Case 1:12-cv-01326-RBJ-KLM Document 117 Filed 12/26/13 USDC Colorado Page 1 of 89
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01326-RBJ-KLM JAMES SARDAKOWSKI,
Plaintiff, v. TOM CLEMENTS, et al.,
Defendants.
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Plaintiff James Sardakowski, through counsel, responds to Defendants’ Motion for Summary Judgment. Doc. 113.
INTRODUCTION James Sardakowski is a mentally ill and developmentally disabled prisoner currently housed in solitary confinement at Centennial Correctional Facility (CCF) in Canon City, Colorado. He asserts four claims in this case. In Claim One, Mr. Sardakowski asserts that the Colorado Department of Corrections (CDOC) has denied him adequate mental health care in violation of his Eighth Amendment right to be free from cruel and unusual punishment. Claim Two alleges that because he is a severely mentally ill individual, CDOC’s housing of him in prolonged solitary confinement causes him to suffer unnecessary pain and harm in violation of the Eighth Amendment. Finally, as an individual with a disability within the meaning of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act, Mr. Sardakowski asserts that Defendants have discriminated against him on the basis of his disability by refusing to adopt
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reasonable modifications to the rules, policies and practices that are necessary to enable him to progress out of solitary confinement (Claims Three & Four).
Defendants’ motion seeks summary judgment on all four of Mr. Sardakowski’s claims. As set forth below, because there are numerous and substantial disputed issues of material fact in this case, Defendants’ Motion should be denied.
OBJECTIONS TO STATEMENT OF UNDISPUTED MATERIAL FACTS1 Objection 1. This statement is an opinion from Dr. Lish’s affidavit. Doc. 113, Ex. A-2. Dr. Lish is Defendants’ rebuttal expert. In his deposition, Dr. Lish testified that he had provided a complete list of his rebuttal opinions. This opinion is not included among them, and is therefore improper. Frederick v. Swift Transp. Co., 616 F.3d 1074, 1082-83 (10th Cir. 2010) (affirming district court’s exclusion of expert’s opinion that fell outside the scope of the expert designation). Objection 2. The evidence cited—Dr. Lish’s affidavit—is insufficient to support this assertion because Dr. Lish has no personal knowledge of the fact asserted. Defendants have provided no other evidence to support this assertion, other than Dr. Lish’s self-serving affidavit. Self-serving affidavits “cannot form the basis for granting summary judgment.” Ambraziunas v. Hatch, 23 F. Supp. 2d 1202, 1204 (D. Colo. 1998). To the extent that Plaintiff has admitted any of these purportedly “undisputed” facts, he has done so based on other evidence in the record establishing the alleged facts as truly undisputed. Objection 3. Dr. Lish based the statements in his affidavit on his “review of relevant mental health records and [his] general knowledge and experience as a CDOC Psychiatrist and Chief of Psychiatry.” Doc. 113, Ex. A-2, at ¶ 7. This statement relates to events described in mental health
1 These seven objections are relied on by Plaintiff throughout his response to Defendants’ Undisputed Facts. In an effort to conserve space, Plaintiff lists them here and subsequently cites to each objection by number in each response where it is applicable.
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records. Rather than cite to the relevant mental health records, Defendants cite to Dr. Lish’s characterization of those mental health records. Dr. Lish’s characterization is inconsistent with the relevant mental health records.
Objection 4. Dr. Lish based the statements in his affidavit on his “review of relevant mental health records and [his] general knowledge and experience as a CDOC Psychiatrist and Chief of Psychiatry.” Doc. 113, Ex. A-2, at ¶ 7. Undersigned counsel has reviewed the mental health records produced for the stated time period, and was unable to locate any document consistent with Dr. Lish’s assertion.
Objection 5. Defendants cite to evidence that is not admissible. Defendants cannot produce admissible evidence to support this fact. FED. R. CIV. P. 56(c)(1)(B); Wright-Simmons v. City of Okla. City, 155 F.3d 1264, 1268 (10th Cir. 1998).
Objection 6. This is not a statement of fact that can be admitted or denied. This is an argument.
Objection 7. This is not material. Defendants do not rely on this assertion in their argument. RESPONSE TO STATEMENT OF UNDISPUTED MATERIAL FACTS (“RSUMF”)2 1-13. Admit.3 14. Admit in part, deny in part, and without sufficient information to admit or deny in part.
a) Admit that Mr. Sardakowski’s TABE reading score was 8.4 in April 2008. Without sufficient information to admit or deny Mr. Sardakowski’s TABE language and math scores. Obj. 4.
b) Admit that Mr. Sardakowski achieved his GED in August 2008 while incarcerated within CDOC.
2 Plaintiff respectfully notes that many of Defendants’ undisputed facts contain multiple facts within a single paragraph, which sometimes necessitates a longer response with subparts. 3 Any fact that Plaintiff admits is admitted for the purposes of Defendants’ Motion only.
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c) Admit that in August 2009 Mr. Sardakowski was assigned an MR/DD code of 2. Deny that that in August 2009 Mr. Sardakowski received any assessment or testing as the basis for lowering his MR/DD code to 2 from 4. Obj. 3. The mental health records from August 2009 state that Mr. Sardakowski’s DD code was lowered “to more accurately reflect current DD needs” and references testing done several years before. Ex. #1, Mental Health Contact Dated 08/26/2009. There is no reference to assessment or testing in August 2009. Id.
15. Admit in part and deny in part. a) Deny that Mr. Sardakowski has received substantial mental health treatment while incarcerated at CDOC. Obj. 6. Mr. Sardakowski has received and continues to receive inadequate mental health treatment in CDOC. Ex. #2, Burns Dec., at ¶¶ 11, 14-20, 23. b) Admit to the dates that Mr. Sardakowski was housed in DRDC, FLCF, SCF, and CCF. c) Deny that Mr. Sardakowski was housed in SCCF during the time period specified. Mr. Sardakowski was housed in SCCF from November 2006 to October 2007 and from October 2008 to March 2009. Ex. #3, Programs Query Dated 05/10/2013. Note that Mr. Sardakowski was housed on the “2 Left DD Unit” from March 2007 to October 2007. Id.; Ex. #4, Sardakowski Dec., at ¶ 56. d) Deny that Mr. Sardakowski was housed in CTCF DD Program during the time period specified. Mr. Sardakowski was housed in CTCF from October 2007 to October 2008, but he was in the DD program only from November 8, 2007 to March 31, 2008. Ex. #, Programs Query Dated 05/10/2013. e) Deny that Mr. Sardakowski was housed in the CSP OMI Program during the time period specified. Mr. Sardakowski was housed in CSP from December 2009 to February 2013, but
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he was in the OMI Program only from November 22, 2010 to October 26, 2011 and from August 13, 2012 to October 5, 2012. Id. f) Admit that Mr. Sardakowski was admitted to the CTCF infirmary in April 2008, March 2012, and May 2012. g) Deny that Mr. Sardakowski received mental health treatment at CTCF in March 2012 and May 2012. In the CTCF infirmary, Mr. Sardakowski was placed and held in four-point restraints, in a totally helpless position, a situation highly reminiscent of his childhood sexual abuse, for extended periods of time. Ex #2, Burns Dec., at ¶ 19; Ex. #4, Sardakowski Dec., at ¶¶ 113, 116. He did not receive therapy while in four points. Ex. #5, Lampela 30(b)(6) Dep. at 141:4-7; Ex. #4, Sardakowski Dec., at ¶ 115. h) Admit that Mr. Sardakowski has been on numerous mental health watches while at Sterling Correctional Facility and Colorado State Penitentiary. 16. Without sufficient information to admit or deny. Obj. 2. 17. Admit. 18. Admit in part and deny in part. a) Admit that an offender declaring an emergency constitutes a mental health crisis, but note that a “mental health emergency” may also be initiated by CDOC staff. Ex. #5, Lampela 30(b)(6) Dep.at 139:2-7. b) Deny that an offender declaring a mental health emergency always results in an urgent faceto-face evaluation by a CDOC mental health clinician. Ex. #4, Sardakowski Dec, at ¶ 109. c) Admit that Mr. Sardakowski has declared mental health crises throughout his CDOC incarceration. 19. Admit.
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20. Without sufficient information to admit or deny. Obj. 2 and 4. 21. Without sufficient information to admit or deny. Obj. 2 and 4. 22. Admit. 23. Admit. 24. Admit in part and without sufficient information to admit or deny in part.
a) Without sufficient information to admit or deny that in July 2009, Mr. Sardakowski reported “feeling positive.” Obj. 2 and 4. Admit the remaining facts.
25. Admit in part and deny in part. a) Admit that in August 2009, mental health notes indicate that Mr. Sardakowski was pretending to be asleep. However, at this time Mr. Sardakowski did not have hearing aids, and his hearing disability often prevented him from realizing that CDOC staff were speaking to him/addressing him. Ex. #4, Sardakowski Dec., at ¶ 83; Ex. #6, Accommodation Resolution. b) Deny that in August 2009, Mr. Sardakowski reported thoughts of cutting himself “out of frustration.” Obj. 3. Mr. Sardakowski is noted to have said that he may have made a statement to staff out of frustration, not cut himself for that reason. Ex. #7, Mental Health Note Dated 08/04/2009. c) Admit the remaining facts.
26. Admit. However, these events occurred in September 2009. Ex. #8, Mental Health Note Dated 09/01/2009. 27. Admit in part and deny in part.
a) Deny that Mr. Sardakowski was attempting to use mental health staff to achieve a desired move. Obj. 3 and 5. A mental health clinician noted that “I/M appears to be attempting to 6

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use mental health to manipulated desired move.” Ex. #9, Mental Health Note Dated 09/03/2009, 3. Inmates do not control their movement throughout CDOC facilities. Ex. #10, Medina Dep. at 36:17-38:10 (explaining that the decision to transfer an inmate from one facility to another involves at least “custody-control staff, program staff, clinical staff,” and Central Classification at Offender Services). Admit the remaining facts. 28. Admit in part, deny in part, and without sufficient evidence to admit or deny in part. a) Deny that Mr. Sardakowski wanted to be at CSP or in segregation. Obj. 2 and 3. Mr. Sardakowski indicated that he refused to pay rent or sex for protection, and that he would rather be in CSP or seg. Ex. #11, Mental Health Note Dated 10/19/2009, 1. b) Deny that mental health notes indicate that other offenders were taunting Mr. Sardakowski about his crime. Obj. 2 and 3. One of the correctional officers was telling other offenders about Mr. Sardakowski’s underlying crime. Id. c) Without sufficient evidence to admit or deny that in November 2009, Mr. Sardakowski admitted making up a story to move from one pod to another, and that he refused to speak when not given what he wanted. Obj. 2 and 4. d) Admit that the mental health note indicates the remaining statements. 29. Admit. 30. Admit. 31. Admit. 32. Without sufficient evidence to admit or deny Mr. Sardakowski’s statements. Obj. 2 and 4. Admit the remaining facts.
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33. Admit in part, deny in part. Deny that Mr. Sardakowski spit at staff. Mr. Sardakowski was wearing a spit mask at the time of the incident. Ex. #4, Sardakowski Dec., at ¶ 120 & Attach. A. Admit the remaining facts. 34. Admit. 35. Admit. Mr. Sardakowski began a hunger strike because he was not being given a snack. Medical had ordered that Mr. Sardakowski be given snacks with his medication as it taking it on an empty stomach was making him faint and dizzy. Ex. #12, Mental Health Note Dated 10/11/2012. 36. Admit. 37. Without sufficient information to admit or deny. Obj. 2, and 4. 38. Admit that 11/20/06 mental health note makes these statements. 39. Admit. 40. Deny. Mr. Sardakowski was recommended to move to the SCCF DD Unit and CTCF DD SO Program on March 14, 2007. Ex. #13, DD Referral Form, 2. Obj. 2 and 4. 41. Admit. 42. Admit. 43. Admit. 44. Admit. 45. Admit. 46. Admit. 47. Admit in part and without sufficient evidence to admit or deny in part.
a) Admit that mental health notes indicate that Mr. Sardakowski recounted a time he attempted suicide in county jail by tying a pair of boxers around his neck.
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b) Without sufficient evidence to admit or deny that on 10/18/2007, mental health notes indicate a move to CTCF/DD program. Obj. 2 and 4.
48. Admit in part, deny in part. Deny that the 11/19/2007 mental health notes indicate possible medical issues. Ex. #14, Mental Health Contact Dated 11/19/2007. Obj. 2 and 4. Admit the remaining facts. 49. Deny. On 1/9/2008 mental health notes indicate that Mr. Sardakowski states he feels that Zoloft is making his symptoms of depression worse. Ex. #15, Mental Health Contact Dated 01/09/2008. Obj. 3. 50. Admit in part, deny in part.
a) Deny that 2/22/2008 mental health notices indicate he “enjoys activities at CCF.” Ex. #16, Mental Health Note Dated 02/22/2008. Obj. 2 and 4.
b) Deny that on 2/22/2008 mental health notes indicate that “medication helpful.” Mr. Sardakowski states that an increase Zoloft and a decrease in Prolixen was helpful. Id. Obj. 3.
c) Admit the remaining facts. 51. Admit that the mental health note indicates those statements. 52. Admit in part and deny in part.
a) Admit that on 4/24/2008 mental health notes indicate that Mr. Sardakowski’s GED instructor reported that he is doing well in the class and has passed tests.
b) Deny that on 4/24/2008 mental health notes indicate “infirmary for suicidal ideation.” Ex. #17, Mental Health Note Dated 04/24/2008. Obj. 2 and 4.
53. Deny. a) Deny that the records indicate no assault. Records indicate that Mr. Sardakowski’s was taken to St. Thomas Hospital after a possible sexual assault. Mr. Sardakowski had been taken from 9

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a cell with a known sexual offender. Mr. Sardakowski said he thought it was consensual but he was “not sure what really happened.” Ex. #18, St. Thomas Hospital Emergency Provider Record; Ex. #19, Ambulatory Health Record Dated 04/25/2008. Obj. 2, 3, and 7. b) Deny that on 4/25/2008 Mr. Sardawkoski “won’t go to SCCF.” An offender has no control over his placement in a facility. Ex. #20, Mental Health Contact Dated 04/25/2008; Ex. #10, Medina Dep. at 36:17-38:10 (explaining that the decision to transfer an inmate from one facility to another involves at least “custody-control staff, program staff, clinical staff,” and Central Classification at Offender Services). Obj. 3 and 7. c) Deny that on 4/25/2008 the mental health notes indicate Mr. Sardakowski was “demanding,” refused breakfast, demanded a PBJ, described consensual sex, or was “bright, positive, upbeat, humorous.” Mr. Sardakowski requested breakfast that day. Ex. #20, Mental Health Contact Dated 04/25/2008. Obj. 2 and 4. 54. Deny that on 6/20/2008 mental health notes indicate “stopped meds.” Mental health notes indicate that Mr. Sardakowski stated that he stopped taking all medication except for Buspar. Ex. #21, Mental Health Note Dated 06/20/2008. Obj. 3. 55. Admit. 56. Admit that the mental health notes indicate these statements. 57. Admit in part and deny in part. a) Admit that a 9/2/2008 mental health note indicates that Mr. Sardakowski passed his GED test. b) Deny that Mr. Sardakowski passed his GED “off meds.” Obj. 2 and 4. The only mental health record produced for September 2, 2008, does not include any information about Mr. Sardakowski’s medication. Ex. #22, Mental Health Note Dated 09/02/2008. Mr.
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Sardakowski was taking psychiatric medication when he prepared for and took the GED test. He had been off psychiatric medication for only a few days at the time he received his GED results. Ex. #4, Sardakowski Dec., at ¶ 67. 58. Admit that the mental health notes indicate these statements. 59. Admit. 60. Admit that the mental health notes indicate these statements. 61. Admit. 62. Admit. 63. Admit that the mental health notes indicate these statements. 64. Deny in part and without sufficient information to admit or deny in part. a) Deny that between 11/13/2008 through 11/30/2008 mental health notes indicated “not psychotic.” On 11/13/2008 Mr. Sardakowski spoke of how he is suffering from “psychological torture.” Ex. #23, Mental Health Note Dated 11/13/2008. b) Without sufficient information to admit or deny that from 11/13/2008 through 11/30/2008 mental health notes indicate: On mental health watch; reported as depressed, sad frustrated. Mental health documents with these dates were not produced. Obj. 2 and 4. 65. Admit. 66. Deny. On 6/14/2009 it is noted that Mr. Sardakowski’s current diagnosis included Axis 1 Schizoaffective disorder. Ex. #24, Mental Health Note Dated 06/14/2009, 1. On 7/20/2009 it is noted that Mr. Sardakowski’s current diagnosis includes Schizoaffective disorder. Ex. #25, Mental Health Contact 07/20/2009. On 8/21/2009 it is noted that Mr. Sardakowski’s current diagnosis includes Schizoaffective disorder. Ex. #26, Mental Health Contact Dated 08/21/2009. Obj. 2 and 3.
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67. Deny. On 1/15/2009 it is noted in Mr. Sardakowski’s ambulatory health record that while Seroquel “makes his delusions less,” it is hard to be by himself all day because it seems as if the voices are louder. Ex. #27, Ambulatory Health Record Dated 01/15/2009. Obj. 2 and 3. 68. Admit that the mental health notes indicate these statements. 69. Admit in part, deny in part.
a) Admit that the mental health notes indicate these statements. b) Deny it was unlikely that Mr. Sardakowski was experiencing auditory or visual hallucinations.
Mr. Sardakowski has been hearing voices and experiencing visual hallucinations for years. Ex. #4, Sardakowski Dec., at ¶¶ 180-182; Ex. #2, Burns Dec., at ¶ 4. 70. Admit that the mental health notes indicate these statements. 71. Admit in part and deny in part. a) Deny that mental health notes on 4/6/2009 indicate that Mr. Sardakowski was demanding to see a psychiatrist. Ex. #28, Mental Health Note Dated 04/06/2009. Obj. 2 and 4. b) Deny that mental health notes on 4/6/2009 indicate that Mr. Sardakowski was threatening to stop medications. Id. Obj. 2 and 4. c) Admit that the mental health notes indicate the remaining statements. 72. Admit that the mental health notes indicate these statements. 73. Admit in part, deny in part. a) Admit that the mental health notes indicate these statements. b) Deny that Mr. Sardakowski was manipulating staff. Mr. Sardakowski left the medication line was because he was hearing voices that told him that he would be attacked, and was later not allowed to re-enter the med line. Ex. #29, Mental Health Note Dated 05/19/2009. 74. Deny in part, without sufficient information to admit or deny in part.
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a) Deny that Mr. Sardakowski does not need help from Mental Health. Ex. #2, Burns Dec., at ¶¶ 8, 9, 11, 16-25.
b) Without sufficient information to admit or deny whether the mental health records indicate the statements listed. Obj. 2 and 4.
75. Admit that the mental health records indicate these statements. 76. Deny. Mental Health notes produced by Defendants for 06/01/2009 nowhere indicate that Mr. Sardakowski made a threat or a statement to force a move to CSP/SCCF for a single-cell when request for CTCF was denied. Ex. #30, Mental Health Note Dated 06/01/2009. Obj. 2, and 4. 77. Admit in part, deny in part.
a) Admit that on 6/17/2009, Clinician Hotz recorded this opinion in a mental health note. b) Deny that Mr. Sardakowski was manipulating the system or abusing mental health services.
Ex. #2, Burns Dec., at ¶ 18. 78. Admit in part, deny in part.
a) Admit that the mental health notes indicate these statements. b) Deny that Mr. Sardakowski was misusing mental health crises. Ex. #2, Burns Dec., at ¶ 18. 79. Admit. a) Admit that in a 6/30/2009 staffing note Case Manager Payne stated his opinion that Mr.
Sardakowski “is running a con.” Obj. 5 . Paragraph 83 of Defendants’ Ex. A-2 is hearsay and cannot be considered for summary judgment. See Wright-Simmons v. City of Okla. City, 155 F.3d at 1268. b) Admit that in the same meeting Mr. Payne stated that Mr. Sardakowski said he could not read then proceeded to read a wall poster. Obj. 5. Id. However, Mr. Sardakowski sometimes
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says that he is illiterate when asked to read out loud, as he is embarrassed that he will not read aloud correctly. Ex. #4, Sardakowski Dec., ¶ 65. 80. Admit in part and deny in part. a) Deny that in 7/7/2009 SCF mental health note no psychosis was observed. Note states “He reported auditory/visual hallucinations saying, ‘Even in daytime I can see a bulky shadow in the corner of my cell,”; “I have been hearing a morning dove singing . . . since 11/2008.” Ex. #31, Mental Health Note Dated 07/07/2009, 2. Obj. 2 and 3. b) Admit that the mental health notes indicate the remaining statements. 81. Admit the mental health notes indicate these statements. 82. Without sufficient information to admit or deny. Obj. 2 and 4. 83. Admit that the mental health notes indicate these statements. 84. Admit that the mental health notes indicate these statements. 85. Without sufficient information to admit or deny. Obj. 2 and 4. 86. Admit that on 9/4/2009 mental health notes recite that Mr. Sardakowski made these statements. However, the same mental health note indicated that Mr. Sardakowski stated that he would behave for three days, then kill himself when released from mental health watch. Ex. #32, Mental Health Contact Dated 09/04/2009. 87. Admit that the mental health notes indicate these statements. However, these events are described in a mental health note dated 9/6/2009. 88. Admit that the mental health notes indicate these statements. However, the phrases “‘selfharming = self soothing’, knows how to hurt himself safely; pressured for sex, pills and canteen from other offenders” are not from Dr. Wilson’s letter; these phrases are contained in an incident report from and a mental health note from 9/18 written by clinician Hotz.
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89. Deny. Mr. Sardakowski was put on metal health watch due to “claims of feeling suicidal.” Ex. #33, Mental Health Note Dated 10/19/2009, 1. 90. Admit in part, without sufficient information to admit or deny in part.
a) Admit that on 10/21/2009 mental health notes report: “he stated that if correctional staff attempts to move him he will engage in self-harming behaviors.”
b) Admit that on 10/21/2009 Clinician Willson characterized Mr. Sardakowski as “belligerent” in mental health notes.
c) Without sufficient information to admit or deny whether Mr. Sardakowski made a statement about extra fruit. Obj. 2 and 4.
91. Without sufficient evidence to admit or deny. Undersigned counsel cannot find any mental health document dated 11/12/2009 in those that Defendants have produced. Obj. 2 and 4. 92. Admit that mental health records indicate these statements. 93. Without sufficient information to admit or deny. Undersigned counsel cannot find any mental health document dated 2/10/2010 in those that Defendants have produced. Obj. 2 and 4. 94. Admit in part, deny in part.
a) Admit that mental health notes indicate these statements. b) Deny that Mr. Sardakowski thinks clearly. Ex. #2, Burns Dec., at ¶ 9 (“His intellectual
deficits include problems with reasoning, judgment and problem-solving skills as clinically assessed as well as via intelligence testing.”); see also id. at ¶ 25. 95. Admit that mental health notes indicate these statements. 96. Admit in part, deny in part. Deny that the 6/16/2010 mental health note contains language referring to Mr. Sardakowski’s anger at Seroquel being stopped, or an admission to cheeking/selling
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medication. Ex. #34, Mental Health Contact Dated 06/16/2010. Admit that the mental health notes indicate the remaining statements. 97. Admit in part, deny in part.
a) Deny that on 11/02/2010, mental health notes indicate mental health issues. The 11/02/2010 mental health note states: “no MH issues.” Ex. #35, Mental Health Contact Dated 11/02/2010 (emphasis added). Obj. 3. Admit that the mental health notes indicate the remaining statements.
98. Deny that Mr. Sardakowski was in the OMI program at this time. Ex. #3, Programs Query Dated 05/10/2013. 99. Admit. 100. Admit. 101. Without sufficient information to admit or deny. Defendants have not produced any mental health document dated 1/27/2011. Obj. 2 and 4. 102. Admit in part, deny in part.
a) Deny that on 3/23/11 mental health note indicates that Mr. Sardakowski’s primary diagnosis is antisocial personality disorder. The 3/23/11 mental health note does not mention any diagnosis. Ex. #36, Mental Health Note Dated 03/23/2011. Obj. 2 and 3.
b) Deny that Mr. Sardakowski thought CSP was good for him. Ex. #4, Sardakowski Dec., at ¶¶ 101, 110-113, 117, 123.
c) Admit that the mental health notes indicate the remaining statements. 103. Admit that the mental health notes indicate these statements. 104. Admit that the mental health notes indicate these statements. 105. Admit that the mental health notes indicate these statements.
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106. Admit that the mental health notes indicate these statements. 107. Admit that the mental health notes indicate these statements. 108. Admit in part, deny in part.
a) Deny that Mr. Sardakowski was malingering. Mr. Sardakowski was administered an industry-standard test for malingering, and the test results indicated that he was not malingering. Ex. #37, Mental Health Providers Recommendation Regarding Disability Status; Ex. #38, Psychological Testing Report, 2.
b) Admit that mental health notes indicate the remaining statements. 109. Admit that the mental health notes indicate these statements. 110. Admit that the mental health notes indicate these statements. 111. Admit in part, deny in part.
a) Deny that Mr. Sardakowski has in-depth process thinking abilities and good understanding and intellect. Ex. #2, Burns Dec., at ¶ 9; Ex. #39, Pinto Dec. at ¶ 3, Attach. A, Pinto Report, 11 (hereinafter “Pinto Report”).
b) Deny that Mr. Sardakowski was faking and playing dumb at CSP. Mr. Sardakowski was held under extremely restrictive conditions at CSP, was put on mental health watch multiple times, and was sent from CSP to the CTCF infirmary to be four-pointed. Ex. #4, Sardakowski Dec., at ¶¶ 92-123; Ex. #40, Haney Dep. at 103:14-25 (“Mr. Sardakowski is living in a dirty, smelly cell by himself, and he’s been in something very similar to that since December of 2009. If he’s malingered his way into that, he’s very bad at it.”).
c) Admit that the mental health notes indicate the remaining statements. 112. Without sufficient information to admit or deny. Undersigned counsel cannot find any mental health document dated 8/23/11 in those that Defendants have produced. Obj. 2 and 4.
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113. Admit in part, deny in part. a) Deny that Mr. Sardakowski was malingering deafness. Mr. Sardakowski has a hearing disability for which he has been provided hearing aids. Ex. #4, Sardakowski Dec., at ¶¶ 11, 83; Ex. #6, Accommodation Resolution. b) Deny that 9/22/11 mental health note contains any diagnosis. Ex. #41, Mental Health Contact Dated 09/22/2011. Obj. 2 and 3. c) Admit that the mental health notes indicate the remaining statements.
114. Without sufficient information to admit or deny. Defendants have not produced any mental health document dated 11/4/11. Obj. 2 and 4. 115. Admit that the mental health notes indicate this statement. 116. Admit that the mental health notes indicate these statements. 117. Admit that the mental health notes indicate these statements. 118. Admit that the mental health notes indicate these statements. 119. Admit that the mental health notes indicate these statements. 120. Admit that 3/02/12 mental health note states that Mr. Sardakowski was pleasant; it also states that he said he was Jesus and commanded clinician to worship him. Ex. #42, Mental Health Contact Dated 03/02/2012. 121. Admit in part, deny in part.
a) Deny that 3/12/12 mental health notes indicate any statement by Mr. Sardakowski about beating Mental Health in their own game. The only statements by Mr. Sardakowski indicated in the records are regarding his hearing aids. Ex. #43, Ambulatory Health Record Dated 03/12/2012.
b) Admit that the mental health notes indicate the remaining statements. 18

