger.” The kite stated that he had had the problem his entire life and had previously received treatment at a mental health facility in Oregon.
122. Mr. Vandehey has never succeeded in obtaining a meeting or an evaluation with any of the jail’s mental health providers. In a letter to ACLU attorneys, Mr. Vandehey wrote:
“I a prisoner with only a 6th grade edgucation [sic] am forced to seek out books and try to provide treatment for my self [sic]. I am so overwhelmed.”
b. Disproportionate force and restraints 123. During the course of Mr. Vandehey’s time in the Garfield County jail, he has been the subject of numerous incident reports written by Garfield County deputies. He has been strapped into the restraint chair 7 different times. On several occasions, deputies unjustifiably and unnecessarily strapped Mr. Vandehey in a particularly painful position. He has been shot with the pepperball gun on two occasions before being strapped into the restraint chair. In both cases, he was provided no opportunity to decontaminate until after he was released from the
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restraint chair. Deputies have taunted Mr. Vandehey and threatened him with the use of tasers, pepper spray, and additional shots from the pepperball gun, in some cases while he was already immobilized in the restraint chair. He has been forced to wear the electroshock belt many times.
124. Mr. Vandehey has been strapped into the restraint chair as a punitive measure rather than as a means to prevent harm. He has been confined in the restraint chair when such a drastic measure was not necessary to protect himself or others and when deputies did not bother attempting less drastic means of restraint. Deputies have taunted him while he was restrained, and he has sustained physical injuries. Even in cases in which a deputy’s report presents facts attempting to show that the initial restraint was justified, deputies have forced Mr. Vandehey remain in the restraint chair long after any such justification or necessity had passed. He has been placed in the restraint chair without appropriate medical involvement and monitoring and without periodic 15-minute checks.
125. Incident reports regarding the restraint of Mr. Vandehey contain obvious red flags that demonstrate the risk or the fact that restraints are being used improperly and in a manner that poses a substantial risk of harm to prisoners’ health and safety and constitutional rights. Of the seven times Mr. Vandehey has been in the restraint chair, the deputies’ reports on four occasions fail to reveal how long Mr. Vandehey was restrained, though in one case it was clearly more than six and one-half hours. The reports acknowledge restraining Mr. Vandehey with his hands handcuffed behind his back and sometimes report his regular complaints of extreme pain. The reports fail to document regular checks by either medical or security staff and fail to document appropriate medical involvement. They fail to provide facts documenting that restraints was justified at its inception and only for as long as necessary to prevent imminent physicial harm to persons or to prevent imminent substantial harm to property. When Mr. Vandehey was shot with
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pepperballs before being strapped into the restraint chair, the reports confirm that deputies unjustifiably delayed any opportunity for decontamination.
126. In one case, deputies said they decided to take Mr. Vandehey out of his cell and strap him into the restraint chair “for his own safety.” A deputy’s report states that Mr. Vandehey was ordered him to lie face down, and when he allegedly did not do so, the deputies opened fire with the pepperball gun. The report states “After multiple rounds, Inmate Vandehey stated, ‘I give up’ and layed [sic] face down on the floor.” A second deputy’s report notes Mr. Vandehey’s compliance with the order to lay down and also states that additional rounds were fired at that time to “saturate” the cell with pepper dust.
127. Instead of taking Mr. Vandehey out of the cell at that time, however, the second deputy reports that the deputies left the scene and “went to the CERT room to dress out in our CERT gear.” The report of the first deputy indicates that the deputies waited an additional 12 minutes before returning to get Mr. Vandehey out of the PAVA-filled cell and into a restraint chair. During this time, Mr. Vandehey’s skin was burning, his eyes were watering, and his lungs were burning. He was in intense pain. The deputies’ reports do not indicate that the medical staff was called until after Mr. Vandehey was put into the restraint chair. Nor do the deputies’ reports indicate how long Mr. Vandehey was forced to spend in the restraint chair while covered with pepper dust. The nurse’s notes show that Mr. Vandehey’s wrist was bleeding; that he had 11 abrasions the size of half dollars that were described as “very red, skin broken,” as well as a “large red area” on Mr. Vandehey’s abdomen. The nurse also noted that there were additional wounds on Mr. Vandehey’s extremities that needed assessment but that such assessment would have to wait until he was released from the restraint chair.
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128. On another occasion, Mr. Vandehey spent most 5 hours in the restraint chair as punishment for disobeying a deputy’s order to stop banging on the cell door.
129. On another occasion, deputies strapped Mr. Vandehey into the chair with his hands handcuffed behind his back. They wheeled him into his cell, with the back of the chair against his cell door, and they attached the handcuffs to the outside handle of the cell door with additional restraints strung through the hole in the back of the chair and through the food chute of the cell door.
130. While Mr. Vandehey was fully restrained in this extremely painful position, a deputy placed a Taser against his shoulder and told him to “stop moving.” The deputy said that he had tasered prisoners in the restraint chair in the past and he indicated he was prepared to do so again.
131. Mr. Vandehey cried out multiple times that the restraints were extremely painful, were too tight, and were making his hands turn cold. He had welts on his shoulders after the several-hour ordeal. None of the deputies’ incident reports reveal how long Mr. Vandehey was immobilized in the restraint chair.
132. Mr. Vandehey filed a grievance several days later describing this incident: “On the 21st of this month I was placed in the restraint chair shackled to the restraint chair, double cuffed in such a matter that my shoulders where [sic] in so much pain my bodie [sic] was shaking and curving out. Also my hands where [sic] cuffed so tight that they where [sic] ice cold and I could not bend my fingers. Wy [sic] is it that I need so much more restraints that the 7 the chair has?”
133. The next day, Mr. Vandehey was subjected to both the pepperball gun and the restraint chair. The jail’s CERT team came to Mr. Vandehey’s cell and ordered him to kneel down and put his hands behind his head. Mr. Vandehey was complying and on his way to the ground when the deputies opened fire and shot him with pepperballs. A grievance filed the next
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day states “I was on my knees with my hands on my head when I was shot with the high powered air rifle…What order was I given that I did not comply with that justafies [sic] being shot?”
134. After Mr. Vandehey was shot had complied with new orders to lie on the floor, the incident reports state that the deputies closed the cell’s food chute door to “allow time for the chemical agents to take effect.” One report documents that Mr. Vandehey was forced to lie in the PAVA dust in his cell for 14 minutes before deputies returned. When they returned, they took Mr. Vandehey directly to the restraint chair, strapped him in with his hands still handcuffed behind his back, and did not provide any opportunity for decontamination. The deputy’s report confirms that Mr. Vandehey spent an additional one and one-half hours in this painful position in the restraint chair before he was finally allowed a shower to decontaminate.
3. Plaintiff William Langley a. The jail’s failure to provide requested mental health care
135. Plaintiff William Langley has suffered from serious mental health problems since he was a child. Upon his arrival to the Garfield County Jail in October of 2005, medical staff noted that he had a long history of a serious bipolar disorder and had previously been prescribed a series of psychotropic medications. They also noted that Mr. Langley had asthma.
136. From the beginning of his stay in the Garfield County Jail, Mr. Langley has repeatedly but unsuccessfully pleaded for an appointment with a psychiatrist who could evaluate his psychiatric disorders and stabilize him on his psychiatric medications.
137. Mr. Langley has filed at least ten grievances and medical kites requesting to see a psychiatrist. For example, one grievance stated “I have had an extensive history with pychiatric [sic] care. I am by polar [sic] manic depressent [sic] with sychaphrenia [sic]. I took multiple
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meds for this over the years and have seen many therapists. I need one now please before I get worse.”
138. The jail responded that any appointment with a psychiatrist would cost $90 per hour. Mr. Langley had no money, and because the jail refused to debit his inmate account, he could not see a psychiatrist.
139. In additional grievances, Mr. Langley linked his mental health issues to his frequent disciplinary problems in the jail:
“I am bi-polar manic depressant w/ psychziphrania [sic] I need this Dr. I’m feeling like I’m about to come unwound. Please! I’m tired of getting in trouble. I’m begging don’t let this happen to me. Please.” 140. Mr. Langley wrote another kite complaining that Inmate Handbook “says I won’t be denied because I’m poor.” The jail responded that he couldn’t see a psychiatrist without a referral from “the facility doctor,” which Mr. Langley did not have and never received. 141. Mr. Langley persisted in filing additional grievances requesting access to psychiatric care. In response, the jail told Mr. Langley that the jail staff would “accept no more kites on this issue” and that “[a]ny more kites on this issue would be considered abuse of the KITE system.” The Inmate Handbook lists “abuse of the kite system” as a “major” disciplinary infraction. 142. The jail’s on-call physician authorized certain psychiatric medications for Mr. Langley, but the jail provided no monitoring by a psychiatrist or, on information and belief, any other medical professional with psychiatric training. Mr. Langley filed numerous grievances requesting changes in his psychiatric medications. 143. For months, jail authorities knew that Mr. Langley was complaining that the type and dosage of his psychiatric medication needed to be adjusted. For example, one grievance
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said, “I need to get this under control-PLEASE assign me morning meds;” “I have experienced headaches, irritability, frustration & anger;” “I am in constant emotional changes. I am snapping angrily at people. I am frustrated & edgy all the time.”
144. Mr. Langley has never been able to obtain psychiatric care while in the Garfield County Jail. The failure to attend effectively to Mr. Langley’s mental health problems has contributed to tension and conflict that has escalated on multiple occasions to disciplinary sanctions, including long sentences to a diet of “nutraloaf”; months-long “sentences” to supermax status; and the threats and use of force and punitive use of restraints challenged in this lawsuit.
b. Disproportionate force and restraints 145. Mr. Langley has been strapped into the restraint chair at least five times. He has been strapped into the restraint chair as a punitive measure rather than as a means to prevent imminent harm. He has been strapped into the restraint chair when such a drastic measure was not necessary to protect himself or others and when deputies did not bother to attempt less drastic means of restraint. Although in several cases the incident reports fail to reveal how long Mr. Langley was restrained, he has been forced to spend over four hours in the chair. Deputies have taunted him while he was restrained, and he has sustained physical injuries. Even in cases in which a deputy’s report presents facts attempting to show that the initial restraint was justified, Mr. Langley has been forced to remain in the restraint chair long after any such justification or necessity had passed. He has been placed in the restraint chair without appropriate medical involvement and monitoring and without periodic 15-minute checks. 146. Mr. Langley has also been threatened on numerous occasions with the use of unjustifiable and excessive force in the form of tasers, pepper spray, and the pepperball gun,
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which has been aimed directly at his head. He has been forced to wear the electroshock belt on multiple occasions.
147. On at least one occasion, Mr. Langley had an asthma attack while strapped in the chair. A nurse gave him some whiffs from an inhaler while deputies kept him strapped into the chair. Another time, when Mr. Langley needed to urinate, deputies refused to release him from the chair. Instead, they wheeled the restraint chair to a toilet. They undid all the straps except the ones binding Mr. Langley’s feet to the chair. Mr. Langley was then ordered to stand up and urinate while a deputy watched and while Mr. Langley was still physically bound to the restraint chair. Then the deputies strapped Mr. Langley back into the restraint chair.
3. Plaintiff Samuel Lincoln 148. Plaintiff Samuel Lincoln arrived at the Garfield County Jail as a pretrial detainee at the end of December, 2005. He immediately submitted a medical kite asking to speak with a “mental doctor.” Although Mr. Lincoln was never permitted to speak with a psychiatrist or other mental health professional, the jail’s records show that the on-call physician authorized giving Mr. Lincoln a powerful anti-psychotic drug, Thorazine, for paranoia and hallucinations. In mid-January, the dose of Thorazine was doubled. 149. Mr. Lincoln was in the custody of the Garfield County Sheriff continuously until the end of March, 2005. During that time, Mr. Lincoln was subjected to the policies and practices described in this Complaint. After his transfer to the Mesa County Jail, he has returned to the custody of the Garfield County Sheriff on several occasions for court appearances on his still-pending charges in Garfield County. During his return trips, he has once again been subject to the polices and practices of the Garfield County Sheriff’s Department.
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150. Mr. Lincoln has been subjected to the pepperball gun, the restraint chair, and has been forced to wear the jail’s electroshock belt. He has also been threatened with use of tasers and pepper spray.
151. On January 21, 2006, when housed in the cell next to Mr. Vandehey, Mr. Lincoln heard and saw part of the scene when the deputies strapped Mr. Vandehey painfully in the restraint chair with his hands handcuffed behind his back. Mr. Lincoln began to protest vociferously, yelling and pounding on the cell door to get the deputies’ attention. The jail deputies told Mr. Lincoln that if he did not shut up, they would use force on him. He declined to shut up, and deputies responded with the pepperball gun.
152. Mr. Lincoln tied a towel around his head to protect himself, and he hid behind a plastic chair to shield his face from the pepperball pellets. One deputy’s report said that 7 pepperball rounds were fired at the ceiling “to saturate the room.” The pepperball gun was passed to a second deputy who reportedly “had a better angle.” The second deputy then reported firing an additional 6 pepperball rounds at the floor just in front of Mr. Lincoln, “spraying the OC powder into Inmate Lincoln’s face.” A different deputy reported that the second barrage totaled 10 pepper pellets.
153. According to the reports, all of the deputies then left the area to obtain their CERT team equipment and “suit up” in their riot-squad gear and to “allow time for the chemical agents to take effect.” During this time, Mr. Lincoln was left unattended in a cell saturated with pepper dust. The jail’s records indicate that the deputies did not return until fourteen minutes later. At that time, Mr. Lincoln was unresponsive and close to passing out. One report states that Mr. Lincoln was lying on his back. The deputies ordered Mr. Lincoln to turn over and lie face down
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in the pepper dust. When Mr. Lincoln did not immediately move to comply, the deputies reportedly fired the pepperball gun again, launching “2-3 rounds into the wall beside him.”
154. Mr. Lincoln rolled over, as ordered, and the deputies came into the cell and applied handcuffs and leg shackles. Mr. Lincoln remembers that at one point, the officer in charge told the deputies to wait and “make him lay in it” before taking Mr. Lincoln out of the cell.
155. When Mr. Lincoln was finally removed from his cell, handcuffed behind his back and legs shackled, the deputies reported that he was “very limp and unresponsive.” Deputies reported that he “was having difficulty breathing.” One report states that Mr. Lincoln finally “took a big gasp of air and asked ‘what is going on? Who are you guys?”
156. Instead of calling the medical staff at the time they first fired the pepperballs, the deputies waited until they had removed Mr. Lincoln from his cell. The nurse did not arrive until 22 minutes after the first pepperballs were fired, and the equipment to check Mr. Lincoln’s vital signs did not arrive for an additional five minutes. When the nurse finally arrived, she noted that Mr. Lincoln’s physical distress was the result of “suffering from the pepper ball chemicals.”
157. In early March, 2006, deputies accused Mr. Lincoln of stuffing up his toilet and flushing it repeatedly to cause water to flood onto the floor. Although Mr. Lincoln denies the accusation, deputies strapped Mr. Lincoln into the restraint chair as punishment. They did so in a particularly painful manner, handcuffing Mr. Lincoln’s hands behind his back instead of strapping them to the chair’s arm rests. The incident reports clearly show the deputies’ punitive intent. One states that Mr. Lincoln was strapped into the chair “because he had flooded his cell.” Another states that “it was determined that Inmate Lincoln would be placed in the restraint chair
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for his actions.” It was not until several hours later that deputies finally responded to Mr. Lincoln’s complaints of pain by uncuffing his hands and strapping them to the chair’s arm rests.
158. When Mr. Lincoln was finally released from the restraint chair after three and one-half hours, a deputy allowed Mr. Lincoln to return to his cell but refused to return his mattress, sheets, or blankets. Mr. Lincoln pointed out that the Inmate Handbook states that bedding can never be taken from a prisoner as a disciplinary measure. The deputy responded that he “didn’t give a shit” what it says in the Inmate Handbook.
159. On June 15, 2006, Mr. Lincoln returned to the jail for a preliminary hearing that was scheduled for the following day in his pending case in Garfield County. He was immediately assigned to supermax status and taken to the maximum-security pod on the third floor of the jail. After he violated “supermax” rules by exchanging communications with other prisoners who informed him how he could obtain an interview with ACLU attorneys who were present at the jail that day, Mr. Lincoln was moved to an isolation cell on a different floor.
4. Plaintiff Jared Hogue 160. In February, 2006, Plaintiff Jared Hogue and other prisoners in the jail’s general population section became the target of a massive use of excessive and disproportionate force, including spraying prisoners with pepper spray, shooting them with multiple rounds from pepperball guns, and discharging tasers. None of the prisoners had posed any threat of violence or physical resistance. 161. The incident began when prisoners’ complaints about overly-small portions of food prompted them to make a statement. They did not believe that the jail’s grievance procedure provided any meaningful opportunity to be heard. Instead, on February 19, nearly all
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the prisoners in the general population section of the jail declined to come out of their cells for breakfast.
162. A deputy with the rank of corporal eventually brought the prisoners out of their cells to discuss the situation. The prisoners explained some of their concerns, and the corporal said she could not do anything about them. She stated that if the prisoners wanted to discuss it further, the would have to speak with the sergeant. She said “if you can be good, you can wait for him to get here.”
163. Suddenly, the corporal changed her mind. She ordered “total lockdown” and declared “nutraloaf permanently” for the entire general population of the jail.
164. Not all the prisoners moved immediately to their cells, and the jail’s CERT team then burst into the pod wielding pepperball guns, tasers, and pepper spray. The deputies began issuing conflicting orders, such as “don’t move!” and “lock down!” and “get on the floor, now!” One deputy threatened that any prisoner who moved would be tased, while other deputies ordered prisoners to lay on the floor or to go to their cells. The prisoners could not comply with the conflicting orders.
165. Deputies approached one prisoner and yelled at him alternately “not to move” and to “get on the floor.” When the prisoner stayed motionless, not knowing which order to obey, a deputy unleashed a long burst of pepper spray into the prisoner’s face.
166. A prisoner seated at a daypod table saw the laser beam of a pepperball gun pointed at the table. He put his face down on the table and tried to cover his head. Without giving the prisoner a clear order or attempting to escort him to his cell, deputies immediately resorted to overwhelming force. One deputy discharged OC spray on the prisoner’s arms and head from a distance of only a few inches (after attempting unsuccessfully to reach under the
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prisoner’s arms and spray him directly in the face). Another deputy opened fire with the pepperball gun, shooting at least 14 direct hits, while the first deputy sprayed the prisoner again with the OC spray until it appeared that deputy’s canister was empty.
167. Another prisoner had begun walking to his cell to comply with the order to lock down when the CERT team burst into the pod. When the CERT deputies ordered prisoners to hit the floor, he did so, and he was lying on his stomach half-in and half-out of his cell. Deputies grabbed the prisoner’s legs and began dragging him out of his cell as he laid face-down on the floor. Although he was not resisting and was not posing any threat, deputies discharged a taser into the prisoner’s back. As Mr. Hogue wrote in a grievance he filed, the prisoner “was pulled from his cell…on his belly and tazed for no reason.”
168. Although Mr. Hogue and other prisoners were exposed to PAVA dust and pepper spray, they were locked down and denied showers for several days. In response to grievances Mr. Hogue filed over the deputies’ disproportionate response, Mr. Hogue was told that the deputies’ use and threatened use of force was justified. Mr. Hogue was told that all prisoners on the general population pod had failed to comply with orders.
169. Mr. Hogue has been forced to wear the electroshock belt to court, and he is at risk of being forced to wear it again in the future.
G. Supervisory Liability 170. All of the foregoing acts and omissions of Garfield County Jail deputies were carried out pursuant to the informal policies, customs, and practices of the Defendants and the Garfield County Sheriff’s Department. In the alternative and in combination, Defendants have been and remain deliberately indifferent to the risk that their deputies will violates prisoners’ constitutional rights.
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1. Absence of written policies 171. The potential abuse of restraints chairs, electroshock devices, and pepperball guns poses a serious and obvious risk to prisoners’ health and safety and a risk that their constitutional rights will be violated. Law enforcement authorities typically attempt to address the potential risks of such devices by drafting written policies designed to mitigate the potential for abuse and mitigate the potential risk to health and safety. 172. In this case, however, Defendants have failed to adopt written policies to regulate the detention deputies’ use of force on prisoners. 173. On June 14-16, attorneys for the Plaintiffs reviewed various jail documents at the Defendants’ office. They reviewed what the Defendants represented to be the complete policy and procedure manual for the Detention Division of the Garfield County Jail. 174. At that time, the Defendants had no written policy for the Detention Division regarding the continuum of permissible force that deputies can use on prisoners. In addition, they had no written policy for the Detention Division that regulates the use of the restraint chair; the use of the pepperball gun; the use of the electroshock belt, or the use of tasers. 175. The absence of written policies represents a deliberate and conscious choice on the part of the Defendants. 176. Defendant Vallario was elected Sheriff in November, 2002, and took office in January, 2003. Before formally taking office, Defendant Vallario notified the civilian jail administrator and the highest-ranking deputy in charge of the detention division that they would no longer be employed at the jail. The two discharged employees together had a total of 35 years experience in jail administration.
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177. Defendant Vallario appointed an undersheriff and assigned him the task of administering the jail. One day after beginning work in January, 2003, the new undersheriff resigned. Subsequently, Defendant Vallario promoted Defendant Dawson from his former rank of sergeant to his current position as Commander and administrator of the jail. Dawson had little or no experience in jail administration.
178. Until Sheriff Vallario took office, the Detention Division was regulated by written policies that established a continuum of force. A written policy governed the use of the restraint chair. On information and belief, Defendants deliberately chose to discard the written policies adopted by the previous jail administrators.
179. When the NIC presented a brief written evaluation of the jail in 2005, it stated the Detention Division lacked sufficient written guidance in the form of written policies and procedures. It strongly advised that the Sheriff draft a comprehensive policy and procedure manual. At the time, the Sheriff’s policy and procedure manual contained only 11 policies applicable to the Detention Division, none of which addressed the use of force in general or the use of the restraint chair, pepperball gun, tasers, or the electroshock belt specifically. As of June 16, 2006, when Plaintiffs’ attorneys reviewed what the Defendant represented to be the complete policy and procedure manual, no additional written policies had been adopted.
2. Failure to ensure adequate training 180. The Defendants have failed to ensure that deputies at the Garfield County Jail are adequately trained in the use of force in general and in the safe and appropriate use of such devices as the restraint chair, the pepperball gun, pepper spray, tasers, and the electroshock belt. 181. The lack of adequate training is manifested in part by the absence of written policies. It is further manifested by the informal custom and policy of using the restraint chair,
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pepper spray, the pepperball gun, tasers, and the electroshock belt in a manner that poses an unjustifiable risk of substantial harm to prisoners’ health and safety; violates widely-accepted correctional standards; violates the recommendations or instructions of the manufacturers or venders regarding the proper and safe use of the devices; and/or violates prisoners’ constitutional rights.
182. The lack of adequate training is further manifested by the Defendants’ failure to maintain any documentary materials that describe or memorialize the content of any training sessions or training curricula regarding the safe and appropriate use of the pepperball gun or pepper spray. In a request made under the Colorado open records laws, attorneys for Plaintiffs asked to inspect all training materials regarding use of pepper spray or the pepperball gun, including any materials provided by the manufacturer or vender. In a written response dated June 14, 2006, the Defendants’ responded that the Sheriff’s Department had no responsive documentary materials.
183. On information and belief, the Defendants’ only training materials relating to the safe and appropriate use of tasers is a CD supplied by the manufacturer, Taser International, Inc. Those training materials contain misleading information that erroneously overstate the purported safety of tasers and erroneously encourage law enforcement officers to use them in situations in which such a substantial use of force is disproportionate, excessive, poses unreasonable risks to prisoners’ health and safety, and violates constitutional rights. The Police Executive Research Forum has recommended that law enforcement agencies ensure that they do not rely solely on the training materials supplied by the manufacturer of electroshock weapons.
184. Defendants are aware of the need for adequate training in the use of force in general and the safe and appropriate use of the pepperball gun, pepper spray, the restraint chair,
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tasers, and the electroshock belt. There is an obvious risk that inadequate training poses a substantial risk to prisoners’ health and safety and a substantial risk that prisoners’ constitutional rights will be violated. Nevertheless, Defendants have deliberately disregarded that risk.
185. The Defendants’ failure to ensure adequate training has caused and threatens to cause violations of the constitutional rights of the named Plaintiffs and other members of the Plaintiff class.