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122. Admit in part, deny in part. a) Deny that being in four-point restraints is therapy for Mr. Sardakowski. Ex. #4, Sardakowski Dec., ¶¶ 113-115 (explaining four-pointing process and that, “Four-pointing makes me feel subhuman, like I’m some type of wild animal that needs to be controlled and tamed”); Ex. #2, Burns Dec., at ¶ 19 (four-pointing holds Mr. Sardakowski “in a totally helpless position, a situation highly reminiscent of his childhood sexual abuse, for extended periods of time”). b) Admit that the mental health notes indicate these statements.
123. Admit that the mental health notes indicate these statements. Mr. Sardakowski’s desire to be moved out of solitary confinement comes as no surprise, given the especially detrimental effect solitary confinement has on mentally ill individuals. Ex. #44, Haney Dec., at ¶ 8. 124. Deny. The 3/19/12 mental health note states that “[Mr.] Sardakowski will remain in ambulatory restraints due to his continued expressed plan to kill himself.” Ex. #45, Mental Health Contact Dated 03/19/2012. Obj. 2 and 3. 125. Admit that the mental health notes indicate these statements. 126. Admit that Mr. Sardakowski stated that he would rather be in the CTCF infirmary than at CSP because “he has felt safe in the Infirmary and has not had thoughts to self harm.” Ex. #46, Mental Health Note Dated 03/20/2012.4 127. Deny. The 3/21/12 Mental Health note indicates that Mr. Sardakowski was “encouraged in maintaining value in his goal of getting re-classified and sent to CTCF for the PDP.” Ex. #47, Mental Health Contact Dated 03/21/2012. After being in four-point restraints for three days, Mr. Sardakowski contracted with a clinician to “be good for 60 days” so that he could go the DD program. Ex. #4, Sardakowski Dec., at ¶¶ 116-117; Ex. #47, Mental Health Contact Dated
4 The text in Exhibit #46 is partially cut off. Defendants produced this document to Plaintiff in this format.
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03/21/2012. Mr. Sardakowski behaved according to the contract for 60 days, but was not transferred to the DD program. Id. at ¶ 119; Ex. #3, Programs Query Dated 05/10/2013. Obj. 2 and 3. 128. Admit that the mental health notes indicate these statements. Despite contracting with a clinician to behave appropriately in order to be transferred to the DD program, Mr. Sardakowski was not transferred to the DD program. See ¶ 127, supra. 129. Admit in part, deny in part.
a) Admit that the mental health notes indicate these statements. b) Deny that the listed diagnoses are correct. Ex. #2, Burns Dec., at ¶¶ 8, 26. 130. Deny. 5/10/12 mental health note makes no mention of banging head or restraint helmet. Ex. #48, Mental Health Note Dated 05/10/2012. Obj. 2 and 3. 131. Admit. 132. Admit in part, deny in part. a) Admit that the mental health notes indicate these statements, though not all statements are
included in the 5/28/2012 record. b) Deny that Mr. Sardakowski received treatment while in four-point restraints. Ex. #5,
Lampela 30(b)(6) Dep. at 141:4-7; Ex. #4, Sardakowski Dec., at ¶ 115. 133. Admit. 134. Admit in part, deny in part.
a) Admit that a DD program referral is indicated in June 2012. b) Deny that Mr. Sardakowski was transferred to the DD program thereafter. Mr. Sardakowski
was housed in CSP from December 2009 until February 2013, when he was moved to the RTP at CCF. Ex. #3, Programs Query Dated 05/10/2013.
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135. Admit in part, deny in part. a) Deny that Mr. Sardakowski can control the medication he receives from CDOC psychiatric providers. Ex. #49, Lish Expert Dep. at 44:4-45:8 (“You don’t just tell patients what they’re going to get, nor do you just give patients whatever they want.”); Ex. #4, Sardakowski Dec., at ¶ 168. b) Admit that the mental health notes indicate these statements.
136. Admit in part, deny in part. a) See Response to ¶135(a). b) Admit that the mental health notes indicate these statements.
137. Admit. Despite being recommended for the DD program, Mr. Sardakowski was not transferred to the DD program because “[i]t was determined since he is in Ad-Seg at CSP he would stay there.” Ex. #50, Mental Health Note Dated 07/25/2012. 138. Admit that the mental health notes indicate these statements. 139. Admit in part, deny in part.
a) Deny that Mr. Sardakowski was manipulating the CDOC mental health system. While the mental health note indicates that Mr. Sardakowski stated that he was manipulating the system to see his aunt before she died, he was referencing his attempt to get his sentence overturned and be released from prison. Ex. #51, Mental Health Note Dated 08/02/2012.
b) Deny that being placed in four-point restraints helps Mr. Sardakowski. Ex. #4, Sardakowski Dec., at ¶¶ 113-114 (explaining four-pointing process and that it “makes me feel subhuman, like I’m some type of wild animal that needs to be controlled and tamed”); Ex. #2, Burns Dec., at ¶ 19.
c) Admit that the mental health note indicates these statements. 21

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140. Admit in part, deny in part. a) Deny that Mr. Sardakowski could control his movement to San Carlos Correctional Facility. A transfer to San Carlos involves a “status” assignment of RTP, and Mr. Sardakowski has no control over the “status” assigned to him by CDOC. Ex. #10, Medina Dep. at 49:13-25. An inmate might be sent to San Carlos if CDOC staff determines that he has “decompensated severely.” Id. at 109:8-15. CDOC staff decides whether a placement at San Carlos is appropriate, and the clinical chief makes the final determination regarding a transfer to the facility. Id. at 110:21-111:15. b) Admit that the mental health notes indicate these statements. Obj. 5 regarding the description of Mr. Sardakowski as demanding and agitated.
141. Admit in part, deny in part. a) Deny that Mr. Sardakowski could control his movement between pods. Ex. #52, Mental Health Note Dated 08/13/2012 (“MH confirmed that [Mr. Sardakowski] is not a candidate to transfer into another pod.”). b) Admit that the mental health note indicates these statements.
142. Admit in part, deny in part. a) Deny that Mr. Sardakowski could mandate his transfer into the OMI program. While an inmate could request to be placed in the OMI program, CDOC staff still had to determine that he met the OMI program qualifications before he could be placed there. Ex. #5, Lampela 30(b)(6) Dep. at 23:13-22. b) Admit that the mental health note indicates these statements.
143. Admit that the mental health records indicate these statements. 144. Admit in part, deny in part.
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a) Admit that the mental health note includes these diagnoses. b) Deny that these are the only diagnoses indicated. The note says, “Per Dr. Shepard on
7/17/12, [Mr. Sardakowski’s] more appropriate diagnosis is Schizoaffective D/O.” Ex. #53, Mental Health Note Dated 09/27/2012. Obj. 3. 145. Admit in part, deny in part. a) Deny that Mr. Sardakowski can control his movement between facilities. Ex. #10, Medina Dep. at 36:17-38:10 (explaining that the decision to transfer an inmate from one facility to another involves at least “custody-control staff, program staff, clinical staff,” and Central Classification at Offender Services). b) Deny that Mr. Sardakowski’s thought process was organized and logical. Ex. #2, Burns Dec., at ¶ 9. c) Admit that the mental health note indicates these statements. 146. Admit that mental health note indicates these statements. 147. Admit that the mental health notes indicate these statements. Obj. 5 with respect to the clinician’s paraphrasing of Mr. Sardakowski’s statements and the opinion that he is distorting facts. Paragraph 151 of Defendants’ Ex. A-2 is hearsay and cannot be considered for summary judgment. See Wright-Simmons, 155 F.3d at 1268. 148. Deny. The only mental health record produced to Plaintiff dated October 12, 2012, contains none of these statements by Mr. Sardakowski. Ex. #54, Mental Health Watch Directives Dated 10/12/2012. Obj. 2 and 3. 149. Without sufficient information to admit or deny. Undersigned counsel cannot find any mental health note dated 10/14/12 in those that Defendants have produced. Obj. 2 and 4. 150. Admit that the mental health note indicates these statements.
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151. Admit in part, deny in part. a) Deny that 10/22/12 mental health note contains information regarding housing situation or tying off testicles. Ex. #55, Mental Health Note Dated 10/22/2012. Obj. 2 and 3. b) Admit that the mental health note indicates the remaining statements.
152. Admit that the mental health note indicates these statements. 153. Admit that the mental health note indicates these statements. Obj. 5 with respect to the clinician’s statement that Mr. Sardakowski “could be heard throughout the facility screaming and yelling.” 154. Deny. The only mental health record produced for November 3, 2012, does not contain this information. Ex. #56, Mental Health Watch Orders Dated 11/03/2012. Obj. 2 and 3. 155. Deny. The only mental health record produced for November 4, 2012, does not contain this information, and indicates only that Mr. Sardakowski’s ongoing Mental Health Watch would be continued for at least another 24 hours. Ex. #57, Mental Health Watch Orders Dated 11/04/2012. Obj. 2 and 3. 156. Without sufficient information to admit or deny. Undersigned counsel cannot find any mental health note dated 11/15/12 in those that Defendants have produced. Obj. 2 and 4. 157. Without sufficient information to admit or deny. Undersigned counsel cannot find any mental health note dated 12/07/12 in those that Defendants have produced. Obj. 2 and 4. 158. Without sufficient information to admit or deny. Undersigned counsel cannot find any mental health note dated 12/13/12 in those that Defendants have produced. Obj. 2 and 4. 159. Without sufficient information to admit or deny. Undersigned counsel cannot find any mental health note dated 1/08/13 in those that Defendants have produced. Obj. 2 and 4.
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160. Without sufficient information to admit or deny. Undersigned counsel cannot find any mental health note dated 1/25/13 in those that Defendants have produced. Obj. 2 and 4. 161. Admit. 162. Admit. Obj. 5 to clinician’s description of what the note said. Paragraph 166 of Defendants’ Ex. A-2 is hearsay and cannot be considered for summary judgment. See Wright-Simmons, 155 F.3d at 1268. 163. Admit that the mental health note indicates these statements. Obj. 5 to clinician’s description of Mr. Sardakowski’s statements. Paragraph 167 of Defendants’ Ex. A-2 is hearsay and cannot be considered for summary judgment. See Wright-Simmons, 155 F.3d at 1268. 164. Without sufficient information to admit or deny. Undersigned counsel was unable to locate a mental health note dated 5/14/13 within produced documents. A 5/14/2013 mental health note was never produced. Obj. 2 and 4. 165. Without sufficient information to admit or deny. Undersigned counsel cannot find any mental health note dated 5/21/13 in those that Defendants have produced. Obj. 2 and 4. 166. Deny. The only mental health record that has been produced for May 30, 2013, does not contain this information. Ex. #58, Mental Health Note Dated 05/30/2013. Obj. 2 and 3. 167. Admit in part, deny in part.
a) Deny that Mr. Sardakowski has no psychosis. Ex. #2, Burns Dec., at ¶ 8. b) Admit that the mental health note indicates these statements. Obj. 5 with respect to the
clinician’s opinion of how Mr. Sardakowski was feeling. 168. Admit. (Assuming that the mental health note referenced is actually from August 20, 2013, not 2012.) Obj. 5 with respect to clinician’s description of Mr. Sardakowski’s group participation and
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cooperation with peers. Paragraph 172 of Defendants’ Ex. A-2 is hearsay and cannot be considered for summary judgment. See Wright-Simmons, 155 F.3d at 1268. 169. Admit. Obj. 5 with respect to clinician’s description of level progression, group attendance, cooperation with peers, and paraphrasing of Mr. Sardakowski’s statement. Paragraph 173 of Defendants’ Ex. A-2 is hearsay and cannot be considered for summary judgment. See WrightSimmons, 155 F.3d at 1268). 170. Admit in part, deny in part.
a) Admit that on September 19, 2013, CDOC staff indicated that Mr. Sardakowski was ready for level progression.
b) Deny that Mr. Sardakowski was progressed to Level 4 on or around that date. He was not progressed to Level 4 until November 19, 2013. Doc. 113, Ex. A-7, at ¶ 6.
171. Admit in part, deny in part, and without sufficient knowledge to admit or deny in part. a) Plaintiff is without sufficient knowledge to admit or deny whether diagnoses change over time when providers get to know their patients. Defendants offer no evidence to support this fact. Obj. 1 and 2. b) Plaintiff is without sufficient knowledge to admit or deny whether diagnoses change over time in a prison environment. Defendants offer no evidence to support this fact. Obj. 2. c) Admit that Mr. Sardakowski’s diagnosis has changed over time. d) Deny that Mr. Sardakowski has had any one provider long enough for that provider to “get to know” Mr. Sardakowski. Ex. #4, Sardakowski Dec., at ¶ 160; Ex. #2, Burns Dec. at ¶ 16.
172. Admit in part, deny in part. a) Admit that Mr. Sardakowski’s diagnosis has changed over time. Obj. 2.
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b) Deny that Mr. Sardakowski’s diagnosis has evolved over time. Defendants mischaracterize an inconsistent diagnosis as an evolution of his diagnosis. Obj. 2 and 3.
173. Admit that Mr. Sardakowski was given this diagnosis, among others, in 2006. Obj. 2. Defendants specify no precise date for when this diagnosis occurred. 174. Admit that Mr. Sardakowski was given this diagnosis, among others, in 2006. Obj. 2. Defendants specify no precise date for when this diagnosis occurred. 175. Admit that Mr. Sardakowski was given this diagnosis in 2007, though it was among other diagnoses that year including schizoaffective disorder (SAD) and borderline intellectual functioning. Ex. #59, Mental Health Contact Dated 05/29/2007. Obj. 2. Defendants specify no precise date for when this diagnosis occurred. 176. Admit that Mr. Sardakowski was given this diagnosis, among others, in 2008. Obj. 2. Defendants specify no precise date for when this diagnosis occurred. 177. Admit that Mr. Sardakowski was given this diagnosis, among others, in 2008. Obj. 2. Defendants specify no precise date for when this diagnosis occurred. 178. Admit that Mr. Sardakowski was given this diagnosis, among others, in 2008. Obj. 2. Defendants specify no precise date for when this diagnosis occurred. 179. Admit that Mr. Sardakowski was given this diagnosis, among others, in 2009. Obj. 2. Defendants specify no precise date for when this diagnosis occurred. 180. Admit in part, deny in part.
a) Admit that Mr. Sardakowski was given this diagnosis, among others, in 2009. Obj. 2. Defendants specify no precise date for when this diagnosis occurred.
b) Deny that Mr. Sardakowski was malingering. Mr. Sardakowski was administered an industry-standard test for malingering, and the test results indicated that he was not 27

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malingering. Ex. #37, Mental Health Providers Recommendation Regarding Disability Status; Ex. #38, Psychological Testing Report, 2. 181. Admit in part, without sufficient information to admit or deny in part, and deny in part. a) Admit that Mr. Sardakowski had this diagnosis, among others, in 2009. Obj. 2. Defendants specify no precise date for when this diagnosis occurred. b) Without sufficient information to admit or deny whether mental health note indicates Plaintiff is “using Mental Health for secondary gain;” no specific mental health note is indicated. Obj. 2. c) Without sufficient information to admit or deny whether mental health notes describe Plaintiff as “attention seeking;” no specific mental health note is cited. Obj. 2. d) See RSUMF ¶ 180(b). 182. Admit in part, deny in part. a) Admit that Mr. Sardakowski was given this diagnosis, among others, in 2009. Obj. 2. Defendants specify no precise date for when this diagnosis occurred. b) See RSUMF ¶ 180(b). 183. Admit in part, without sufficient information to admit or deny in part, deny in part. a) Admit that Mr. Sardakowski was given this diagnosis, among others, in 2010. Obj. 2. Defendants specify no precise date for when this diagnosis occurred. b) Without sufficient information to admit or deny whether it is “noted” that Mr. Sardakowski is “stable off medication,” as no note is cited by Defendants. Obj. 2. c) See RSUMF ¶ 180(b). 184. Admit in part, without sufficient knowledge to admit or deny in part, deny in part.
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a) Admit that Mr. Sardakowski was given this diagnosis, among others, in 2010. Obj. 2. Defendants specify no precise date for when this diagnosis occurred.
b) Without sufficient information to admit or deny whether Mr. Sardakowski is noted as “calm” and “insightful,” as no note is cited by Defendants. Obj. 2.
c) See RSUMF 180(b). 185. Admit that Mr. Sardakowski was given this diagnosis, among others, in 2010. See ¶ 183 supra. Obj. 2. Defendants specify no precise date for when this diagnosis occurred. 186. Admit in part, deny in part, and without sufficient information to admit or deny in part.
a) Admit that the mental health records indicate these statements. b) Without sufficient information to either admit or deny whether there are “several
admissions.” Obj. 2. It is unclear what “as to malingering, there are ‘several admissions’” entails and in what capacity these admissions were made as Defendants cite to no underlying evidence. c) Admit that a letter was found in Mr. Sardakowski’s cell. Obj. 2. d) Deny that the letter explains “how to malinger to get changes and attention.” Ex. #40, Haney Dep. at 107:8-109:21. Obj. 2 and 3. e) Plaintiff is without sufficient information to admit or deny whether a note indicates Mr. Sardakowski is “stable, with improvement…talkative, appropriate, likes program” because there is no date or indication of which mental health note the quoted material alludes to. Obj. 2. f) See RSUMF ¶ 180(b). 187. Admit in part, without sufficient information to admit or deny in part.
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a) Admit that Mr. Sardakowski was given this diagnosis, among others, in 2012. Obj. 2. Defendants specify no precise date for when this diagnosis occurred.
b) Without sufficient information to admit or deny that it was noted that Mr. Sardakowski was hoarding medication, as no note is cited by Defendants. Obj. 2.
188. Admit that Mr. Sardakowski was given this diagnosis, among others, in 2012. Obj. 2. Defendants specify no precise date for when this diagnosis occurred. 189. Deny. Obj. 1.
a) The current diagnosis from P.A. Travis Waters is Borderline Personality Disorder, not AntiSocial Personality Disorder. Ex. #60, Ambulatory Health Record Dated 11/12/2013 at 3.
b) Deny that either ASPD or BPD is Mr. Sardakowski’s primary diagnosis. Ex. #61, Burns Dep. at 19:11-17; Ex. #2, Burns Dec., ¶¶ 17-19.
190. Admit. 191. Deny in part and without sufficient information to admit or deny.
a) Without sufficient information to admit or deny whether there are no notes in Mr. Sardakowski’s file expressing concern for Mr. Sardakowski’s treatment or lack thereof. Obj. 2 and 3. As noted throughout, Dr. Lish references many mental health notes that were never produced by Defendants. See, e.g., ¶¶ 156-160, supra.
b) Without sufficient information to admit or deny whether CDOC clinicians regularly express concern that inmate should be receiving more or different treatment. Obj. 2. Defendants have not provided any mental health notes for other prisoners in which CDOC clinicians express concern that an inmate should be receiving more or different treatment.
192. Deny.
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a) Obj. 1, 2, 3, and 6. To the extent that Mr. Sardakowski has engaged in what Defendants characterize as “threats and intimidation,” this has resulted in punishment for Mr. Sardakowski, not his mental health needs being met. Ex. #62, SCF Disposition of Charges; Ex. #63, Denver Complex Disposition of Charges. Mr. Sardakowski usually has to resort to some sort of self-harm or attention seeking behavior in order to get his needs met, but this underlines a larger issue, which is that Mr. Sardakowski’s needs have never been met. Ex. #2, Burns Dec., ¶ 20. Even threats of self-harm from Mr. Sardakowski result in his being punished. Ex. #62, SCF Disposition of Charges; Ex. #64, CSP Disposition of Charges, 2. Mr. Sardakowski is not able to have his needs met by simply asking to see Mental Health. Ex. #65, ChronLog Dated 06/13/2013 (indicating that on January 15, 2009, a mental health clinician described Mr. Sardakowski as “sooo needy”); Ex. #61, Burns Dep. at 109:13-110:1.
193. Admit in part and deny in part. a) Admit that Mr. Sardakowski’s mental illness and some of its origins predate his incarceration at CDOC. b) Deny that all origins of Mr. Sardakowski’s mental illness predate his incarceration at CDOC. Obj. 1 and 2. Solitary confinement is the origin of some of Mr. Sardakowski’s current mental illness symptoms. Ex. #2, Burns Dec., at ¶ 11. For example, Mr. Sardakowski describes that people do not understand what he is talking about. Ex. #44-2, Haney Expert Report at ¶ 93. Because of his long-term social isolation, Mr. Sardakowski is unable to communicate with other people; his social reality has been altered due to lack of meaningful social interaction. Ex. #40, Haney Dep. at 144:2-146:11. c) Deny that the expressions of Mr. Sardakowski’s mental illness predate his incarceration at CDOC. Obj. 1 and 2. Mr. Sardakowski did not engage in head banging nor did he bite 31