3. Failure to supervise and monitor deputies and control abuses 186. The Defendants have failed to implement and maintain systems to supervise and monitor their deputies in a manner that will detect and minimize improper use of force and violations of prisoners’ constitutional rights. Those failures include, but are not limited to, the following: 187. Deputies write narrative incident reports to document the use of force and the reasons why force was applied. These forms include check-off boxes to indicate review by supervising officers all the way up the chain of command. The incident reports provided to Plaintiffs’ attorneys fail to indicate that supervisory officers reviewed and approved the reports. The check-off boxes are not checked. 188. The narrative descriptions in many of the incident reports fail to provide sufficient detail for a supervisory officer to determine whether the use of force was appropriate. Defendants have failed to require that deputies draft use-of-force reports that contain sufficient detail. 189. Despite the deficiencies in the narrative reports, many contain sufficient details to serve as glaring red flags to any reasonable supervisor who is concerned about curbing inappropriate uses of force that are excessive and disproportionate; violate standard correctional
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practices; violate the (rare) written policies governing the Detention Division; pose an unreasonable risk of harm to the health safety and lives of prisoners; and/or violate or pose an unjustifiable risk of violating prisoners’ constitutional rights. Nevertheless, the Defendants have not established procedures that effectively detect and act on reports that contain such red flags. On the contrary, the incident reports reflect deputies’ acting pursuant to and consistent with the standard operating procedure of the Garfield County Jail and the informal policies of the Defendants. Alternatively, Defendants are deliberately indifferent to the risk that their failure to effectively monitor and supervise has caused and threatens to continue causing violations of prisoners’ constitutional rights.
VI. INTERFERENCE WITH PRISONERS’ RIGHT TO COMMUNICATE CONFIDENTIALLY WITH ATTORNEYS 190. Defendants and deputies at the Garfield County Jail have infringed, interfered
with, and threaten to continue infringing and interfering with, the right of prisoners to communicate confidentially with attorneys whose advice and counsel they seek.
A. Prisoners denied confidential interviews with ACLU attorneys 191. On June 16, 2006, Plaintiff Jared Hogue learned that on the previous day, the Defendants had denied him and two other prisoners an opportunity to participate in a confidential face-to-face interview with Taylor Pendergrass, a staff attorney with the ACLU Foundation of Colorado and one of the attorneys for Plaintiffs in this case. 192. Mr. Hogue had previously written to the ACLU requesting legal assistance, and the other two prisoners had also supplied written communications to the ACLU indicating their interest in legal assistance from the organization’s attorneys.
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193. Mr. Pendergrass was present at the jail and had requested the opportunity to meet with Mr. Hogue and the two other prisoners.
194. In refusing to permit Mr. Hogue and the other prisoners to meet with Mr. Pendergrass, Defendants relied on what they described as their “policy.” According to that “policy,” which did not exist in writing, a deputy contacts the prisoner whom the attorney asks to interview. The deputy asks “Who is your attorney?” If the prisoner does not identify the attorney requesting the interview, then the interview is not permitted.
195. Pursuant to Defendants’ instructions, neither Mr. Hogue nor the other two prisoners were informed that an ACLU attorney was present at the jail and willing to meet with the prisoners. When deputies asked “Who is your attorney?,” Mr. Hogue and the other two prisoners understandably responded by providing the names of their criminal defense attorneys. They did not know the potential consequences of their answer. They did not know that they were being asked a “trick question.”
196. Mr. Hogue wanted to meet with Mr. Pendergrass. Had the deputies informed Mr. Hogue that an ACLU attorney was at the jail and asking for a confidential meeting, Mr. Hogue would have said he wanted to participate. The same is true with regard to the other two prisoners who were denied the opportunity to meet with Mr. Pendergrass.
197. The undersigned attorneys for Plaintiffs had been to the Garfield County Jail on one earlier occasion, on May 11, 2006. At that time, they met with Mr. Vandehey, Mr. Lincoln, and a third prisoner in a confidential setting, without any problems. Deputies did not ask the prisoners “Who is your attorney?” as a prerequisite to permitting the confidential interview.
198. The “policy” that prevented Mr. Hogue from participating in an attorney visit on June 15 did not exist when ACLU attorneys first visited the jail on May 11. In early June,
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Defendants learned that the undersigned attorneys planned to return to the jail from June 14-16 to review documents requested under the Colorado open records laws and to interview additional prisoners. Defendants were furnished with a list, in advance, of prisoners whom the attorneys intended to interview.
199. Defendants invented the “policy” because of, and in anticipation of, the expected return of ACLU attorneys on June 14-16.
200. The newly-invented “policy” almost prevented Mr. Vandehey from meeting with Mr. Pendergrass on June 14-16, 2006. Mr. Vandehey had previously written to the ACLU seeking legal assistance, and he knew that his request was under investigation. He had signed a release-of-information form and knew that ACLU attorneys had obtained incident reports regarding the occasions on which Mr. Vandehey had been subjected to the use-of-force practices described in this Complaint. ACLU attorneys had previously interviewed him at the jail on May 11, 2006, and he had received a letter from Mr. Pendergrass indicating that ACLU staff would return to speak with Mr. Vandehey again on June 14-16.
201. Nevertheless, when a deputy asked Mr. Vandehey “Who is your attorney?” Mr. Vandehey responded with the name of his criminal defense attorney. Pursuant to the Defendants’ newly-minted “policy,” Mr. Vandehey would have been denied the opportunity to meet with ACLU staff. Fortunately, Mr. Langley, who was housed nearby, overheard the deputy’s question and Mr. Vandehey’s response. Mr. Langley took the risk of incurring a disciplinary sanction by communicating with Mr. Vandehey. Mr. Langley yelled out to Mr. Vandehey to “say the ACLU too.” Mr. Vandehey did so, and he was able to meet with ACLU staff.
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202. Mr. Lincoln returned to the Garfield County Jail on June 15, 2006. As deputies brought him to the housing unit, he passed by the attorney room where Mr. Pendergrass was speaking with Mr. Langley. Mr. Lincoln shouted though the glass window that he wanted to speak with Mr. Pendergrass. Mr. Langley shouted back that Mr. Lincoln would have to say “the ACLU” if and when the deputies asked “Who is your attorney?” Had Mr. Lincoln not been informed of the “correct” answer to the “trick question,” he, too, would have been denied the opportunity to meet with an ACLU attorney.
203. Mr. Hogue and the other two prisoners who were denied the opportunity to meet with an attorney were housed in a different section of the jail. No one told them the “correct” answer to the “trick question.”
204. Defendant Dawson later stated that he changed the “policy” in the week after June 15. According to Defendant Dawson, “[t]he revised policy is that Jail staff members ask inmates for the name of their attorney, or the name of any group or attorney from whom the inmate is seeking legal representation.” The revised “policy” also requires prisoners to provide the “correct” answer to a “trick question” as a prerequisite to exercising their right to meet with an attorney who is willing to speak with them.
205. Defendant Dawson stated that the revised “policy” did not exist in written form. 206. The Defendants’ new “policy,” whether in its original or in its “revised” form, poses a substantial risk of denying Plaintiffs and other prisoners the opportunity to meet with attorneys who are present and willing to speak with them. 207. For example, it denies prisoners the opportunity to meet with attorneys when the attorney has appeared at the jail at the request of friends or family members who have retained the attorney or have asked the attorney to consider representing the prisoner. Prisoners do not
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always know the name of an attorney who has been retained or contacted by friends or family. Indeed, prisoners may not even know beforehand that friends or family have retained or contacted an attorney who has been retained or is considering representation.
208. In addition, many prisoners write to a number of attorneys and organizations seeking legal representation. A prisoner who is suddenly asked for the names of any organizations or attorneys from whom the prisoner has sought assistance may be unable to produce a complete list, orally, on the spot. Mr.Vandehey’s experience in nearly missing the opportunity for an attorney visit demonstrates the risk that a prisoner could easily fail to provide the “correct” answer to the open-ended “trick question.”
B. Additional violations and threatened violations of prisoners’ right to communicate confidentially with attorneys
209. Shortly after deputies shot Plaintiff Samuel Lincoln with pepperballs in January, 2006, he wrote to the ACLU of Colorado to complain about his treatment by the Garfield County Sheriff’s Department. He followed the procedure in the Inmate Handbook for sending confidential letters to attorneys, which permits prisoners to seal a letter that is designated as “privileged” mail before handing it to the deputies for mailing. A deputy refused to mail the letter however, unless Mr. Lincoln agreed to open it for the deputy to inspect its contents. Mr. Lincoln refused to do so. Although the deputy took the letter, Mr. Lincoln did not know whether the deputy would mail it or not. The ACLU never received the letter. The first communication the ACLU received from Mr. Lincoln was several months later, in May, 2006, when Mr. Lincoln wrote from the Mesa County Jail.
210. In a meeting on June 15, 2006, Defendants were advised that a prisoner had reported that a deputy had refused to mail a prisoner’s letter to the ACLU unless the prisoner
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first opened it and allowed the deputy to inspect its contents. Defendant Vallario dismissed the prisoner’s complaint, saying “He’s in jail. He’s a friggin’ criminal.”
211. On June 15, 2006, Plaintiff Samuel Lincoln returned to the Garfield County Jail. He had a preliminary hearing scheduled in his Garfield County case the next day. He asked for a telephone call so that he could contact his criminal defense attorney about the preliminary hearing. He was not allowed a telephone call. Mr. Lincoln asked for writing materials so that he could write his attorney a letter. He was denied writing materials.
212. On information and belief, deputies’ interference with prisoners’ right to communicate confidentially with attorneys is carried out pursuant to the informal policy, custom, or practice of the Defendants. Alternatively, Defendants are aware of the deputies’ practices and, though deliberate indifference to the risk of further violations of prisoners’ rights, have failed to intervene or correct the deputies’ practices. VII. EXHAUSTION OF ADMINISTRATIVE REMEDIES
213. The named Plaintiffs have exhausted all available administrative remedies with respect to the legal claims in this Complaint. They have attached to this Complaint the documentation that is available to memorialize their exhaustion of all available administrative remedies. They cannot attach complete documentation in all cases, however, because the prisoners do not always receive copies of such documentation, and the jail’s grievance procedure does not actually operate in the manner described in the Inmate Handbook.
214. The grievance procedure for the Garfield County Jail is spelled out in the Inmate Handbook. The grievance procedure reads as follows:
The Detention Officer on duty will provide an Inmate Request/Grievance Form “KITE” for all inmates wishing to follow a grievance. The Inmate Request/Grievance Form “KITE” will be reviewed to see if there were prohibited acts by a staff member, a civil rights violation has occurred, or if there has been
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an abridgement of an inmates privilege. If the grievance is of an emergency nature, it should be so noted. If not, the grievance will be answered within 15 days. An inmate has the right to appeal the decision to the grievance review board and then to the Jail Commander. The Jail Commander’s decision is FINAL. It should be noted that abuse of the kite system will not be tolerated. If a deputy can answer an inmate’s question a kite should not be submitted, however if the deputy cannot answer the request or problem then a kite should be submitted up the chain of command to the corporal. Garfield County Detention Center, Inmate Handbook, page 20 (bolded, capitalized, and underlined text in original). 215. The Inmate Handbook describes a 3-step procedure. The prisoner first files a grievance. If the prisoner is not satisfied with the response, the prisoner can then appeal first to the “Grievance Review Board,” and then to the Jail Commander. A. The jail’s published grievance procedure has not been an available
administrative remedy 216. The procedure described in the Inmate Handbook, however, is not actually followed in practice. The three-step procedure described in the Inmate Handbook has not been an “available administrative remedy” to the named Plaintiffs and other prisoners in the jail. 217. The Inmate Handbook contains no written guidance about how prisoners can file an appeal of a grievance or how they can advance to the second or third steps of the published grievance procedure. The only written guidance regarding appeals is provided in the text of the “Inmate Request/Grievance Form ‘KITE’” that is referenced in the published grievance procedure. 218. The “Inmate Request/Grievance Form ‘KITE’” is a blank form that ordinarily consists of four colored sheets. Anything written on the top sheet is intended to be reproduced on the lower sheets as a carbon copy. The form indicates at the bottom that the white sheet goes
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into the prisoner’s file; the yellow sheet is the “inmate copy”; the pink sheet is the “inmate initial copy” and the goldenrod sheet goes to the housing unit file.
219. The form indicates that the jail’s response to a prisoner’s initial grievance is regarded as an “informal resolution.” The form contains a box that a prisoner can sign and date if the informal resolution is not acceptable. Below that box is another box that states “This Request/Grievance Has Been Submitted to the Grievance Review Board.” Below that box is yet another box to indicate that the Grievance Review Board has replied to the prisoner.
220. The organization of the “Inmate Request/Grievance Form ‘KITE’” suggests that prisoners have appealed the result of their first-level grievance when they sign the box that indicates that they are not satisfied with the informal resolution and they return the form to a deputy. When prisoners do that, however, they do not receive any response from the Grievance Review Board. Indeed, there is nothing that prisoners can do that will ensure that they receive a response from the Grievance Review Board.
221. The fine print on the “Inmate Request/Grievance Form ‘KITE’” suggests that filing an appeal requires that the prisoner also file an additional “Inmate Request/Grievance Form ‘KITE’” explaining why the informal resolution is not acceptable. When prisoners do that, however, the grievance is not sent to the Grievance Review Board. Instead, the prisoners simply receive another informal response, often from the same deputy who had already responded to the initial first-level grievance. Some prisoners have tried again and again to appeal to the Grievance Review Board, and each time they have either received no response or they received an “informal resolution” at the first level of the grievance procedure. It is the standard practice at the Garfield County Jail to prevent prisoners from appealing the denial of their first-level grievances to the Grievance Review Board.
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222. Contrary to the text of the Inmate Handbook, the “Grievance Review Board” does not function or fulfill the role of a second-stage forum for prisoner grievances. On June 14, 2006, in response to requests under the Colorado open records laws, the Defendants permitted the Plaintiffs’ attorneys to inspect what the Defendants represented as all kites and grievances, and responses to those kites and grievances, regarding 10 current and former prisoners who had signed release-of-information forms. The Defendants produced more than 125 “Inmate Request/Grievance Form ‘KITE’” forms on which prisoners indicated they were dissatisfied with the response to their first-level grievance. The files contained dozens of examples of cases in which prisoners also tried to file a separate appeal to the Grievance Review Board. In all cases, the prisoners either received no response at all, or they received another informal response that erroneously treated their attempt to appeal as a first-level grievance. In no case did a prisoner ever receive a written response from the jail’s Grievance Review Board.
223. The Defendants’ response to another request under the Colorado open records laws further demonstrates that the “Grievance Review Board” does not function as the secondlevel forum described in the Inmate Handbook. Attorneys for Plaintiffs asked to inspect all documents “that relate to or discuss the operation, membership, and procedures of the jail’s Grievance Review Board.” Attorneys for Plaintiffs further elaborated by specifying that the requested documents include any that would reflect the membership of the jail’s Grievance Review Board; any documents memorializing the policies, procedures, or decision-making process of the Grievance Review Board; any documents that would reveal any dates on which the Grievance Review Board had met in the past 12 months; any documents that would reveal the number of occasions that the Grievance Review Board had met in the year; and documents
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that would reveal how many decisions were considered or made by the Grievance Review Board in the past year. The Defendants reported that no responsive documentary materials existed.
224. Various deputies have told prisoners on different occasions a) that the grievance board does not exist; b) that the grievance board is composed of three specific sergeants; c) that the grievance board consists of any three jail staff who can convene on any given day; and d) that the grievance board meets only to consider disciplinary cases and investigations. These conflicting statements further demonstrate that the Grievance Review Board does not function as the second stage of a regularly-functioning grievance procedure. An appeal to the Grievance Review Board is not an available administrative remedy.
225. Prisoners are often frustrated by jail’s failure to follow the grievance procedures in the Inmate Handbook. Among the prisoners, it is widely known that the second-stage appeal to the “Grievance Review Board” is not actually available to them. Accordingly, many prisoners simply give up after their first-level grievance is denied. In such cases, they have nevertheless exhausted the administrative remedies that are available to them.
226. Although some prisoners persist in trying to file multiple additional kites in a fruitless attempt to appeal to the Grievance Review Board, they also eventually give up. Nevertheless, these prisoners have exhausted the administrative remedies that are available to them.
227. In some cases, prisoners are required to give up their attempt to file grievances or appeals because deputies threaten them with a charge of “abuse of the kite system,” which the Inmate Handbook lists as a “major” disciplinary violation, punishable by up to 30 days of disciplinary status for each “offense.” Prisoners contemplating the filing of a grievance do so under the threat that they will be charged with a “major” disciplinary violation if their grievance
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is deemed, by unknown standards, to constitute “abuse.” In cases where the threat of a disciplinary charge chills prisoners from filing grievances or grievance appeals, the prisoners have exhausted the administrative remedies that are available to them.
228. Occasionally, a prisoner’s grievance or a prisoner’s appeal has been answered directly by Jail Commander Scott Dawson. In such situations, the grievance has been decided by the individual identified in the grievance policy as the final decisionmaker. In those situations, the prisoner has exhausted all available administrative remedies.
229. In addition, prisoners are sometimes denied access to the grievance procedure entirely. A document in Mr. Vandehey’s file confirms that for some period of time in February, 2006, he was prohibited from obtaining the forms necessary for initiating the grievance process. For several months preceding the filing of this Complaint, Mr. Langley has been prohibited from receiving any grievance forms unless his request for a form is first reviewed and approved by a supervisor. Similarly, Mr. Lincoln has requested grievance forms and been refused. When prisoners are refused access to the grievance forms, there are no available administrative remedies for the prisoner to exhaust.
230. Although the Jail’s Grievance Review Board has not functioned as the secondlevel forum described in the Inmate Handbook, in at least one case in February, a grievance filed by Plaintiff Hogue eventually resulted in some kind of a meeting with three officers, and Mr. Hogue actually received a written response rejecting his grievance. That response, however, stated that there would be no more kites allowed on the issue, thus making unavailable the thirdlevel appeal to the Jail Commander that is described in the Inmate Handbook. Nevertheless, in that particular case, Mr. Hogue also received a response directly from Defendant Dawson.
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231. After the Defendants stated on June 14-16 that they had no documents regarding the Jail’s Grievance Review Board, Defendants appear to have modified how they respond to grievances and attempted grievance appeals filed by the Plaintiffs in this case.
232. Until the end of June, 2006, deputies regularly responded to prisoners’ first-level grievances within one or two days. In recent weeks, however, the named Plaintiffs have not received responses to first-level grievances until 15 days after they have been submitted. Deputies have deliberately delayed giving their responses to prisoners even when those responses had been completed long before 15 days has elapsed.
233. In addition, after Mr. Hogue appealed the denial of his grievance regarding the new “policy” for attorney visits, three deputies met with Mr. Hogue. They said that they were the jail’s Grievance Review Board. Although other grievance appeals have not resulted in faceto-face meetings with any review board, some prisoners have now, for the first time, received responses to their appeals that are signed by three deputies. In these cases, too, the deputies have deliberately delayed delivering their written responses to the prisoners until 15 days have elapsed since the filing of the grievance appeal. The deputies have delayed delivering these responses even when the responses have been completed and dated up to a week earlier.
234. On information and belief, the deputies’ delay in delivering responses to prisoners’ grievances has been carried out pursuant to orders from the Defendants. On information and belief, the Defendants have issued such orders for the sole purpose of delaying or denying prisoners’ ability to fully exhaust available administrative remedies and thereby thwart their ability to raise their legal claims in court.
B. Plaintiff Clarence Vandehey
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235. A number of Mr. Vandehey’s grievances and attempts to file appeals were eventually answered directly by Defendant Dawson, the highest-level decisionmaker in the jail’s grievance procedure. Documentation of Mr. Vandehey’s exhaustion of all available administrative remedies is attached to this Complaint.
C. Plaintiff William Langley 236. A number of Mr. Langley’s grievances and attempts to file appeals were eventually answered directly by Defendant Dawson, the highest-level decisionmaker in the jail’s grievance procedure. Accordingly, Mr. Langley has exhausted all available administrative remedies. 237. On June 16, 2006, Mr. Langley filed a grievance about the use of the electroshock belt. The grievance was denied on June 19. Mr. Langley indicated on that kite that the firstlevel response was not acceptable to him. A copy of Mr. Langley’s grievance and the jail’s response are attached. Mr. Langley asked for another kite so that he could appeal the denial of his grievance. The deputy refused to allow Mr. Langley another kite to appeal the denial. Accordingly, the remainder of the published grievance procedure was not available to Mr. Langley, and he has exhausted all available administrative remedies on the electroshock belt issue. Documentation of Mr. Langley’s exhaustion of available administrative remedies is attached to this Complaint. C. Plaintiff Samuel Lincoln 238. This Complaint is filed at a time when Mr. Lincoln is not housed in the Garfield County Jail, although he is certain to return to the jail in the near future. At the present time, there are no administrative remedies of the Garfield County Jail available to Mr. Lincoln.
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239. When Mr. Lincoln was housed in the Garfield County Jail, he did exhaust all available administrative remedies. He is unable to attach full documentation, however, for the reasons that follow.
240. Mr. Lincoln was housed continuously in the Garfield County Jail from December, 2005 through the beginning of April, 2006. During that time Mr. Lincoln filed multiple grievances challenging the punitive use of the restraint chair and the confiscation of his bedding as punishment. He appealed the denial of his first-level grievance, and he never received a response. Those documents are attached.
241. Mr. Lincoln returned to the Garfield County Jail on June 15, 2006 and stayed until June 17, 2006. During that time, Mr. Lincoln attempted to file several grievances in order to exhaust administrative remedies with regard to the legal claims raised in this Complaint. On June 16, 2006, Mr. Lincoln requested grievance forms, and a deputy said he would provide them. That deputy never provided a kite, however, and Mr. Lincoln’s additional requests for grievance forms were denied by jail staff.
242. On the evening of June 16, 2006, Mr. Lincoln was able to secure one grievance form from a new deputy who was working on the late-night shift. Mr. Lincoln wrote out a grievance about the jail’s arbitrary and inconsistent disciplinary practices. When Mr. Lincoln turned the grievance in, however, the deputy read the grievance and refused to accept it. The deputy stated that Mr. Lincoln could not file a grievance on that issue. Mr. Lincoln’s requests for additional kites to file additional grievances were denied.
243. Had Mr. Lincoln been allowed access to the grievance process, he would have filed grievances challenging the jail’s use of 1) the electroshock belt, 2) the use and threatened use of the pepperball gun, pepper spray and the taser, and 3) the jail’s use of the restraint chair.
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Mr. Lincoln had already written out the text of the grievances he intended to file if he had not
been denied access to the jail’s administrative remedies. He has exhausted all available
administrative remedies with regard to the following grievances:
Restraint chair: I want to grieve the jail’s practice of strapping prisoners in the restraint chair. Prisoners are placed in the chair without adequate reason, for too long, and without adequate medical involvement. Prisoners who have been subjected to pepper spray or pepperballs are forced to remain strapped in the chair without any opportunity to wash off the pepper. This has happened to me and could happen again.
Use and threatened use of tasers, pepper spray, and pepperballs I want to grieve the jail’s use of tasers and pepper spray and pepperballs. Officers use or threaten to use these weapons in situations where such drastic force is not justified, and without adequate medical involvement. I have been threatened with unjust use of one or more of these devices and this could happen again.
Prisoners’ right to communicate confidentially with attorneys I want to grieve the jail’s practice of interfering with prisoners’ ability to communicate with attorneys and obtain access to legal assistance. I wrote to the ACLU to ask for legal assistance regarding the violations of prisoners constitutional rights in the jail. I sealed the letter and marked it as “legal mail” and followed the procedures in the inmate handbook. An officer brought it back and said I had to open it for their inspection. I refused and said it was legal privileged mail. The officer took the letter but I learned later that the letter did not get sent to the ACLU. This could happen again.
D. Plaintiff Jared Hogue
244. Documentation of Mr. Hogue’s exhaustion of the available administrative
remedies is attached to this Complaint.
VIII. CLASS ACTION ALLEGATIONS
245. Plaintiffs bring this action on behalf of themselves and all others similarly
situated, pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure.
246. All Plaintiffs represent a class of persons defined as follows:
All persons who, now or at any time in the future, are or will be prisoners in the custody of the Garfield County Sheriff’s Department.
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247. Plaintiffs Vandehey, Lincoln, and Hogue represent a subclass of persons