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himself until after he was incarcerated in administrative segregation at CDOC. Ex. #4, Sardakowski Dec., at ¶ 192. Ex. #44, Haney Dec., at ¶ 13. 194. Admit in part, Deny in part, and without sufficient information to admit or deny. a) Deny that Mr. Sardakowski is able to dictate his movement within CDOC. Ex. #10, Medina Dep. at 36:17-42:21; 87:2-24. Obj. 2. Mr. Sardakowski has been disciplined for mental health crises involving self-harm, which contributed to his placement in administrative segregation and has extended his time there. Ex. #2, Burns Dec., at ¶¶ 18, 27; Ex. #40, Haney Dep. at 103:14-25 (“Mr. Sardakowski is living in a dirty, smelly cell by himself, and he’s been in something very similar to that since December of 2009. If he’s malingered his way into that, he’s very bad at it.”). b) Deny that Mr. Sardakowski uses mental health crises to combat boredom. Obj. 2. Mr. Sardakowski declares mental health crises as a way to get the attention and care that he needs. Ex. #40, Haney Dep. at 108:20-109:21. c) Admit that CDOC considers Mr. Sardakowski’s reporting of mental health symptoms as abuse of mental health services. Obj. 1 and 2. d) Deny that Mr. Sardakowski’s reporting of mental health symptoms constitutes an abuse of mental health services. Ex. #61, Burns Dep. 61:16-62:7, 113:24-116:23; Ex. #2, Burns Dec., at ¶ 18 (“Reporting of mental health symptoms should not be considered an ‘abuse of mental health services,’ but Mr. Sardakowski has been punished for the same.”). 195. Admit in part, deny in part and without sufficient information to admit or deny in part. a) Admit that Mr. Sardakowski has admitted to exaggerating psychiatric symptoms in order to receive the treatment he needs. Ex. #40, Haney Dep. at 108:20-110:2. Obj. 2.
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b) Deny that Mr. Sardakowski has admitted to faking psychiatric symptoms in order to “manipulate his movement to and from various facilities and units.” Obj. 2 and 3. Mr. Sardakowski cannot control his movement around CDOC. Ex. #10, Medina Dep. 36:1742:21; 87:2-24.
c) Admit that a letter was found in Mr. Sardakowski’s cell. Obj. 2. d) Without sufficient information to admit or deny that the letter described how to “act crazy.”
Obj. 2. Obj. 5 to Dr. Lish’s description of what the letter says. e) Admit that these behaviors could be consistent with a diagnosis of malingering; however,
Mr. Sardakowski was administered an industry-standard test for malingering, and the test results indicated that he was not malingering. Ex. #37, Mental Health Providers Recommendation Regarding Disability Status; Ex. #38, Psychological Testing Report, 2. f) Admit that the presence of malingering does not rule out the presence of an actual mental illness. 196. Admit in part, deny in part, and without sufficient information to admit or deny in part. a) Admit that Mr. Sardakowski sometimes uses self-harm for stress relief. b) Deny that stress relief is the only reason that Mr. Sardakowski engages in self-harming behavior. Mr. Sardakowski uses self-harm to cope with hearing voices and other symptoms of his mental illness. Ex. #4, Sardakowski Dec., at ¶ 187; Ex. #2, Burns Dec., at ¶ 11. c) Without sufficient information to admit or deny Mr. Sardakowski’s statement that “feeling pain is the only thing that helps me.” Obj. 2. Dr. Lish—who did not meet with Mr. Sardakowski in order to prepare his affidavit and has never met Mr. Sardakowski (Ex. #49, Lish Expert Dep. at 35:4-9; Lish Affidavit, Doc. 113, Ex. A-2 at ¶¶ 194-95) —does not
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identify a source for this statement in his affidavit. Doc. 113, Ex. A-2, ¶ 201. Dr. Lish’s affidavit provides no information regarding the context or timeframe for this statement. Id. d) Without sufficient information to admit or deny the statement regarding individuals with borderline personality disorder. Obj. 1. 197. Admit in part and deny in part. a) Admit that Mr. Sardakowski’s mental health crises relate to CDOC’s failure to meet Mr. Sardakowski’s mental health needs. b) Deny that Mr. Sardakowski’s mental health crises relate to “frustration” rather than genuine symptoms of mental illness. Obj. 2. Ex. #4, Sardakowski Dec., at ¶¶ 69, 81, 89, 104, 112; Ex. #2, Burns Dec., at ¶¶ 11, 18-19. c) Deny that Mr. Sardakowski’s mental health crises have not been related to psychotic episodes. Mr. Sardakowski ties off his testicles to cope with hearing voices, Ex. #4, Sardakowski Dec., at ¶ 187; Ex. #2, Burns Dec., at ¶ 11, and this has led to mental health watch and four-pointing. Ex. #4, Sardakowski Dec., at ¶ 104, 108, 112, 121, 189. 198. Admit in part, deny in part, and without sufficient information to admit or deny in part. a) Deny that Mr. Sardakowski can control his behavior when it suits him to do so. Obj. 1 and 2. Mr. Sardakowski’s serious mental illness impairs his ability to control his behavior. Ex. #2, Burns Dec., at ¶ 13; Ex. #4, Sardakowski Dec., at ¶¶ 173, 175. Many of the behaviors for which Mr. Sardakowski has been punished are symptoms of his mental illness. Ex. #2, Burns Dec., at ¶ 18. b) Admit that Mr. Sardakowski obtained his GED. c) Without sufficient information to admit or deny that Mr. Sardakowski stated “I have anger issues.” Obj. 2. Dr. Lish—who did not meet with Mr. Sardakowski in order to prepare his
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affidavit (Ex. #49, Lish Expert Dep. at 35:4-9) —does not identify a source for this statement in his affidavit. Doc. 113, Ex. A-2, at ¶ 201. Dr. Lish’s affidavit provides no information regarding the context or timeframe for this statement. Doc. 113, Ex. A-2, at ¶ 203. 199. Admit in part, deny in part, and without sufficient information to admit or deny in part. a) Admit that mental health records indicate that Mr. Sardakowski’s IQ score in 2006 was 84, but note that Mr. Sardakowski’s 2005 Full Scale IQ score was 69. Ex. #39-A, Pinto Rpt, 11. b) Without sufficient information to admit or deny Mr. Sardakowski’s TABE score of 6.4. Obj. 4. c) Deny that Mr. Sardakowski received his GED while off medication. Mr. Sardakowski received his GED results while he was off psychiatric medication, but Mr. Sardakowski was taking psychiatric medication when he prepared for and took the GED test. Ex. #4, Sardakowski Dec., at ¶ 67. He had been off psychiatric medication for only a few days at the time he received his GED results. Id. d) Deny that he was living independently at the time of his arrest. Obj. 2. Mr. Sardakowski was receiving SSI and was unable to independently support himself at the time of his arrest. Ex. #4, Sardakowski Dec., at ¶ 37. He had been living in his own apartment for only two months. Id. Ex. #61, Burns Dep. 27:5-28:9. e) Admit that Mr. Sardakowski’s current MR/DD score is 2. f) Deny that an MR/DD code of 2 indicates that Mr. Sardakowski is not currently identified as an individual with any need for developmental disability treatment. CDOC policy states that an MR/DD code of 2 indicates “low developmental disability needs,” but that
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offenders with this code should be referred for treatment if behavior problems are noted. Ex. #66, DD Code Clinical Standard, 27. g) Deny that Mr. Sardakowski does not have a developmental disability. Obj. 1. Mr. Sardakowski has been diagnosed with an intellectual disability. Ex. #2, Burns Dec., at ¶ 9; Ex. #39-A, Pinto Report, 11. He was placed in special education classes as a child. Ex. #4, Sardakowski Dec., at ¶ 6; Ex. #39-A, Pinto Report, 3; Ex. #67, Diagnostic Narrative Summary. He has been placed in multiple CDOC programs for inmates with developmental disabilities. Ex. #4, Sardakowski Dec., at ¶¶ 56, 63-64; Ex. #13, DD Referral Form. h) Without sufficient information to admit or deny the comments of mental health professionals who have worked with Mr. Sardakowski. Obj. 2. Dr. Lish’s affidavit does not provide any information regarding the source(s) of these comments or the timeframe in which they were made. Doc. 113, Ex. A-2, at ¶ 204. 200. Admit in part, deny in part, and without sufficient information to admit or deny in part. a) Admit that Mr. Sardakowski is seriously mentally ill. b) Deny that Mr. Sardakowski’s presentation is consistent with a personality disorder with both antisocial and borderline traits. Obj. 1. Dr. Lish stated in his deposition that he did not diagnose Mr. Sardakowski; indeed, he has never met Mr. Sardakowski. Ex. #49, Lish Expert Dep. at 34:14-21; 35:3-9; Lish Affidavit, Doc. 113, Ex. A-2, at ¶¶ 194-195. Mr. Sardakowski’s symptoms are most consistent with schizoaffective disorder. Ex. #2, Burns Dec., at ¶ 8. c) Without sufficient information to admit or deny the statements of “the vast majority of mental health professionals who have worked with” Mr. Sardakowski. Obj. 2. Defendants have not identified statements of mental health providers that would support this broad assertion by Dr. Lish. See Doc. 113, Ex. A-2, ¶ 205. Mr. Sardakowski has been diagnosed
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with schizoaffective disorder by CDOC mental health providers. Ex. #53, Mental Health Note Dated 09/27/2012; Ex. #68, Mental Health Contact Dated 05/29/2007. d) Without sufficient information to admit or deny the statements regarding treatment of personality disorders. Obj. 1. These statements do not relate to Dr. Lish’s rebuttal expert opinions, and are therefore improper. e) Without sufficient information to admit or deny that “[j]ails and prisons are filled with personality-disordered individuals who are resistant to treatment.” Obj. 2 and 7. Defendants have provided no evidence regarding the prevalence of personality disorder among incarcerated populations and no evidence that anyone is resistant to treatment. 201. Admit in part, deny in part, and without sufficient information to admit or deny in part. a) Admit that there is debate about whether Mr. Sardakowski has a diagnosis of a psychotic disorder such as schizoaffective disorder. b) Without sufficient information to admit or deny the findings of the “vast majority” of psychiatrists who have evaluated Mr. Sardakowski. Obj. 2. Defendants do not identify any statements of psychiatrists that support this broad assertion by Dr. Lish. See Doc. 113, Ex. A-2, at ¶ 205. Multiple psychiatric providers have diagnosed Mr. Sardakowski with psychotic disorders including schizoaffective disorder. E.g., Ex. #53, Mental Health Note Dated 09/27/2012; Ex. #68, Mental Health Contact Dated 05/29/2007. c) Deny that Mr. Sardakowski has been evaluated by 19 psychiatrists. The 19 “psychiatric providers” identified by Dr. Lish in ¶ 18 are not all psychiatrists. Ex. #69, Lish 30(b)(6) Dep. at 28:17-21, 30:4-6. Furthermore, Defendants have provided no evidence that the psychiatric providers listed actually “evaluated” or diagnosed Mr. Sardakowski. Interactions between psychiatric providers and inmates frequently take place via video conferencing and involve
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only routine monitoring of medications. Ex. #4, Sardakowski Dec., at ¶ 167; Ex. 69, Lish 30(b)(6) Dep. at 53:20-54:23. d) Deny that the only evidence of psychotic symptoms is Mr. Sardakowski’s self-report. Ex. #61, Burns Dep. at 19:18-21:17; Ex. #39-A, Pinto Report, 1 (“In the middle session, he was clearly . . . disoriented and psychotic. He appeared to be responding to internal stimuli and to be struggling to engage and maintain.”). e) Deny that there are no notes describing behavior consistent with a disorganized, psychotic individual. Ex. #61, Burns Dep. at 19: 18-23, 21:18-22. f) Deny that there have not been notes describing sustained mood episodes. Mr. Sardakowski has remained on mental health watch for days at a time due to self-harming behavior. Ex. #70, Mental Health Note Dated 10/31/2012 (“[W]e spoke of the fact that he’d been in MH Watch for several days.”). g) Without sufficient information to admit or deny that “[m]ood lability, anger, auditory hallucinations and transient paranoid thoughts are a common symptom of individuals with borderline personality disorder, particularly those with a history of trauma during childhood and adolescence.” Obj. 1. 202. Admit in part and without sufficient information to admit or deny in part. a) Admit that Mr. Sardakowski has been prescribed antipsychotic, mood-stabilizing, and antidepressant medications during his incarceration in CDOC. b) Deny that Mr. Sardakowski has been “consistently” prescribed psychotropic medications. See Doc. 113, at ¶ 17.
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c) Deny that antipsychotic, mood-stabilizing, and antidepressant medications are frequently prescribed to individuals with borderline personality disorder. Obj. 1. Personality disorders are not ordinarily treated with medication. Ex. #61, Burns Dep. at 152:6-23.
d) Without sufficient information to admit or deny the treatment Mr. Sardakowski would have received if he had received a different diagnosis. Obj. 1 and 2.
e) Admit that CDOC psychiatric staff have met with Mr. Sardakowski on multiple occasions. f) Admit that Mr. Sardakowski has been prescribed Seroquel by CDOC psychiatric staff. 203. Admit in part, deny in part, and without sufficient information to admit or deny in part. a) Deny that CDOC mental health staff has been diligently attempting to treat Mr. Sardakowski.
Mr. Sardakowski has received almost no mental health treatment in CDOC apart from medication. Instead, CDOC staff have repeatedly disciplined and isolated Mr. Sardakowski for behaviors that are manifestations of his mental illness, including self-harm. Ex. #62, SCF Disposition of Charges; Ex. #64, CSP Disposition of Charges, 2; Ex. #2, Burns Dec., ¶¶ 11, 18-19, 27; Ex. #4, Sardakowski Dec., ¶ 197. b) Admit that Mr. Sardakowski was sent to SCCF twice, that he participated in the DD program at CTCF, that he was placed in the OMI program at CSP, and that he is currently placed in RTP in CCF. c) Deny that Mr. Sardakowski is receiving meaningful mental health treatment other than medication in RTP. Ex. #2, Burns Dec., at ¶¶ 11, 20; Ex. #4, Sardakowski Dec., at ¶¶ 152, 154, 158, 161, 164, 165, 171, 200. Mr. Sardakowski has received only one individual therapytype meeting with a mental health clinician since his arrival in RTP. Ex. #71, Robinson Dep. at 192:13-16; Ex. #4, Sardakowski Dec., at ¶ 164. That meeting did not qualify as individual therapy because it was not confidential; it took place in the dayhall within earshot of other
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prisoners’ cells. Ex. #, Sardakowski Dec., at ¶ 164; Ex. #, Burns Dec., at ¶ 16. Mr. Sardakowski does not know the contents of his individual treatment plan because no one has ever discussed it with him. Ex. #4, Sardakowski Dec., at ¶ 154, 200. d) Without sufficient information to admit or deny that these programs represent the highest level of mental health services available within CDOC. The programs listed represent range of services for varying disorders and levels of acuity. RTP at SCCF, for example, offers a higher level of mental health care than RTP at CCF. Ex. #72, Wasko Dep. at 182:23-183:8. Thus, Plaintiff is unable to admit that both SCCF and RTP represent the highest level of mental health services in CDOC. The DD program at CTCF was a program for inmates with developmental disabilities; it did not offer mental health services. Ex. #4, Sardakowski Dec., at ¶ 64. 204. Admit in part and deny in part. a) Admit that Mr. Sardakowski’s mental health could improve with therapy. b) Deny that Mr. Sardakowski has not been willing to undertake therapy. Mr. Sardakowski has not had the opportunity to participate in therapy because therapy has not been offered to him. Ex. #4, Sardakowski Dec., at ¶ 164; Ex. #2, Burns Dec., at ¶ 16. Mr. Sardakowski believes discussing self-harm and other issues in a confidential setting can help him, Ex. #4, Sardakowski Dec., at ¶ 176, and he is willing to open up to CDOC mental health staff with whom he has developed a trusting relationship. Id. at ¶ 162. However, he has not been treated by any single mental health provider long enough to form a therapeutic relationship. Ex. #4, Sardakowski Dec., at ¶¶ 160-161; Ex. #2, Burns Dec., at ¶ 16. c) Deny that Mr. Sardakowski has antisocial personality disorder or borderline personality disorder. Ex. #, Burns Dep. at 64:4-17, 186:15-18; Ex. #, Burns Dec., at ¶ 17. Mr.
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Sardakowski was never diagnosed with a personality disorder during his extensive history of mental health treatment prior to his incarceration. Ex. #39-A, Pinto Report, 17. d) Without sufficient information to admit or deny that antisocial personality disorder and borderline personality disorder cannot be “fixed” with medication. Obj. 1. 205. Admit in part and without sufficient information to admit or deny in part. a) Admit that Mr. Sardakowski progressed to Level 4, but note that this progression occurred only one week before Defendants filed their Motion for Summary Judgment. Doc. 113, Ex. A-7, at ¶ 6. He has been regressed from Level 4 in the past after only one week. Ex. #73, Level Review. He has never progressed beyond Level 4. Ex. #4, Sardakowski Dec., at ¶ 136; Ex. #44, Haney Dec., at ¶ 16. b) Admit. c) Deny that “during his most recent psychiatric encounter he reports that his medications are helping quite a bit to manage his moods and he is happy and compliant with his current regimen.” Obj. 4. The last record produced by Defendants documenting a psychiatric encounter indicated that P.A. Waters was changing Mr. Sardakowski’s medications. Ex. #60, Ambulatory Health Record Dated 11/12/2013. 206. Admit. 207. Admit in part and deny in part. a) Admit that RTP replaced the OMI program. b) Admit that Exhibit A-3 states that the RTP is a program in which offenders with mental illness receive individual and group therapy, educational programs, and recreational activities. c) Deny that Mr. Sardakowski has received individual therapy in the RTP. Mr. Sardakowski has received only one individual meeting with a mental health clinician since his arrival in the
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RTP. Ex. #4, Sardakowski Dec., at ¶ 164; Ex. #71, Robinson Dep. at 192:13-16. That meeting did not qualify as individual therapy because it was not confidential; it took place in the dayhall within earshot of other prisoners’ cells. Ex. #, Sardakowski Dec., at ¶ 164; Ex. #2, Burns Dec., at ¶ 16. 208. Admit that this is what the policy states. 209. Admit that this is what the policy states. 210. Admit that this is what the policy states. 211. Admit in part and deny in part. Deny that the lower levels in RTP at CCF are less restrictive that the lower levels of OMI at CSP. Ex. #44, Haney Dec., at ¶ 14; Ex. #4, Sardakowski Dec., at ¶¶ 134-135, 137-139. Mr. Sardakowski is restrained whenever he leaves his cell on RTP Levels 1-3 and whenever he leaves his unit on RTP Level 4. Ex. #4, Sardakowski Dec., at ¶ 142; Ex. #74, RTP Restraint Matrix. The privileges that inmates receive in RTP levels 1-3 are identical to those in OMI levels 1-3. Ex. #75, Lampela Dep. at 216:21-217:21. Both CSP and CCF are designated “Level V Facilities”—the highest security level for CDOC facilities. Ex. #76, AR 600-01, 3-4. Apart from access to outdoor exercise at CCF, Ex. #4, Sardakowski Dec., at ¶ 134, the physical plant of the two facilities is the same. Ex. #72, Wasko Dep. at 120:3-18. Admit the remaining facts. 212. Deny. Ex. #44, Haney Dec., at ¶¶ 14-16; Ex. #4, Sardakowski Dec., at ¶¶ 141-143; 147, 156, 159. Mr. Sardakowski spends less than 6 hours per week out of his cell. Ex. #, Sardakowski Dec., at ¶ 141, and at most, three hours per week of purportedly therapeutic group activities. Id. at ¶ 156; Ex. #71, Robinson Dep. 131:12-14. However, many of these group sessions are cancelled due to lockdowns and staff shortages. Id.; Ex. #77, RTP Group Cancelation Chart. 213. Without sufficient information to admit or deny in part, deny in part.
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a) Without sufficient information to admit or deny that such meetings take place. Defendants have produced no records of any meeting among RTP staff relating to Mr. Sardakowski when he was referred to RTP in February 2013.
b) Deny that RTP staff met with Mr. Sardakowski when he was referred to the program to discuss why he was referred or what his goals were. Ex. #4, Sardakowski Dec., ¶¶ 133, 154.
214. Admit. 215. Admit in part, and deny in part, and without sufficient information to admit or deny in part. Obj. 2. Defendants did not provide a citation or any evidence to support this assertion.
a) Admit that offenders in RTP receive group therapy. b) Deny that Mr. Sardakowski has received individual therapy in RTP. Ex. #4, Sardakowski
Dec., at ¶ 164; Ex. #2, Burns Dec., at ¶ 16. c) Without sufficient information to admit or deny whether other prisoners in RTP receive
individual therapy. 216. Admit. 217. Admit that therapy varies between RTP levels. Without sufficient information to admit or deny whether therapy is more “advanced” at higher levels. 218. Deny. Mr. Sardakowski was progressed to Level 4 without completing the Level 3 curriculum. Ex. #4, Sardakowski Dec., at ¶ 153. 219. Admit. 220. Deny. See Response to ¶ 218.
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STATEMENT OF ADDITIONAL DISPUTED MATERIAL FACTS (“SADMF”) Mr. Sardakowski Has Been Diagnosed with Serious Mental Illness and Developmental Disabilities 1. In 2005, while incarcerated at the Adams County Detention Center awaiting trial, Mr.
Sardakowski was evaluated by Dr. Suzanne Pinto, a forensic psychologist. Dr. Pinto gave Mr. Sardakowski a primary diagnosis of Axis I Bipolar Disorder, mixed, severe with psychotic features and Post Traumatic Stress Disorder. This diagnosis was based on three interviews, tests, and record review. Ex. #39-A, Pinto Report, 1, 17. 2. “It is notable that Mr. Sardakowski has never been given an Axis II diagnosis of Antisocial Personality disorder or Narcissistic Personality disorder out of recognition that his violence and acting out is not in his control and is secondary to his severe mental illness.” Id. at 17. 3. As part of the 2005 evaluation, Mr. Sardakowski was also administered a WAIS III test and was found to have an Full Scale IQ score of 69, putting him in the mildly mentally retarded range. Id. at 11. 4. Mr. Sardakowski’s low scores in several areas “indicated clear intellectual liabilities. . . . Comprehension specifically measures judgment or common sense . . . His low scores indicate that his social judgment, social conventionality and his ability to use facts in a pertinent and emotionally relevant manner are extremely compromised. Picture completion is a test that requires concentration, reasoning, cognition, judgment, and delay of impulses. Perception is poor. Picture Arrangement is a test that requires the interpretation of social situations, including an ability to plan, comprehend and to look at the big picture. Mr. Sardakowski lacks the ability to anticipate the consequences of initial acts or situations and the ability to interpret social
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situations. He shows a poor ability to see meaningful continuity in his life and to anticipate, judge and understand the possible antecedents and consequences of events.” Id. at 11. 5. Mr. Sardakowski was placed in special education as a child due to his “slowness, his learning disabilities, his behavior, and his ADHD. He had a difficult time with comprehension, reading, and focusing.” Id. at 3; see also Ex. #4, Sardakowski Dec., at ¶ 6. 6. Mr. Sardakowski is “extremely impaired in terms of his ability to think logically, coherently, and to realistically perceive other people and events. . . . Situational stress is likely to make more demands upon his limited adaptive capacities than he is able to respond to thereby reducing his effectiveness in making decisions . . . . He is likely to have less control over his feelings than most people.” Ex. #39-A, Pinto Report, 11. 7. Mr. Sardakowski has poor impulse control and poor judgment. Id. at 1. 8. CDOC assigns prisoners Developmental Disability (DD) codes on a scale of 1 to 5, with 5 representing the lowest level of functioning. Ex. #69, Lish 30(b)(6) Dep. at 89:24-91:4. 9. CDOC diagnosed Mr. Sardakowski with a DD score of 4 for most of 2007-2009 while he was incarcerated at CTCF, SCCF, and SCF. Ex. #78, Mental Health Notes DD Code 4. 10. The CDOC determines an offender’s DD score based on mental health observations regarding adaptive functioning, IQ tests, and additional testing. Ex. #5, Lampela 30(b)(6) Dep. at 84:2485:22. 11. Although CDOC typically administers the Vineland Test to determine whether an individual has a developmental disability, it was not administered to Mr. Sardakowski. Ex. #5, Lampela 30(b)(6) Dep. at 85:11-25.
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12. Due to Mr. Sardakowski’s reading disability, he reads slowly to identify the important words in a paragraph. It is embarrassing for Mr. Sardakowski to read out loud when sees something for the first time. Ex. #4, Sardakowski Dec., at ¶ 65.
13. As a symptom of his mental illnesses, Mr. Sardakowski has consistently heard voices in his head since he was between 7-9 years old. Ex. #2, Burns Dec., at ¶ 4. Mr. Sardakowski hears voices at all times that he is awake. Medication makes the voices quieter and easier for Mr. Sardakowski to ignore, but medication does not make the voices go away. Ex. #4, Sardakowski Dec., at ¶¶ 13, 177-78, 180.
14. As a way of coping with the stress of the voices, Mr. Sardakowski at times resorts to self-harm, including tying off his testicles, biting himself, and banging his head. Ex. #4, Sardakowski Dec., at ¶¶ 187, 192; Ex. #2, Burns Dec., at ¶ 11.
15. In May 2013, after having reviewed his mental health records provided by CDOC and performing an in-person psychiatric evaluation of Mr. Sardakowski, Dr. Burns diagnosed him as having an intellectual disability and “a serious mental illness with mood and psychotic features, most likely schizoaffective disorder.” Ex. #2, Burns Dec., at ¶¶ 8-9.
16. Mr. Sardakowski “is highly vulnerable on many fronts: limited intellectual capacity, psychiatric illness, psychologically traumatized, hearing impaired, and highly immature and naïve regarding survival in adult prison.” Ex. #2, Burns Dec., at ¶ 20.
17. Mr. Sardakowski is a victim of sexual abuse. Ex. #4, Sardakowski Dec., at ¶ 8; Ex. #79, Mental Health Crisis Note 06/14/2009 at 2.
18. Mr. Sardakowski has never been able to support himself or live independently. During the only two months that he lived in his own apartment—the two months leading up to his arrest—he
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received SSI and was not working. Ex. #4, Sardakowski Dec., at ¶ 37; Ex. #2, Burns Dep. 27:528:9. CDOC’s Response to Mr. Sardakowski’s Self-Harm 19. Mr. Sardakowski has an extensive history of self-harm documented in his CDOC mental health records, including suicide attempts and repeated self-injury involving “tying off” his testicles. Ex. #80, Mental Health Note Dated 05/26/2012; see also Ex. #4, Sardakowski Dec., at ¶¶ 101103; 187-191. 20. Mr. Sardakowski has attempted suicide on numerous occasions. Ex. #4, Sardakowski Dec., at ¶¶ 18, 52, 84, 89; Ex. #80, Mental Health Note Dated 05/26/2012. 21. Mr. Sardakowski continues to self-harm by tying off his testicles nearly weekly in RTP. Ex. #4, Sardakowski Dec., at ¶¶ 150, 190-191; Ex. #60, Ambulatory Health Record Dated 11/12/2013. 22. Mr. Sardakowski is at elevated risk of continued self-injury as well as the possibility of suicide due to his psychotic thought processes. Ex. #2, Burns Dec., at ¶ 25. 23. CDOC recognizes the need to provide specialized treatment for inmates who engage in selfharming and suicidal behavior. Ex. #81, CDOC “Offenders with Mental Illness” Report Dated 01/31/2013, at 14 (“It is imperative that the Department create a self-injurious unit to provide immediate and specialized assessment and treatment for offenders who engage in self-harming behavior.”). 24. No CDOC mental health clinician has ever addressed Mr. Sardakowski’s tying-off behaviors with him. Ex. #5, Lampela 30(b)(6) Dep. at 105:25-106:8; Ex. #4, Sardakowski Dec., at ¶ 200. 25. CDOC staff have punished Mr. Sardakowski for self-harming with disciplinary infractions for “misuse of clinical services,” among other charges. Ex. #4, Sardakowski Dec., at ¶ 197; Ex. #64, CSP Disposition of Charges; Ex. #2, Burns Dec., at ¶ 18.
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26. The Code of Penal Discipline (COPD) is the written policy of the CDOC that establishes procedures, responsibilities, specific prohibitions, and sanctions for violation of those prohibitions. Ex. #82, AR 250-54(III)(A).
27. COPD charges and incident reports negatively affect Mr. Sardakowski’s RTP level progression. Ex. #4, Sardakowski Dec., at ¶ 199; Ex. #5, Lampela 30(b)(6) Dep. at 117: 4-8.
28. In response to Mr. Sardakowski’s self-harm, CDOC has subjected him to punitive conditions on “mental health watch.” Ex. #4, Sardakowski Dec., at ¶¶ 104-105, 109, 112, 119-120 and Attachment A, 121; Ex. #2, Burns Dec., at ¶ 18.
29. After harming himself, Mr. Sardakowski has been chained to a bed with immobilizing fourpoint restraints, wearing a diaper, for days at a time in conditions highly reminiscent of his childhood sexual abuse. Ex. #4, Sardakowski Dec., at ¶¶ 112-113, 121; Ex. #2, Burns Dec., at ¶ 19.
30. During mental health watch and four-pointing, mental health staff did not provide therapy to Mr. Sardakowski or discuss the self-harming behaviors that led to his placement in restraints. Ex. 5, Lampela 30(b)(6) Dep. at 141: 4-7; Ex. #4, Sardakowski Dec., at ¶¶ 107-108, 115, 122.
31. Mr. Sardakowski has been afraid to report his ongoing self-harm to mental health staff for fear of being further punished for it. Ex. #4, Sardakowski Dec., at ¶¶ 198-199; Ex. #60, Ambulatory Health Record Dated 11/12/2013.
32. In October of 2013, Mr. Sardakowski told the RTP psychiatric provider, Physician Assistant Travis Waters, that he was continuing to self-harm by tying off his testicles, and that he was afraid to report self-harm to mental health staff because he could be punished for it. PA Waters did not discuss Mr. Sardakowski’s self-harm with him, nor did he appear to write anything down about it. Ex. #4, Sardakowski Dec., at ¶ 198. 48