(Subclass A) defined as follows:

All pretrial detainees who, now or at any time in the future, are or will be prisoners in the custody of the Garfield County Sheriff’s Department.

248. Plaintiff William Langley represents a subclass of persons (Subclass B) defined as

follows:

All post-conviction prisoners who, now or at any time in the future, are or will be prisoners in the custody of the Garfield County Sheriff’s Department.

249. The proposed classes are so numerous that joinder of all members is

impracticable.

250. There are questions of law and fact common to the members of each of the

plaintiff classes.

251. The claims of the named Plaintiffs are typical of the claims of the members of the

class.

252. The named Plaintiffs will fairly and adequately protect the interests of the class.

Plaintiffs have no interest that is now or may be potentially antagonistic to the interests of the

class. Plaintiffs are represented by attorneys employed by and working in cooperation with the

ACLU Foundation of Colorado, which has extensive experience in litigating federal court class

action cases involving federal civil rights claims.

253. Defendants have acted or refused to act on grounds generally applicable to the

classes, thereby making appropriate injunctive and declaratory relief to the class as a whole.

IX.

DECLARATORY AND INJUNCTIVE RELIEF

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254. An actual and immediate controversy exists between Plaintiffs and Defendants. Plaintiffs contend that the challenged policies and practices violate their constitutional rights. Defendants contend that the challenged policies and practices comply with the law.
255. Plaintiffs are therefore entitled to a declaration of rights with respect to this controversy. Without such a declaration, Plaintiffs will be uncertain of their rights and responsibilities under the law.
256. Plaintiffs are entitled to injunctive relief. Defendants have enforced and threatened to continue enforcing the challenged policies and practices against the Plaintiffs. Defendants have acted and are threatening to act under color of state law to deprive Plaintiffs of their constitutional rights. Plaintiffs have suffered irreparable injury and will continue to suffer a real and immediate threat of irreparable injury as a result of the existence, operation, and implementation of the challenged policies and practices. Plaintiffs have no plain, adequate or speedy remedy at law. X. CLAIMS FOR RELIEF
A. FIRST CLAIM FOR RELIEF (Threats and use of excessive and disproportionate force; punitive use of restraints)
(Eighth and Fourteenth Amendments; Colo. Const. Art. II Secs. 20, 25) (Plaintiffs Vandehey, Lincoln, Langley, and Hogue)
257. Deputies at the Garfield County jail have subjected and threatened to subject Plaintiffs Vandehey, Lincoln, and Hogue, and the subclass of pretrial detainees, to the use of force, including the use of restraint chairs, pepperball guns, tasers and/or pepper spray, in a manner that constitutes excessive and disproportionate physical force; unnecessarily and wantonly inflicts mental and physical pain; shocks the conscience; inflicts corporal punishment and mental suffering as retaliation or punishment for past conduct; poses an unreasonable and
66

unjustifiable risk of harm to their health and safety; and that is not reasonably related to any legitimate governmental objective, in violation of the Due Process Clause of the Fourteenth Amendment and Article II, Section 25 of the Colorado Constitution.
258. Deputies at the Garfield County jail have subjected and/or threatened to subject Plaintiff Langley, and the subclass of convicted prisoners, to the use of force, including the use of restraint chairs, pepperball guns, tasers and/or pepper spray, in a manner that constitutes excessive and disproportionate physical force imposed maliciously and sadistically for the purpose of causing harm; intentionally inflicts corporal punishment and physical and mental pain as retaliation or punishment for past conduct; unnecessarily and wantonly inflicts mental and physical pain; poses an unreasonable and unjustifiable risk of harm to their health and safety; is not reasonably related to any legitimate penological interest; and inflicts cruel and unusual punishment, in violation of the Eighth Amendment and Article II, Section 20 of the Colorado Constitution.
259. The deputies’ acts and omissions, and threatened acts and omissions, were carried out pursuant to the policies, customs, and practices of the Defendants. In adopting, authorizing, and ratifying those policies customs and practices, Defendants have been and continue to be deliberately indifferent to the risk of violating the constitutional rights of the Plaintiffs and members of the Plaintiff class.
260. Alternatively and in combination, Defendants’ deliberately indifferent failure to ensure adequate training of their deputies has caused and threatens to continue causing, violations of the Plaintiffs’ constitutional rights.
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261. Alternatively and in combination, Defendants’ deliberately indifferent failure to ensure adequate monitoring and supervision of their deputies’ conduct has caused, and threatens to continue causing, violations of the Plaintiffs’ constitutional rights.
262. Plaintiffs Vandehey, Lincoln and Hogue, and the member of the subclass of pretrial detainees, face a continuing and imminent risk that they will be subjected to the use and threatened use of force, including the use of restraint chairs, pepperball guns, tasers and/or pepper spray, in a manner that constitutes excessive and disproportionate physical force; unnecessarily and wantonly inflicts mental and physical pain; shocks the conscience; poses an unreasonable and unjustifiable risk of harm to their health and safety; and inflicts unconstitutional punishment that is not reasonably related to any legitimate governmental objective.
263. Plaintiff Langley, and the subclass of convicted prisoners, face a continuing and imminent risk that they will be subjected to the use and threatened use of force, including the pepperball gun and/or the restraint chair, in a manner that constitutes excessive and disproportionate physical force imposed maliciously and sadistically for the purpose of causing harm; purposely inflicts corporal punishment, and physical and mental pain as retaliation or punishment for past conduct; unnecessarily and wantonly inflicts mental and physical pain; poses an unreasonable and unjustifiable risk of harm to their health and safety; is not reasonably related to any legitimate penological interest; and inflicts cruel and unusual punishment.
264. WHEREFORE, Plaintiffs seek declaratory and injunctive relief, attorneys’ fees, and such other relief as the Court deems just.
B. SECOND CLAIM FOR RELIEF (Eighth and Fourteenth Amendments; Colo. Const. Art. II, Secs. 20, 25)
(Electroshock belt; Plaintiffs Lincoln and Langley)
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265. Deputies at the Garfield County jail have subjected and threatened to subject Plaintiff Lincoln, and the subclass of pretrial detainees, to the use of the electroshock belt in a manner that unnecessarily and wantonly inflicts fear, anxiety, mental pain and torture; shocks the conscience; poses an unreasonable risk of inflicting unjustified excruciating pain; poses an unreasonable and unjustifiable risk of harm to their health and safety; and inflicts unconstitutional punishment that is not reasonably related to any legitimate governmental objective, in violation of the Due Process Clause of the Fourteenth Amendment and Article II. Section 25 of the Colorado Constitution.
266. Deputies at the Garfield County jail have subjected and threatened to subject Plaintiff Langley and the subclass of convicted prisoners to the electroshock belt in a manner that unnecessarily and wantonly inflicts fear, anxiety, mental pain and torture; inflicts mental pain and torture maliciously and sadistically for the purpose of causing harm; poses an unreasonable and unjustifiable risk of inflicting unjustified excruciating pain; poses an unreasonable and unjustifiable risk of harm to their health and safety; is not reasonably related to any legitimate penological interests; and inflicts cruel and unusual punishment, in violation of the Eighth Amendment and Article II, Section 20 of the Colorado Constitution.
267. Plaintiff Langley and the subclass of convicted prisoners have a liberty interest, protected by the Due Process Clause, in being free of the restraint and terror prompted by being forced to wear the electroshock belt. Deputies have deprived and threaten to continue depriving Mr. Langley of that liberty interest without due process of law, in violation of the Due Process Clause and Article II, Section 25 of the Colorado Constitution.
268. The deputies’ acts and omissions, and threatened acts and omissions, were carried out pursuant to the policies, customs, and practices of the Defendants. In adopting, authorizing,
69

and ratifying those policies customs and practices, Defendants have been and continue to be deliberately indifferent to the risk of violating the constitutional rights of the Plaintiffs and members of the Plaintiff class.
269. Alternatively and in combination, Defendants’ deliberately indifferent failure to ensure adequate training of their deputies has caused and threatens to continue causing, violations of the Plaintiffs’ constitutional rights.
270. Alternatively and in combination, Defendants’ deliberately indifferent failure to ensure adequate monitoring and supervision of their deputies’ conduct has caused, and threatens to continue causing, violations of the Plaintiffs’ constitutional rights.
271. Plaintiffs and member of the Plaintiff class face a continuing and imminent risk that they will be subjected to the electroshock belt in the future in a manner that violates their constitutional rights.
272. WHEREFORE, Plaintiffs seek declaratory and injunctive relief, attorneys’ fees, and such other relief as the Court deems just.
C. THIRD CLAIM FOR RELIEF (Eighth and Fourteenth Amendments; Colo. Const. Art. II, Secs. 20, 25) (Freedom from Bodily Restraint; Plaintiffs Vandehey, Langley, and Lincoln) 273. Even when they are legitimately confined as pre-trial detainees or after a criminal conviction, Plaintiffs retain a liberty interest in freedom from bodily restraint, which is protected by the Due Process Clause of the Fourteenth Amendment and Article II, Section 25 of the Colorado Constitution. 274. Prisoners who are strapped in a restraint chair experience an atypical and significant hardship in relation to the ordinary incidents of life in a detention facility or a prison.
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275. Deputies at the Garfield County jail have subjected and threatened to subject the Plaintiffs and the plaintiff class to confinement in the restraint chair under circumstances that have deprived them of their liberty interest in freedom from bodily restraint, without due process of law.
276. The deputies’ acts and omissions, and threatened acts and omissions, were carried out pursuant to the policies, customs, and practices of the Defendants. In adopting, authorizing, and ratifying those policies customs and practices, Defendants have been and continue to be deliberately indifferent to the risk of violating the constitutional rights of the Plaintiffs and members of the Plaintiff class.
277. Alternatively and in combination, Defendants’ deliberately indifferent failure to ensure adequate training of their deputies has caused and threatens to continue causing, violations of the Plaintiffs’ constitutional rights.
278. Alternatively and in combination, Defendants’ deliberately indifferent failure to ensure adequate monitoring and supervision of their deputies’ conduct has caused, and threatens to continue causing, violations of the Plaintiffs’ constitutional rights.
279. Plaintiffs and member of the Plaintiff class face a continuing and imminent risk that they will be subjected to the restraint chair in the future in a manner that violates their constitutional rights.
280. WHEREFORE, Plaintiffs seek declaratory and injunctive relief, attorneys’ fees, and such other relief as the Court deems just.
D. FOURTH CLAIM FOR RELIEF (First, Sixth, and Fourteenth Amendments) (Colo. Const., Art. II, Secs. 10, 16, 25; C.R.S. §§ 16-3-403, 404) (Confidential communications with attorneys; Plaintiff Hogue)
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281. The right of prisoners to seek legal assistance and communicate confidentially with attorneys and their staff is protected by various provisions of the United States Constitution. Those provisions include the First Amendment, the Sixth Amendment, and the Due Process Clause of the Fourteenth Amendment.
282. The same right is protected by similar provisions in the Colorado Constitution, including Article II, sections 10, 16, and 25. The right is further protected by two specific Colorado statutes, C.R.S. §§ 16-4-403 and 16-4-404.
283. Defendants have adopted what they call a “policy” that interferes with, prevents, and denies prisoners’ right to communicate confidentially with attorneys. The “policy” has prevented Mr. Hogue and other prisoners from meeting with attorneys who were present at the jail and willing to meet with the prisoners. The continued operation and implementation of the “policy” threatens to deny the rights of the Plaintiff and the Plaintiff class in the future.
284. In preventing Mr. Hogue from meeting with an attorney on June 15, 2006, Defendants violated C.R.S. § 16-4-403. Pursuant to C.R.S. § 16-4-404, each of the Defendants “shall forfeit and pay not less than one hundred dollars nor more than one thousand dollars to the person imprisoned or to his attorney for the benefit of the person imprisoned.”
285. The continued operation of the Defendants’ “policy” threatens to violate the statutory and constitutional rights of Mr. Hogue and the Plaintiff class in the future.
286. WHEREFORE, Plaintiff requests declaratory and injunctive relief; the statutory penalty in C.R.S. §16-4-404, attorneys’ fees, and such additional relief as the court deems just.
PRAYER FOR RELIEF 287. WHEREFORE, Plaintiffs request that the Court order each of the Defendants to pay, for the benefit of Mr. Hogue, the statutory penalty described in C.R.S. § 16-3-404.
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288. Plaintiffs also request that this Court certify this case as a class action and grant declaratory and injunctive relief on all claims on behalf of the Plaintiffs and the Plaintiff class; attorney’s fees, and such other relief as the Court deems just. Dated July 19, 2006.
Respectfully submitted, s/Mark Silverstein Mark Silverstein American Civil Liberties Union Foundation of Colorado 400 Corona Street Denver, CO 80218 Telephone: (303) 777-5482 FAX: (303) 777-1773 E-mail: msilver2@att.net s/Taylor S. Pendergrass Taylor S. Pendergrass American Civil Liberties Union Foundation of Colorado 400 Corona Street Denver, CO 80218 Telephone: (303) 777-5482 FAX: (303) 777-1773 E-mail: tpendergrass@aclu-co.org
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 Case: 1:06-cv-01405-WYD-MJW As of: 08/08/2012 12:46 PM MDT 1 of 25
NDISPO,TERMED
U.S. District Court District of Colorado (Denver) CIVIL DOCKET FOR CASE #: 1:06−cv−01405−WYD−MJW

Vandehey et al v. Vallario et al Assigned to: Chief Judge Wiley Y. Daniel Referred to: Magistrate Judge Michael J. Watanabe Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 07/19/2006 Date Terminated: 04/28/2011 Jury Demand: None Nature of Suit: 555 Prison Condition Jurisdiction: Federal Question

Clarence Vandehey

represented by James Gregory Whitehair Whitehair Law Firm, LLC, The 12364 West Nevada Place Suite 305 Lakewood, CO 80228 303−908−5762 Email: jgw@whitehairlaw.com TERMINATED: 03/03/2010 LEAD ATTORNEY

Mark Silverstein American Civil Liberties Union−Denver P.O. Box 18986 400 Corona Street Denver, CO 80218−0986 303−777−5482 Fax: 303−777−1773 Email: msilver2@att.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Taggart Hansen Gibson Dunn &Crutcher, LLP−Denver 1801 California Street #4200 Denver, CO 80202−2642 303−298−5924 Fax: 303−313−2857 Email: peacetagg@att.net TERMINATED: 10/06/2008 LEAD ATTORNEY

Taylor Scott Pendergrass American Civil Liberties Union−Denver P.O. Box 18986 400 Corona Street Denver, CO 80218−0986 303−777−5482 Fax: 303−777−1773 Email: tpendergrass@aclu−co.org TERMINATED: 08/02/2010 LEAD ATTORNEY

Casie D. Collignon Baker &Hostetler, LLP−Denver 303 East 17th Avenue #1100 Denver, CO 80203−1264 303−861−0600 Fax: 303−861−7805 Email: ccollignon@bakerlaw.com

Case: 1:06-cv-01405-WYD-MJW As of: 08/08/2012 12:46 PM MDT 2 of 25
ATTORNEY TO BE NOTICED
Holli Lyn Hartman Baker &Hostetler, LLP−Denver 303 East 17th Avenue #1100 Denver, CO 80203−1264 303−861−0600 Fax: 303−861−7805 Email: hhartman@bakerlaw.com
John D. Phillips , Jr. John D. Phillips, Jr., Attorney at Law 155 South Jackson Street Denver, CO 80209 303−517−2989 Email: jphillipsdm1@gmail.com TERMINATED: 05/10/2007
Marisa B. Hudson−Arney Reilly Pozner, L.L.P. 1900 16th Street Suite 1700 Denver, CO 80202 303−893−6100 Fax: 303−893−6110 Email: mhudsonarney@rplaw.com TERMINATED: 04/03/2009
Michael D. Murphy Michael L. Glaser, LLC, The Law Offices of 1720 South Bellaire Street #607 Denver, CO 80222 303−757−1600 Fax: 303−757−2874 Email: mmurphy@glaserlegal.com TERMINATED: 05/10/2007
Paul Gregory Karlsgodt Baker &Hostetler, LLP−Denver 303 East 17th Avenue #1100 Denver, CO 80203−1264 303−861−0600 Fax: 303−861−7805 Email: pkarlsgodt@bakerlaw.com
Reid John Allred Gibson Dunn &Crutcher, LLP−Denver 1801 California Street #4200 Denver, CO 80202−2642 303−298−5700 Fax: 303−298−5907 Email: rallred@gibsondunn.com TERMINATED: 04/03/2009
Robert E. Ward , II Polsinelli Shughart PC−Denver 1515 Wynkoop #600 Denver, CO 80202−1130 303−572−9300

Case: 1:06-cv-01405-WYD-MJW As of: 08/08/2012 12:46 PM MDT 3 of 25

Email: rward@polsinelli.com TERMINATED: 05/15/2007

Tina Urvashi Amin Baker &Hostetler, LLP−Denver 303 East 17th Avenue #1100 Denver, CO 80203−1264 303−861−0600 Fax: 303−861−7805 Email: tamin@bakerlaw.com ATTORNEY TO BE NOTICED

Plaintiff William Langley

represented by James Gregory Whitehair (See above for address) TERMINATED: 03/03/2010 LEAD ATTORNEY

Mark Silverstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Taggart Hansen (See above for address) TERMINATED: 10/06/2008 LEAD ATTORNEY

Taylor Scott Pendergrass (See above for address) TERMINATED: 08/02/2010 LEAD ATTORNEY

Casie D. Collignon (See above for address) ATTORNEY TO BE NOTICED

Holli Lyn Hartman (See above for address)

John D. Phillips , Jr. (See above for address) TERMINATED: 05/10/2007

Marisa B. Hudson−Arney (See above for address) TERMINATED: 04/03/2009

Michael D. Murphy (See above for address) TERMINATED: 05/10/2007

Paul Gregory Karlsgodt (See above for address)

Reid John Allred (See above for address) TERMINATED: 04/03/2009

Robert E. Ward , II (See above for address) TERMINATED: 05/15/2007

Case: 1:06-cv-01405-WYD-MJW As of: 08/08/2012 12:46 PM MDT 4 of 25

Tina Urvashi Amin (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Samuel Lincoln

represented by James Gregory Whitehair (See above for address) TERMINATED: 03/03/2010 LEAD ATTORNEY

Mark Silverstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Taggart Hansen (See above for address) TERMINATED: 10/06/2008 LEAD ATTORNEY

Taylor Scott Pendergrass (See above for address) TERMINATED: 08/02/2010 LEAD ATTORNEY

Casie D. Collignon (See above for address) ATTORNEY TO BE NOTICED

Holli Lyn Hartman (See above for address) ATTORNEY TO BE NOTICED

John D. Phillips , Jr. (See above for address) TERMINATED: 05/10/2007

Marisa B. Hudson−Arney (See above for address) TERMINATED: 04/03/2009

Michael D. Murphy (See above for address) TERMINATED: 05/10/2007

Paul Gregory Karlsgodt (See above for address) ATTORNEY TO BE NOTICED

Reid John Allred (See above for address) TERMINATED: 04/03/2009

Robert E. Ward , II (See above for address) TERMINATED: 05/15/2007

Tina Urvashi Amin (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Jared Hogue on behalf of themselves and all others

represented by James Gregory Whitehair (See above for address)

Case: 1:06-cv-01405-WYD-MJW As of: 08/08/2012 12:46 PM MDT 5 of 25

similarly situated

TERMINATED: 03/03/2010 LEAD ATTORNEY

Mark Silverstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Taggart Hansen (See above for address) TERMINATED: 10/06/2008 LEAD ATTORNEY

Taylor Scott Pendergrass (See above for address) TERMINATED: 08/02/2010 LEAD ATTORNEY

Casie D. Collignon (See above for address) ATTORNEY TO BE NOTICED

Holli Lyn Hartman (See above for address)

John D. Phillips , Jr. (See above for address) TERMINATED: 05/10/2007

Marisa B. Hudson−Arney (See above for address) TERMINATED: 04/03/2009

Michael D. Murphy (See above for address) TERMINATED: 05/10/2007

Paul Gregory Karlsgodt (See above for address)

Reid John Allred (See above for address) TERMINATED: 04/03/2009

Robert E. Ward , II (See above for address) TERMINATED: 05/15/2007

Tina Urvashi Amin (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Lou Vallario Sheriff of Garfield County, Colorado, in his official capacity

represented by Cassandra Lee Coleman Garfield County Attorney's Office 108 8th Street 2nd Floor Glenwood Springs, CO 81601 970−945−9150 Fax: 970−384−5005 Email: ccoleman@garfield−county.com ATTORNEY TO BE NOTICED

Case: 1:06-cv-01405-WYD-MJW As of: 08/08/2012 12:46 PM MDT 6 of 25

Defendant Scott Dawson a Commander in the Garfield County Sheriff's Department, in his official capacity TERMINATED: 08/04/2009
Defendant

Deborah Quinn Deborah Quinn, Attorney at Law 92 Crystal Circle Carbondale, CO 81623 970−963−0468 Email: debbieq@comcast.net TERMINATED: 01/05/2011
Don K. DeFord Don K. DeFord, Attorney at Law 0136 Alpine Court Glenwood Springs, CO 80601 970−945−8470 Email: dnddeford@comcast.net TERMINATED: 01/05/2011
Josh Adam Marks Berg Hill Greenleaf &Ruscitti, LLP 1712 Pearl Street Boulder, CO 80302 303−402−1600 Fax: 303−402−1601 Email: jam@bhgrlaw.com ATTORNEY TO BE NOTICED
Kim Arquette Tomey Berg Hill Greenleaf &Ruscitti, LLP 1712 Pearl Street Boulder, CO 80302 303−402−1600 Fax: 303−402−1601 Email: kim@bhgrlaw.com
Melanie Bailey Lewis Berg Hill Greenleaf &Ruscitti, LLP 1712 Pearl Street Boulder, CO 80302 303−402−1600 Fax: 303−402−1601 Email: mbl@bhgrlaw.com ATTORNEY TO BE NOTICED
represented by Deborah Quinn (See above for address) TERMINATED: 01/05/2011
Don K. DeFord (See above for address) TERMINATED: 01/05/2011
Josh Adam Marks (See above for address) ATTORNEY TO BE NOTICED
Kim Arquette Tomey (See above for address)
Melanie Bailey Lewis (See above for address) ATTORNEY TO BE NOTICED

Case: 1:06-cv-01405-WYD-MJW As of: 08/08/2012 12:46 PM MDT 7 of 25

Stephen Hopple Jail Commander for the Garfield County Jail

represented by Kim Arquette Tomey (See above for address) LEAD ATTORNEY

Cassandra Lee Coleman (See above for address) ATTORNEY TO BE NOTICED

Don K. DeFord (See above for address) TERMINATED: 01/05/2011

Josh Adam Marks (See above for address) ATTORNEY TO BE NOTICED

Melanie Bailey Lewis (See above for address) ATTORNEY TO BE NOTICED

Date Filed 07/19/2006
07/19/2006 07/25/2006 07/26/2006 08/01/2006
08/01/2006 08/02/2006 08/18/2006 08/18/2006 09/25/2006 09/25/2006

# Docket Text
1 Class Action COMPLAINT against Lou Vallario, Scott Dawson ( Filing fee $ 350, Receipt Number 269738) Summons Issued, filed by Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (Attachments: # 1 Attachment 1 − Plaintiff Vandehey Grievances and Responses# 2 Attachment 2 − Plaintiff Langley Grievances and Responses# 3 Attachment 3 − Plaintiff Hogue Grievances and Responses# 4 Attachment 4 − Plaintiff Lincoln Grievances and Responses# 5 Civil Cover Sheet # 6 Receipt)(gms, ) (Entered: 07/19/2006)
2 MOTION to Certify Class by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (gms, ) (Entered: 07/19/2006)
3 ORDER REFERRING CASE to Magistrate Judge Michael J. Watanabe by Judge Figa. (rlp, ) (Entered: 07/25/2006)
4 ORDER : Scheduling Conference set for 10/3/2006 09:30 AM in Courtroom A 502 before Magistrate Judge Michael J. Watanabe. Signed by Magistrate Judge Michael J. Watanabe on 7/26/06. (gms, ) (Entered: 07/26/2006)
5 AMENDED COMPLAINT First against all defendants, filed by Clarence Vandehey. (Attachments: # 1 Attachment# 2 Attachment# 3 # 4 Attachment# 5 Attachment# 6 Attachment# 7 Attachment# 8 Attachment# 9 Attachment# 10 Attachment)(Silverstein, Mark) (Entered: 08/01/2006)
6 MOTION to Amend/Correct/Modify 2 MOTION to Certify Class by Plaintiff Clarence Vandehey. (Silverstein, Mark) (Entered: 08/01/2006)
7 Amended MOTION to Certify Class by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (Silverstein, Mark) (Entered: 08/02/2006)
8 STIPULATION for Extension of Time to Answer by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln, Defendants Lou Vallario, Scott Dawson. (Phillips, John) (Entered: 08/18/2006)
9 SUMMONS Returned Executed by all plaintiffs. Lou Vallario served on 8/14/2006, answer due 9/5/2006; Scott Dawson served on 8/14/2006, answer due 9/5/2006. (Phillips, John) (Entered: 08/18/2006)
10 STIPULATION for Extension of Time by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln, Defendants Lou Vallario, Scott Dawson. (Tomey, Kim) (Entered: 09/25/2006)
11 RESPONSE to Motion re 7 Amended MOTION to Certify Class filed by Defendants Lou Vallario, Scott Dawson. (Attachments: # 1 Exhibit A−1# 2 Exhibit A−2)(Tomey, Kim) (Entered: 09/25/2006)

Case: 1:06-cv-01405-WYD-MJW As of: 08/08/2012 12:46 PM MDT 8 of 25

09/26/2006 09/27/2006 09/28/2006 09/29/2006 09/29/2006 09/29/2006 10/02/2006 10/03/2006
10/03/2006
10/05/2006
10/13/2006 10/13/2006
10/13/2006 10/13/2006 10/20/2006