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33. In November of 2013, Mr. Sardakowski again told PA Waters that he was continuing to tie off. Ex. #60, Ambulatory Health Record Dated 11/12/2013.
Lack of Individualized Treatment in RTP 34. Mr. Sardakowski requires individual, confidential treatment to deal with his psychological
trauma, history of sexual abuse, and ongoing self-harming behaviors. Ex. #2, Burns Dec., at ¶¶ 13, 16, 22. 35. Individual contact with a mental health counselor must be more frequent than monthly in order to establish a trusting therapeutic relationship. Ex. #2, Burns Dec., at ¶ 16. 36. Individual therapy must be confidential. Ex. #5, Lampela 30(b)(6) Dep. at 135:19-22; Ex. #2, Burns Dec., at ¶¶ 16, 20. 37. Mr. Sardakowski has been offered only one individual therapy-type session with a mental health clinician since his arrival in the RTP in February 2013. Ex. #71, Robinson Dep. at 192:13-193:5; Ex. #4, Sardakowski Dec., at ¶ 164. That meeting was not confidential because it took place in the dayhall within earshot of other inmates’ cells. Ex. #4, Sardakowski Dec., at ¶ 164. 38. All of Mr. Sardakowski’s other individual contacts with mental health clinicians were for the purpose of allowing him to review his mental health records. Ex. #4, Sardakowski Dec., at ¶¶ 164-165. 39. Meeting with a clinician for records review is not therapy. Ex. #5, Lampela 30(b)(6) Dep. at 135:7-15. 40. Each inmate in the RTP is supposed to get one individual therapy session per week. Ex #75, Lampela Dep. at 162:17-19. Offering an inmate only two opportunities to meet one-on-one with a clinician during a six month period violates RTP policy, Ex. #72, Wasko Dep. at 107:22-
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108:3, and is “woefully insufficient” given the complexity and severity of Mr. Sardakowski’s condition. Ex. #61, Burns Dep. at 189:1-4; Ex. #2, Burns Dec., at ¶ 16. 41. According to CDOC, the RTP utilizes individual treatment plans with “targeted behavior goals” that are discussed with inmates in one-on-one meetings. Ex. #5, Lampela 30(b)(6) Dep. at 33:935:24; Ex. #72, Wasko Dep. at 104:19-105:11. 42. Mr. Sardakowski does not know the contents of his individual treatment plan because RTP clinicians have never discussed it with him. Ex. #4, Sardakowski Dec., at ¶ 154. Mr. Sardakowski does not know if he has any goals as part of his treatment plan. Id. 43. Mr. Sardakowski’s individual treatment plans in the RTP are “vague” and do not contain objective and measurable goals. Ex. #5, Lampela 30(b)(6) Dep. at 46:24-47:23. 44. Mr. Sardakowski’s treatment plan does not address his self-harming behaviors. Ex. #71, Robinson Dep. at 219:2-5. RTP Group Sessions 45. Group therapy is the primary form of treatment offered in the RTP. Ex #5, Lampela 30(b)(6) Dep. at 16:24-17:6. 46. Defendant Jill Lampela was involved in creating and implementing the OMI Program and the RTP. Ex. #75, Lampela Dep. at 33:4-18; 43:10-44:10. 47. Defendant Jill Lampela acknowledged that vulnerable inmates are not comfortable sharing in a group setting because other inmates may use sensitive information against them, and that individual therapy is important for those vulnerable inmates. Ex. #75, Lampela Dep. at 125:17128:13. 48. Mr. Sardakowski’s history of sexual victimization and “tying off” behaviors are not subjects that Mr. Sardakowski is able to discuss openly with other inmates who can use the information
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against him, taunt him, and otherwise bully him. Ex. #2, Burns Dec., at ¶ 23; Ex. #4, Sardakowski Dec., at ¶ 158. 49. Group sessions are not sufficient to treat Mr. Sardakowski’s serious mental health needs. Ex. #2, Burns Dec., at ¶ 23. 50. In the first six months of 2013, 27% of scheduled RTP group sessions were canceled, with the most frequently cited reasons being “staff shortage,” “other/unknown,” and “facility lockdowns.” Ex #77, RTP Group Cancelation Chart; see also Ex. #4, Sardakowski Dec., at ¶ 156. 51. At most, Mr. Sardakowski is supposed to receive three group sessions in the RTP each week; due to cancelations, however, Mr. Sardakowski spends less than three hours per week in group sessions of any kind. Ex. #4, Sardakowski Dec., at ¶ 156; Ex. #71, Robinson Dep. 131:12-14. 52. The group sessions that do take place often involve playing card games rather than engaging in therapeutic activity. Ex. #4, Sardakowski Dec., at ¶ 156; Ex. #71, Robinson Dep. 128:13129:16. Conditions in the Lower Levels of RTP are Solitary Confinement 53. The term “administrative segregation” is a term of art used by CDOC, and is interchangeable with other terms such as “solitary confinement,” “isolated housing,” and “segregation,” all of which describe the same conditions of confinement. Ex. #44, Haney Dec., at ¶ 11. 54. CDOC continues to operate CSP as an “administrative segregation” facility with 630 beds available for administrative segregation prisoners. Ex. #83, Monthly Population and Capacity Report Dated 11/30/2013.
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55. CDOC continues to operate Sterling Correctional Facility with 128 beds available for administrative segregation prisoners. CDOC Monthly Population and Capacity Report, CDOC Office of Planning and Analysis (Nov. 30, 2013).
56. An inmate’s status determines the degrees of barrier, mobility, and supervision required for that inmate. Ex. #10, Medina Dep. at 51:3-13.
57. When an inmate has an “RTP status,” correctional staff will identify and interact with that inmate based on his level within the RTP. Ex. #10, Medina Dep. at 54:11-22, 55:4-8.
58. Mr. Sardakowski is identified and viewed for CDOC management purposes as “RTP status, level 4.” Doc. 113, Ex. A-7, Hart Aff., at ¶ 6.
59. The CDOC is free to change an inmate’s status, custody level, and facility based on a reclassification that takes place yearly for each inmate or when there is an incident involving the inmate. Ex. #10, Medina Dep. at 43:13-17, 45:12-17.
60. Mr. Sardakowski’s conditions of confinement in the lower levels in the RTP are the same as his conditions in administrative segregation at CSP, except that inmates in RTP receive outdoor recreation. Ex. #4, Sardakowski Dec., at ¶¶ 93, 134, 137-140, 144; Ex. #72, Wasko Dep. at 85:18-24; Ex. #44, Haney Dec., at ¶ 16.
61. Mr. Sardakowski’s cell at CCF is basically the same as his cell at CSP in that it is roughly the same size and contains a similar bunk, sink/toilet unit, solid door, and small window. Ex. #4, Sardakowski Dec., at ¶ 134.
62. Mr. Sardakowski is housed individually with no cellmate. Ex. #75, Lampela Dep. at 212:13-16; Ex. #72, Wasko Dep. at 79:5-13.
63. In every level of the RTP in which he has been housed, Mr. Sardakowski eats all of his meals alone in his cell. Ex. #4, Sardakowski Dec., at ¶ 144; Ex. #44, Haney Dec., at ¶ 16. 52