12 Proposed Scheduling Order by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (Phillips, John) (Entered: 09/26/2006)
13 NOTICE of Entry of Appearance by Michael D. Murphy on behalf of all plaintiffs (Murphy, Michael) (Entered: 09/27/2006)
14 NOTICE of Entry of Appearance by Kim Arquette Tomey on behalf of all defendants (Tomey, Kim) (Entered: 09/28/2006)
15 NOTICE of Entry of Appearance by Deborah Quinn on behalf of all defendants (Quinn, Deborah) (Entered: 09/29/2006)
16 NOTICE of Entry of Appearance by Don K. DeFord on behalf of all defendants (DeFord, Don) (Entered: 09/29/2006)
17 Defendants' ANSWER to Amended Complaint by Lou Vallario, Scott Dawson. (Attachments: # 1 Answer − Part 2# 2 Answer − Part 3)(Tomey, Kim) (Entered: 09/29/2006)
18 Proposed Scheduling Order by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln, Defendants Lou Vallario, Scott Dawson. (Phillips, John) (Entered: 10/02/2006)
19 Minute Entry/Minute Order for proceedings held before Magistrate Judge Michael J. Watanabe : Scheduling Conference held on 10/3/2006. Discovery due by 3/5/2007. Dispositive Motions due by 4/5/2007. Telephone Status Conference set for 11/21/2006 09:30 AM before Magistrate Judge Michael J. Watanabe. Plaintiff's counsel shall initiate the conference call to opposing counsel and then to the court at (303) 844−2403. Proposed Final Pretrial Order due by 5/30/2007. Final Pretrial Conference set for 6/4/2007 09:00 AM in Courtroom A 502 before Magistrate Judge Michael J. Watanabe. Parties are directed to www.cod.uscourts.gov and shall fully comply with the procedures of the judicial officer assigned to try this case on the merits. Counsel shall file any appropriate motion for protective order by October 13, 2006.(Court Reporter FTR − S. Moore.) (mjwcd, ) (Entered: 10/03/2006)
20 SCHEDULING ORDER: Discovery due by 3/5/2007.,Dispositive Motions due by 4/5/2007., Telephonic Status Conference set for 11/21/2006 09:30 AM before Magistrate Judge Michael J. Watanabe., Final Pretrial Conference set for 6/4/2007 09:00 AM before Magistrate Judge Michael J. Watanabe. Signed by Magistrate Judge Michael J. Watanabe on 10/03/06. (rlp2, ) (Entered: 10/03/2006)
21 Unopposed MOTION for Extension of Time to File Response/Reply as to 11 Response to Motion (Amended) to Certify Class by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (Attachments: # 1 Proposed Order (PDF Only) Granting Plaintiffs Motion for Extension of Time)(Phillips, John) (Entered: 10/05/2006)
22 Joint MOTION for Protective Order and Stipulation by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (Attachments: # 1 Proposed Order (PDF Only) # 2 Stipulation and Protective Order)(Phillips, John) (Entered: 10/13/2006)
23 MEMORANDUM regarding 22 Joint MOTION for Protective Order and Stipulation filed by Clarence Vandehey, William Langley, Samuel Lincoln, Jared Hogue. Motions referred to Magistrate Judge Michael J. Watanabe by Judge Phillip S. Figa on 10/13/06. (Text Only Entry − No Document Attached)(rlp, ) (Entered: 10/13/2006)
24 ORDER granting 22 Motion for Protective Order. Signed by Magistrate Judge Michael J. Watanabe on 10/13/06.(rlp, ) (Entered: 10/16/2006)
25 PROTECTIVE ORDER regarding discovery, signed by Magistrate Judge Michael J. Watanabe on 10/13/06. (rlp, ) (Entered: 10/16/2006)
26 ORDER granting 21 Motion for Extension of Time to File Response/Reply re 7 Amended MOTION to Certify Class, Plaintiffs shall have to and includingOctober 24, 2006 within which to file their reply to defendants response to theamended motion to certify class. Signed by Judge Phillip S. Figa on 10/20/06.(rlp2, )

Case: 1:06-cv-01405-WYD-MJW As of: 08/08/2012 12:46 PM MDT 9 of 25

10/24/2006 11/17/2006 11/17/2006 11/21/2006
11/27/2006 11/30/2006 12/01/2006 12/18/2006 12/26/2006 01/02/2007 01/02/2007
01/02/2007
01/03/2007 01/03/2007 02/01/2007

(Entered: 10/20/2006)
27 REPLY to Response to Motion re 7 Amended MOTION to Certify Class filed by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (Phillips, John) (Entered: 10/24/2006)
28 NOTICE of Request of Plaintiffs to Inspect Garfield County Jail by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln (Phillips, John) (Entered: 11/17/2006)
29 Docket Annotation re: 28 Notice (Other). Filer indicates document filed in error, please disregard Request. Text only entry − no document attached. (rlp, ) (Entered: 11/17/2006)
30 Minute Entry/Minute Order for proceedings held before Magistrate Judge Michael J. Watanabe : Telephone Status Conference held on 11/21/2006. Further Telephone Status Conference set for 2/1/2007 09:00 AM before Magistrate Judge Michael J. Watanabe. Melanie Lewis shall forthwith electronically file a notice of entry of appearance.(Court Reporter FTR − S. Moore.) (mjwcd, ) (Entered: 11/21/2006)
31 NOTICE of Entry of Appearance by Melanie Bailey Lewis on behalf of Lou Vallario, Scott Dawson (Lewis, Melanie) (Entered: 11/27/2006)
32 NOTICE of Entry of Appearance by Robert E. Ward, II on behalf of all plaintiffs (Ward, Robert) (Entered: 11/30/2006)
33 RESPONSE to 28 Notice (Other) by Defendants Lou Vallario, Scott Dawson. (Tomey, Kim) (Entered: 12/01/2006)
34 STIPULATION for Extension of Time to Respond to Plaintiffs' Written Discovery by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln, Defendants Lou Vallario, Scott Dawson. (Tomey, Kim) (Entered: 12/18/2006)
35 Stipulated MOTION For Extension of Time to Respond to Plaintiffs' Written Discovery by Defendants Lou Vallario, Scott Dawson. (Attachments: # 1 Proposed Order (PDF Only))(Tomey, Kim) (Entered: 12/26/2006)
36 Stipulated MOTION to Amend/Correct/Modify 20 Scheduling Order, by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (Attachments: # 1 Proposed Order (PDF Only) Amending Certain Deadlines Contained in the Scheduling Order)(Phillips, John) (Entered: 01/02/2007)
37 MEMORANDUM regarding 35 Stipulated MOTION For Extension of Time to Respond to Plaintiffs' Written Discovery filed by Scott Dawson, Lou Vallario. Motions referred to Magistrate Judge Michael J. Watanabe by Judge Phillip S. Figa on 01/02/07. (Text Only Entry − No Document Attached)(rlp, ) (Entered: 01/02/2007)
38 MEMORANDUM regarding 36 Stipulated MOTION to Amend/Correct/Modify 20 Scheduling Order,Stipulated MOTION to Amend/Correct/Modify 20 Scheduling Order, filed by Clarence Vandehey, William Langley, Samuel Lincoln, Jared Hogue. Motions referred to Magistrate Judge Michael J. Watanabe by Judge Phillip S. Figa on 01/02/07. (Text Only Entry − No Document Attached)(rlp, ) (Entered: 01/02/2007)
39 ORDER granting 36 Motion to Amend/Correct/Modify Scheduling Order, discovery cut off 04/09/07, expert discovery cut off 07/12/07, dispositive motion ddln 08/13/07, signed by Magistrate Judge Michael J. Watanabe on 01/02/07.(rlp, ) (Entered: 01/03/2007)
40 ORDER granting 35 Motion for Extension of Time to respond to plaintiff's discovery, signed by Magistrate Judge Michael J. Watanabe on 01/02/07.(rlp, ) (Entered: 01/03/2007)
41 Minute Entry/Minute Order for proceedings held before Magistrate Judge Michael J. Watanabe : Telephone Status Conference held on 2/1/2007. Proposed Final Pretrial Order due by 11/1/2007. Final Pretrial Conference set for 11/6/2007 08:30 AM in Courtroom A 502 before Magistrate Judge Michael J. Watanabe. Defendants' counsel shall file the appropriate motion(s) to take the depositions of

Case: 1:06-cv-01405-WYD-MJW As of: 08/08/2012 12:46 PM MDT 10 of 25

02/01/2007 02/01/2007
02/05/2007 02/22/2007 02/22/2007 02/23/2007 02/28/2007
03/01/2007
03/02/2007 03/02/2007 05/07/2007 05/08/2007 05/08/2007 05/08/2007

the incarcerated witnesses.(Court Reporter FTR − S. Moore.) (mjwcd, ) (Entered: 02/01/2007)
42 Unopposed MOTION for Order to Allow Depositions of Plaintiffs Pursuant to F.R.C.P. 30(a)(2) by Defendants Lou Vallario, Scott Dawson. (Attachments: # 1 Proposed Order (PDF Only))(Lewis, Melanie) (Entered: 02/01/2007)
43 MEMORANDUM regarding 42 Unopposed MOTION for Order to Allow Depositions of Plaintiffs Pursuant to F.R.C.P. 30(a)(2) filed by Scott Dawson, Lou Vallario. Motions referred to Magistrate Judge Michael J. Watanabe by Judge Phillip S. Figa on 2/1/07. (Text Only Entry − No Document Attached)(pap2, ) (Entered: 02/01/2007)
44 Minute ORDER granting Defendants' Unopposed 42 Motion for Order Allowing Deposition of Plaintiff, by Magistrate Judge Michael J. Watanabe on 2/5/07.(gms, ) (Entered: 02/06/2007)
45 Unopposed MOTION For Extension of Time to Respond to Defendants' First Set of Written Discovery by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (Attachments: # 1 Proposed Order (PDF Only))(Phillips, John) (Entered: 02/22/2007)
46 MEMORANDUM regarding 45 Unopposed MOTION For Extension of Time to Respond to Defendants' First Set of Written Discovery by Plaintiffs. Motions referred to Magistrate Judge Michael J. Watanabe by Judge Phillip S. Figa on 2/22/07. (Text Only Entry − No Document Attached)(dln, ) (Entered: 02/22/2007)
47 ORDER Granting 45 Plaintiffs' Unopposed MOTION For Extension of Time to Respond to Defendants' First Set of Written Discovery. Signed by Magistrate Judge Michael J. Watanabe on 2/23/07.(pap, ) (Entered: 02/23/2007)
48 Unopposed MOTION For Extension of Time to Deadlines (30 Days) and Corresponding Amendment to 20 Scheduling Order by Defendants Lou Vallario, Scott Dawson. (Attachments: # 1 Proposed Order (PDF Only))(Marks, Josh) (Modified on 3/1/2007 to add the linkage to the scheduling Order)(erv, ). (Entered: 02/28/2007)
49 MEMORANDUM regarding 48 Unopposed MOTION For Extension of Time to Deadlines (30 Days) and Corresponding Amendment to Scheduling OrderUnopposed MOTION For Extension of Time to Deadlines (30 Days) and Corresponding Amendment to Scheduling Order filed by Scott Dawson, Lou Vallario. Motions referred to Magistrate Judge Michael J. Watanabe by Judge Phillip S. Figa on 3/1/07. (Text Only Entry − No Document Attached)(pap2, ) (Entered: 03/01/2007)
50 ORDER granting Defendants' Unopposed 48 Motion for 30 Day Extension of all Deadlines. Discovery cutoff 5/9/07, expert discovery cutoff 8/13/07, dispositive motions due 9/13/07. Signed by Magistrate Judge Michael J. Watanabe on 3/2/07.(gms, ) (Entered: 03/02/2007)
51 Utility Setting/Resetting Deadlines/Hearings: Discovery due by 8/13/2007,Dispositive Motions due by 9/13/2007, pursuant to order of 3/2/07. Text only entry − no document attached. (gms, ) (Entered: 03/02/2007)
52 NOTICE of Entry of Appearance and Substitution of Counsel by Marisa B. Hudson−Arney on behalf of all plaintiffs (Hudson−Arney, Marisa) (Entered: 05/07/2007)
53 Docket Annotation re: 52 NOTICE of Entry of Appearance and Substitution of Counsel. [Document to be refiled by Counsel as two separate documents]. Text only entry − no document attached. (dln, ) (Entered: 05/08/2007)
54 NOTICE of Entry of Appearance by Marisa B. Hudson−Arney on behalf of Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln (Hudson−Arney, Marisa) (Entered: 05/08/2007)
55 Unopposed MOTION to Withdraw as Attorney for Plaintiffs by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (Attachments: # 1

Case: 1:06-cv-01405-WYD-MJW As of: 08/08/2012 12:46 PM MDT 11 of 25

05/09/2007 05/09/2007 05/10/2007 05/10/2007 05/10/2007 05/14/2007 05/14/2007 05/15/2007 07/06/2007 07/06/2007
07/06/2007
07/06/2007 07/09/2007

Proposed Order (PDF Only))(Phillips, John) (Entered: 05/08/2007)
56 Unopposed MOTION For Extension of Time to Enlarge Certain Deadlines Contained in Scheduling Order by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (Attachments: # 1 Proposed Order (PDF Only))(Hudson−Arney, Marisa) (Entered: 05/09/2007)
57 MEMORANDUM regarding 56 Unopposed MOTION For Extension of Time to Enlarge Certain Deadlines Contained in Scheduling Order filed by Clarence Vandehey, William Langley, Samuel Lincoln, Jared Hogue. Motions referred to Magistrate Judge Michael J. Watanabe, by Judge Phillip S. Figa on 5/9/07. (Text Only Entry − No Document Attached)(mrs, ) (Entered: 05/09/2007)
58 ORDER granting 55 Motion to Withdraw as Counsel. Attorney Michael D. Murphy and John D. Phillips, Jr terminated for Plaintiffs. Signed by Judge Phillip S. Figa on 5/10/07.(mrs, ) (Entered: 05/10/2007)
59 ORDER granting 56 Plaintiffs' Unopposed Motion to Enlarge Certaun Deadlines contained in the Scheduling Order. Fact discovery cut−off is 7/27/07, expert discovery cut−off is 10/26/07 and dispositive motion deadline is 12/3/07. Signed by Magistrate Judge Michael J. Watanabe on 5/10/07.(mrs, ) (Entered: 05/10/2007)
60 Utility Setting/Resetting Deadlines/Hearings: Discovery due by 10/26/2007,Dispositive Motions due by 12/3/2007 pursuant to the order of 5/10/07. Text only entry − no document attached. (mrs, ) (Entered: 05/10/2007)
61 MOTION to Withdraw as Attorney for Plaintiffs by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (Ward, Robert) (Entered: 05/14/2007)
62 MEMORANDUM regarding 61 MOTION to Withdraw as Attorney for Plaintiffs filed by Clarence Vandehey, William Langley, Samuel Lincoln, Jared Hogue. Motions referred to Magistrate Judge Michael J. Watanabe, by Judge Phillip S. Figa on 5/14/07. (Text Only Entry − No Document Attached)(mrs, ) (Entered: 05/14/2007)
63 Minute ORDER granting 61 Motion to Withdraw as Attorney. Attorney Robert E. Ward, II terminated as counsel for the plaintiffs, by Magistrate Judge Michael J. Watanabe on 5/15/07.(gms, ) (Entered: 05/16/2007)
64 MOTION for Protective Order Defendants by Defendants Lou Vallario, Scott Dawson. (Attachments: # 1 Exhibit A &B# 2 Exhibit C,D,E# 3 Exhibit F# 4 Proposed Order (PDF Only) Order on Defendants' Motion for Protective Order)(Tomey, Kim) (Entered: 07/06/2007)
65 MOTION for Ruling TO PERMIT STANDARD DISCOVERYOF ALL INFORMATION REASONABLY CALCULATED TO LEAD TO THE DISCOVERY OF ADMISSIBLE EVIDENCE, OR IN THE ALTERNATIVE, TO STAY DISCOVERY UNTIL THE COURT HAS RULED ON PLAINTIFFS' MOTION FOR CLASS CERTIFICATION by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (Whitehair, J.) (Entered: 07/06/2007)
66 Joint MOTION for Ruling on 64 MOTION for Protective Order Defendants, 65 MOTION for Ruling TO PERMIT STANDARD DISCOVERYOF ALL INFORMATION REASONABLY CALCULATED TO LEAD TO THE DISCOVERY OF ADMISSIBLE EVIDENCE, OR IN THE ALTERNATIVE, TO STAY DISCOVERY UNTIL THE COURT HAS RULED ON PLAINTIFFS' MOTION FOR CLASS CERTIFIC by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (Whitehair, J.) (Entered: 07/06/2007)
67 Resubmitted Joint MOTION for Forthwith Discovery Hearing re: 64 MOTION for Protective Order, 65 MOTION for Ruling, by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (Attachments: # 1 Proposed Order (PDF Only))(Whitehair, J.) Modified on 7/9/2007 to clarify motion relief (mrs, ). (Entered: 07/06/2007)
68 Docket Annotation re: 67 Joint MOTION for Ruling on 64 MOTION for Protective Order Defendants, 65 MOTION for Ruling TO PERMIT STANDARD

Case: 1:06-cv-01405-WYD-MJW As of: 08/08/2012 12:46 PM MDT 12 of 25

07/09/2007 07/09/2007 07/09/2007
07/09/2007 07/10/2007
07/11/2007 07/12/2007 07/24/2007

DISCOVERYOF ALL INFORMATION REASONABLY CALCULATED TO LEAD TO THE DISCOVERY OF ADMISSIBLE EVIDENCE, OR IN THE ALTERNATIVE, TO STAY DISCOVERY UNTIL THE COURT HAS RULED ON PLAINTIFFS' MOTION FOR CLASS CERTIFIC (Resubmitted). This docket entry modified to clarify motion relief and to clean−up text. Text only entry − no document attached. (mrs, ) (Entered: 07/09/2007)
69 MEMORANDUM regarding 64 MOTION for Protective Order Defendants filed by Scott Dawson, Lou Vallario. Motion referred to Magistrate Judge Michael J. Watanabe, by Judge Phillip S. Figa on 7/9/07. (Text Only Entry − No Document Attached)(mrs, ) (Entered: 07/09/2007)
70 MEMORANDUM regarding 65 MOTION for Ruling TO PERMIT STANDARD DISCOVERYOF ALL INFORMATION REASONABLY CALCULATED TO LEAD TO THE DISCOVERY OF ADMISSIBLE EVIDENCE, OR IN THE ALTERNATIVE, TO STAY DISCOVERY UNTIL THE COURT HAS RULED ON PLAINTIFFS' MOTION FOR CLASS CERTIFIC filed by Clarence Vandehey, William Langley, Samuel Lincoln, Jared Hogue. Motion referred to Magistrate Judge Michael J. Watanabe by Judge Phillip S. Figa on 7/9/07. (Text Only Entry − No Document Attached)(mrs, ) (Entered: 07/09/2007)
71 MEMORANDUM regarding 67 Joint MOTION for Ruling on 64 MOTION for Protective Order Defendants, 65 MOTION for Ruling TO PERMIT STANDARD DISCOVERY OF ALL INFORMATION REASONABLY CALCULATED TO LEAD TO THE DISCOVERY OF ADMISSIBLE EVIDENCE, OR IN THE ALTERNATIVE, TO STAY DISCOVERY UNTIL THE COURT HAS RULED ON PLAINTIFF'S MOTION FOR CLASS CERTIFIC (Resubmitted) filed by Clarence Vandehey, William Langley, Samuel Lincoln, Jared Hogue. Motions referred to Magistrate Judge Michael J. Watanabe, by Judge Phillip S. Figa on 7/9/07. (Text Only Entry − No Document Attached)(mrs, ) (Entered: 07/09/2007)
72 SUPPLEMENT/AMENDMENT to 64 MOTION for Protective Order Defendants by Defendants Lou Vallario, Scott Dawson. (Attachments: # 1 Exhibit Ex G, pt 1 of 3# 2 Exhibit Ex G, pt 2 of 3# 3 Exhibit Ex G, pt 3 of 3)(Tomey, Kim) (Entered: 07/09/2007)
73 Minute Entry for proceedings held before Judge Michael J. Watanabe : Discovery Hearing held on 7/10/2007.The Resubmitted Joint 67 Motion for Forthwith Discovery Hearing is GRANTED; Defendants' 64 Motion for Protective Order is GRANTED; Plaintiffs' 65 Motion for Ruling to Permit Standard Discovery of All Information Reasonably Calculated to Lead to the Discovery of Admissible Evidence, or in the Alternative, to Stay Discovery Until the Court Has Ruled on Plaintiffs' Motion for Class Certification is DENIED in its entirety. Each party to pay its own attorney fes and costs as related to the above motions.(DISCOVERY ORDER IS VACATED PURSUANT TO Order 119 (Court Reporter FTR − Shelley Moore.) (mrs, ) Modified on 7/11/2007 to clarify ruling on Plaintiff's Motion DN 65 (mrs, ). Modified on 3/13/2008 (erv, ). (Entered: 07/10/2007)
74 Docket Annotation re: 73 Order on Motion for Protective Order, Order on Motion for Ruling, Discovery Hearing. This docket entry modified on 7/11/2007 to clarify ruling on Plaintiff's Motion, DN 65. Text only entry − no document attached. (mrs, ) (Entered: 07/11/2007)
75 TRANSCRIPT of Telephonic Discovery Conference held on 7−10−07 before Magistrate Judge Watanabe. Pages: 1−33. Per statute, copies of transcripts are available for inspection in the clerk's office. Parties interested in a copy may contact the court reporter or, in the case of a transcript prepared from a digital−audio taped record, the courtroom deputy for the judicial officer. (Avery Woods Reporting, ) (Entered: 07/12/2007)
76 APPEAL OF MAGISTRATE JUDGE DECISION to District Court re 73 Order on Motion for Protective Order, Order on Motion for Ruling,, Discovery Hearing,,,,,,,,,,,, Plaintiffs' Objection to Portion of Magistrate Judge's Order on Plaintiffs' Motion to Permit Standard Discovery by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3)(Whitehair, J.) (Entered: 07/24/2007)

Case: 1:06-cv-01405-WYD-MJW As of: 08/08/2012 12:46 PM MDT 13 of 25

07/27/2007 07/27/2007 07/31/2007 07/31/2007 08/10/2007 08/13/2007 08/13/2007
08/27/2007 08/27/2007 08/27/2007
08/28/2007

77 Unopposed MOTION For Extension of Time to Enlarge Scheduling Order Discovery Deadlines by Defendants Lou Vallario, Scott Dawson. (Attachments: # 1 Proposed Order (PDF Only) Prop Order re Mot for Enlargement of time)(Tomey, Kim) (Entered: 07/27/2007)
78 MEMORANDUM regarding 77 Unopposed MOTION For Extension of Time to Enlarge Scheduling Order Discovery Deadlines filed by Scott Dawson, Lou Vallario. Motion referred to Magistrate Judge Michael J. Watanabe, by Judge Phillip S. Figa on 7/27/07. (Text Only Entry − No Document Attached) (mrs, ) (Entered: 07/27/2007)
79 ORDER GRANTING Defendants' Unopposed 77 Motion to Amend Scheduling Order Discovery Deadlines by Thirty Days. Dispositive Motions deadline set for 1/21/08, Pretrial Conference is RESET for 2/7/08 at 10:30 AM, Proposed Final Pretrial Order shall be submitted by 2/1/08. Signed by Magistrate Judge Michael J. Watanabe on 7/31/07.(mrs, ) (Entered: 07/31/2007)
80 Utility Setting/Resetting Deadlines/Hearings: Dispositive Motions due by 1/21/2008, Proposed Pretrial Order due by 2/1/2008, Final Pretrial Conference RESET for 2/7/2008 10:30 AM before Magistrate Judge Michael J. Watanabe pursuant to Order dated 7/31/07. Text only entry − no document attached. (mrs, ) (Entered: 07/31/2007)
81 Unopposed MOTION for Leave to File Response to Plaintiffs' Objection to Portion of Magistrate Judge's Order on Plaintiffs' Motion to Permit Standard Discovery by Defendants Lou Vallario, Scott Dawson. (Attachments: # 1 Proposed Document # 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D# 6 Exhibit E# 7 Exhibit F# 8 Exhibit G# 9 Exhibit H# 10 Exhibit I# 11 Exhibit J# 12 Exhibit K# 13 Proposed Order (PDF Only))(Marks, Josh) (Entered: 08/10/2007)
82 MINUTE ORDER GRANTING Defendants' Unopposed 81 Motion for Leave to File Response to Plainitffs' Objection to Portion of Magistrate Judge's Order, the tendered response and exhibits are accepted for filing, by Judge Phillip S. Figa on 8/13/07.(mrs, ) (Entered: 08/13/2007)
83 RESPONSE to objection to 76 APPEAL OF MAGISTRATE JUDGE DECISION to District Court re 73 Order on Motion for Protective Order, Order on Motion for Ruling, Discovery Hearing, Plaintiffs' Objection to Portion of Magistrate Judge's Order on Plaintiff's Motion to Permit Standard Discovery filed by Defendants Lou Vallario, Scott Dawson. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K)(mrs, ) (Entered: 08/13/2007)
84 MOTION for Leave to File Reply in Support of Plaintiffs' Objection to Portion of Magistrate Judge's Order on Plaintiffs' Motion to Permit Standard Discovery by Plaintiff Clarence Vandehey, William Langley, Samuel Lincoln and Jared Hogue. (Whitehair, J.) Modified on 8/29/2007 to add filers (mrs, ). (Entered: 08/27/2007)
85 MOTION for Order to Proposed Order on Plaintiffs' Unopposed Motion for Leave to File Reply in Support of Plaintiffs' Objection to Portion of Magistrate Judge's Order on Plaintiffs' Motion to Permit Standard Discovery by Plaintiff Clarence Vandehey. (Whitehair, J.) (Entered: 08/27/2007)
86 REPLY to Response to Motion re 85 MOTION for Order to Proposed Order on Plaintiffs' Unopposed Motion for Leave to File Reply in Support of Plaintiffs' Objection to Portion of Magistrate Judge's Order on Plaintiffs' Motion to Permit Standard Discovery, 84 MOTION for Leave to File Reply in Support of Plaintiffs' Objection to Portion of Magistrate Judge's Order on Plaintiffs' Motion to Permit Standard Discovery filed by Plaintiff Clarence Vandehey, William Langley, Samuel Lincoln and Jared Hogue. (Attachments: # 1 Exhibit Exhibit A to Reply# 2 Exhibit Exhibit B to Reply# 3 Exhibit Exhibit C to Reply)(Whitehair, J.) Modified on 8/29/2007 to add filers(mrs, ). (Entered: 08/27/2007)
87 MINUTE ORDER GRANTING Paintiff's Unopposed 84 Motion for Leave to File Reply in Support of Plaintiff's Objection to Portion of Magistrate Judge's Order on Plaintiffs' Motion to Permit Standard Discovery and the same is accepted for filing, by Judge Phillip S. Figa on 8/28/07.(mrs, ) (Entered: 08/28/2007)

Case: 1:06-cv-01405-WYD-MJW As of: 08/08/2012 12:46 PM MDT 14 of 25

08/29/2007 08/31/2007 09/04/2007 09/05/2007 09/27/2007 09/28/2007 10/01/2007 10/01/2007 11/30/2007 12/03/2007 12/04/2007
12/04/2007 12/14/2007

88 Docket Annotation re: 86 Reply to Response to Motion, 84 MOTION for Leave to File Reply in Support of Plaintiffs' Objection to Portion of Magistrate Judge's Order on Plaintiffs' Motion to Permit Standard Discovery. These docket entries modified to add filers. Text only entry − no document attached. (mrs, ) (Entered: 08/29/2007)
89 Unopposed MOTION For Extension of Time to Allow Deposition Beyond Fact Discovery Cutoff by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (Whitehair, J.) (Entered: 08/31/2007)
90 MEMORANDUM regarding 89 Unopposed MOTION For Extension of Time to Allow Deposition Beyond Fact Discovery Cutoff filed by Clarence Vandehey, William Langley, Samuel Lincoln, Jared Hogue. Motions referred to Magistrate Judge Michael J. Watanabe, by Judge Phillip S. Figa on 9/4/07. (Text Only Entry − No Document Attached)(mrs, ) (Entered: 09/04/2007)
91 Minute ORDER granting Plaintiffs' Unopposed 89 Motion to Allow Deposition Beyond Fact Discovery Cutoff to 9/14/07, by Magistrate Judge Michael J. Watanabe on 9/5/07.(gms, ) (Entered: 09/06/2007)
92 Unopposed MOTION For Extension of Time to Enlarge Expert Witness Deadlines by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (Whitehair, J.) (Entered: 09/27/2007)
93 MEMORANDUM regarding 92 Unopposed MOTION For Extension of Time to Enlarge Expert Witness Deadlines filed by Clarence Vandehey, William Langley, Samuel Lincoln, Jared Hogue. Motions referred to Magistrate Judge Michael J. Watanabe, by Judge Phillip S. Figa on 9/28/07. (Text Only Entry − No Document Attached)(mrs) (Entered: 09/28/2007)
94 ORDER GRANTING Plaintiffs' Unopposed 92 Motion to Enlarge Expert Witness Deadlines. Discovery Cut Off extended to 12/21/07, Dispositive Motions Deadline extended to 2/1/08, Final Pretrial Conference set for 2/7/08 at 10:30 AM. Signed by Magistrate Judge Michael J. Watanabe on 10/1/07.(mrs) (Entered: 10/01/2007)
95 Utility Setting/Resetting Deadlines/Hearings: Discovery due by 12/21/2007, Dispositive Motions due by 2/1/2008, Final Pretrial Conference set for 2/7/2008 10:30 AM before Magistrate Judge Michael J. Watanabe (unchanged) pursuant to Order dated 10/1/07. Text only entry − no document attached. (mrs) (Entered: 10/01/2007)
96 Unopposed MOTION For Extension of Time to to Disclose Their FRCP 26(a)(2) Expert Report of Dr. Elizabeth Hogan by Defendants Lou Vallario, Scott Dawson. (Attachments: # 1 Proposed Order (PDF Only) re Unopposed Motion for Extension of time to Disclose Expert Report of Dr. Hogan)(Tomey, Kim) (Entered: 11/30/2007)
97 MEMORANDUM regarding 96 Unopposed MOTION For Extension of Time to Disclose Their FRCP 26(a)(2) Expert Report of Dr. Elizabeth Hogan filed by Scott Dawson, Lou Vallario. Motions referred to Magistrate Judge Michael J. Watanabe, by Judge Phillip S. Figa on 12/3/07. (Text Only Entry − No Document Attached)(mrs, ) (Entered: 12/03/2007)
98 ORDER GRANTING Defendants' Unopposed 96 Motion for Extension of Time to Disclose their Expert Report of Dr. Elizabeth Hogan. Pretrial deadlines are amended as follows: Expert discovery cut−off is extended to 2/29/08, Dispositive motions deadline is extended to 3/28/08. Final Pretrial Conference RESET for 4/30/08 at 9:00 AM. Signed by Magistrate Judge Michael J. Watanabe on 12/4/07.(mrs, ) (Entered: 12/05/2007)
99 Utility Setting/Resetting Deadlines/Hearings: Discovery due by 2/29/2008. Dispositive Motions due by 3/28/2008. Final Pretrial Conference set for 4/30/2008 09:00 AM before Magistrate Judge Michael J. Watanabe pursuant to Order dated 12/4/07. Text only entry − no document attached. (mrs, ) (Entered: 12/05/2007)
100 Unopposed MOTION For Extension of Time to Disclose their FRCP 26(a)(2) Expert Report by Defendants Lou Vallario, Scott Dawson. (Attachments: # 1 Proposed Order (PDF Only) re Extension of Time, # 2 Exhibit Ex A to Motion for

Case: 1:06-cv-01405-WYD-MJW As of: 08/08/2012 12:46 PM MDT 15 of 25

12/14/2007 12/20/2007 01/08/2008 01/11/2008
01/21/2008 01/22/2008
01/22/2008 02/08/2008 02/08/2008 02/11/2008 02/12/2008

EOT)(Tomey, Kim) (Entered: 12/14/2007)
101 MEMORANDUM regarding 100 Unopposed MOTION For Extension of Time to Disclose their FRCP 26(a)(2) Expert Report filed by Scott Dawson, Lou Vallario. Motions referred to Magistrate Judge Michael J. Watanabe, by Judge Phillip S. Figa on 12/14/07. (Text Only Entry − No Document Attached)(mrs, ) (Entered: 12/14/2007)
102 ORDER granting Defendants' Second Unopposed 100 Motion for Extension of Time to Disclose their Expert Report. The deadline for submission of Dr. Elizabeth Hogan's expert report shall be 1/11/08. Signed by Magistrate Judge Michael J. Watanabe on 12/20/07.(mrs, ) (Entered: 12/20/2007)
103 REASSIGNING JUDGE. Upon the passing of Judge Phillip S. Figa and pursuant to General Order 2008−1, this case has been reassigned to Judge Wiley Y. Daniel effective this date. All future pleadings should now reference the initials of the judge the matter was reassigned to instead of PSF. (Text only entry − no document attached) (gms, ) (Entered: 01/08/2008)
104 MINUTE ORDER re: 7 Amended MOTION to Certify Class filed by Clarence Vandehey, William Langley, Samuel Lincoln, Jared Hogue, 76 APPEAL OF MAGISTRATE JUDGE DECISION to District Court re 73 Order on Motion for Protective Order, Order on Motion for Ruling, Discovery Hearing, Set Hearings: Motion Hearing set for 2/6/2008 01:30 PM in Courtroom A1002 before Judge Wiley Y. Daniel. by Judge Wiley Y. Daniel on 1/11/08. (erv, ) (Entered: 01/11/2008)
105 Unopposed MOTION to Continue February 6, 2008 Hearing by Defendants Lou Vallario, Scott Dawson. (Attachments: # 1 Proposed Order (PDF Only))(Tomey, Kim) (Entered: 01/21/2008)
106 MINUTE ORDER granting 105 Dfts Unopposed Motion to Continue 2/6/08 Hrg. The hearing on Plaintiff's Objection to Portion of Magistrate Judge's Order on Plaintiffs' Motion to Permit Standard Discovery, filed July 24, 2007 76 , andPlaintiffs' Amended Motion to Certify Class, filed August 2, 2006 7 set forWednesday, February 6, 2008 at 1:30 p.m. is RESET to Thursday, February 14, 2008, at 1:30 p.m., in courtroom A−1002. by Judge Wiley Y. Daniel on 1/22/08.(erv, ) (Entered: 01/22/2008)
107 Utility Resetting Hearings: Text only entry − no document attached. Motion Hearing set for 2/14/2008 01:30 PM in Courtroom A1002 before Judge Wiley Y. Daniel. (erv, ) (Entered: 01/22/2008)
108 Unopposed MOTION For Extension of Time to Enlarge Remaining Case Deadlines by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (Attachments: # 1 Proposed Order (PDF Only) [Proposed] Order Granting Plaintiffs' Unopposed Motion to Enlarge All Remaining Case Deadlines)(Whitehair, J.) (Entered: 02/08/2008)
109 MEMORANDUM regarding 108 Unopposed MOTION For Extension of Time to Enlarge Remaining Case Deadlines filed by Clarence Vandehey, William Langley, Samuel Lincoln, Jared Hogue. Motions referred to Magistrate Judge Michael J. Watanabe. Referred by Judge Wiley Y. Daniel on 2/8/08. (Text Only Entry − No Document Attached) (wydcd, rrk) (Entered: 02/08/2008)
110 MINUTE ORDER, Motion Hearing Reset for 2/14/2008 02:00 PM in Courtroom A1002 before Judge Wiley Y. Daniel; on Pla's Amended Motion 7 to certify Class; and Pla's Motion 76 , to Permit Standard Discovery, by Judge Wiley Y. Daniel on 2/11/08. (erv, ) (Entered: 02/12/2008)
111 BRIEF in Opposition re 7 Amended MOTION to Certify Class Defendants Supplemental Brief RE Plaintiffs Amended Motion to Certfy Class filed by Defendants Lou Vallario, Scott Dawson. (Attachments: # 1 Exhibit Ex A to Defs Supp Brief, # 2 Exhibit Ex B to Defs Supp Brief, # 3 Exhibit Ex C to Defs Supp Brief, # 4 Exhibit Ex D to Defs Supp Brief, # 5 Exhibit Ex E to Defs Supp Brief, # 6 Exhibit Ex F to Defs Supp Brief, # 7 Exhibit Ex G to Defs Supp Brief, # 8 Exhibit Ex H to Defs Supp Brief, # 9 Exhibit Ex I to Defs Supp Brief)(Tomey,

Case: 1:06-cv-01405-WYD-MJW As of: 08/08/2012 12:46 PM MDT 16 of 25

02/13/2008 02/13/2008 02/14/2008
02/20/2008 02/25/2008 02/28/2008
03/13/2008 03/14/2008 03/31/2008 03/31/2008 04/02/2008