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64. Mr. Sardakowski is restrained anytime that he leaves his cellblock or unit. Ex. #4, Sardakowski Dec., at ¶ 142; Ex. #74, RTP Restraint Matrix.
65. Mr. Sardakowski gets out of his cell about one hour per day on average. He exercises alone in a cage that he likens to a “dog run.” Ex. #4, Sardakowski Dec., at ¶¶ 141, 142; Ex. #44, Haney Dec., at ¶ 14.
66. Dr. Joel Dvoskin was a CDOC consulting psychologist during the creation of the OMI Program and shortly after the creation of the RTP. Ex. #75, Lampela Dep. at 233:14-234:17.
67. Dr. Dvoskin recommends 20 hours of out of cell time per week, at a minimum, for all incarcerated mentally ill prisoners. Ex. #40, Haney Dep. at 128:14-22. The higher levels of the RTP, which Mr. Sardakowski has never reached, are less restrictive in terms of out-of-cell time and interaction with other offenders. Ex. #84, RTP AR 650-04, Section (IV)(C)(1)(b); Ex. #4, Sardakowski Dec., at ¶ 136.
Mr. Sardakowski’s Disabilities Prevent Him From Progressing Through the RTP Without Accommodations. 68. Mr. Sardakowski has been stuck in Levels 1-4 of the RTP since his enrollment in the program
in February 2013. Ex. #44, Haney Dec., at ¶ 16; Ex. #4, Sardakowski Dec., at ¶ 136. 69. Mr. Sardakowski has trouble focusing on and achieving long term goals, an issue that he has
told mental health staff about. He becomes stressed about time periods greater than two weeks, and has difficulty controlling his anxiety until he explodes. This has hindered his ability to progress through the RTP level system. Ex. #4, Sardakowski Dec., at ¶¶ 130-131, 173-174; Ex. #85, Grievance Dated 12/26/2011; Ex. #86, Mental Health Note Dated 02/18/2012 (Referring to the time frames in the solitary confinement leveling-out programs, Mr.
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Sardakowski stated, “tell me two months it’s like telling me a billion years.”); Ex. #87, Grievance Dated 6/22/2013. 70. Mr. Sardakowski’s mental illness impairs his ability to control his behavior. Ex. #4, Sardakowski Dec., at ¶ 173, 175; Ex. #2, Burns Dec., at ¶ 13. 71. The RTP is a behavioral-based level system that requires specific behavior and curriculum goals to be met, and approval of a mental health clinician before an offender advances to the next level. Ex. #84, RTP AR 650-04, Section (IV)(C)(1). 72. Mr. Sardakowski does not know what the requirements are to progress through levels in the RTP because the program itself constantly changes. Ex. #4, Sardakowski Dec., at ¶ 172; Ex. #5, Lampela 30(b)(6) Dep. at 35:2-9. 73. Mr. Sardakowski’s serious mental illness and developmental disability affect his ability to progress through the RTP. Ex. #2, Burns Dec., at ¶ 13. 74. Mr. Sardakowski believes that he could get to higher levels in the RTP if he could have shortterm goals. Ex. #4, Sardakowski Dec., at ¶ 174; Ex. #47, Mental Health Note Dated 03/21/2012. 75. Mr. Sardakowski has filed numerous and grievances regarding his inability to progress through CDOC’s solitary confinement leveling-out systems due to his mental illness and developmental disability. Ex #88, Grievance Dated 02/13/2012; Ex. #89, Grievance Dated 03/08/2012; Ex. #85, Grievance Dated 12/26/2011. 76. In a grievance dated February 13, 2012, Mr. Sardakowski wrote: “Since being taken off meds I’ve been edgy. In the past two weeks I’ve been placed on special controls twice for stuff like not being able to talk to case manager . . . been getting [in] arguments with staff [for] no reason
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other than I’m edgy. I’ve lost my level more than once in two weeks or so.” Ex. #88, Grievance Dated 02/13/2012. 77. In another grievance dated March 8, 2012, Mr. Sardakowski wrote: “Since I’ve been taken off [meds] I’ve hurt myself many times, sometimes up to 5 times a day to get stress, depression, anger out of my mind. I’ve been getting many C.O.P.D.s for my bad behavior. This is causing me to regress out of C.S.P.” Ex. #89, Grievance Dated 03/08/2012. 78. In a grievance dated December 26, 2011, Mr. Sardakowski asked prison staff for “some other way to progress out of C.S.P.” Ex. #85, Grievance Dated 12/26/2011. 79. In a grievance dated June 22, 2013, he wrote, “This RTP AR 650-04 does not work for me, due to its based on behavioral [requirements] and [my] behavior is iffy at best. I don’t know what’s wrong with me, but telling me I’ll get off RTP to real GP [general population] is a joke due to the aforesaid reason.” Mr. Sardakowski then asks for an individualized plan. Ex. #87, Grievance Dated 06/22/2013. 80. CDOC is aware that a prisoner’s mental illness could prevent him from progressing past Level 4 in the RTP. Ex. #72, Wasko Dep. at 136:18-21. 81. On at least one occasion in the past, CDOC has made modifications to a leveling out program in order to accommodate an offender with mental illness. Ex. #75, Lampela Dep. at 287:12288:24. 82. In a December 8, 2010, CDOC meeting with Dr. Dvoskin about the OMI program, Defendants discussed keeping time periods for level progression short in order to ensure achievability. Dr. Dvoskin stated, “The OMI program will fail if the time frames are too long.” Ex. #90, Meeting Minutes Dated 12/08/2010, 9.
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83. Despite Dr. Dvoskin’s advice, Joy Hart, the Behavioral Health Supervisor for RTP, adjusted curriculum requirements for RTP level progression so that prisoners stay in each level for a longer period of time. Ex. #75, Lampela Dep, at 40:2-4, 41:10-17; 138:19-139:7; Ex. #5, Lampela 30(b)(6) Dep. at 108:11-20.
84. CDOC could make reasonable modifications to its program policies to allow Mr. Sardakowski meaningful participation in RTP. Ex. #72, Wasko Dep. at 137: 8-22.
85. CDOC has not made reasonable modifications to its leveling out programs to accommodate Mr. Sardakowski’s mental illness and developmental disability. Ex. #85, Grievance Dated 12/26/2011.
86. During his confinement in CSP, Mr. Sardakowski was transferred in and out of the OMI Program two times. Ex. #3, Programs Query Dated 05.10.2013.
87. “CDOC has placed and retained Mr. Sardakowski in highly structured isolated settings and ‘level-based programs’ that, because of his very severe disabilities, he is utterly incapable of succeeding in or benefitting from. His inability to progress through the steps or ‘levels’ of these programs serves as the justification for his continued isolation and further painful and counterproductive deprivation.” Ex. #44, Haney Dec., at ¶ 17.
CDOC Knows that Holding Mentally Ill Prisoners Like Mr. Sardakowski in Solitary Confinement Risks Causing Them Harm. 88. “Because Mr. Sardakowski is a mentally-ill and cognitively-impaired prisoner with severe
disabilities that interfere with his ability to control his thoughts and actions for extended periods of time, dating back to his early childhood, he is uniquely ill-suited for placement in the especially harsh conditions of confinement in the CDOC ad seg units where he has been housed. These units that are governed by very rigid and all-encompassing rules and regulations
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that Mr. Sardakowski lacks the capacity to adhere to, ensuring the he will experience continued and debilitating pain and suffering.” Ex. #44, Haney Dec., at ¶ 20. 89. In December 2013, Rick Raemisch, the Executive Director of CDOC, stated that putting inmates in solitary confinement for long spans of time "multiplies or manufactures mental illness.” Ex. #91, Denver Post Article.
STANDARD OF REVIEW Summary judgment is only appropriate if the record contains no evidence of a genuine issue of material fact and demonstrates that the moving party is entitled to judgment as a matter of law. Woodman v. Runyon, 132 F.3d 1330, 1337 (10th Cir. 1997). The “moving party carries the burden of showing beyond a reasonable doubt that it is entitled to summary judgment.” Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002) (internal quotation omitted). “Even when . . . the moving party does not have the ultimate burden of persuasion at trial, it has both the initial burden of production on a motion for summary judgment and the burden of establishing that summary judgment is appropriate as a matter of law.” Id. In considering a motion for summary judgment, “the court must review the record in the light most favorable” to the nonmoving party. Ewing v. Amoco Oil Co., 823 F.2d 1432, 1437 (10th Cir. 1987). In doing so, courts “must draw all inferences in favor of the party opposing summary judgment.” O’Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1096 (10th Cir. 1999). The Tenth Circuit has emphasized that the nonmovant is given “wide birth to prove a factual controversy exists.” Ulissey v. Shvartsman, 61 F.3d 805, 808 (10th Cir. 1995). “Where different ultimate inferences may be drawn from the evidence presented by the parties, the case is not one for summary judgment.” Brown v. Parker-Hannifin Corp., 746 F.2d 1407, 1411 (10th Cir. 1984).
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ARGUMENT I. Genuine Disputes of Material Fact Preclude Summary Judgment on Plaintiff’s Claim
that CDOC Has Failed to Provide Him Adequate Mental Health Care (Claim One). Prisoners have an Eighth Amendment right to adequate treatment for mental illness, including psychological or psychiatric care. Ramos v. Lamm, 639 F.2d 559, 574-75 (10th Cir. 1980). Deliberate indifference to a prisoner’s serious medical needs violates the Eighth Amendment’s proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Ramos v. Lamm, 639 F.2d at 575. This standard encompasses both the objective and subjective components of an Eighth Amendment claim. Farmer v. Brennan, 511 U.S. 825, 834 (1994). A. It is undisputed that Mr. Sardakowski has a serious mental illness. The objective component of an Eighth Amendment claim is met if a prisoner has a serious medical need. Estelle, 429 U.S. at 104. In the Tenth Circuit, it is well established that mental illness is a serious medical need. Ramos, 639 F.2d at 574. It is undisputed that Mr. Sardakowski is seriously mentally ill. RSUMF, ¶ 200(a). In their Motion for Summary Judgment, Defendants argue only that they have not been deliberately indifferent; they make no argument that Mr. Sardakowski is unable to meet the objective prong of the Eighth Amendment for this claim.5 Doc. 113 at 30-35. By not making this argument in their Motion, Defendants waived it. United States v. Martinez, 518 F.3d 763, 768 (10th Cir. 2008); Sutherlin v. Indep. Sch. Dist. No. 40 of Nowata Cnty., Okla., No. 12–CV–636–JED–PJC, 2013 WL 1975644 at *6 (N.D. Okla. May 13, 2013).
5 Defendants go on to argue that Mr. Sardakowski is malingering, but concede that he also has a serious mental illness. Doc. 113 at 32. Plaintiff disputes that he is malingering. CDOC testing to determine the presence of malingering indicated that Mr. Sardakowski was not malingering. RSUMF ¶ 195(e). Plaintiff also disputes that Mr. Sardakowski has malingered mental illness in order to dictate movement within CDOC. RSUMF ¶ 194(a) (“Mr. Sardakowski is living in a dirty, smelly cell by himself, and he’s been in something very similar to that since December of 2009. If he’s malingered his way into that, he’s very bad at it.”).
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B. A reasonable factfinder could conclude that Defendants are deliberately indifferent by denying Mr. Sardakowski adequate mental health treatment.
The subjective component of an Eighth Amendment claim is met if prison officials are deliberately indifferent to a prisoner’s serious medical need. Self v. Crum, 439 F.3d at 1230 (quoting Estelle, 429 U.S. at 104). A prison official is deliberately indifferent when he “‘knows of and disregards an excessive risk to inmate health or safety.’” Id. at 1231 (quoting Farmer, 511 U.S. at 837). In the context of medical care, prison officials are deliberately indifferent when they are aware of a serious medical need and fail to provide adequate treatment for that need. Sealock v. Colorado, 218 F.3d 1205, 1211 (10th Cir. 2000).
i. Defendants are aware that Mr. Sardakowski has a serious mental illness that requires treatment.
Defendants concede that Mr. Sardakowski is seriously mentally ill. See RSUMF, ¶ 200(a). Thus, they are certainly aware of his serious mental illness. Mr. Sardakowski’s CDOC mental health records reference a long history of psychiatric treatment and multiple diagnoses of serious mental illness. RSUMF ¶¶ 6, 9, 173-189. Mr. Sardakowski has been housed at San Carlos Correctional Facility, the CDOC facility for prisoners with acute mental health needs. RSUMF ¶ 203(b). He has also been placed in several CDOC programs for mentally ill inmates, including the RTP where he is currently housed. RSUMF ¶ 203(b). Defendants do not appear to dispute that they know that Mr. Sardakowski is seriously mentally ill and in need of treatment. See Doc. 113 at 30-35.6
6 Defendants are also aware of the harm caused by putting inmates in solitary confinement for long spans of time, as Defendant Raemisch has acknowledged that doing so “multiplies or manufactures mental illness.” SADMF¶ 89.
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ii. Plaintiff has put forth sufficient evidence for a reasonable factfinder to conclude that Defendants have failed to provide adequate mental health treatment for Mr. Sardakowski’s serious mental illness.
Numerous genuine issues of material fact remain in dispute regarding the mental health treatment that Defendants have provided to Mr. Sardakowski. These disputed issues preclude summary judgment on Mr. Sardakowski’s claim that he has received constitutionally inadequate treatment. Taking the facts in the light most favorable to the nonmoving party, a factfinder could conclude that Defendants have failed to provide adequate treatment for Mr. Sardakowski’s serious mental illness in violation of the Eighth Amendment.
a. A reasonable factfinder could conclude that Defendants failed to provide adequate mental health care by denying Mr. Sardakowski individualized treatment other than medication.
Defendants assert that there is no triable issue of fact as to the adequacy of treatment because Mr. Sardakowski has been placed in the RTP, provided group therapy, and prescribed psychotropic medication. See Doc. 113 at 33. But the provision of ongoing treatment does not establish that the treatment is adequate. Halpin v. Simmons, 33 F. App’x 961, 964 (10th Cir. 2002) (“The mere provision of continuing medical treatment, regardless of the adequacy of that treatment, does not foreclose a claim for deliberate indifference to medical needs.”); see also Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999) (noting that “the fact that [a plaintiff] has seen numerous doctors [does not] necessarily mean that he has received treatment for serious medical needs”). Defendants’ assertions are insufficient to that establish as a matter of law that the treatment provided to Mr. Sardakowski is constitutionally adequate.
Other courts have held that prisons must provide mentally ill inmates with individual psychiatric counseling as part of a minimally adequate mental health treatment program. Balla v. Idaho State Bd. of Corr., 595 F. Supp. 1558, 1577 (D. Idaho 1984) (“Treatment must involve
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psychiatric and psychological counseling for those inmates in need of counseling.”); Ruiz v. Estelle, 503 F. Supp. 1265, 1336, 1339 (S.D. Tex. 1980), rev’d in part on other grounds, 679 F.2d 1115 (5th Cir. 1982) (finding inadequate treatment where “individual, one-to-one therapy sessions occur very infrequently” (less than once every two months) and were conducted in the cellblock areas); c.f. Dudley v. Mobley, 5:02CV00097JFF, 2006 WL 666710 (E.D. Ark. Mar. 15, 2006) (finding no Eighth Amendment violation where counselors were available to work with an inmate on his problems on an individual basis). Merely prescribing psychotropic medication, without providing therapy, does not constitute adequate treatment. Balla, 595 F. Supp. at 1577 (“Wholesale prescription of psychotropic drugs is an unacceptable means of dealing with psychiatric disorders. This statement should not be read to prevent the use of psychotropic drugs, merely that the prescription of these drugs cannot supplant the necessity of psychiatric counseling.”); c.f. Beckford v. Portuondo, 151 F. Supp. 2d 204, 218 (N.D.N.Y. 2001) (finding no Eighth Amendment violation where an inmate received “significant psychotropic medication, bi-weekly individual therapy sessions, and monthly medical reviews”); Wickner v. Larson, CIV. 09-940 DWF/JJK, 2010 WL 98940 (D. Minn. Jan. 11, 2010) (finding no Eighth Amendment violation where Defendants treated Plaintiff’s mental health conditions through both therapy and medication).
Here, genuine issues of material fact remain in dispute regarding the adequacy of the treatment Mr. Sardakowski has received. The level and quality of treatment provided to Mr. Sardakowski in the RTP are heavily disputed, including and especially with regard to the provision of individualized therapy. Defendants assert that offenders in the RTP receive individual therapy (Doc. 113 ¶ 207), though they have not – and cannot – demonstrate that Mr. Sardakowski in particular has received individual therapy. Deposition testimony from his assigned clinician, among other evidence, reveals that Mr. Sardakowski has not received a single individual therapy session since arriving in the
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RTP in February 2013. SADMF ¶¶ 36-39. While Defendants argue that Mr. Sardakowski is unwilling to undertake therapy, record evidence demonstrates that Defendants have not made therapy available to him. Id.; see also RSUMF ¶ 204(b). Although Mr. Sardakowski has had one individual therapy-type meeting with a mental health clinician,7 SADMF ¶ 37, that meeting does not qualify as therapy because it was not confidential—it took place in the “dayhall” within earshot of other inmates’ cells. SADMF ¶¶ 36-37. Individual therapy must be confidential and frequent enough to establish a trusting therapeutic relationship. SADMF ¶ 35-36. Inmates in the RTP are supposed to receive one individual therapy session per week. SADMF ¶ 40. CDOC officials admit that offering an inmate only two opportunities to meet one-on-one with a clinician during a six month period violates RTP policy, SADMF ¶ 40. Here, the evidence shows that Mr. Sardakowski has been offered only one such opportunity in over 10 months, SADMF ¶¶ 36-39. Mr. Sardakowski has had no other opportunity to participate in individual therapy since his arrival in the RTP. SADMF ¶¶ 38-39.
Moreover, Mr. Sardakowski has not received any other form of individualized treatment in the RTP apart from psychotropic medication. SADMF ¶¶ 42-44. Defendants claim that the RTP utilizes individual treatment plans with “targeted behavior goals” that are discussed with inmates in one-on-one meetings. Doc. 113 ¶ 209; SADMF ¶ 41. However, Mr. Sardakowski does not know what is in his treatment plan because the RTP clinicians have never discussed it with him. SADMF ¶ 42. He does not know if he has any goals as part of his treatment plan. Id. CDOC acknowledges that Mr. Sardakowski’s treatment plans are “vague” and do not contain measurable goals. SADMF ¶ 43. His treatment plan also fails to address his ongoing self-harming behaviors. SADMF ¶ 44. A
7 The other “individual contacts” noted in Mr. Sardakowski’s mental health file have been for the purpose of allowing Mr. Sardakowski to review his mental health file. SADMF ¶ 38. As CDOC acknowledges, meeting with an inmate for records review is not therapy. SADMF ¶ 39.
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reasonable factfinder could conclude that CDOC’s failure to implement a meaningful individual treatment plan for Mr. Sardakowski constitutes inadequate treatment of his serious mental illness.
Defendants also claim that because group therapy is offered in the RTP, they are not deliberately indifferent to his serious mental health needs. Doc. 113 at 34. However, record evidence demonstrates that group sessions are inadequate to treat Mr. Sardakowski’s serious mental health needs. SADMF ¶¶ 34, 40, 48-52. Mr. Sardakowski is a victim of sexual abuse, and he engages in selfharming behaviors that involve tying ligatures around his testicles. SADMF ¶¶ 17, 19, 21. These are not subjects that he is able to discuss openly around other prisoners. SADMF ¶ 48. Mr. Sardakowski is also highly vulnerable in a correctional setting because of his limited intellectual capacity, psychiatric illness, psychological trauma, and hearing impairment. SADMF ¶ 16. Defendant Jill Lampela, who was involved in creating and implementing the OMI Program and the RTP, acknowledged that vulnerable inmates are not comfortable sharing in a group setting because other inmates may use sensitive information against them, and that individual therapy is especially important for those vulnerable inmates. SADMF ¶¶ 46-47. A reasonable factfinder could conclude that RTP groups are not an appropriate or effective treatment method for addressing Mr. Sardakowski’s serious mental health needs. Additionally, even if group therapy could address Mr. Sardakowski’s needs, CDOC’s own records show that over a quarter of scheduled group sessions are canceled, with “staff shortage” being the most frequently cited reasons for cancelation. SADMF ¶ 50. The group sessions that do take place often involve playing card games rather than engaging in therapeutic activity. SADMF ¶ 52. The record evidence shows that Mr. Sardakowski spends fewer than three hours per week participating in group sessions of any kind. SADMF ¶ 51.
Taking the facts in the light most favorable to the nonmoving party, a reasonable factfinder could conclude that Defendants’ failure to provide Mr. Sardakowski with individual therapy or any
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other individualized treatment apart from medication constitutes inadequate treatment of his serious mental illness. See Balla, 595 F. Supp. at 1577; Ruiz v. Estelle, 503 F. Supp. at 1336, 1339. Mr. Sardakowski needs individual counseling to address issues of sexual trauma, victimization, and selfharming behavior. SADMF ¶ 34. Defendants acknowledge that “Mr. Sardakowski’s mental health could improve with therapy.” Doc. 113 at 34. Despite this, Defendants have not provided Mr. Sardakowski with any opportunity for confidential, one-on-one therapy since he arrived in the RTP in February 2013. SADMF ¶¶ 36-37. Given the complexity and severity of his mental illness, the single individual session provided to Mr. Sardakowski in over ten months in the RTP is grossly insufficient. SADMF ¶¶ 34, 37, 40. The RTP’s frequently-canceled group sessions are not adequate treatment for Mr. Sardakowski’s serious mental health needs because he cannot discuss his abuse history and self-harm in group settings. SADMF ¶¶ 48-50. A reasonable factfinder could conclude that the complete lack of individual therapy provided to Mr. Sardakowski in the RTP falls below minimum constitutional standards for adequate care. See Balla, 595 F. Supp. at 1577; Ruiz v. Estelle, 503 F. Supp. at 1336, 1339.
b. A reasonable factfinder could conclude that Defendants failed to provide adequate care by punishing Mr. Sardakowski’s selfharming behaviors rather than treating them.
Prison officials’ constitutional duty to provide individual therapeutic intervention is particularly clear where an inmate’s mental illness manifests itself in self-harming behaviors and suicide attempts. Balla, 595 F. Supp. at 1577 (“Psychiatric counseling of [inmates who have attempted suicide] is of paramount importance.”); Indiana Protection and Advocacy Servs. Comm’n v. Comm’r, Indiana Dep’t of Corr., 2012 WL 6738517, at *17, 23 (S.D. Ind. Dec. 31, 2012). In Indiana Protection, the court was particularly troubled by the prison’s response to inmates who were engaging in self-harm, including suicide threats or attempts. The court found an Eighth Amendment violation
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where the prison merely segregated prisoners in response to self-harm and suicide threats or attempts, without providing therapeutic intervention to address the underlying mental illness. 2012 WL 6738517, at *17, 23 (S.D. Ind. Dec. 31, 2012). The court observed that “[t]he prisoner’s symptoms . . . will likely intensify unless [suicide watch] is accompanied by appropriate therapy.” Id. at *17. Additionally, courts have held that prison officials violate minimum constitutional standards when they mischaracterize self-harm as malingering and punish self-harming behaviors rather than provide therapy. See Ruiz v. Estelle, 503 F. Supp. at 1334, 1339 (holding that the prison’s mental health care system was constitutionally inadequate and finding that “[w]ith constructive psychotherapy virtually non-existent on the units, a large number of inmates resort to selfmutilations and suicide attempts, as dramatic cries for help. [Prison] officials have often characterized [self-mutilation and suicide attempts] as attempts to ‘manipulate the system’ and have punished the suicide-prone inmates, rather than making provision for mental health professionals to counsel with or otherwise supervise them.”).
Here, Plaintiff has put forth evidence that, at a minimum, demonstrates that there is a factual dispute as to whether CDOC provides treatment to address Mr. Sardakowski’s self-harm. Defendants’ failure in this regard is particularly troubling where, as here, they recognize the need to provide specialized treatment for inmates who engage in self-harming and suicidal behavior. See SADMF ¶ 23. Citing several completed suicides, CDOC’s January, 2013 report to the Colorado legislature stated: “It is imperative that the Department create a self-injurious unit to provide immediate and specialized assessment and treatment for offenders who engage in self-harming behavior.” Id. Mr. Sardakowski has an extensive history of self-harm documented in his CDOC mental health records, including suicide attempts and repeated self-injury involving “tying off” his testicles. SADMF ¶ 19-20. Despite this, Mr. Sardakowski has not been placed in a “self-injurious
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unit” (if any such unit exists in CDOC). CDOC has failed to provide Mr. Sardakowski with any mental health treatment to address his self-harming behavior. SADMF ¶¶ 24, 44, 48. His tying off behavior has never been addressed in Mr. Sardakowski’s rare one-on-one meetings with mental health clinicians, SADMF ¶ 24, nor is it addressed in his individual treatment plan. SADMF ¶ 44. RTP groups sessions do not provide treatment for self-harm because Mr. Sardakowski cannot discuss tying off in a group setting. SADMF ¶ 48-49.
Rather than provide treatment when Mr. Sardakowski has reported self-harm, CDOC staff have punished him with disciplinary infractions for “misuse of clinical services.” SADMF ¶ 25. He has also been subjected to punitive conditions on “mental health watch” (SADMF ¶ 28), and held in immobilizing four-point restraints where he is chained to a bed for days at a time in conditions highly reminiscent of his childhood sexual abuse (SADMF ¶ 29). During these episodes, mental health staff did not provide therapy to Mr. Sardakowski or discuss the self-harming behaviors that led to his placement in restraints. SADMF ¶ 30.
Mr. Sardakowski continues to self-harm by tying off his testicles nearly weekly in the RTP (SADMF ¶ 21), and he is at an elevated risk of continued self-injury and even suicide (SADMF ¶ 22). Because he has been punished rather than treated for self-injurious behaviors in the past, Mr. Sardakowski is now afraid to report his ongoing self-harm to mental health staff. SADMF ¶ 31. Mr. Sardakowski nevertheless did tell the RTP psychiatric provider, Mr. Waters, that he was continuing to tie off his testicles, and also expressed his fear that reporting this self-harm to mental health staff would result in punishment. SADMF ¶¶ 32-33. Despite CDOC’s knowledge of Mr. Sardakowski’s ongoing self-harm, Mr. Sardakowski has still not received treatment for it in the RTP. SADMF ¶¶ 24, 44, 48.
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Taking the facts in the light most favorable to the nonmoving party, a reasonable factfinder could conclude Defendants have violated the Eighth Amendment by punishing rather than treating Mr. Sardakowski’s self-harming behaviors. See Ruiz v. Estelle, 503 F. Supp. at 1334, 1339; Indiana Protection, 2012 WL 6738517, at *17, 23. Despite their knowledge of Mr. Sardakowski’s history of suicide attempts and ongoing self-harm, Defendants have failed to address his self-harming behavior in therapy or individual treatment plans. SADMF ¶¶ 24, 32-33, 44. Instead, CDOC staff have responded to self-harm by disciplining Mr. Sardakowski and subjecting him to punitive conditions and restraints. SADMF ¶¶ 25, 28-29. A reasonable factfinder could conclude that punishing rather than treating self-harm constitutes inadequate treatment of Mr. Sardakowski’s serious mental illness. See Ruiz v. Estelle, 503 F. Supp. at 1334, 1339; Indiana Protection, 2012 WL 6738517, at *17, 23.
Finally, in their Motion, Defendants attempt to characterize their failure to provide adequate treatment as a “disagreement” about which course of treatment is “preferable.” (Doc. 113 at 31-32.) While it is true that a mere disagreement over the correct course of treatment does not establish an Eighth Amendment violation, Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 811 (10th Cir. 1999), not every challenge to the adequacy of treatment is a mere disagreement over the course of treatment. Hunt, 199 F.3d at 1224 (reversing district court’s grant of a motion to dismiss upon finding that facts alleged by the plaintiff reflected more than “a mere disagreement with his medical treatment.”). When seriously mentally ill prisoners have decompensated to the point that they are repeatedly mutilating their bodies, serious psychiatric intervention is needed. Indiana Protection, 2012 WL 6738517, at *17. As set forth above, at a minimum, genuine issues of material fact remain regarding the adequacy of the treatment provided to Mr. Sardakowski, precluding summary judgment on his inadequate treatment claim. Furthermore, a reasonable factfinder could conclude that the treatment Mr. Sardakowski has received fails to address his serious mental health needs and falls below the
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constitutional standard of adequate care. As a result, this Court should deny Defendants’ Motion for Summary Judgment with respect to Claim One. II. Mr. Sardakowski’s Claim that Defendants Have Violated the Eighth Amendment by
Placing and Retaining Him in Solitary Confinement (Claim Two) Is Not Moot.8 Defendants argue that their transfer of Mr. Sardakowski, a seriously mentally ill prisoner, to the RTP has rendered moot his claim that Defendants are subjecting him to cruel and unusual punishment by retaining him in solitary confinement (Claim Two). See Doc. 113 at 39. But a case is moot only if events “make[] it impossible for the court to grant any effectual relief whatever to a prevailing party.” Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (emphasis added) (internal quotation omitted). The “central inquiry” of the mootness doctrine is whether any relief can still be granted. Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1122 (10th Cir. 2010). Simply put, if a party still suffers the effects of an alleged violation, relief can be granted, and the case is not moot. See Los Angeles Cnty. v. Davis, 440 U.S. 625, 631 (1979). A defendant bears the burden of showing that a plaintiff’s claim has been mooted. WildEarth Guardians v. Pub. Serv. Co. of Colorado, 690 F.3d 1174, 1183 (10th Cir. 2012). There may be instances where a defendant cannot show mootness due to unresolved factual issues. Id. (“[S]ometimes mootness relies on contested facts, particularly where the likelihood of future harm is at issue. In such cases, the defendant may be unable to show mootness.”) See also Friends of the Earth, Inc. v. Laidlaw Envtl. Services, Inc., 528 U.S. 167, 190 (2000) (reversing lower courts’ finding of mootness due to unresolved factual issues over whether factory had been in compliance with environmental
8 Defendants offer no substantive challenge to the merits of Claim 2, so Plaintiff makes no response other than to Defendants’ mootness argument. By not making this argument in their motion, Defendants waived it. United States v. Martinez, 518 F.3d 763, 768 (10th Cir. 2008); Sutherlin v. Indep. Sch. Dist. No. 40 of Nowata Cnty., Okla., No. 12–CV–636–JED–PJC, 2013 WL 1975644 at *6 (N.D. Okla. May 13, 2013).
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regulations). Mootness, therefore, is a heavy burden for the defendant to overcome, especially at the summary judgment stage when there are unresolved factual issues. Id.
A. Because Mr. Sardakowski Remains in Long-Term Solitary Confinement in the RTP, His Claim is Not Moot.
Mr. Sardakowski’s second claim is that placing and retaining him, an individual with serious mental illness, in administrative segregation violates his right to be free from cruel and unusual punishment.9 “Administrative segregation” is a term of art used by CDOC to describe a status in which prisoners are held in harsh and isolating conditions of confinement – conditions that are commonly referred to as “solitary confinement” or just “segregation.” (SADMF ¶ 53). Defendants assert that Plaintiff’s second claim has been mooted because they have transferred Mr. Sardakowski to a facility where he is no longer under “administrative segregation” status. Doc. 113 at 39. But the only change to Mr. Sardakowski’s conditions is the name Defendants use to describe them; they have not altered his actual conditions of confinement in any meaningful way. As set forth below, in the RTP, Mr. Sardakowski remains in long-term solitary confinement where his day-to-day conditions are functionally equivalent to those in “administrative segregation.” Thus, this Court is still able to grant declaratory10 and injunctive relief on Claim Two.
The terms “long-term solitary confinement” and “segregation” are not precisely defined, but courts, prison officials, and correctional mental health experts have recognized a cluster of features that are common to these units. In Indiana Protection, a class action brought by mentally ill prisoners
9 For cases that have addressed this claim see, e.g., Madrid v. Gomez, 889 F. Supp. 1146 (1995); Ruiz v. Johnson, 37 F. Supp. 2d 855 (1999); Jones ‘El v. Berge, 164 F. Supp. 1096 (2001); see also, Davenport v. DeRobertis, 844 F.2d 1310, 1313 (7th Cir. 1988), where even before Madrid, a federal court had observed in connection with an Illinois state prison that "the record shows, what anyway seems pretty obvious, that isolating a human being from other human beings year after year or even month after month can cause substantial psychological damage, even if the isolation is not total." 10 Defendants’ argument that Plaintiff’s claims for retrospective declaratory relief should be dismissed based on sovereign immunity is moot; Plaintiff’s claims for retrospective declaratory relief were dismissed at the motion to dismiss stage. Doc. 101 at 2; Doc. 92 at 11.
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held in solitary confinement, the court highlighted the salient features of segregation11: The vast majority of the prisoner’s time is spent alone in his cell (up to 22+ hours per day); cells contain a toilet/sink unit; cells are small (usually less than 90 square feet); cell doors are solid with a tray slot for food; meals are eaten in the cell; inmates recreate alone for one hour, five days per week in a confined area; prisoners are allowed out of cell for short periods (15 minutes or less) for showers and phone calls; and prisoners are restrained any time they are out of their cells. 2012 WL 6738517 at *3-5; see also Ex. #, Haney Dec., Attach. B, Haney Report, ¶ 13 (noting that “solitary confinement” is a “term of art in correctional practice” that refers to “conditions of extreme (but not total) isolation from others” and describing those conditions). Additionally, courts have held that inmates in segregation for more than six months are considered to be held in long term solitary confinement or segregation. Indiana Protection, 2012 WL 6738517 at *6; Madrid v. Gomez, 889 F. Supp. 1146, 1227 (N.D. Cal. 1995). The overall effect is summed up concisely by the Indiana Protection court: “Although prisoners in segregation may leave their cells for recreation, showers, visits and medical and mental health appointments, they are generally otherwise confined in their single cells.” Id. at *7.
Examining the characteristic features of solitary confinement, it is apparent that almost every condition of Mr. Sardakowski’s confinement is the same now as it was when he filed his amended complaint. During all times since he filed his complaint, including in the RTP, Mr. Sardakowski spends the majority of his day in his cell, up to 23 hours per day. SADMF ¶ 65. He is single-celled. SADMF ¶ 62. His cell contains a toilet/sink unit and is roughly the same dimensions as it was in CSP. SADMF ¶ 61. Additionally, Mr. Sardakowski eats his meals alone in his cell, next to where he
11 Indiana Protection makes a distinction between disciplinary segregation and administrative segregation, but the conditions of confinement are the same for both. Indiana Protection, 2012 WL 6738517, at *2.
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uses the toilet. SADMF ¶¶ 61-63. He is restrained and escorted anywhere he goes, including recreation, medical, and legal visits. SADMF ¶ 64. He exercises alone in a cage. SADMF ¶ 65. Mr. Sardakowski has been in these characteristic solitary confinement conditions since he arrived at CSP on December 23, 2009, and he remains in those conditions today.
Defendants assert that because Mr. Sardakowski has been moved from CSP to CCF and is now on “RTP status” instead of “administrative segregation status,” he is no longer held in solitary confinement. Doc. 113 at 36. The fact remains, however, that “administrative segregation status” and “RTP status” – and any other term the CDOC decides to use in the future to describe the same conditions – are functionally equivalent with respect to Mr. Sardakowski. According to CDOC, an inmate’s status determines the degrees of barrier, mobility, and supervision required for the inmate. SADMF ¶ 56. When an inmate has an “RTP status,” correctional staff will identify and interact with the inmate based on his level within the RTP. SADMF ¶ 57. At present, this means that Mr. Sardakowski is identified and viewed for management purposes by the CDOC and its employees as “RTP status, level 4.”12 SADMF ¶ 58. But it is the conditions of confinement that matter, not the label placed upon them, and even at Level 4 of the RTP, Mr. Sardakowski remains in conditions that are solitary confinement.
To the extent that Defendants are asserting that the lower levels of RTP are not solitary confinement because the RTP policy provides for increased out-of-cell time, this too is a factual dispute. Much of the alleged increase in out of cell time at the RTP does not actually take place due to staff shortages and facility lock downs. 13 SADMF ¶¶ 50-51. As for therapy in CCF, Mr.
12 Plaintiff only addresses RTP levels 1-4, as Plaintiff has never been in any level above 4. 13 Dr. Dvoskin, RTP’s consulting psychologist, endorses a recommendation of 20 hours of out of cell time per week, at a minimum. SADMF ¶¶ 66-67. This translates to almost 3 hours per day out of cell, every day. Mr. Sardakowski receives far less time out of cell per day.
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Sardakowski receives, at most, one-hour group sessions three days per week with other prisoners from his unit. SADMF ¶ 51. Due to the frequent cancellations, these group sessions constitute little additional out of cell time for Mr. Sardakowski. In short, Mr. Sardakowski’s conditions of confinement have not changed in any meaningful way, and he remains in solitary confinement despite the fact that he has been moved to the RTP at CCF. SADMF ¶¶ 60-65. As a result, Mr. Sardakowski’s second claim is not moot.
Additionally, as part of their mootness argument, Defendants cite McAlpine v. Thompson and Green v. Branson,14 for the proposition that transfer from a specific prison facility moots a claim for injunctive relief from the transferring facility. Doc. 113 at 39-40. Plaintiff’s second claim is not specific to any one facility and instead focuses on the conditions of confinement in which he is held; consequently, transfer from one facility to another does not, in and of itself, moot Plaintiff’s second claim. Doc. 62 at 30-32. In Abdulhaseeb v. Calbone, a prisoner seeking access to a special religious diet appealed summary judgment by the district court in a suit against prison officials at the Oklahoma Department of Corrections (ODOC). 600 F.3d 1301, 1306 (10th Cir. 2010). Though the prisoner had been transferred to another facility within the ODOC, the Tenth Circuit court held that “the courts may still fashion some effective relief” and reversed the district court’s grant of summary judgment. Id. at 1312. Central to the court’s reasoning was that the director of the ODOC, who was the “final policymaking authority,” was a defendant. Id. Because the prisoner was still within the
14 Additionally, McAlpine and Green are distinguishable because both concern inmates who were released on parole. McAlpine v. Thompson, 187 F.3d 1213, 1214-15 (10th Cir. 1999); Green v. Branson, 108 F.3d 1296, 1299 (10th Cir. 1997). Both courts determined that injunctive relief would be inappropriate on mootness grounds because there was no reasonable expectation that the challenged conditions of confinement would be repeated—the courts refused to assume that parolees would violate the conditions of their release end up again in the same prison. McAlpine 187 F.3d at 1217; Green 108 F.3d at 1300-01. This is not the situation for Mr. Sardakowski; he is still within the CDOC system and capable of being transferred back to CSP at any time.
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ODOC system, he was still governed by the policies of the ODOC, and therefore, the courts would be able to grant injunctive relief, keeping the prisoner’s case from being moot. Id.; see also Randolph v. Rodgers, 170 F.3d 850, 856-57 (8th Cir. 1999) (holding that “injunction was issued against Missouri’s Department of Corrections, which controls both prisons and the funding necessary to provide [accommodation]” so claim was not moot). Because Mr. Sardakowski remains under the control of CDOC, and because the CDOC Director is a defendant and has the power to change policy concerning Mr. Sardakowski’s conditions of confinement, Plaintiff’s second claim is not moot.
Relatedly, Defendants appear to argue that if this Court were to hold that Defendants violated Mr. Sardakowski’s rights by retaining him in solitary confinement, the Court is precluded from awarding Mr. Sardakowski an injunction that does not correspond exactly to that sought in the complaint. The Tenth Circuit has rejected that argument, too. In Rezaq v. Nalley, the Tenth Circuit held that “a case is not moot when there is some possible remedy, even a partial remedy or one not requested by the plaintiff.” 677 F.3d 1001, 1010 (10th Cir. 2012) (emphasis added). This holding is consistent with Federal Rule of Civil Procedure 54(c), which provides that a final judgment other than a default judgment “should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings.” Fed. R. Civ. P. 54(c); see also In re Lorazepam & Clorazepate Antitrust Litigation, 531 F.Supp. 2d 82, 100 (D.D.C. 2008) (under Rule 54(c), adherence to particular legal theories suggested by pleadings is subordinated to the court’s duty to grant the relief to which the prevailing party is entitled, whether it has been demanded or not).
If the Court finds that Defendants have violated Mr. Sardakowski’s rights, it may craft injunctive and declaratory relief in whatever way it deems necessary to address the violation. Chicago United Indus., Ltd. v. City of Chicago, 445 F.3d 940 (7th Cir. 2006) (prevailing plaintiff is entitled to relief proper to his claim even if he did not request that relief because circumstances bearing on
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feasibility of particular forms of relief often change between initiation of suit and rendition of final judgment). And because the possibility of even partial relief precludes a finding of mootness, Mr. Sardakowski’s Eighth Amendment claim is not moot even if the Court grants relief not specifically requested by him. Courts are “concerned only with the question whether any relief can be ordered;” the available remedy does not need to be “fully satisfactory.” Church of Scientology of Cal., 506 U.S. at 12-13 & n.6 (emphasis added) (internal quotation omitted). Even the possibility of a “partial remedy” is “sufficient to prevent [a] case from being moot.” Id.; see also Mills v. Green, 159 U.S. 651, 653 (1895) (case not moot if it is possible to grant “any effectual relief whatever”). Because there is still relief that can be granted to Mr. Sardakowski, Claim Two is not moot.
B. The Doctrine of Voluntary Cessation Precludes a Finding that Mr. Sardakowski’s Claim is Moot.
Even if this Court were to find that CDOC did change Mr. Sardakowski’s conditions of confinement such that he is no longer held in segregation, the Court still has jurisdiction over Mr. Sardakowski’s second claim because it falls under an exception to the mootness doctrine: voluntary cessation of an alleged illegal practice. See Rio Grande Silvery Minnow, 601 F.3d at 1115. CDOC voluntarily removed Mr. Sardakowski from administrative segregation at CSP, but is free to transfer Mr. Sardakowski back to administrative segregation at CSP (or elsewhere) at any point.
“One exception to a claim of mootness is a defendant’s voluntary cessation of an alleged illegal practice which the defendant is free to resume at any time.” Chihuahuan Grasslands Alliance v. Kempthorne, 545 F.3d 884, 892 (10th Cir. 2008). That the defendant voluntarily stops the practice at issue does not deprive a federal court of “its power to determine the legality of the practice.” City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 (1982). “The rule that ‘voluntary cessation of a challenged practice rarely moots a federal case’…traces to the principle that a party should not be
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able to evade judicial review, or to defeat a judgment, by temporarily altering questionable behavior.” Unified Sch. Dist. No. 259, Sedgwick Cnty., Kan v. Disability Rights Ctr. Of Kan., 491 F.3d 1143, 1149 (10th Cir. 2007) (quoting City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284 n. 1 (2001)). “In other words, this exception exists to counteract the possibility of a defendant ceasing illegal action long enough to render a lawsuit moot and then resuming the illegal conduct.” Chihuahuan Grasslands Alliance 545 F.3d at 892.
For a defendant’s voluntary actions to moot a claim, two elements must be satisfied: “(1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradiated the effects of the alleged violation.” County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979). Additionally, the party asserting mootness bears the “heavy burden of persua[ding]” the Court that the conduct will not be restarted at the conclusion of the litigation. Friends of the Earth, Inc., 528 U.S. at 189 (internal citations omitted). “Such a burden will typically be met only by changes that are permanent in nature and that foreclose a reasonable chance of recurrence of the challenged conduct.” Sedgwick County v. Disability Rights, 491 F.3d 1143, 1149 (10th Cir. 1007) (citing Friends of the Earth, 528 U.S. at 190). Here, Defendants have not met this high burden with respect to either element.
A review of Mr. Sardakowski’s confinement history in CDOC demonstrates that he has been shuffled between administrative segregation and other mental health programs twice before. SADMF ¶ 86. And there is nothing to suggest that Mr. Sardakowski’s transfer to CCF is permanent—he could be transferred to any facility, including CSP, at any time based on the CDOC’s security assessment of him. SADMF ¶ 59. Defendants point to no evidence that demonstrates that their voluntary cessation is permanent and thus sufficient to “irrevocably eradicate[] the effects of the alleged violation.” On the contrary, CDOC continues to operate CSP
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as an administrative segregation institution for over 600 prisoners, and it holds over a hundred others in solitary confinement at Sterling Correctional Facility and other CDOC facilities. SADMF ¶ 54-55. Defendants could transfer Mr. Sardakowski to an administrative segregation unit at any time, and thus have not overcome their burden to show that their voluntary cessation will not be abandoned at some later date. See Oakley v. Estate of Clements, 2013 WL 422940 at *6 (D. Colo. Aug. 15, 2013) (holding that plaintiff’s transfer out of CSP did not moot claims relating to that facility based on the possibility that he could be transferred back into it.)
Finally, Plaintiff notes that the policy behind injunctive relief is parallel to the policy of the voluntary cessation exception to the mootness doctrine. United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953) (holding that the case was not moot because it was in the public’s interest to have the “legality of the practices settled” and an injunction was appropriate to prevent future violations). Where Defendants have the ability to relocate prisoners and rename conditions of confinement, and the substance of those conditions remains unchanged by Defendants’ voluntary conduct, the voluntary cessation exception precludes a finding of mootness; injunctive relief is appropriate to ensure that any alleged violation will not recur. III. A Reasonable Factfinder Could Conclude that Plaintiff is entitled to relief under the
ADA and Rehabilitation Act (Claims Three & Four). A review of facts in the light most favorable to Mr. Sardakowski demonstrates that there are triable issues of fact as to whether CDOC has discriminated against Mr. Sardakowski on the basis of his mental illness and developmental disability by failing to make reasonable modifications to CDOC policies and practices that would allow him to progress out of solitary confinement.
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Plaintiff’s claims under the Americans with Disabilities Act (ADA) and the Rehabilitation Act (RA) (Claims Three and Four) therefore should be permitted to proceed to trial.15
In arguing that these claims should be dismissed on summary judgment, Defendants first contend that Plaintiff’s ADA and RA claims are moot, and in the alternative, that the claims fail because (1) Mr. Sardakowski is not disabled; (2) he has not made a request for modification to the policies, practices or procedures in any of the “leveling-out” programs within the CDOC; and (3) his disabilities have been fully accommodated by virtue of being prescribed medication and placed in RTP. Doc. 113 at 39-42, 44-45. Because the record demonstrates that material factual disputes exist with respect to each of these assertions, Defendants’ motion should be denied.
A. Defendants’ Decision to Transfer Mr. Sardakowski to the RTP Does Not Moot His ADA or RA Claim Because Mr. Sardakowski Continues to Suffer the Effects of the Alleged Violation.
Defendants first assert that their transfer of Mr. Sardakowski into the RTP has mooted his ADA and RA claims because Plaintiff’s claims concerned administrative segregation at CSP. Doc. 113 at 39-40. As with Claim Two, Defendants misconstrue Plaintiff’s ADA and RA claims, which are not facility-specific. Rather, they pertain to his inability to progress through CDOC’s solitary confinement “leveling out” programs absent accommodations for his disabilities. Doc. 62 at ¶ 192. Mr. Sardakowski still suffers the effects of CDOC’s ADA and RA violations because he remains in the lower levels of the RTP, where he is housed in solitary confinement without reasonable modifications that would enable him to progress out of those conditions. SADMF ¶¶ 60, 68-69, 74,
15 While § 504 of the Rehabilitation Act applies to recipients of federal funds, “as a general matter, courts have construed the Rehabilitation Act and the Disability Act similarly. Further, Congress has indicated that the Disability Act should be interpreted in a manner consistent with the Rehabilitation Act. In particular, cases considering the applicability of the statutes to prisons have treated the two together.” Montez v. Romer, 32 F. Supp. 2d 1235, 1239 (D. Colo. 1999) (citations omitted). The arguments that follow apply to Plaintiff’s claims under both the ADA and the Rehabilitation Act.
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84-85. As set forth above,16 because there is declaratory and injunctive relief that this Court can grant that will “have some effect in the real world,” (Rio Grande Silvery Minnow, 601 F.3d at 1110), Mr. Sardakowski’s ADA and RA claims are not moot. Additionally, as with Claim Two, Defendants could choose to remove Mr. Sardakowski from the RTP and put him back in administrative segregation at any time. Consequently, the voluntary cessation exception to mootness precludes a conclusion that Mr. Sardakowski’s ADA and RA claims are moot because Defendants have not shown that the “challenged conduct cannot reasonably be expected to start up again.” Friends of the Earth, 528 U.S. at 189.
B. Material Issues of Disputed Fact Preclude Summary Judgment on Mr. Sardakowski’s ADA & Rehabilitation Act Claims.
Under Title II of the ADA, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. In order to obtain relief under Title II, plaintiff must demonstrate that (1) he is a qualified individual with a disability, (2) who was excluded from participation in or denied the benefits of a public entity’s services, programs, or activities, and (3) such exclusion, denial of benefits, or discrimination was by reason of a disability. Robertson v. Las Animas County Sheriff’s Dep’t, 500 F.3d 1185, 1193 (10th Cir. 2007). Here, Defendants argue only that Mr. Sardakowski is not disabled and that even if he is, CDOC has not discriminated against him on the basis of his disability. Doc. 113 at 41-42, 44-45. Because there are material factual disputes as to both of these elements, Claims 3 and 4 should proceed to trial.17
16 See Section II, supra at 68-76. 17 Defendants do not appear to dispute that Mr. Sardakowski is “qualified,” nor do they dispute that CDOC is a “public entity” for ADA purposes, and that it receives federal financial assistance under the RA. They
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1. There Are Disputed Issues of Fact as to Whether Mr. Sardakowski Has a Disability Within the Meaning of the ADA & the RA.
In order to prove that an individual merits relief under the ADA, that individual first must demonstrate that he has a disability within the meaning of the statute. 42 U.S.C. § 12132. In 2008, Congress passed the ADA Amendments Act of (“ADAAA”), 110 P.L. 325, 122 Stat. 3553, which broadened the definition of “disability” to make it easier for disabled persons to obtain protection under the Act. 110 P.L. 325 § 4(a)(4)(A) (“[t]he definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act”). The ADA defines “disability” as (1) a physical or mental impairment that substantially limits one or more major life activities of such individual; (2) record of such impairment; or (3) being regarded as having such impairment. 42 U.S.C. § 12102(1). The Department of Justice regulations implementing Title II of the ADA state that a physical or mental impairment means “[a]ny mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.” 28 C.F.R. § 35.104(1)(i)(B). The ADA specifies that “major life activities” include, inter alia: reading, concentrating, learning, thinking, and communicating. 42 U.S.C. § 12102(2)(A).
a. Mr. Sardakowski Has Mental Impairments. A reasonable factfinder could conclude that Mr. Sardakowski is disabled within the meaning of the ADA. First, Defendants concede that Mr. Sardakowksi has a “mental impairment” by virtue of their acknowledgement that he has a serious mental illness. Doc. 113 ¶ 200. Additionally, a
have therefore conceded these points for purposes of summary judgment, thus waiving their right to argue otherwise in their reply. U.S. v. Martinez, 518 F.3d 763, 768 (10th Cir. 2008); Sutherlin v. Indep. Sch. Dist. No. 40 of Nowata Cnty., Okla., No. 12–CV–636–JED–PJC, 2013 WL 1975644 at *6 (N.D. Okla. May 13, 2013).
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reasonable factfinder could conclude that Mr. Sardakowksi also has a developmental disability.18 Plaintiff has been diagnosed on multiple occasions throughout his life with a developmental disability. SADMF ¶¶ 3, 15. Indeed, CDOC’s own mental health staff gave Plaintiff a DD code of 4 out of 5, 5 being the most severe, for most of 2007-2009 while he was incarcerated at CTCF, SCCF, and SCF. SADMF ¶¶ 8-9. And Defendants themselves have placed Mr. Sardakowski in CDOC programs specifically designed for prisoners with developmental disabilities both at SCCF and CTCF. RSUMF ¶ 15(c) & (d).
Outside psychiatrists and psychologists have also diagnosed Mr. Sardakowski with developmental disabilities. Based on psychological testing and in-person evaluations, forensic psychologist Dr. Pinto evaluated Mr. Sardakowski in 2006 while he was incarcerated in the Adams County Detention Center and diagnosed him as mildly mentally retarded, with a Full Scale IQ score of 69. SADMF ¶¶ 1, 3. More recently, Plaintiff’s expert, Dr. Kathryn Burns, met with Mr. Sardakowski and after an extensive evaluation, found his presentation consistent with an intellectual disability. SADMF at ¶ 15.
In claiming that Mr. Sardakowski’s mental impairments do not rise to the level of a disability, Defendants allege that he successfully received his GED while off medication, and that he was “living independently” at the time of his arrest. Doc 113 at 41-42. Although Plaintiff had been off his medication for roughly one week when he received his GED test results, he was fully medicated while studying for and completing his GED tests at CTCF. RSUMF ¶ 199(c). Additionally, the record evidence shows that Plaintiff has never supported himself or lived independently. SADMF ¶ 18. During the only two months that he lived in his own apartment—the two months leading up to
18 Although Defendants argue that Mr. Sardakowski is developmentally delayed rather than developmentally disabled (Doc. 113 at 41), it is unclear what Defendants intend the significance of this distinction to mean regarding whether Mr. Sardakowski is disabled within the meaning of the disability rights statutes.
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his arrest—he received SSI and was not working. Id. A reasonable factfinder could conclude that both Mr. Sardakowski’s developmental disability and his serious mental illness constitute “mental impairments” within the statutory definition of disability. 42 U.S.C. § 12102(1).
b. Mr. Sardakowski’s Mental Impairments Substantially Limit Him In Several Major Life Activities.
Additionally, there is a triable issue of fact regarding whether Mr. Sardakowski’s serious mental illness and developmental disability “substantially limit” one or more of his major life activities.19 The ADA states that “major life activities” include, but are not limited to, “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” 42 U.S.C. § 12102(2)(A).
The record evidence demonstrates that Mr. Sardakowski’s mental illness and developmental disability substantially limit several of his major life activities, including concentrating, reading, thinking, communicating, learning, impulse control, and interacting with others.20 See, e.g., RSUMF ¶ 94(b) (“His intellectual deficits include problems with reasoning, judgment and problem-solving skills as clinically assessed as well as via intelligence testing”); RSUMF ¶ 193(b) (“Because of his long-term social isolation, Mr. Sardakowski is unable to communicate with other people; his social reality has been altered due to lack of meaningful social interaction”); SADMF ¶ 4 (Mr. Sardakowski had low scores on an intelligence tests that measured “concentration, reasoning, cognition, judgment, and delay of impulses. . . . Mr. Sardakowski lacks the ability to anticipate the consequences of initial acts or situations and the ability to interpret social situations”); SADMF ¶ 6
19 Defendants do not appear to address this aspect of the definition of disability in their argument. 20 While Defendants address only developmental disability in their argument (Doc. 133 at 41-42), Plaintiff seeks relief from discrimination based on both his developmental disability and mental illness (Doc. 62 ¶ 182).
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(“Mr. Sardakowski is “extremely impaired in his ability to think logically, coherently, and to realistically perceive other people and events”); SADMF ¶ 7 (Mr. Sardakowski has poor impulse control and judgment); SADMF ¶ 12 (Mr. Sardakowski has a reading disability).
Defendants appear to question the genuineness of Mr. Sardakowski’s impairments by asserting that he exhibits disingenuous behaviors and symptoms. Doc 113 at 32, 41-42. While Defendants concede that Plaintiff is seriously mentally ill, they simultaneously allege that Plaintiff is able to control his behavior when it suits him to do so. Doc. 113 ¶¶ 198, 200. But the record evidence shows that Mr. Sardakowski has little control over his behavioral symptoms stemming from his mental illness. SADMF ¶ 2 (Mr. Sardakowski’s “acting out is not in his control and is secondary to his severe mental illness”); SADMF ¶ 70 (“Mr. Sardakowski’s mental illness impairs his ability to control his behavior”). Certainly Defendants have not demonstrated that Mr. Sardakowski is able to control his concentrating, reading, thinking, communicating, learning, impulse control, and interacting with others, which is their burden on summary judgment. See Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002).
At minimum, a genuine issue of material fact remains in dispute regarding whether Mr. Sardakowski’s serious mental illness substantially limits major life activities. Taking the facts in the light most favorable to the nonmoving party, the record evidence demonstrates that Mr. Sardakowski has significant mental impairments in the form of mental illness and developmental disabilities, and those impairments substantially limit his thinking, concentrating, communicating, interacting with others, reading, caring for himself, and other major life activities. Plaintiff also meets the alternate definitions of “disability” under the ADA, in which a person is considered disabled if he can demonstrate that (1) he has a record of an impairment that substantially limits a major life activity, or (2) that he is regarded as having such an impairment. 42 U.S.C. § 12101(2)-(3).
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Here, there is ample evidence of a record of Mr. Sardakowski’s mental and developmental disabilities. SADMF ¶¶ 1, 3, 4-9, 12-15. Additionally, CDOC itself has placed plaintiff in multiple DD programs, as well as OMI and RTP, which are created for prisoners with mental illness, demonstrating that they regard Plaintiff as disabled. RSUMF ¶ 15(c) & (d). A reasonable factfinder could therefore conclude that he has a disability within the meaning of the ADA and RA.
2. A Reasonable Factfinder Could Conclude that Defendants Have Discriminated against Plaintiff on the Basis of his Disability by Failing to provide Reasonable Accommodations.
Finally, there are genuine issues of material fact as to whether Defendants have discriminated against Mr. Sardakowski on the basis of his disability. More specifically, there is a factual dispute as to whether CDOC has denied Mr. Sardakowski meaningful access to its “leveling out” programs by failing to modify them to accommodate his disabilities. As the Tenth Circuit has held, “the ADA requires more than physical access to public entities, it requires public entities to provide ‘meaningful access’ to their programs and services.” Robertson 500 F.3d at 1195.
The Title II regulations flesh out the reasonable modification mandate in some detail. Under those regulations, a public entity “shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.30(b)(7).21 The regulations further specify that a state entity discriminates against a person with a disability if it:
• Provide[s] a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit,
21 Defendants have not argued that Mr. Sardakowksi’s requested modifications would fundamentally alter the RTP in their Motion, and thus they have waived any such argument. Martinez, 518 F.3d at 768; Sutherlin, 2013 WL 1975644, at *6.
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or to reach the same level of achievement as that provided to others; 28 C.F.R. §
35.130(b)(1)(iii).
• Utilize[s] criteria or methods of administration . . . [t]hat have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability; 28 C.F.R. §
35.130(b)(3)(i).
• Impose[s] or appl[ies] eligibility criteria that screen out or tend to screen out an individual with a disability . . . from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered. 28 C.F.R. § 35.130(b)(8).
Here, the evidence demonstrates a triable issue of fact as to whether CDOC has discriminated against Mr. Sardakowski in these ways.
Specifically, the RTP, where Mr. Sardakowski is currently housed, is a behavioral-based level system that requires specific behavior and curriculum goals to be met, and approval of a mental health clinician before a prisoner advances to the following level. SADMF ¶ 71. The lower levels of the program, where Mr. Sardakowski has been housed for nearly a year, are solitary confinement conditions. SADMF ¶¶ 60-65. Higher levels are less restrictive in terms of out-of-cell time and interaction with other prisoners. SADMF ¶ 67. A reasonable factfinder could conclude that Plaintiff, due to his mental illness and developmental disability, has been stuck in levels 1-4 of levels of RTP since being placed in the program nearly a year ago, and prior to that was similarly unable to progress beyond the lowest levels of CDOC’s other solitary confinement leveling-out programs in CSP and OMI. SADMF ¶¶ 68-69, 87. The record evidence demonstrates, for example, that Mr. Sardakowski has trouble concentrating on long-term goals, a frustration he has expressed to the mental health staff at CDOC. Referring to the time frames in the solitary confinement leveling-out programs, Plaintiff stated, “tell me two months it’s like telling me a billion years.” SADMF ¶ 69.
Mr. Sardakowski’s placement and retention in solitary confinement conditions only serve to exacerbate his mental illness and his ever-increasing anxiety, stress, and depression result in episodes
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during which he bangs his head into the wall, bites his hands and lips, ties off his testicles, and attempts to take his life in various ways. SADMF ¶¶ 14, 20; RSUMF ¶ 193. Mr. Sardakowski’s selfharming behaviors and suicide attempts have resulted in disciplinary charges and fines for abuse of clinical services, which in turn produce level regressions that assure Mr. Sardakowski’s continued placement in the lower levels of the solitary confinement leveling out programs in CDOC. SADMF ¶¶ 25-27. Dr. Haney explains this vicious circle in his declaration:
The CDOC has placed and retained Mr. Sardakowski in highly structured isolated settings and “level-based programs” that, because of his very severe disabilities, he is utterly incapable of succeeding in or benefitting from. His inability to progress through the steps or “levels” of these programs serves as the justification for his continued isolation and further painful and counterproductive deprivation. SADMF at ¶ 87. In short, because of his mental illness and developmental disabilities, which impact his ability to concentrate on long-term goals, and his self-harming behaviors that result in punishment, Mr. Sardakowski cannot progress through RTP as it is currently structured. SADMF ¶¶ 68-71, 73-74, 7679. CDOC has discriminated – and continues to discriminate – against him by failing to make reasonable modifications to RTP and other leveling out programs that are necessary to allow him to “obtain the same result [or] gain the same benefit” from these programs. 28 C.F.R. § 35.130(b)(1)(iii); SADMF ¶¶ 84, 85. CDOC similarly discriminates against him by using “eligibility criteria” that “screen out” Mr. Sardakowski from “fully and equally enjoying” CDOC’s leveling-out programs. 28 C.F.R. § 35.130(b)(8); SADMF ¶¶ 71, 73, 74. Mr. Sardakowski has presented evidence from which a factfinder could conclude that he has been precluded from meaningful participation in those programs that would permit him to progress out of solitary confinement, and therefore that Defendants have discriminated against him on the basis of his disability.
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Defendants claim that they have not discriminated against Mr. Sardakowski because they put him in RTP and have prescribed medications for him.22 Doc 113 at 44-45. This misconstrues Plaintiff’s claims. Mr. Sardakowski’s placement in the RTP has nothing to do with the discrimination that he has been subjected to within it; Plaintiff has been denied meaningful participation in RTP because of CDOC’s failure to make reasonable modifications to the program that would enable him to participate in and benefit from it. SADMF ¶¶ 84, 85. Defendants’ argument is akin to a person opening the door at the top of a flight of stairs and telling a wheelchair user, “You may come up.” Under the ADA and RA, this is not sufficient. Public entities are required to “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modification would fundamentally alter the nature of the service, program or activity.” 28 C.F.R. § 35.130(b)(7).
In fact, although Defendants admit that they could make reasonable modifications to their program policies to allow Mr. Sardakowski meaningful participation in leveling out programs (SADMF ¶¶ 81, 84), no such modification has been made for Mr. Sardakowski. SADMF ¶ 85. Indeed, Defendants have discussed the need for implementing such concepts, such as keeping the time periods of the then-OMI (now-RTP) short in order to ensure achievability. SADMF ¶ 82 (“The OMI program will fail if the time frames are too long.”). Other such individualized measures could be taken by CDOC to modify Plaintiff’s level progression requirements and make them shorter and easier to achieve. SADMF ¶ 84. A reasonable factfinder could conclude that changing the level
22 In their Motion, Defendants recount the history of ADA accommodations in CDOC, as well as accommodations that they claim Mr. Sardakowski has received for some of his other disabilities, such as his hearing loss. Doc. 113 at 42-44. Without conceding that he has actually received such accommodations, Mr. Sardakowski notes that all of these facts are immaterial, as his claims here concern a failure to provide
reasonable modifications to CDOC’s solitary confinement leveling out programs. Doc 62 at ¶ 190. 86