Kim) (Entered: 02/12/2008)
112 MOTION to Strike 111 Brief in Opposition to Motion,, by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (Attachments: # 1 Proposed Order (PDF Only) Order)(Whitehair, J.) (Entered: 02/13/2008)
113 ORDER granting 108 Pla's Unopposed Motion for Extension of all remaining case deadlines; Expert Discovery 5/30/08; Dispositive Motions deadlines 6/30/08; Final Pretrial Conf 8/5/08 at 8:30 a.m.; Final Pretrial Conf set for 4/30/08 at 9:00 a.m. is VACATED. Signed by Magistrate Judge Michael J. Watanabe on 2/13/08.(erv, ) (Entered: 02/14/2008)
115 Minute Entry for proceedings held before Judge Wiley Y. Daniel: Motion Hearing held on 2/14/2008. Denying Plaintiffs' 112 Motion to Strike Defendants' Supplemental Brief re: Plaintiffs' 7 Amended MOTION to Certify Class. Counsel to file supplemental briefs on issue of sub classes; plaintiff's due 2/20/08 and defendants due 2/25/08. Plaintiff's to respond to Defendants' Supplemental Brief re: Plaintiffs' 7 Amended MOTION to Certify Class on or before 3/4/08 (Court Reporter Kara Spitler.) (gms, ) (Entered: 02/19/2008)
116 SUPPLEMENT/AMENDMENT to 7 Amended MOTION to Certify Class Plaintiffs' Submission of Authority Requested by the Court Regarding Certification of a Class Comprised of Pre−Trial Detainees and Post−Conviction Prisoners by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (Hansen, Taggart) (Entered: 02/20/2008)
117 SUPPLEMENT/AMENDMENT to 116 Supplement/Amendment, 111 Brief in Opposition to Motion,, on Issue of Subclasses in Response to Plaintiffs' Submission of Authority Requetsed by the Court by Defendants Lou Vallario, Scott Dawson. (Tomey, Kim) (Entered: 02/25/2008)
118 SUPPLEMENT/AMENDMENT to 111 Brief in Opposition to Motion,, 7 Amended MOTION to Certify Class, 115 Order on Motion to Strike, Motion Hearing,,,, Plaintiffs' Supplemental Brief Regarding Plaintiffs' Amended Motion to Certify Class by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25)(Whitehair, J.) (Entered: 02/28/2008)
119 ORDER granting 76 APPEAL OF MAGISTRATE JUDGE DECISION to District Court; and the discovery order entered by Magistrate Judge Watanabe is vacated. granting in part and denying in part 7 Motion to Certify Class. Signed by Judge Wiley Y. Daniel on 3/13/08.(erv, ) (Entered: 03/13/2008)
120 MINUTE ORDER re: 119 Order on Appeal of Magistrate Judge Decision to District Court, Order on Motion to Certify Class, a Further Scheduling Conference is set for 4/7/2008 09:30 AM in Courtroom A 502 before Magistrate Judge Michael J. Watanabe. by Magistrate Judge Michael J. Watanabe on 3/14/08. (erv, ) (Entered: 03/14/2008)
121 Joint MOTION For Extension of Time to Extend the Date of the Scheduling Conference by Two Weeks by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (Attachments: # 1 Proposed Order (PDF Only) Proposed Order)(Whitehair, J.) (Entered: 03/31/2008)
122 MEMORANDUM regarding 121 Joint MOTION For Extension of Time to Extend the Date of the Scheduling Conference by Two Weeks filed by Clarence Vandehey, William Langley, Samuel Lincoln, Jared Hogue. Motions referred to Magistrate Judge Michael J. Watanabe. Referred by Judge Wiley Y. Daniel on 3/31/08. (Text Only Entry − No Document Attached) (wydcd, rrk) (Entered: 03/31/2008)
123 ORDER granting 121 Joint Motion to Extend the Date of the Scheduling Conf. The Scheduling Conf set for 4/7/08 at 9:30 a.m. is VACATED and rest to 4/28/08 at 10:30 a.m.. Signed by Magistrate Judge Michael J. Watanabe on 4/2/08.(erv, )

Case: 1:06-cv-01405-WYD-MJW As of: 08/08/2012 12:46 PM MDT 17 of 25

04/02/2008 04/14/2008 04/18/2008 04/21/2008 04/21/2008 04/22/2008
04/22/2008 04/22/2008 04/23/2008 04/23/2008 04/24/2008 04/25/2008 04/28/2008 05/01/2008 05/09/2008

(Entered: 04/02/2008)
124 Utility Resetting Hearings: Scheduling Conference set for 4/28/2008 10:30 AM in Courtroom A 502 before Magistrate Judge Michael J. Watanabe. Text only entry − no document attached. (erv, ) (Entered: 04/02/2008)
125 MOTION to Stay Proceedings Under Fed.R.Civ.P.23(f) by Defendants Lou Vallario, Scott Dawson. (Marks, Josh) (Entered: 04/14/2008)
126 MEMORANDUM regarding 125 MOTION to Stay Proceedings Under Fed.R.Civ.P.23(f) filed by Scott Dawson, Lou Vallario. Motions referred to Magistrate Judge Michael J. Watanabe by Judge Wiley Y. Daniel on 4/18/08. (Text Only Entry − No Document Attached)(erv, ) (Entered: 04/18/2008)
127 MINUTE ORDER re: 125 MOTION to Stay Proceedings Under Fed.R.Civ.P.23(f) filed by Scott Dawson, Lou Vallario; It is ORDERED that Pla's shall file their response on or before 4/24/08, by Magistrate Judge Michael J. Watanabe on 4/21/08. (erv, ) (Entered: 04/21/2008)
128 Joint MOTION For Extension of Time to FIle Proposed Amended Scheduling Order by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (Hansen, Taggart) (Entered: 04/21/2008)
129 MEMORANDUM regarding 128 Joint MOTION For Extension of Time to FIle Proposed Amended Scheduling Order filed by Clarence Vandehey, William Langley, Samuel Lincoln, Jared Hogue. Motions referred to Magistrate Judge Michael J. Watanabe. Referred by Judge Wiley Y. Daniel on 4/22/08. (Text Only Entry − No Document Attached) (wydcd, rrk) (Entered: 04/22/2008)
130 Proposed Scheduling Order [Amended] by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (Whitehair, J.) (Entered: 04/22/2008)
131 MINUTE ORDER granting 128 Motion for One Day Extension of Time to file Proposed Amended Scheduling Order, by Magistrate Judge Michael J. Watanabe on 4/22/08.(erv, ) (Entered: 04/22/2008)
132 Docket Annotation re: 130 Proposed Scheduling Order, the wrong PDF was attached when docketed. It will be refiled with the correct PDF attached. Text only entry − no document attached (erv2, ) (Entered: 04/23/2008)
133 Proposed Scheduling Order (Amended) by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (Hansen, Taggart) (Entered: 04/23/2008)
134 RESPONSE to Motion re 125 MOTION to Stay Proceedings Under Fed.R.Civ.P.23(f) filed by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Whitehair, J.) (Entered: 04/24/2008)
135 SUPPLEMENT/AMENDMENT to 125 MOTION to Stay Proceedings Under Fed.R.Civ.P.23(f) by Defendants Lou Vallario, Scott Dawson. (Attachments: # 1 Exhibit Tenth Circuit's Order)(Marks, Josh) (Entered: 04/25/2008)
136 COURTROOM MINUTES − Minute Entry for proceedings held before Magistrate Judge Michael J. Watanabe: Granting 125 Defendants' Motion to Stay. Joint Status Report due September 30, 2008. Scheduling Conference held on 4/28/2008. (Court Reporter FTR) (psfcd) (Entered: 04/28/2008)
137 NOTICE of Transcript Order Form by Defendants Lou Vallario, Scott Dawson (Marks, Josh) (Entered: 05/01/2008)
138 APPEAL OF MAGISTRATE JUDGE DECISION to District Court re 136 Order on Motion to Stay, Scheduling Conference,, by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Proposed Order (PDF Only))(Hansen, Taggart) (Entered: 05/09/2008)

Case: 1:06-cv-01405-WYD-MJW As of: 08/08/2012 12:46 PM MDT 18 of 25

05/16/2008 05/22/2008

139 TRANSCRIPT of Motions Hearing held on 4−28−08 before Magistrate Judge Watanabe. Pages: 1−20. Per statute, copies of transcripts are available for inspection in the clerk's office. Parties interested in a copy may contact the court reporter or, in the case of a transcript prepared from a digital−audio taped record, the courtroom deputy for the judicial officer. (Avery Woods Reporting, ) (Entered: 05/16/2008)
140 TRANSCRIPT of Hearing on Plaintiffs' Motion to Certify Plaintiff Class held on 2−14−08 before Judge Daniel. Pages: 1−93.

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.

05/22/2008 05/27/2008 06/10/2008
08/04/2008 09/25/2008 09/26/2008 09/29/2008 09/30/2008

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 8/20/2008. (Spitler, Kara) (Entered: 05/22/2008)
141 REPORTERS TANSCRIPT ORDER FORM (NOTICE) as to petition to appeal which has been filed with the Court of Appeals by Defendants Lou Vallario, Scott Dawson(USCA no. 08−502) (bjr2, ) (Entered: 05/23/2008)
142 RESPONSE to Motion re 138 APPEAL OF MAGISTRATE JUDGE DECISION to District Court re 136 Order on Motion to Stay, Scheduling Conference by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln filed by Defendants Lou Vallario, Scott Dawson. (Marks, Josh) (Entered: 05/27/2008)
143 REPLY to Response to Motion re 138 APPEAL OF MAGISTRATE JUDGE DECISION to District Court re 136 Order on Motion to Stay, Scheduling Conference,, by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel LincolnAPPEAL OF MAGISTRATE JUDGE DECISION to District Court re 136 Order on Motion to Stay, Scheduling Conference,, by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln filed by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (Hansen, Taggart) (Entered: 06/10/2008)
144 MINUTE ORDER It is hereby ORDERED that the Final Pretrial Conference set on AUGUST 5, 2008 at 8:30 a.m. is VACATED, to be reset at a future date if and when necessary. Consistent with the Minute Order 136 , the parties shall file a Joint Status Report on September 30, 2008 and/or shall notify the Court of any ruling by the Tenth Circuit within five days of the ruling, whichever occurs first. by Magistrate Judge Michael J. Watanabe on 8/4/08. (erv, ) (Entered: 08/04/2008)
145 MOTION to Withdraw as Attorney by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (Attachments: # 1 Proposed Order (PDF Only))(Hansen, Taggart) (Entered: 09/25/2008)
146 TERMED MEMORANDUM regarding 145 MOTION to Withdraw as Attorney filed by Clarence Vandehey, William Langley, Samuel Lincoln, Jared Hogue. Motions referred to Magistrate Judge Michael J. Watanabe, by Judge Wiley Y. Daniel on 9/26/08. erv, ) (Modified on 9/29/2008 A new Memo of Referral will be sent upon the re−filing of the motion to Withdraw)(erv, ). (Text Only Entry − No Document Attached)( (Entered: 09/26/2008)
147 Docket Annotation re: 146 Memorandum. The NEF for this document to Greg Whitehair was returned as undeliverable. The firm advises he is no longer employed by them and he will file a motion to withdraw. Text only entry − no document attached (gms, ) (Entered: 09/29/2008)
148 Joint STATUS REPORT by Defendants Lou Vallario, Scott Dawson. (Tomey, Kim) (Entered: 09/30/2008)

Case: 1:06-cv-01405-WYD-MJW As of: 08/08/2012 12:46 PM MDT 19 of 25

09/30/2008
10/01/2008 10/01/2008
10/06/2008 02/04/2009 02/10/2009 02/11/2009 02/11/2009
03/25/2009 03/25/2009 03/25/2009 03/26/2009
04/03/2009 04/03/2009

149 MINUTE ORDER re: 148 Joint Status Report filed by Scott Dawson, Lou Vallario; In accordance with the Defendants request, the stay in this matter is continued until the Tenth Circuit Court of Appeals issues its decision. The parties shall jointly report to the Court within five days of the Tenth Circuit Courts ruling. by Judge Wiley Y. Daniel on 9/30/08. (erv, ) (Entered: 09/30/2008)
150 MOTION to Withdraw as Attorney by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (Attachments: # 1 Proposed Order (PDF Only))(Hansen, Taggart) (Entered: 10/01/2008)
151 MEMORANDUM regarding 150 MOTION to Withdraw as Attorney filed by Clarence Vandehey, William Langley, Samuel Lincoln, Jared Hogue. Motion referred to Magistrate Judge Michael J. Watanabe. Referred by Judge Wiley Y. Daniel on 10/1/08. (Text Only Entry − No Document Attached) (wydcd, rrk) (Entered: 10/01/2008)
152 MINUTE ORDER granting 150 Motion to Withdraw as Attorney. Attorney Taggart Hansen terminated, by Magistrate Judge Michael J. Watanabe on 10/6/08.(erv, ) (Entered: 10/06/2008)
153 USCA OPINION AND JUDGMENT (ORDER). The Petition for Review is granted. The case is remanded for the district court to reconsider its class certification order. USCA case no. 08−502. (Attachments: # 1 USCA Judgment, # 2 Letter)(bjrsl, ) (Entered: 02/05/2009)
154 NOTICE of Entry of Appearance by Reid John Allred on behalf of Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln (Allred, Reid) (Entered: 02/10/2009)
155 Joint STATUS REPORT by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln, and Defendant's Lou Vallario and Scott Dawson (Attachments: # 1 Exhibit A)(Allred, Reid) (Modified on 2/12/2009 added party filers)(erv, ). (Entered: 02/11/2009)
156 MINUTE ORDER re: 155 Joint Status Report filed by Clarence Vandehey, William Langley, Samuel Lincoln, Jared Hogue, the stay in this matter is continued until the Tenth Circuit Court of Appeals issues a mandate. The parties shall jointly report to the Court within five days of the issuance of the mandate. by Chief Judge Wiley Y. Daniel on 2/11/09. (erv, ) (Entered: 02/12/2009)
157 NOTICE of Entry of Appearance by Holli Lyn Hartman on behalf of all plaintiffs (Hartman, Holli) (Entered: 03/25/2009)
158 NOTICE of Entry of Appearance of Paul G. Karlsgodt by Holli Lyn Hartman on behalf of all plaintiffs (Hartman, Holli) (Entered: 03/25/2009)
159 NOTICE of Entry of Appearance of Paul G. Karlsgodt by Paul Gregory Karlsgodt on behalf of all plaintiffs (Karlsgodt, Paul) (Entered: 03/25/2009)
160 MINUTE ORDER re: 155 Status Report filed by Clarence Vandehey, William Langley, Scott Dawson, Samuel Lincoln, Jared Hogue, Lou Vallario, indicating that they would report to the Court again within five days of the issuance of the mandate by the Tenth Circuit Court of Appeals. On that date, the Court issued a Minute Order accordingly staying the case until the issuance of the mandate. However,it is now the Courts understanding that the Tenth Circuit will not issue a mandate in this case. Accordingly, the parties shall jointly report to the Court not later than Friday, April 3, 2009. by Chief Judge Wiley Y. Daniel on 3/26/09. (erv, ) (Entered: 03/26/2009)
161 Unopposed MOTION to Withdraw as Attorney by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (Attachments: # 1 Proposed Order (PDF Only))(Hudson−Arney, Marisa) (Entered: 04/03/2009)
162 MINUTE ORDER granting 161 Motion to Withdraw as Attorney for Plaintiffs. Attorney Reid John Allred and Marisa B. Hudson−Arney terminated by Chief Judge Wiley Y. Daniel on 4/3/09.(erv, ) (Entered: 04/03/2009)

Case: 1:06-cv-01405-WYD-MJW As of: 08/08/2012 12:46 PM MDT 20 of 25

04/03/2009 04/03/2009 06/23/2009 07/15/2009 07/16/2009 07/16/2009 07/22/2009
07/23/2009
08/03/2009 08/04/2009 08/17/2009 08/17/2009

163 Joint STATUS REPORT by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln, Defendants Lou Vallario, Scott Dawson. (Hartman, Holli) (Entered: 04/03/2009)
164 MINUTE ORDER re: 163 Status Report filed by Clarence Vandehey, William Langley, Scott Dawson, Samuel Lincoln, Jared Hogue, Lou Vallario Status Conference set for 6/23/2009 02:30 PM in Courtroom A1002 before Chief Judge Wiley Y. Daniel. by Chief Judge Wiley Y. Daniel on 4/3/09. (erv, ) (Entered: 04/06/2009)
165 Minute Entry for proceedings held before Chief Judge Wiley Y. Daniel: Status Conference held on 6/23/2009, Set/Reset Hearings:( Motion Hearing set for 8/26/2009 04:00 PM in Courtroom A1002 before Chief Judge Wiley Y. Daniel.). (Court Reporter Therese Lindblom.) (wydcd, rrk) (Entered: 06/25/2009)
166 Joint MOTION for Extension of Time to Brief Motion to Take Additional Discovery by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (Attachments: # 1 Proposed Order (PDF Only) Proposed Order)(Hartman, Holli) (Entered: 07/15/2009)
167 MEMORANDUM regarding 166 Joint MOTION for Extension of Time to Brief Motion to Take Additional Discovery filed by Clarence Vandehey, William Langley, Samuel Lincoln, Jared Hogue.Motion referred to Magistrate Judge Michael J. Watanabe by Chief Judge Wiley Y. Daniel on 7/16/09. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydcd, rrk) (Entered: 07/16/2009)
168 MINUTE ORDER granting 166 Motion for Extension of Time by Chief Judge Wiley Y. Daniel on 7/16/09. Motion for Additional Discovery or Status Report due by 7/22/2009. If a Motion for Additional Discovery is filed, response due by 8/14/09. (wydcd, rrk) (Entered: 07/16/2009)
169 STIPULATION and Statement of the Parties Position Regarding Plaintiffs Request for Additional Class−Related Discovery by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (Attachments: # 1 Exhibit A − Correspondence dated 07−07−09, # 2 Exhibit B − Correspondence dated 07−20−09)(Karlsgodt, Paul) Modified on 7/23/2009 edited typing error)(erv, ). (Entered: 07/22/2009)
170 MINUTE ORDER STRIKING 169 Partial Stipulation and Statement of the parties Positions Regarding Plaintiffs Request for Additional Class− Related Discovery, insofar as it stipulates to deadlines in contravention of previous court orders. Pursuant to D.C.COLO.LCivR 6.1, the extensions of time proposed in the parties present filing cannot be stipulated to but rather must be approved by court order upon motion. Defendants shall provide the additional discovery referenced in the parties present filing to Plaintiffs not later than Thursday, August 13, 2009. Not later than Monday, August 17, 2009, Plaintiffs shall file a motion for additional discovery or a status report indicating the parties agreement. Defendant shall respond to the Motion, if necessary, not later than Thursday, August 20, 2009. Status Report due by 8/17/2009. by Chief Judge Wiley Y. Daniel on 7/23/09. (erv, ) (Modified on 7/24/2009 edited Duplicate Minute Order in Title)(erv, ). (Entered: 07/23/2009)
171 Unopposed MOTION to Substitute Party Stephen Hopple in Place of Defendant Scott Dawson by Defendants Lou Vallario, Scott Dawson. (Attachments: # 1 Proposed Order (PDF Only))(Tomey, Kim) (Entered: 08/03/2009)
172 ORDER granting 171 Defendants Unopposed Motion to Substitute Party. Stephen Hopple rep by Kim Arquette Tomey added. Scott Dawson terminated by Chief Judge Wiley Y. Daniel on 8/4/09.(erv, ) (Entered: 08/04/2009)
173 Joint STATUS REPORT by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln, Defendants Lou Vallario, Stephen Hopple. (Hartman, Holli) (Entered: 08/17/2009)
174 MINUTE ORDER entered by Chief Judge Wiley Y. Daniel on 8/17/09. Status Report, indicating proposed briefing schedule for Plaintiffs' anticipated motion for class certification, due by 8/20/2009. Vacating motions hearing set for Wednesday, August 26, 2009, at 4:00 p.m. (wydcd, rrk) (Entered: 08/17/2009)

Case: 1:06-cv-01405-WYD-MJW As of: 08/08/2012 12:46 PM MDT 21 of 25

08/20/2009 08/20/2009 10/02/2009
10/05/2009 10/09/2009 10/30/2009 11/02/2009 11/04/2009 11/04/2009 11/06/2009
11/09/2009 11/09/2009

175 Joint STATUS REPORT by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln, Defendants Lou Vallario, Stephen Hopple. (Hartman, Holli) (Entered: 08/20/2009)
176 MINUTE ORDER entered by Chief Judge Wiley Y. Daniel on 8/20/09. Plaintiffs shall file their renewed motion for class certification not later than than Friday, October 2, 2009. Defendants shall respond not later than Monday, November 2, 2009, and Plaintiffs shall reply not later than Tuesday, November 17, 2009.(wydcd, rrk) (Entered: 08/21/2009)
177 Second MOTION to Certify Class by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (Attachments: # 1 Exhibit Metzner Declaration, # 2 Exhibit Martin Declaration, # 3 Exhibit Arapahoe Use of Force Policy, # 4 Exhibit Adams Medical Triage Policy, # 5 Exhibit Adams Restraint and Seclusion Policy, # 6 Exhibit Pitkin Restraint Policy, # 7 Exhibit Fremont Use of Force Policy, # 8 Exhibit Jefferson Use of Force, # 9 Exhibit Moffat Use of Restraints Policy, # 10 Exhibit Larimer Electroshock Policy, # 11 Exhibit Pueblo Policies, # 12 Exhibit Weld Disciplinary Policy, # 13 Exhibit Presley Consent Decree, # 14 Exhibit Rhodes Consent Order, # 15 Exhibit Hearing Transcript)(Hartman, Holli) (Entered: 10/02/2009)
178 MINUTE ORDER: Motion Hearing on Plaintiff's Renewed Motion for Class Certification [doc. #177], filed October 2, 2009, is set for 1/20/2009 02:00 PM, in Courtroom A1002 before Chief Judge Wiley Y. Daniel, entered by Chief Judge Wiley Y. Daniel on 10/5/09. (wydcd, rrk) (Entered: 10/05/2009)
179 MINUTE ORDER denying as moot 138 APPEAL OF MAGISTRATE JUDGE DECISION to District Court, entered by Chief Judge Wiley Y. Daniel on 10/9/09. (wydcd, rrk) (Entered: 10/09/2009)
180 Unopposed MOTION for Extension of Time to File Response/Reply as to 177 Second MOTION to Certify Class by Defendants Lou Vallario, Scott Dawson, Stephen Hopple. (Attachments: # 1 Proposed Order (PDF Only))(Marks, Josh) (Entered: 10/30/2009)
181 MINUTE ORDER granting 180 Motion for Extension of Time to File Response. Defendants have up to and including November 6,2009 within which to respond to Plaintiff's 177 Second Amended Motion for Class Certification. Entered by Chief Judge Wiley Y. Daniel on 11/2/09.(wydcd, rrk) (Modified on 11/4/2009 added link to Second Amended Motion)(erv, ). (Entered: 11/02/2009)
182 Unopposed MOTION for Leave to File Excess Pages for Defendants' Response Brief by Defendants Lou Vallario, Stephen Hopple. (Attachments: # 1 Proposed Order (PDF Only))(Lewis, Melanie) (Entered: 11/04/2009)
183 MINUTE ORDER granting 182 Motion for Leave to File Excess Pages. Defendants may submit a response to Plaintiffs Second Amended Motion for Class Certification consisting of no more than (25) twenty−five pages. Entered by Chief Judge Wiley Y. Daniel on 11/4/09. (wydcd, rrk) (Entered: 11/04/2009)
184 RESPONSE to 177 Second MOTION to Certify Class filed by Defendants Lou Vallario, Scott Dawson, Stephen Hopple. (Attachments: # 1 Exhibit A , # 2 Exhibit B , # 3 Exhibit C , # 4 Exhibit D , # 5 Exhibit E , # 6 Exhibit F , # 7 Exhibit G , # 8 Exhibit H , # 9 Exhibit I , # 10 Exhibit J , # 11 Exhibit K to , # 12 Exhibit L , # 13 Exhibit M, # 14 Exhibit N)(Marks, Josh) (Modified on 11/10/2009 edited duplicate text)(erv, ). (Entered: 11/06/2009)
185 Unopposed MOTION for Leave to File Excess Pages, Unopposed MOTION for Extension of Time to File Response/Reply as to 177 Second MOTION to Certify Class by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (Attachments: # 1 Proposed Order (PDF Only) Proposed Order)(Hartman, Holli) (Entered: 11/09/2009)
186 MINUTE ORDER granting 185 Motion for Leave to File Excess Pages; granting 185 Motion for Extension of Time to File Response/Reply. Plaintiffs' may file its Reply Brief in Support of their Second Amended Motion for Class Certification not to exceed 20 pages on or before November 20, 2009. Entered by Chief Judge Wiley Y. Daniel on 11/10/09.(wydcd, rrk) (Entered: 11/10/2009)

Case: 1:06-cv-01405-WYD-MJW As of: 08/08/2012 12:46 PM MDT 22 of 25

11/20/2009 01/08/2010 02/08/2010 02/26/2010 03/01/2010
03/03/2010 03/23/2010 03/23/2010 04/28/2010 04/28/2010 04/28/2010
04/29/2010 04/29/2010
05/04/2010

187 REPLY to Response to 177 Second MOTION to Certify Class filed by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (Attachments: # 1 Exhibit Second Declaration of Steve Martin)(Hartman, Holli) (Entered: 11/20/2009)
188 MINUTE ORDER Setting Hearing on Motion 177 Second MOTION to Certify Class :( Motion Hearing is reset for 3/23/2010 02:00 PM in Courtroom A1002 before Chief Judge Wiley Y. Daniel.) Entered by Chief Judge Wiley Y. Daniel on 1/8/10. (wydcd, rrk) (Entered: 01/11/2010)
189 SUPPLEMENT/AMENDMENT to 177 Second MOTION to Certify Class Citation of Supplemental Authority by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (Attachments: # 1 Exhibit 1)(Hartman, Holli) (Entered: 02/08/2010)
190 Unopposed MOTION to Withdraw as Attorney by Plaintiffs Jared Hogue, Clarence Vandehey, William Langley, Samuel Lincoln. (Attachments: # 1 Proposed Order (PDF Only))(Whitehair, J.) (Entered: 02/26/2010)
191 MEMORANDUM regarding 190 Unopposed MOTION to Withdraw as Attorney filed by Clarence Vandehey, William Langley, Samuel Lincoln, Jared Hogue.Motion referred to Magistrate Judge Michael J. Watanabe by Chief Judge Wiley Y. Daniel on 3/1/10. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydcd, rrk) (Entered: 03/01/2010)
192 MINUTE ORDER granting 190 Unopposed Motion of J. Gregory Whitehair to Withdraw as Co−Counsel for Plaintiffs. Attorney J. Gregory Whitehair terminated and Clerk of Court shall terminate future CM/ECF notices, by Magistrate Judge Michael J. Watanabe on 3/3/2010.(mjwcd) (Entered: 03/03/2010)
193 MINUTE ORDER: Settlement Conference set for 5/4/2010 10:30 AM in Courtroom A 502 before Magistrate Judge Michael J. Watanabe. Confidential settlement statements to be submitted by 4/28/2010, by Magistrate Judge Michael J. Watanabe on 3/23/2010. (mjwcd) (Entered: 03/23/2010)
194 Minute Entry for Motion Hearing held before Chief Judge Wiley Y. Daniel on 3/23/2010: taking under advisement 177 Motion to Certify Class. (Court Reporter Therese Lindblom) (wydcd, rrk) (Entered: 03/24/2010)
195 Stipulated MOTION for Extension of Time to Submit Settlement Statements by Plaintiffs Jared Hogue, William Langley, Samuel Lincoln, Clarence Vandehey. (Attachments: # 1 Proposed Order (PDF Only) Proposed Order)(Karlsgodt, Paul) (Entered: 04/28/2010)
196 NOTICE of Entry of Appearance by Casie D. Collignon on behalf of All Plaintiffs (Collignon, Casie) (Entered: 04/28/2010)
197 MEMORANDUM regarding 195 Stipulated MOTION for Extension of Time to Submit Settlement Statements filed by Clarence Vandehey, William Langley, Samuel Lincoln, Jared Hogue. Motion referred to Magistrate Judge Michael J. Watanabe by Chief Judge Wiley Y. Daniel on 4/28/10. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydcd, rrk) (Entered: 04/28/2010)
198 NOTICE of Entry of Appearance by Tina Urvashi Amin on behalf of All Plaintiffs (Amin, Tina) (Entered: 04/29/2010)
199 ORDER granting 195 Plaintiffs' Stipulated Motion for Two−Day Extension of Time to Submit Settlement Statements. Parties shall have through and including 4/30/2010 to submit settlement statements, by Magistrate Judge Michael J. Watanabe on 4/29/2010.(mjwcd) (Modified on 5/3/2010 corrected typo)(erv, ). (Entered: 04/30/2010)
200 MINUTE ORDER Settlement Conference set for 6/10/2010 11:00 AM in Courtroom A 502 before Magistrate Judge Michael J. Watanabe. Updated Confidential Settlement Statements due by 6/4/2010, by Magistrate Judge Michael J. Watanabe on 5/4/2010. (mjwcd) (Entered: 05/04/2010)

Case: 1:06-cv-01405-WYD-MJW As of: 08/08/2012 12:46 PM MDT 23 of 25

05/04/2010 05/05/2010 06/02/2010
06/10/2010 07/14/2010 07/15/2010
07/15/2010 07/30/2010 07/30/2010
08/02/2010 09/02/2010 09/10/2010 09/14/2010 10/04/2010 10/05/2010

201 MINUTE ENTRY for proceedings held before Magistrate Judge Michael J. Watanabe: Settlement Conference held on 5/4/2010. No settlement reached. No record made. (mjwcd) (Entered: 05/05/2010)
202 Joint STATUS REPORT by Defendants Scott Dawson, Stephen Hopple, Lou Vallario, Plaintiffs Jared Hogue, William Langley, Samuel Lincoln, Clarence Vandehey. (Karlsgodt, Paul) (Entered: 05/05/2010)
203 MEMORANDUM regarding 177 Second MOTION to Certify Class filed by Clarence Vandehey, William Langley, Samuel Lincoln, Jared Hogue. Motion referred to Magistrate Judge Michael J. Watanabe by Chief Judge Wiley Y. Daniel on 6/2/10. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydcd, rrk) (Entered: 06/02/2010)
204 MINUTE ENTRY for proceedings held before Magistrate Judge Michael J. Watanabe: Settlement Conference held on 6/10/2010. No settlement reached. No record made. (mjwcd) (Entered: 06/14/2010)
205 JOINT MOTION for Order to Schedule Site Visit by Plaintiffs Jared Hogue, William Langley, Samuel Lincoln, Clarence Vandehey (Attachments: # 1 Proposed Order (PDF Only) Granting Joint Request to Schedule Site Visit)(Collignon, Casie) (Modified on 7/15/2010 changed to Motion)(erv, ). (Entered: 07/14/2010)
206 MEMORANDUM regarding 205 JOint MOTION for Order to Schedule Site Visit to Garfield County Jail, filed by Clarence Vandehey, William Langley, Samuel Lincoln, Jared Hogue. Motions referred to Magistrate Judge Michael J. Watanabe by Chief Judge Wiley Y. Daniel on 7/15/2010. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED(erv, ) (Entered: 07/15/2010)
207 MINUTE ORDER granting 205 Joint Request to Schedule Site Visit, by Magistrate Judge Michael J. Watanabe on 7/15/2010.(mjwcd) (Entered: 07/16/2010)
208 Unopposed MOTION to Withdraw FOR TAYLOR S. PENDERGRASS by Plaintiffs Jared Hogue, William Langley, Samuel Lincoln, Clarence Vandehey. (Attachments: # 1 Proposed Order (PDF Only) Proposed Order)(Collignon, Casie) (Entered: 07/30/2010)
209 MEMORANDUM regarding 208 Unopposed MOTION to Withdraw FOR TAYLOR S. PENDERGRASS filed by Clarence Vandehey, William Langley, Samuel Lincoln, Jared Hogue. Motion referred to Magistrate Judge Michael J. Watanabe by Chief Judge Wiley Y. Daniel on 7/30/10. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydcd, rrk) (Entered: 07/30/2010)
210 ORDER granting 208 Unopposed Motion to Allow Withdrawal of Taylor S. Pendegrass as Counsel for Plaintiffs, by Magistrate Judge Michael J. Watanabe on 8/2/10.(lyg, ) (Entered: 08/02/2010)
211 MINUTE ORDER Parties shall file with the court a written update on the status of settlement and the need to set another settlement conference. Status Report due on or before 9/10/2010, by Magistrate Judge Michael J. Watanabe on 9/2/2010. (mjwcd) (Entered: 09/02/2010)
212 Joint STATUS REPORT Re Settlement by Plaintiffs Jared Hogue, William Langley, Samuel Lincoln, Clarence Vandehey. (Collignon, Casie) (Entered: 09/10/2010)
213 MINUTE ORDER Based upon the Joint Settlement Status Report 212 , the parties shall file an updated written joint settlement status report on or before 10/4/2010, by Magistrate Judge Michael J. Watanabe on 9/14/2010. (mjwcd) (Entered: 09/14/2010)
214 Joint STATUS REPORT re: Settlement by Plaintiffs Jared Hogue, William Langley, Samuel Lincoln, Clarence Vandehey. (Collignon, Casie) (Entered: 10/04/2010)
215 MINUTE ORDER Based upon 214 the Joint Status Report, the parties shall file an updated written joing settlement status report on or before 11/1/2010. Status Report due by 11/1/2010. By Magistrate Judge Michael J. Watanabe on 10/5/2010. (mjwcd) (Entered: 10/05/2010)

Case: 1:06-cv-01405-WYD-MJW As of: 08/08/2012 12:46 PM MDT 24 of 25

11/01/2010 11/03/2010 12/30/2010 01/03/2011 01/03/2011
01/05/2011 01/05/2011 01/05/2011 01/05/2011
01/05/2011
01/05/2011 01/05/2011 01/07/2011 01/20/2011 01/20/2011

216 Joint STATUS REPORT by Plaintiffs Jared Hogue, William Langley, Samuel Lincoln, Clarence Vandehey. (Collignon, Casie) (Entered: 11/01/2010)
217 MINUTE ORDER Settlement Conference set for 1/20/2011 01:30 PM in Courtroom A 502 before Magistrate Judge Michael J. Watanabe. Confidential settlement statements due 1/5/2011. By Magistrate Judge Michael J. Watanabe on 11/3/2010. (mjwcd) (Entered: 11/03/2010)
218 NOTICE of Entry of Appearance Notice of Substitution of Counsel and Entry of Appearance by Don K. DeFord on behalf of Stephen Hopple, Lou Vallario (DeFord, Don) (Entered: 12/30/2010)
219 Docket Annotation re: 218 Notice of Substitution of Counsel will be refiled as a Motion to Withdraw as Attorney. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (erv, ) (Entered: 01/03/2011)
220 Docket Annotation re: 218 Notice of Entry of Appearance, 219 Docket Annotation. The NEF for these documents to Kim Tomey were returned as undeliverable Melanie Lewis advises that Ms. Tomey is no longer employed by their firm, and that she is no longer participating in the case. She further advised that she and Mr. Marks continue to represent defendants Scott Dawson, Stephen Hopple and Lou Vallario. Ms. Lewis' notification has, therefore, been terminated. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (gmssl, ) (Entered: 01/03/2011)
221 Joint MOTION for Extension of Time to Submit Settlement Statements by Defendants Scott Dawson, Stephen Hopple, Lou Vallario, Plaintiffs Jared Hogue, William Langley, Samuel Lincoln, Clarence Vandehey. (Hartman, Holli) (Entered: 01/05/2011)
222 MOTION to Withdraw as Attorney Don K. DeFord by Defendant Lou Vallario. (Attachments: # 1 Proposed Order (PDF Only) Proposed Order to Withdraw)(DeFord, Don) (Entered: 01/05/2011)
223 MOTION to Withdraw as Attorney Deborah Quinn by Defendant Lou Vallario. (Attachments: # 1 Proposed Order (PDF Only) proposed Order − Quinn)(Quinn, Deborah) (Entered: 01/05/2011)
224 MEMORANDUM regarding 222 MOTION to Withdraw as Attorney Don K. DeFord filed by Lou Vallario, 223 MOTION to Withdraw as Attorney Deborah Quinn filed by Lou Vallario. Motions referred to Magistrate Judge Michael J. Watanabe by Chief Judge Wiley Y. Daniel on 1/5/11. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydcd, rrk) (Entered: 01/05/2011)
225 MINUTE ORDER granting 221 Joint Motion for Extension of Time in Which to Submit Settlement Statements. Parties shall submit their updated confidential settlement statements on or before 1/14/2011, by Magistrate Judge Michael J. Watanabe on 1/5/11.(mnf, ) Modified on 1/6/2011 to correct spacing (mnf, ). (Entered: 01/05/2011)
226 ORDER granting 223 Motion to Withdraw as Counsel for Defendants. Attorney Deborah Quinn terminated, by Magistrate Judge Michael J. Watanabe on 1/5/11.(mnf, ) (Entered: 01/06/2011)
227 ORDER granting 222 Motion to Withdraw as Counsel for Defendants. Attorney Don K. DeFord terminated, by Magistrate Judge Michael J. Watanabe on 1/5/11.(mnf, ) (Entered: 01/06/2011)
228 Docket Annotation re: 218 through 237 . The NEFs for these documents to Deborah Quinn were returned as undeliverable. A order allow Ms. Quinn to withdraw was entered on 1/5/10. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (gmssl, ) (Entered: 01/07/2011)
229 MINUTE ENTRY for proceedings held before Magistrate Judge Michael J. Watanabe: Settlement Conference held on 1/20/2011. No settlement reached. (mjwcd) (Entered: 01/21/2011)
230 MINUTE ORDER Parties shall file either a written joint status report or settlement documents with this court on or before 3/18/2011. Status Report due by 3/18/2011, by Magistrate Judge Michael J. Watanabe on 1/20/2011. (mjwcd) (Entered:

Case: 1:06-cv-01405-WYD-MJW As of: 08/08/2012 12:46 PM MDT 25 of 25

03/18/2011 03/22/2011 04/15/2011 04/25/2011
04/28/2011

01/21/2011)
231 Joint STATUS REPORT by Defendants Scott Dawson, Stephen Hopple, Lou Vallario, Plaintiffs Jared Hogue, William Langley, Samuel Lincoln, Clarence Vandehey. (Hartman, Holli) (Entered: 03/18/2011)
232 Minute ORDER denying without prejudice 177 Motion to Certify Class by Chief Judge Wiley Y. Daniel on 03/22/11.(jjh, ) (Entered: 03/23/2011)
233 MINUTE ORDER the parties shall file a written joint status report or settlement documents with this court on or before April 25, 2011 by Magistrate Judge Michael J. Watanabe on 04/15/11. (jjh, ) (Entered: 04/15/2011)
234 Unopposed MOTION to Dismiss With Prejudice Pursuant to Fed.R.Civ.P. 41(a)(2) by Plaintiffs Jared Hogue, William Langley, Samuel Lincoln, Clarence Vandehey. (Attachments: # 1 Proposed Order (PDF Only) Proposed Order)(Hartman, Holli) (Entered: 04/25/2011)
235 ORDER granting Plaintiffs' Unopposed 234 Motion for Voluntary Dismissal With Prejudice Pursuant to Fed. R. Civ. P. 41(a)(2). This matter is dismissed with prejudice, each party to bear its own attorneys' fees, costs and expenses, by Chief Judge Wiley Y. Daniel on 4/28/11.(lsw, ) (Entered: 04/28/2011)