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progression requirements is a feasible undertaking, as it has been done by CDOC before.23 SADMF ¶ 81.
Finally, Defendants assert that Plaintiff has not made an accommodation request for modifications to the policies, practices, or procedures in the CSP “leveling out” program or any other level program within the CDOC. Doc 113 at 44. This is wrong. Mr. Sardakowski has filed numerous grievances regarding his inability to progress through level programs due to his mental impairments. SADMF ¶ 75. For example, in a grievance dated February 13, 2012, Mr. Sardakowski states: “Since being taken off meds I’ve been edgy. In the past two weeks I’ve been placed on special controls twice for stuff like not being able to talk to case manager . . . been getting [in] arguments with staff [for] no reason other than I’m edgy . . . I’ve lost my level more than once in two weeks or so.” SADMF ¶ 76. In another grievance sent on March 10, 2012, Mr. Sardakowski states, “Since I’ve been taken off [meds] I’ve hurt myself many times, sometimes up to 5 times a day to get stress, depression, anger out of my mind. I’ve been getting many C.O.P.D.s for my bad behavior. This is causing me to regress out of C.S.P.” SADMF ¶ 77. In a grievance dated December 26, 2011, Mr. Sardakowski asks for “some other way to progress out of C.S.P.” SADMF ¶ 78.
More recently, in a grievance dated July 3, 2013, he wrote, “This RTP AR 650-04 does not work for me, due to its based on behavioral [requirements] and [my] behavior is iffy at best. I don’t know what’s wrong with me, but telling me I’ll get [out] of RTP to real GP [general population] is a joke due to the aforesaid reason.” Mr. Sardakowski then asks for an individualized plan. SADMF ¶ 79. Even if Mr. Sardakowski had not grieved this issue, “[w]hen a disabled individual's need for an accommodation is obvious, the individual's failure to expressly ‘request’ one is not fatal to the ADA
23 Ironically, Joy Hart, a Behavioral Health Supervisor for the RTP, has adjusted progression through the RTP levels so that prisoners stay in each level for a longer period of time. Presumably CDOC could reverse this change. SADMF ¶ 83.
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claim.” Robertson, 500 F.3d at 1197; Hughes v. Colorado Dep't of Corr., 594 F. Supp. 2d 1226, 1244-45 (D. Colo. 2009).
In short, the record is replete with factual disputes regarding whether CDOC has discriminated against Mr. Sardakowski, a person with multiple disabilities, by failing to make modifications to rules, policies, and practices that would enable him to participate in and achieve the same benefit from Defendants’ solitary confinement leveling-out programs. The Court should therefore deny summary judgment on Claims Three and Four.
CONCLUSION For the reasons set forth above, this Court should deny Defendants’ Motion in its entirety.
Respectfully submitted this 26th day of December, 2013. s/ Laura Rovner Laura Rovner s/Lauren Fontana Lauren Fontana s/ Mary Dewey Mary Dewey, Student Attorney s/ Virginia Thompson Virginia Thompson, Student Attorney s/ Zachary Woodward Zachary Woodward, Student Attorney University of Denver Sturm College of Law 2255 E. Evans Ave., Suite 335 Denver, CO 80208 Telephone: 303.871.6140 Fax: 303.871.6847 E-mail: lrovner@law.du.edu Counsel for Plaintiff
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CERTIFICATE OF SERVICE
I hereby certify that on December 26, 2013, I electronically filed the foregoing PLAINTIFF’S RESPONSE TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT with the Clerk of the Court using the CM/ECF following:

Chris Alber Chris.Alber@state.co.us

I also sent a copy of Conventionally Filed Exhibit 4-A, via U.S. Mail, postage pre-paid, to:

Chris Alber Colorado Department of Law Office of the Attorney General Ralph L. Carr Colorado Judicial Center 1300 Broadway, 10th Floor Denver, Colorado 80203

STUDENT LAW OFFICE

/s/ Laura Rovner _________________________ Laura Rovner

89

 
 1

1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

2

Civil Action No. 12-cv-01326-RBJ-KLM

3

JAMES SARDAKOWSKI,

4

Plaintiff,

5

vs.

6

TOM CLEMENTS, in his official capacity as Director of the

7 Colorado Department of Corrections; JOANIE SHOEMAKER, in her

official capacity as Deputy Director of Prisons, Clinical

8 Services for Colorado Department of Corrections; PAULA FRANTZ,

in her official capacity as Chief Medical Officer for Colorado

9 Department of Corrections; TRAVIS TRANI, in his official

capacity as Warden of the Colorado State Penitentiary; JAMES

10 MICHAUD, in his official capacity as Mental Health Program

Administrator for the Colorado Department of Corrections; JILL

11 LAMPELA, in her official capacity as Behavior Health Supervisor

for the Colorado State Penitentiary; STATE OF COLORADO,

12 DEPARTMENT OF CORRECTIONS,

13

Defendants.

14 _______________________________________________________________

15

REPORTER'S TRANSCRIPT

HEARING ON MOTION FOR SUMMARY JUDGMENT AND FINAL TRIAL

16

PREPARATION CONFERENCE

17 _______________________________________________________________

18

Proceedings before the HONORABLE R. BROOKE

19 JACKSON, Judge, United States District Court for the District

20 of Colorado, commencing at 2:02 p.m., on the 25th day of

21 February, 2014, in Courtroom A902, Alfred A. Arraj United

22 States Courthouse, Denver, Colorado.

23

24 Proceeding Reported by Mechanical Stenography, Transcription

Produced via Computer by Kara Spitler, RMR, CRR,

25

901 19th Street, Denver, CO, 80294, (303) 623-3080

2

1

APPEARANCES

2

LAURA ROVNER, LAUREN FONTANA, MARY DEWEY, ZACHARY

3 WOODWARD, VIRGINIA THOMPSON, University of Denver, 2255 East

4 Evans Avenue, Denver, CO 80208, for plaintiff.

5

CHRISTOPHER ALBER, Colorado Attorney General's

6 Office, 1300 Broadway, 10th Floor, Denver, CO 80203, for

7 defendants.

8

P R O C E E D I N G S

9

(In open court at 2:02 p.m.)

10

THE COURT: Mr. Alber, you're here all by yourself.

11

MR. ALBER: I am, Your Honor.

12

THE COURT: Against a cast of thousands.

13

12-cv-1326, Sardakowski vs. Clements. The original

14 name of the case, at least.

15

Appearances.

16

MS. ROVNER: Good afternoon, Your Honor. Laura Rovner

17 from the student law office for the plaintiff, Mr. Sardakowski.

18 I have with me today Lauren Fontana as well as student

19 attorneys Zachary Woodward, Mary Dewey, and Virginia Thompson.

20

THE COURT: And how about all these people in the

21 back, who are they? Is that the rest of the DU law school

22 student body?

23

MS. ROVNER: Some are also members of the clinic.

24 Some are parents. Some are siblings. Some I don't know.

25

THE COURT: Okay.

3

1

MR. ALBER: And good afternoon; Chris Alber appearing

2 on behalf of the defendants.

3

THE COURT: A little birdy just told me you had a

4 couple twins.

5

MR. ALBER: I did, Your Honor.

6

THE COURT: And that they're doing fine.

7

MR. ALBER: They are.

8

THE COURT: Congratulations.

9

MR. ALBER: Thank you very much.

10

THE COURT: All right. Have a seat.

11

Which of you lawyers or lawyers-to-be is going to

12 argue today for the plaintiff.

13

MS. DEWEY: Mary Dewey.

14

THE COURT: All right. Mary. The stage is yours.

15

MS. DEWEY: All right.

16

Good afternoon, Your Honor. Thank you for permitting

17 us to take the Court's time this afternoon with oral argument

18 on this.

19

As the Court has suggested, I want to turn very

20 quickly to disputes of material fact. Mr. Sardakowski is a

21 mentally ill and developmentally disabled man who has four

22 claims against the DOC, and there are disputed material facts

23 as to each of those four claims. And just briefly, those

24 claims are, first, an Eighth Amendment claim that defendants

25 are being deliberately indifferent by denying him adequate

4 1 mental-health care.

2

Second, and --

3

THE COURT: You real think that they've been

4 deliberately indifferent?

5

MS. DEWEY: Yes, thank you, Your Honor. There's

6 record --

7

THE COURT: That's a pretty serious charge.

8

MS. DEWEY: It is, Your Honor.

9

THE COURT: They've been treating him off and on for

10 years. How many different doctors? 17, something like that.

11 Medications. He's had individual therapy a little bit, he's

12 had group therapy, he's been moved around here and there. How

13 does that add up to deliberate indifference?

14

MS. DEWEY: Your Honor, we understand that

15 Mr. Sardakowski has seen numerous doctors. The Tenth Circuit

16 has stated specifically that the provision of ongoing treatment

17 does not establish the treatment is constitutionally adequate.

18 And the question for the Court here in this case is whether

19 Mr. Sardakowski's treatment meets minimum constitutional

20 standards.

21

For example, in Halpin v. Simmons, a 2002 case, the

22 court held that the mere provision of continuing medical

23 treatment regardless of the adequacy of that treatment does not

24 foreclose a claim for deliberate indifference.

25

And here there's record evidence before the Court that

5 1 Mr. Sardakowski has not received adequate treatment or

2 treatment at all for his serious mental-health needs, including

3 self-harm. Mr. Sardakowski engages in a particularly gruesome

4 form of self-mutilation. It involves tying ligatures around

5 his testicles. He is currently in residential treatment

6 program which defendants, as you know, claim provides

7 individual therapy and group therapy.

8

THE COURT: Well, you've got to give them credit,

9 don't you, for coming up with that program? That shows some

10 effort. Doesn't it?

11

MS. DEWEY: Your Honor, the fact is the program has

12 not provided treatment to Mr. Sardakowski specifically. Record

13 evidence shows that in that treatment program, Mr. Sardakowski

14 has not received a single individual therapy session. Since

15 his arrival a year ago. And in group sessions, which, as to

16 the group sessions -- for the individual therapy, there is a

17 dispute of material fact about whether he is indeed receiving

18 it. For group sessions, there's no dispute about whether they

19 occur. But certainly disputes of fact as to whether they are

20 capable of providing treatment to Mr. Sardakowski. And what

21 indeed occurs during these group sessions.

22

And there's record evidence before the Court that no

23 group clinician has ever addressed Mr. Sardakowski's self-harm

24 with him. Which is one of his most serious medical needs.

25

There's also record evidence that defendants are aware

6 1 that he continues to self-mutilate. And that no clinician has

2 addressed this issue with him in the residential treatment

3 program. They know about a serious medical need, and they have

4 disregarded it. That's the definition of deliberate

5 indifference.

6

At a minimum, there are disputes of fact about whether

7 group sessions are providing treatment at all for

8 Mr. Sardakowski's serious mental illness. There's evidence

9 before the Court on summary judgment that many of these group

10 sessions involve playing card games rather than any form of

11 meaningful mental-health treatment or therapy.

12

THE COURT: Do they think the card games are part of

13 the therapy?

14

MS. DEWEY: Dr. Burns, who is plaintiff's expert, has

15 testified that indeed group sessions may be helpful on some

16 level to Mr. Sardakowski for socialization. He's been in

17 isolation for four years. So to some extent, it may be helpful

18 for that. But it is her opinion that it does not provide

19 treatment of any sort, certainly not adequate treatment for his

20 serious mental-health needs, including self-harm.

21

THE COURT: Okay.

22

MS. DEWEY: Mr. Sardakowski's second claim is that

23 defendants are being deliberately indifferent to --

24

THE COURT: Before you leave the first claim, does

25 your claim boil down to what he wants is more individual

7 1 therapy and he's not getting it?

2

MS. DEWEY: Certainly defendants have framed the

3 question as a question about which is better, individual or

4 group therapy. The real question is whether the treatment that

5 he's receiving is constitutionally adequate. We understand --

6

THE COURT: Well, what does he want? What would make

7 it constitutionally adequate?

8

MS. DEWEY: First of all, it would address his actual

9 medical need. Which --

10

THE COURT: Well, yes, but be specific. What does he

11 want? What do you want for him, put it that way.

12

MS. DEWEY: Certainly.

13

We would want an individual treatment plan that would

14 address his individual mental-health needs. We would want that

15 individual treatment plan to include some form of individual

16 therapy. Which Dr. Burns has opined is essentially at this

17 point the only form of treatment that can address his

18 self-harm.

19

THE COURT: Who's Dr. Burns?

20

MS. DEWEY: Dr. Burns is plaintiff's expert, Your

21 Honor.

22

THE COURT: Where does he come from?

23

MS. DEWEY: She is the chief psychiatrist of the Ohio

24 Department of Corrections.

25

THE COURT: She.

8

1

All right. So individual treatment plan, and in your

2 brief, you said they might have one, but they won't show him

3 what it is?

4

MS. DEWEY: Indeed, there seems to be individual

5 treatment plans of some sort in his record, all CDOC in 30-6

6 depositions admitted that such plans were vague and did not

7 contain measurable goals. Mr. Sardakowski in his declaration

8 has stated that he has never seen these treatment plans. If

9 someone has discussed these plans with him, he was not aware

10 that that was what was happening. He, to be honest, does not

11 know what is in them or what the plan is for his treatment.

12

THE COURT: Right. But is it that he doesn't know

13 because he doesn't remember or doesn't understand or doesn't

14 want to know, or is it because they won't show him?

15

MS. DEWEY: Well, DOC has testified in 30(b)(6)

16 depositions that treatment plans are only appropriate for

17 discussion in individual one-on-one sessions. The record

18 evidence before the Court on summary judgment is that

19 Mr. Sardakowski has never received a confidential individual

20 one-on-one session with a clinician during his entire year in

21 the residential treatment program. So it's unclear how the

22 treatment plans would have been discussed with him.

23

Mr. Sardakowski has met very infrequently with his

24 clinicians for the purpose of file review. Which DOC has also

25 admitted is not therapy.

9

1

THE COURT: Didn't you say in your brief that there is

2 some requirement in their own rules about individual treatment

3 sessions that they're not following?

4

MS. DEWEY: Indeed there is.

5

The policy, the residential treatment plan policy

6 states that individual therapy is provided in the program,

7 although it doesn't state how often it should be provided. Dr.

8 Lampela, a 30(b)(6) deponent testified that individual therapy

9 sessions should be occurring weekly. Excuse me, I believe that

10 was in her individual deposition.

11

However, Kelly Wasko in her 30(b)(6) deposition

12 testified that if an inmate had, for example, been offered only

13 two individual sessions in a six-month period, that would

14 violate RTP policy. Indeed, Mr. Sardakowski, as the record

15 evidence before the Court shows, has not received any.

16

THE COURT: Well, if they were to say today, for

17 example, we promise you, Judge, that we'll give him a weekly

18 independent session, individual session, would that moot your

19 first claim?

20

Not that Mr. Alber's going to say that.

21

MS. DEWEY: Your Honor, I don't . . . it is

22 defendants' burden on mootness to show that they have

23 essentially remedied the constitutional violation.

24 Permanently. And I'm not sure I could say at this moment, I am

25 not an expert, I think I would need, we would need expert

10 1 testimony from Dr. Burns on what the issue of what precisely

2 Mr. Sardakowski needs. As well as testimony from the DOC as to

3 what's possible in the residential treatment program.

4

THE COURT: Do you think it's ultimately a matter of

5 medical judgment?

6

MS. DEWEY: Your Honor, certainly there are -- we do

7 have testimony from medical experts in this case. However, it

8 is the role of the Court to decide whether treatment that is

9 being provided meets minimal constitutional standards. And so,

10 you know, that can be based partly on expert testimony.

11 However, it's based partly on precedent. But it is the role of

12 the Court to make that determination about whether it meets

13 constitutional standards.

14

In addition, if DOC did provide a individual treatment

15 plan that included regular individual therapy sessions, there

16 would still be an issue of voluntary cessation.

17

Under the voluntary cessation to mootness, defendants

18 have the heavy burden of persuading the Court that the conduct

19 will not be restarted at the conclusion of the litigation.

20 This burden will only be met by changes that are permanent and

21 foreclose a reasonable chance of their recurrence of the

22 challenged conduct.

23

THE COURT: So you don't think it's good enough when

24 they just shift somebody from one facility to another? A habit

25 that they seem to have developed.

11

1

MS. DEWEY: Indeed, Your Honor. I do not.

2

And that is also an issue for Mr. Sardakowski's second

3 claim; this is about solitary confinement. But as to his first

4 claim for adequate mental-health treatment, the record shows

5 that Mr. Sardakowski has been shuffled in and out of

6 mental-health treatment programs before. He was shuffled in

7 and out of the OMI program, the offenders with mental illness

8 program at CSP. He's now been put in the residential treatment

9 program. But defendants have not -- essentially if they were

10 to create a treatment plan at this moment, defendants have not

11 met their burden in showing that he will remain in the

12 residential treatment program, that he will keep his treatment

13 plan, that it will actually be implemented.

14

As we've seen, they have policy that provides for

15 individual treatment, but it hasn't been implemented with

16 respect to Mr. Sardakowski.

17

And as to Mr. Sardakowski's second claim, his claim is

18 that defendants have violated the Eighth Amendment by being

19 deliberately indifferent to the risk of harm to him as a

20 mentally ill prisoner by keeping him in long-term solitary

21 confinement. And therefore they're being deliberately

22 indifferent to a substantial risk of serious harm to his health

23 and safety.

24

Other courts have found Eighth Amendment violations

25 where mentally ill prisoners are held in long-term solitary

12 1 confinement. Analogizing it to holding an asthmatic in a room

2 with little air. However, the merits of Mr. Sardakowski's --

3

THE COURT: It's okay, you're reading your sentences.

4 I'll let you finish and then I'll ask my question.

5

MS. DEWEY: The merits of Mr. Sardakowski's second

6 claim were not addressed by defendants; however, I can address

7 them here if that would be helpful. They were not addressed on

8 summary judgment.

9

THE COURT: So, Miss Dewey, your case, when you filed

10 it, was called Sardakowski vs. Clements.

11

MS. DEWEY: Yes.

12

THE COURT: That was Tom Clements, who was the

13 executive director of the CDOC. And Clements was known, I

14 think, generally as somebody who was trying to reform the DOC

15 and in particular to reduce, if not eliminate, administrative

16 segregation, particularly for mentally ill patients.

17

Do you agree?

18

Maybe you don't know.

19

MS. DEWEY: I do agree that Tom Clements certainly

20 made many statements to that effect.

21

THE COURT: Right. It was a tragedy, really, that he

22 was assassinated, ironic that he was killed by an ex-inmate

23 when he was doing, some would say, more than anyone before him

24 to try to reform things to the benefit of inmates.

25

So he was replaced by Mr. Raemisch, true?

13

1

MS. DEWEY: Yes.

2

THE COURT: So your lawsuit now is against Raemisch.

3

MS. DEWEY: Yes, Your Honor.

4

THE COURT: But you read the article in the New York

5 Times, I bet.

6

MS. DEWEY: I did, Your Honor.

7

THE COURT: What did you think?

8

MS. DEWEY: Your Honor, I, I, I do appreciate

9 Raemisch's expressions of concern about holding mentally ill

10 inmates in solitary confinement. I do believe that there is a

11 disconnect between his statements that there are only, that

12 there are not many mentally ill inmates left in solitary

13 confinement in the DOC and the reality on the ground.

14 Mr. Sardakowski is one of those inmates who is seriously

15 mentally ill, as the DOC has admitted. He remains in

16 conditions of solitary confinement, although DOC has removed

17 the label of administrative segregation from him.

18

However, it's not the label that matters, but the

19 actual conditions of confinement. So in this case

20 Mr. Sardakowski is not in administrative segregation. But he

21 is still in solitary confinement. And essentially defendants'

22 argument here is a mootness argument, that Mr. Sardakowski has

23 been removed from CSP, from administrative segregation, and

24 therefore cannot still be in solitary confinement.

25

The record evidence shows that his conditions are the

14 1 classic conditions of solitary confinement, recognized by

2 courts across the country. Plaintiff has offered evidence that

3 he spends the majority of his time alone in his cell. Up to 23

4 hours a day. Over 22 hours a day on average. He is

5 single-celled. He is alone in his cell. His cell is roughly

6 the same size as his cell in CSP, where he was in

7 administrative segregation.

8

THE COURT: Well, what are you asking the Court to do

9 about it?

10

MS. DEWEY: We would ask the Court to remove -- order

11 Mr. Sardakowski be removed from solitary confinement. Now,

12 that could be done in a number of ways. We would certainly

13 need testimony from the DOC as to what options would be

14 available. One of those ways would be transferring him out of

15 the residential treatment program, where he's currently in

16 solitary confinement, to a general population facility, for

17 example.

18

THE COURT: You think a guy like him ought to be in

19 general population?

20

MS. DEWEY: I'm not sure I could speak to that, Your

21 Honor. I'm not sure I have the facts before me.

22

THE COURT: Well, but based on the facts that you do

23 have before you, would you at least agree that he's a tough

24 customer? He is not an easy inmate for the DOC to deal with.

25

MS. DEWEY: Perhaps, Your Honor, although he was not

15 1 placed in administrative segregation for violent offenses. He

2 certainly is very mentally ill and in need of treatment. He's

3 been in isolation for a long time.

4

And one possibility for him, because another one of

5 his mental impairments is developmental disability, would be to

6 transfer him to the DD program or developmental disability

7 program. Which exists at two facilities in the DOC:

8 Centennial correctional -- excuse me, he's currently at

9 Centennial. There is the DD program at Colorado Territorial

10 Correctional Facility --

11

THE COURT: He tried that once before; did you know

12 that?

13

MS. DEWEY: Yes, he was previously in the DD program.

14

THE COURT: One of his several lawsuits that's

15 appeared in this court was about that. Was about going to

16 Territorial and being in their DD program.

17

MS. DEWEY: I'm not familiar with that lawsuit, I'm

18 sorry, Your Honor.

19

There's another DD unit at San Carlos Correctional

20 Facility, which is the DOC's psychiatric prison. So there are

21 certainly other possibilities and Mr. Sardakowski thus far in

22 the residential treatment program has been in the lower levels.

23 Which are the most restrictive levels. And the evidence we

24 have is that those levels constitute solitary confinement. We

25 don't have evidence about the upper levels of the residential

16 1 treatment program. Certainly there may be some possibility

2 that his conditions could be altered, he could spend more time

3 out of his cell within the residential treatment program. At

4 this point there's not evidence before the Court on that, but

5 certainly we could hear testimony on that possibility at trial.

6

THE COURT: You better watch out. They'll move him to

7 San Carlos.

8

MS. DEWEY: Excuse me, I'm sorry?

9

THE COURT: I'm just teasing you.

10

MS. DEWEY: We also know -- there's also record

11 evidence before the Court that Mr. Sardakowski's mental

12 condition has deteriorated while he's in solitary confinement.

13

THE COURT: That happens to anybody in solitary

14 confinement. Raemisch was saying his mental condition was

15 deteriorating in one day in solitary confinement. In the

16 article.

17

MS. DEWEY: Indeed.

18

THE COURT: I can't even imagine.

19

MS. DEWEY: Neither can I.

20

There is, there is evidence that Mr. Sardakowski in

21 particular has been substantially harmed. His self-harming

22 behaviors have increased to the point where he has been

23 hospitalized for his self-mutilation while in solitary

24 confinement. Dr. Burns has opined -- again, she is plaintiff's

25 expert -- that Mr. Sardakowski is at elevated risk. Of

17 1 self-harm and even suicide in solitary confinement.

2

THE COURT: The defendant, however, contends that a

3 lot of what he's doing is his own gaming the system.

4 Malingering, making threats to harm himself, harming himself,

5 just to gain whatever it is at the moment he wants to gain.

6 That's what they say.

7

MS. DEWEY: Your Honor, there are a couple issues with

8 that. The first is that there's simply not record evidence

9 before the Court on those issues from someone with knowledge.

10 Much of the evidence about malingering comes from Dr. Lish,

11 defendants' expert who has never met with Mr. Sardakowski. And

12 has no actual knowledge of his treatment.

13

At -- however, there's also evidence from Dr. Burns

14 that Mr. Sardakowski is not malingering; and even DOC, even

15 Dr. Lish himself has admitted that malingering does not

16 foreclose the presence of actual mental illness. At a minimum,

17 there's a factual dispute about whether indeed Mr. Sardakowski

18 is, is malingering. And at the same time DOC has admitted that

19 he's seriously mentally ill and in need of treatment. So at a

20 minimum, that's factual dispute and defendants have not met

21 their burden in showing the absence of a triable fact for

22 trial.

23

Mr. Sardakowski's -- returning to Mr. Sardakowski's

24 second claim. Defendants seem to -- defendants do argue in

25 their reply that Mr. Sardakowski's transfer may moot his claim.

18 1 Plaintiff's Eighth Amendment claim about solitary confinement

2 is not specific to any one facility. Instead it focuses on the

3 conditions of confinement in which he is held wherever he is

4 held in the DOC.

5

THE COURT: Do you think that it's unconstitutional

6 for the DOC to put anybody in solitary confinement?

7

MS. DEWEY: Your Honor, the claim in this case is that

8 it is unconstitutional to hold Mr. Sardakowski specifically,

9 given his severe mental illness, in solitary confinement, in

10 prolonged solitary confinement. It is specific to

11 Mr. Sardakowski. And indeed any relief that would be ordered

12 would need to be specific to Mr. Sardakowski under the

13 prisoners litigation appeal, the prisoner's litigation reform

14 act.

15

Mr. Sardakowski's third and fourth claims are claims

16 under the ADA. And section 504 of the Rehabilitation Act. His

17 claims are that defendants are discriminating against

18 Mr. Sardakowski on the basis of his disabilities. Which are

19 mental illness and developmental disability.

20

And I want to be really clear about what these claims

21 are about. They are specifically that defendants have

22 discriminated against Mr. Sardakowski by placing him in

23 solitary confinement based on behavior caused by his

24 disabilities. And the defendants continue to discriminate

25 against Mr. Sardakowski by failing to make modifications to the

19 1 only route out of solitary confinement, the leveling-out

2 programs, which include the residential treatment program.

3 Mr. Sardakowski's disabilities prevent him from progressing

4 through these programs without some modification. And

5 defendants' failure to make such modifications constitute

6 discrimination under the ADA and Rehabilitation Act.

7

And as defendants acknowledge in their motion, the ADA

8 and Rehabilitation Act analyses are the same.

9

There are two main elements for an ADA claim. The

10 first element asks whether Mr. Sardakowski is a qualified

11 individual with a disability. And the second element asks

12 whether defendants are discriminating against him on the basis

13 of that disability. And there are disputes of material fact as

14 to each of these elements.

15

As to element 1, whether he has a disability,

16 defendant -- excuse me. Under the ADA, you can show disability

17 by demonstrating that a person has a mental impairment that

18 substantially limits major life activities. So as to mental

19 impairment, defendants concede that Mr. Sardakowski is mentally

20 ill but contend that he is not developmentally disabled.

21

Plaintiff's evidence, on the other hand, shows that

22 Mr. Sardakowski is developmentally disabled --

23

THE COURT: Is that your Ohio doctor?

24

MS. DEWEY: Yes, Your Honor. Yes.

25

Among other evidence, there is Dr. Burns will testify

20 1 that he currently has a mental impairment that is developmental

2 disability. There are other ways to show disability under the

3 ADA. Another way is to show that the individual has been

4 regarded as having a mental impairment or has a record of

5 having such a mental impairment. And plaintiff has put forth

6 evidence of both. That Mr. Sardakowski has a record of

7 developmental disability and is regarded as developmentally

8 disabled in the DOC.

9

THE COURT: Why does it matter whether he's

10 developmentally disabled or not? Everybody agrees that he's

11 mentally ill.

12

MS. DEWEY: Indeed. The extent that's undisputed,

13 it's undisputed in plaintiff's favor. Dr. Burns's testimony is

14 that Mr. -- the combination of Mr. Sardakowski's mental illness

15 and developmental disability are the -- is the impairment

16 essentially that substantially limits some major life

17 activities. But he would be considered disabled under the ADA

18 just based on mental illness alone.

19

THE COURT: Right. So why are you, why are you

20 concerned about developmentally disabled?

21

MS. DEWEY: Your Honor, it goes to the second element

22 of the ADA claim, which is that -- it goes to the modifications

23 that Mr. Sardakowski would need in order to meaningfully

24 participate in the residential treatment program's leveling-out

25 aspect. Under the ADA definition of discrimination, which is

21 1 based on Justice Department regulations, the regulations

2 require state entities -- they have a affirmative obligation to

3 make reasonable modifications to programs, services, and

4 activities in order to allow disabled individuals to

5 meaningfully participate. And failure to make reasonable

6 modifications constitutes discrimination under the ADA. So the

7 developmental disability would go towards some of the

8 modifications that might be necessary for Mr. Sardakowski. But

9 certainly his claim could stand on mental illness alone.

10

THE COURT: Okay.

11

MS. DEWEY: There's also a dispute of fact about

12 whether Mr. Sardakowski's mental impairments substantially

13 limit his major life activities. Defendants claim that

14 Mr. Sardakowski can control his behavior. But they don't

15 specifically address this prong in their motion for summary

16 judgment. Plaintiff's evidence shows that there, that

17 Mr. Sardakowski is substantially limited in several major life

18 activities. Including some of those that are explicitly listed

19 in the ADA. Such as thinking and concentrating. The statute's

20 list of major life activities is not exhaustive, and therefore

21 he -- we know that he also has other substantial limitations

22 including impulse control. And there's record evidence before

23 the Court on those as well.

24

At a minimum, there's a material dispute of fact as to

25 whether Mr. Sardakowski has a mental impairment that

22 1 substantially limits major life activities under the ADA, such

2 that he is disabled.

3

And returning to the second element, which is whether

4 defendants are discriminating against Mr. Sardakowski on the

5 basis of his disabilities, defendants appear to claim that they

6 have not discriminated by providing a list of accommodations

7 that they have given him in the past for things like his

8 hearing disability. Because Mr. Sardakowski is hearing

9 disabled. For example, they list the vibrating watch that they

10 have given him.

11

THE COURT: That's the subject of another one of his

12 cases.

13

MS. DEWEY: And, Your Honor --

14

THE COURT: Which somehow got assigned to me. Really?

15

Were you responsible for that?

16

MS. DEWEY: I am not.

17

And frankly, those accommodations, as you noted,

18 perhaps they're part of another case. They have nothing to do

19 with the claims in this case. They certainly don't prove that

20 defendants are not discriminating against Mr. Sardakowski as it

21 relates to his mental illness and developmental disability

22 specifically.

23

And I want to address his abilities to progress

24 through the leveling-out program, which is the heart of this

25 claim.

23

1

THE COURT: The heart of it is what do you expect the

2 DOC to do that they're not doing. They've done all kinds of

3 things for this guy. What are they not doing that they should

4 by law do for him to get him through the leveling-out program,

5 for example?

6

MS. DEWEY: Indeed. There is no evidence that DOC has

7 ever made modifications to the leveling-out program to

8 accommodate Mr. Sardakowski's disabilities.

9

THE COURT: Well, they sure have. They created this

10 RTP after the OMI program so that people with mental illness

11 would have a route out or --

12

MS. DEWEY: It helps here --

13

THE COURT: -- into general population that isn't

14 available. That's the irony of your claim. They put him in a

15 program that's designed for mentally ill people. They in that

16 sense discriminated in his favor, right?

17

MS. DEWEY: There's a couple issues with that. For

18 one thing, there are leveling-out programs for people who are

19 not mentally ill in CSP. However, it helps to think of the

20 residential treatment program as serving essentially two

21 functions. One function is purportedly to provide

22 mental-health treatment as a mental-health treatment program.

23 The other function is as a leveling-out program, for inmates

24 with mental illness.

25

The -- Mr. Sardakowski's first claim for inadequate

24 1 mental-health treatment goes to the RTP's first function as a

2 mental-health treatment program. His ADA claim goes to its

3 function as a leveling-out program. And there's record

4 evidence before the Court that Mr. Sardakowski's mental

5 impairments render him unable to successfully participate in

6 the leveling-out aspect of the program regardless of the fact

7 that he is mentally ill and may be participating in the

8 mental-health treatment aspects of the program. There's record

9 evidence before the Court that he simply cannot exert control

10 over his behavior for the time periods necessary to progress

11 out.

12

For example --

13

THE COURT: Well, if that's the case, then how do you

14 expect the Court to put him in general population? Wouldn't I

15 be doing something that would be totally arbitrary and

16 capricious if I did that, if he can't control his behavior?

17

MS. DEWEY: It helps to understand what some of these

18 behavioral requirements are. And I'll just give you an

19 example. At one point he worked his way up to level 3 in the

20 RTP program, and one day he failed to clean his cell. He was

21 regressed back to level 1, back to day 1 of the program. It

22 was not an issue of a violent infraction. It was, it was an

23 infraction. But it served to send him all the way back to

24 step 1 where all of the progress that he had made over weeks or

25 months was lost at that point; and given his mental

25 1 impairments, when he goes back to step 1 after something like

2 that, he's just unable to conceptualize and comply with these

3 long-term goals for behavior, knowing that if he makes a

4 mistake at any step along the way, he may be back to square

5 one, and indeed that's happened to him several times.

6

He's cycled through this program, back in OMI, he was

7 up to level 5, he was regressed. He would go back up to

8 level 4, he was regressed. It's a cycle that he just can't

9 escape, given his mental impairments. And at a minimum --

10

THE COURT: What does the Court do about it then? He

11 gets up to level 4, level 5 and he goes back because of his

12 behavior. How can I fix that?

13

MS. DEWEY: There are several reasonable modifications

14 that could be made to the program. In order to accommodate his

15 disabilities. One modification would be to give him concrete,

16 short-term behavioral goals with frequent feedback. It

17 wouldn't require restructuring of the program. It would just

18 be giving him goals that he can understand. Instead of telling

19 him to have good behavior for a series of months, or years that

20 it would take to progress through all eight levels of the

21 program, it would be framing it in terms of days or weeks or

22 whatever is possible to do within the program.

23

THE COURT: They don't do that now, give them any

24 goals or feedback?

25

MS. DEWEY: Your Honor, there's record evidence that

26 1 they don't. He doesn't know what his goals are. The RTP

2 policy provides for targeted behavioral goals. I think that's

3 the term they use. And they claim that they use that for, to

4 sort of facilitate this progression process. Mr. Sardakowski

5 doesn't know what his goals are. No one has discussed it with

6 him.

7

It's very similar to the situation with the treatment

8 plan. He simply doesn't know on the one hand what's expected

9 of him other than very vague goals which are listed in some of

10 his treatment plans, such as decreased anger. And he doesn't

11 know how to do that. And so he is just at this point stuck in

12 a cycle where he can't get out because he's not able to comply

13 with the requirements of the program. Given his disabilities.

14

At a minimum, it's a fact dispute. About, first of

15 all, the extent to which his mental impairments affect his

16 ability to progress through the program. And about the

17 modifications that are necessary in order to allow him to

18 progress through the program.

19

A second modification might be not regressing him all

20 the way back to square one when he makes a mistake. So, for

21 example, on level 3, when he doesn't clean his cell, perhaps it

22 would look like working with him to address that specific

23 issue, well, keeping him on level 3 or perhaps only regressing

24 him to one level. These are all details that will need

25 testimony from expert witnesses as to what Mr. Sardakowski in

27 1 particular needs given his disability. And testimony from DOC

2 as to what's possible within the residential treatment program.

3

THE COURT: Well, should he be treated better than

4 other people with mental illness?

5

MS. DEWEY: The DOC as a state entity has a -- is

6 required to comply with the ADA.

7

THE COURT: Well, yes, everybody's required to comply

8 with the ADA. Even courts are.

9

MS. DEWEY: The ADA does impose an affirmative

10 requirement to make reasonable modifications to programs that

11 allow individuals with disabilities to participate.

12

THE COURT: Right, but my question was should he be

13 treated better than other people with mental illness who are

14 there in the RTP program.

15

In other words, you say he shouldn't be regressed all

16 the way back to level 1. Doesn't that give him preferential

17 treatment over somebody else who gets regressed back to

18 level 1?

19

MS. DEWEY: I think this goes to the heart of what the

20 ADA requires, which is that it's not about preferential

21 treatment. It's about accommodation for someone with

22 disabilities. And so other people may be able to successfully

23 progress through the program because they don't have the same

24 mental impairments that Mr. Sardakowski does. I don't have --

25 there isn't record evidence about whether other people are able

28 1 to comply with the program.

2

There is record evidence that Mr. Sardakowski in

3 particular, given his particular mental impairments, is unable

4 to participate in the program. And it also goes to the fact

5 that not all mental illness is the same. You could imagine a

6 program called the disability program where you have people in

7 wheelchairs and people with hearing disabilities and that

8 program might work really well for the people with hearing

9 disabilities but not so well for the people with -- in a

10 wheelchair. And so the simple fact is that Mr. Sardakowski may

11 be the person in the wheelchair who the program doesn't work

12 for him because of his particular form of mental illness and

13 his particular developmental disability.

14

At a minimum, there's a dispute of fact about what he

15 needs, whether he's able to progress through this program

16 without accommodations and if he needs those reasonable

17 modifications, what those reasonable modifications would look

18 like.

19

Defendants simply have not met their burden on summary

20 judgment of showing the absence of a triable fact under the

21 ADA.

22

Defendants in their reply -- or perhaps in their

23 motion argue that they are entitled to summary judgment on Mr.

24 Sardakowski's ADA claim because of their assertion that he has

25 not requested accommodations. And there are a couple issues

29 1 here. First of all, whether Mr. Sardakowski has requested

2 modifications to leveling-out programs is itself a dispute of

3 material fact. There's evidence before the Court on summary

4 judgment that shows he did request modifications.

5

THE COURT: And got most of them granted, right?

6

MS. DEWEY: He has had accommodations for other

7 disabilities granted; for example, for his hearing disability.

8 But he's filed grievances requesting modifications to the

9 level-out programs that were denied. And those grievances were

10 specifically related to this claim. Grievances about the

11 inability to progress through the program because of his

12 disabilities and requesting that DOC make reasonable

13 modifications, and those requests were denied.

14

THE COURT: Don't you think there's some limits to how

15 much a court should get itself involved in running a prison?

16

MS. DEWEY: Your Honor, courts -- I believe the

17 Supreme Court has stated in Brown v. Plata that when there is a

18 constitutional violation, courts may not allow constitutional

19 violations to continue simply because a remedy would involve

20 intrusion into the realm of prison administration. Indeed

21 there are -- these are complicated issues. However, there are

22 certainly issues -- it is the Court's role to determine if

23 there is a constitutional violation and if there is such a

24 violation, it is the Court's role to provide a remedy. And to

25 provide relief.

30

1

In this situation, there are numerous disputes of fact

2 about the elements of each of these claims. And defendants

3 have not met their burden in showing the absence of a dispute

4 of fact. If indeed this goes to trial and the Court finds in

5 plaintiff's favor, we can certainly examine what particular

6 kinds of remedies might be necessary at that point. At this

7 point there's simply not record evidence before the Court as to

8 what specific relief would look like without testimony of

9 experts, without input from DOC. However, the Supreme Court

10 has made clear that the Court's role is to remedy

11 constitutional violations and that they cannot avoid that role

12 simply because it involves intrusion into the realm of prison

13 administration.

14

And finally, I'd just like to return to the situation

15 at hand --

16

THE COURT: You're getting some help from your buddies

17 there.

18

MS. DEWEY: Yes, I am.

19

THE COURT: They pass you notes which are sort of

20 helpful and sort of not.

21

MS. DEWEY: Some of them are. Some of them aren't.

22 But I do appreciate them.

23

We have here Mr. Sardakowski who defendants admit is

24 seriously mentally ill. He's been in isolation for four years.

25 He's engaging in continuing self-mutilation. And record

31 1 evidence shows that he's not receiving treatment for it.

2

In a case such as this, there are disputes of material

3 fact as to whether Mr. Sardakowski has received adequate

4 treatment and as to whether he is still in solitary confinement

5 as to whether defendants have discriminated against him on the

6 basis of his disabilities. Defendants simply have not met

7 their burden to show that there are no factual disputes as to

8 the elements of any claim. And the disputes of material fact

9 on all four claims should preclude summary judgment.

10

Thank you.

11

THE COURT: Thank you, Ms. Dewey.

12

Mr. Alber.

13

MR. ALBER: Thank you, Your Honor.

14

I think really at the heart of this case, the case

15 that is just weeks upon trial, really is the issue of reform

16 and the reform that started with Mr. Clements, as the Court

17 pointed out, and is no doubt continuing on with Mr. Raemisch.

18 Certainly the Court has seen Mr. Raemisch's article in the New

19 York Times, and as I understand it, is currently, today,

20 testifying in front of some committee in Congress in Washington

21 about his experience. So that he can try to further reform the

22 Department in what is known as administrative segregation.

23

What will go --

24

THE COURT: And I totally applaud everything he's

25 doing. I think it's great. Truly great.

32

1

MR. ALBER: Worst --

2

THE COURT: But I still have to decide this case.

3

MR. ALBER: Sure.

4

And one of the major issues that will go in front of

5 this Court at trial, if it were to go to trial, is the

6 existence of the RTP program. What that represents in the

7 direction the Department is headed, what it represents for

8 mentally ill offenders, what it represented for mentally ill

9 offenders formally contained and confined in administrative

10 segregation.

11

The RTP program was a program that was designed to

12 address the very issue that they're complaining about, which is

13 the presence of mentally ill offenders within administrative

14 segregation. The program itself isn't without fault. It's

15 certainly not perfect at this point. It's ever changing, as

16 many programs often do, especially something of this magnitude.

17 Certainly there are some mistakes made along the way, are some

18 group sessions canceled due to other issues within the prison

19 that dictate that they be canceled? Sure. But the overall --

20

THE COURT: Well, if they have to be canceled for

21 other reasons, it's not a mistake, is it?

22

MR. ALBER: No, no. And that would not be a mistake,

23 but that's certainly one criticism here.

24

THE COURT: But the one thing that they pointed out

25 that's really concrete is an alleged discrepancy between what

33 1 is happening and what the policy is in terms of individual

2 sessions.

3

MR. ALBER: Certainly early on within the RTP program

4 and certainly it's not at issue that this program does focus

5 its resources more on group therapy rather than individual

6 therapy.

7

THE COURT: But if they have a policy that says

8 somebody needs individual sessions and was it Lampela that said

9 once a week and they're not giving individual sessions, then

10 isn't there a triable issue right there?

11

MR. ALBER: There hasn't been an issue here, and I

12 think that was a misstatement that offenders within the RTP

13 program are required to have individual therapy once a week.

14 It varies depending on the mental-health needs of the offender.

15

Certainly along the line when Mr. Sardakowski was

16 first admitted in the RTP program, there was a, a period of

17 time where he was not seen for individual therapy. Some of

18 that had to do with his refusal, some it had to do with other

19 issues. Some of those issues have not ironed out. He is

20 seeing mental health on an individual basis. In fact, most

21 recently on February 10, spent an hour seeing his primary

22 clinician. The clinician that the Court granted will testify

23 at trial just this morning. She saw him for individual session

24 most recently on February 10.

25

There are many things that she says Mr. Sardakowski

34 1 relayed within that --

2

THE COURT: Who is this clinician?

3

MR. ALBER: Her name is Dr., Dr. Diaz.

4

THE COURT: Ah. That's the one we had the little flap

5 about just endorsed.

6

MR. ALBER: Yes, we did.

7

And we'll get to talk with Dr. Diaz and the Court, if

8 this continues on, will be able to hear what she has to say

9 about the treatment she's providing, what Mr. Sardakowski says

10 about that treatment, and going forward what she is willing and

11 capable of doing.

12

THE COURT: When was he put in the RTP program and

13 transferred over to Centennial?

14

MR. ALBER: Roughly in February of last year.

15

THE COURT: So it's been a year.

16

MR. ALBER: It has been.

17

THE COURT: But the individual therapy session was

18 today? Or, no, not today, February 10.

19

MR. ALBER: It was early this month, and that was just

20 the most recent session.

21

And again, certainly --

22

THE COURT: They're claiming he didn't get any, and

23 you're claiming he did.

24

MR. ALBER: I'm claiming that there may be, there are

25 circumstances surrounding at this point what had happened in

35 1 the past.

2

THE COURT: Well, if he refused --

3

MR. ALBER: Certainly.

4

THE COURT: -- it's pretty hard to blame your people

5 for that.

6

MR. ALBER: I would agree.

7

I think the focus of this case and the trial shouldn't

8 necessarily be focused on so much of the history, the

9 mental-health treatment history that Mr. Sardakowski has had.

10 Certainly the Court mentioned that he has had lengthy

11 treatment, but where he is now and going forward what he could

12 be doing.

13

Mr. Sardakowski is in a program obviously specifically

14 designed for someone like him. It was the Department's

15 decision to place him there because they thought that might be

16 the best place for him rather than maybe general population or

17 maybe even in a DD program that was mentioned earlier where he

18 had had a stint in those programs and it was unsuccessful.

19

He certainly is in a place where the Department feels

20 he is best suited. He is engaging in treatment. He's engaging

21 in group treatment. He is proceeding along and apparently

22 doing fairly well. At the time of the filing of the motion, he

23 was at level 4. Currently he's now at level 5. And these

24 aren't so much levels based upon just solely behavior. They're

25 levels -- the overall goal of the program is to focus on

36 1 treatment. Providing that treatment in a group therapy,

2 providing the tools for these offenders to use within their

3 life and in present in prison environment given their mental

4 illness. And it allows -- it's much like, much like school.

5 Before you go -- before you get out of first grade, you got to

6 finish first grade before you go to second. And you've got to

7 exhibit the skills you need to get out of first grade. The

8 same is true with the levels.

9

THE COURT: I'm not sure. I read all the time about

10 these people that graduate from high school that can't read.

11

MR. ALBER: Well, that's --

12

THE COURT: Also known as NFL football players.

13

MR. ALBER: Touche, Your Honor.

14

What this case has turned into is an assault upon the

15 very reform that's taking place. I don't believe that the

16 Department's shifting and reform and placing him into this

17 program, while certainly in a restrictive environment, I don't

18 believe it's the same living conditions as it was across the

19 street at the Colorado State Penitentiary for him. There were

20 certainly testimony and evidence within this record to show

21 that it is different. I don't believe it's the same.

22

But I think . . . I don't believe that his transition

23 into this program, while unperfect, the program is currently,

24 exhibits deliberate indifference, on either the first claim,

25 and certainly their second claim, relating to the solitary

37 1 confinement.

2

Further, I think it also speaks, this transition

3 speaks and really moots their ADA rehab act claim, in that he's

4 specifically placed into a program specifically designed to

5 treat these individuals where not all of the mental-health

6 resources of the Department are focused in this program.

7 Obviously there are other needs throughout, throughout the

8 state. Many of its institutions.

9

But the Department has chosen to transfer the OMI

10 program or the former OMI program out of an environment of

11 administrative segregation into another facility where they can

12 utilize the unique characteristics of that prison to better

13 facilitate growth and treatment for these individuals. It

14 becomes less restrictive. My position is not that this

15 environment is completely unrestricted like in certain general

16 population settings. That's not the case. But it's certainly

17 less restrictive than it was.

18

And to say that that constitutes deliberate

19 indifference is simply not the case. His transfer into this

20 program certainly, I believe, moots out his ADA claim as well

21 as their second Eighth Amendment claim. And the documentation

22 evidence that the Court already has shows the Department's

23 treatment of Mr. Sardakowski has certainly been anything but

24 deliberately indifferent.

25

THE COURT: Speaking of evidence that the Court

38 1 already has, don't the -- doesn't the plaintiff have a point

2 when they say Lish's affidavit doesn't really qualify because

3 it's not providing evidence from personal knowledge?

4

MR. ALBER: I don't believe so. Their expert,

5 Dr. Burns, is the, I guess the current chief of psychiatry in

6 the Ohio DOC. She saw Mr. Sardakowski for a period of three

7 hours. To do her examination. The vast majority of her

8 opinions, of her assessment of his treatment all come from a

9 medical record, the same as Dr. Lish. So I suppose what's good

10 for the goose is good for the gander, and if you're going to

11 disregard Dr. Lish's opinions and assessment of his treatment,

12 the same, I suppose, should be true for Dr. Burns.

13

So I don't -- within the medical community, a record

14 review and a forensic examination of the treatment is perfectly

15 acceptable within the field.

16

Other than that, I will rest on the motion and the

17 subsequent reply.

18

THE COURT: Okay. Thank you.

19

Any rebuttal.

20

MS. DEWEY: A short one.

21

Your Honor, this case is not an assault on the reform

22 efforts taking place. It is about a long history of failure to

23 treat Mr. Sardakowski. And accommodate his particular

24 disabilities. And instead choosing to hold him in long-term

25 solitary confinement. And now, on the eve of trial, the DOC

39 1 claims that reforms are taking place --

2

THE COURT: Well, they are taking place. It's not

3 just a claim. It's a fact.

4

MS. DEWEY: There is no evidence, however, before the

5 Court about what those reforms are, how they will be

6 implemented, and how they will specifically apply to

7 Mr. Sardakowski and whether indeed they will affect his

8 conditions at all. Specifically what the reforms that are

9 taking place for administrative segregation, that's a label

10 that's been removed from Mr. Sardakowski. He's no longer in

11 administrative segregation, according to the DOC. But the

12 record evidence shows that despite this label change, his

13 conditions remain the same.

14

So to the extent the reforms to administrative

15 segregation are taking place, there's simply no evidence that

16 those reforms will apply to Mr. Sardakowski.

17

THE COURT: Well, technically, if I just go by your

18 complaint, your second claim is to get him out of

19 administrative segregation. Technically, they did.

20

MS. DEWEY: The complaint does address long-term

21 solitary confinements. Administrative segregation was the term

22 that was used at that time. They have since created this new

23 program with conditions that are essentially the same as those

24 in administrative segregation.

25

THE COURT: Although they say they aren't.

40

1

MS. DEWEY: And that is a dispute of material fact,

2 Your Honor, that will have to be decided at trial. Defendants

3 have not --

4

THE COURT: She just won't let me push her over.

5

MS. DEWEY: I want to address a couple of the points

6 that defendants' counsel made. One is a recent meeting with a

7 clinician that Mr. Sardakowski has had or Mr. Sardakowski's

8 purported refusals to engage in therapy.

9

There's simply no evidence before the Court about

10 Mr. Sardakowski's recent treatment, first of all. And to the

11 extent that Mr. Sardakowski has met with a clinician recently,

12 there's certainly a dispute of fact still about whether a

13 single meeting in a whole year in the residential treatment

14 program constitutes adequate treatment; and we have no record

15 evidence about what happened during that treatment session,

16 whether the clinician addressed self-harm with Mr. Sardakowski.

17 Certainly there is still disputes of fact about adequacy of

18 treatment.

19

There's no evidence before the Court that

20 Mr. Sardakowski has refused treatment. It's certainly a fact

21 that we would dispute. However, it's not in evidence before

22 the Court on summary judgment.

23

Defendants' counsel also stated that Mr. Sardakowski

24 was placed in RTP which is a program designed for someone like

25 him. The residential treatment program has utterly failed to

41 1 provide any treatment for Mr. Sardakowski's most serious

2 mental-health needs, including self-harm. It certainly hasn't

3 provided any individualized treatment for him.

4

And turning to Mr. Sardakowski's second claim,

5 defendants' counsel stated that he does not believe the

6 conditions are the same. That's a factual dispute. There's

7 record evidence from plaintiffs, record evidence before the

8 Court on summary judgment that the conditions are the same. So

9 to the extent that that's disputed, defendants have not met

10 their burden in showing that there's an absence of a dispute of

11 fact.

12

And finally, I'd like to address the ADA claim.

13 Mr. Sardakowski's claim under the ADA is not about

14 mental-health treatment. It's about his inability to progress

15 through the leveling-out programs without reasonable

16 modifications, apart from mental-health treatment. The

17 modifications he seeks are not mental-health treatment.

18 They're modifications to address his particular inability

19 because of his impairments to comply with the long-term

20 behavioral requirements of the program.

21

On all of these issues, there are many disputes of

22 material fact. As to each of the -- as the elements of all

23 four of Mr. Sardakowski's claims. And these disputes of fact

24 should preclude summary judgment.

25

Thank you.

42

1

THE COURT: All right.

2

Thank you.

3

The Court, with some assistance from my law clerk, has

4 reviewed your briefs. Your very long briefs. But even though

5 they were quite long, they were interesting and helpful. And I

6 think your argument has been very good.

7

I would say two things about this case, just globally.

8 One, I think the plaintiffs have a difficult case. And it's

9 become more difficult as time has passed because the DOC -- and

10 this is a good thing -- is making some changes. And as they

11 make changes, potentially the things that you're complaining

12 about are getting addressed. Not to your satisfaction, but

13 you've got a tough case.

14

The other thing I would say and I'll say this to

15 everybody in the room, is Mr. Sardakowski is a very lucky man

16 to have you for his attorney. Were it not for your clinic,

17 this case probably would have been over a long time ago.

18

Turning to the issues. It's relatively clear to me

19 that summary judgment has to be denied. That is not to say

20 that I think the plaintiffs necessarily are going to get

21 everything they want or even anything they want, but it is to

22 say, as Miss Dewey kept reminding me over and over, that there

23 are fact disputes and there truly are.

24

For example, on count one, where they are attempting

25 to convince me that the DOC is deliberately indifferent to

43 1 Mr. Sardakowski, which is a tough row to hoe, a fairly obvious

2 fact dispute on the record that I've got concerns individual

3 therapy. There's a dispute as to whether he's gotten

4 individual therapy; if so, how much he's gotten; and even a

5 dispute as to whether or not the alleged lack of individual

6 therapy is contrary to the CDOC's own policies and contrary to

7 the testimony of their own medical people.

8

There's the dispute about the group sessions. The

9 indication is that they're canceled between a quarter and a

10 third of the time. Well, is that for true situations that are

11 actual needs, or might it indicate some prioritization that

12 puts these group therapy sessions too low.

13

There is the indication that during these group

14 sessions, often it's a group of inmates just sitting around

15 playing cards. I don't know whether that's therapeutic or not.

16 It doesn't sound like mental-health treatment to me, but I need

17 to hear from the professionals on that.

18

There is a dispute concerning whether Mr. Sardakowski

19 is on the one hand being punished for his self-mutilation

20 behavior or whether he is being treated appropriately for it.

21

There is a dispute about whether a lot of this

22 behavior is simply malingering and things that he's done in

23 order to try to accomplish something that he wants versus the

24 true product of mental illness.

25

So I think there are enough fact disputes that the

44 1 first claim goes to trial.

2

I also think the second claim goes to trial. He's not

3 in administrative segregation anymore. But the plaintiffs are

4 saying that's just a label change; in all reality he still is.

5 And the defendants are saying, no, there are a lot of things

6 that are different. For example, he gets to exercise now,

7 something that I've expressed some opinions on in the past.

8 And the response is they just put him in a little cage,

9 something I've also expressed opinions on in the past. But I

10 think there are enough disputes about what is or isn't his

11 condition now and whether he's been singled out because of his

12 mental illness that I have to take a look at it based on the

13 actual evidence at trial, not on these papers.

14

As far as the ADA and the Rehabilitation Act are

15 concerned, I sometimes wonder why plaintiffs need to burden an

16 otherwise constitutional case with these statutory claims; but

17 there appear to me to be some genuine disputes of fact here as

18 well. Basically what Ms. Dewey was saying was that the problem

19 is that he's disabled -- developmentally disabled and they're

20 treating his mental illness perhaps, but not his developmental

21 disability. And she claims that, for example, he ought to

22 receive specific concrete goals that he can understand.

23

Well, I don't know if he is or isn't. I wouldn't take

24 his word for it. But I would like to see the evidence. This

25 is somewhat similar to what the Tenth Circuit has already gone

45 1 through in the Toevs case six years ago. She is arguing that

2 it isn't appropriate to regress him all the way back to the

3 beginning because of his developmental disability that's not

4 being treated. There is a dispute as to whether he's gotten

5 developmental disability. There's a dispute as to whether or

6 not it's been properly accommodated.

7

And furthermore, because this is a trial to the Court,

8 not a trial to a jury, there's very little for me to gain by

9 dismissing part of it, because we're going to have a trial on

10 other parts. And it would always be my preference in a close

11 case to resolve the close case in favor of deciding cases on

12 trial evidence and not on papers.

13

And therefore the motion for summary judgment is

14 denied and we'll look forward to going to trial, unless you

15 folks can reach some resolution between now and then.

16

I think I ruled on the other -- if I haven't -- I

17 have, the other motions that were pending.

18

MR. WOODWARD: Your Honor, you did rule on the other

19 motions that were pending. We just had a couple of issues for

20 the trial prep conference.

21

THE COURT: Okay. Go ahead.

22

THE REPORTER: If you could go to the lectern, please.

23

MR. WOODWARD: Certainly.

24

Well, the first issue, we reached stipulations just

25 right before this conference with defendants' counsel, so we

46 1 will just file those this evening, as soon as we leave, unless

2 you want a copy of them right now, which I can --

3

THE COURT: No, thank you.

4

MR. WOODWARD: Okay.

5

Modifications to the witness list as well. We'll file

6 that later tonight. We will not be calling four of our five

7 may-calls.

8

THE COURT: Okay.

9

How many witnesses do you have?

10

MR. WOODWARD: So, seven that we will certainly call,

11 and one that we may call.

12

THE COURT: Okay.

13

How long is it going to take to put that evidence on?

14

MR. WOODWARD: We anticipate about 20 hours of

15 testimony. However, there are --

16

THE COURT: I don't think so.

17

MR. WOODWARD: Okay. So this brings me into a related

18 issue, which is we have some joint witnesses that we intend to

19 call in our case in chief and Mr. Alber will also call. So

20 obviously we don't want to be presumptive and tell defendants

21 how they would run their case, but we were wondering if maybe

22 defendants would do their direct of those witnesses so that

23 they only had to appear once.

24

THE COURT: We'll probably want to do that.

25

Won't you, Mr. Alber.

47

1

MR. ALBER: Yeah, I would agree. I think --

2

THE COURT: Makes sense.

3

MR. ALBER: -- any of the joint or common witnesses, I

4 would just handle.

5

THE COURT: Who are your witnesses?

6

MR. WOODWARD: So Mr. Sardakowski and in our -- this

7 is document 150 --

8

THE COURT: You should try to keep his testimony

9 relatively brief.

10

MR. WOODWARD: Okay. And we certainly will. And we

11 have five hours on there. We will try to keep it brief, and it

12 should go faster than that, depending on certain factors,

13 including his medication.

14

We also have Dr. Lampela, Kristin Robinson --

15

THE COURT: Dr. Lampela is somebody I've had in court

16 before.

17

MR. WOODWARD: Okay.

18

THE COURT: She's good.

19

MR. WOODWARD: Kristen Robinson, who is a former

20 clinician of Mr. Sardakowski's. Kellie Wasko. Dr. Burns, who

21 Mary talked about. Angel Medina, who is another Department of

22 Corrections employee, and Dr. Greg Haney, who is our other

23 expert.

24

THE COURT: Okay.

25

MR. WOODWARD: And we have one may-call, Dr. Suzanne

48 1 Pinto.

2

THE COURT: Well, when I say 20 hours is unrealistic,

3 it really is. You need to try to get your case on in a couple

4 of days, if you can.

5

MR. WOODWARD: Okay.

6

THE COURT: And that includes cross.

7

How much time did we allocate for this case?

8

MR. WOODWARD: Five days, Your Honor.

9

THE COURT: Okay.

10

MR. WOODWARD: So then, that leads into one other

11 issue, which is Dr. Haney. You had granted a motion to allow

12 Dr. Haney to testify via televideo conference. Dr. Haney is

13 actually going to be in Guam working on a capital case at that

14 time. Due to the international date line, Guam is 17 hours

15 ahead of us. So we have arranged for Dr. Haney to testify at

16 6 a.m. on March 21 for him, which would be 1 p.m. March 20 for

17 us. So that is Thursday after lunch of the trial week, and we

18 know, we anticipate that certainly is going to be out of order,

19 so we wanted to ask the Court's permission to have him testify

20 to that then.

21

THE COURT: Do we have something else Thursday at

22 one o'clock?

23

THE COURTROOM DEPUTY: I'm sure we do.

24

THE COURT: Which Thursday is it?

25

MR. WOODWARD: Thursday, March 20.

49

1

THE COURTROOM DEPUTY: We actually have another trial.

2

THE COURT: Which trial is that?

3

THE COURTROOM DEPUTY: Capra.

4

THE COURT: The third week of it.

5

Second week?

6

THE COURTROOM DEPUTY: Second week of it.

7

THE COURT: Well, we may have to do a little juggling.

8

MR. WOODWARD: So that's a trial scheduled during the

9 same time that we have this trial scheduled.

10

THE COURT: I think the Capra case is starting on

11 Monday, but they're set for three weeks. It's a criminal case

12 that's a tax case. We'll see if they actually go to trial. If

13 they go to trial and they claim they need three weeks, they'll

14 probably need two weeks. So we may be late getting started on

15 your case. But don't worry, we'll accommodate your Guam

16 expert.

17

MR. WOODWARD: Okay. Thank you very much, and I hate

18 to bring up one more small wrinkle with Dr. Haney which is

19 testifying at 6 a.m., we anticipate he might have trouble

20 getting to a televideo conference center or a courthouse or

21 something, so we were going to ask the Court's permission to

22 have him testify via Skype.

23

THE COURTROOM DEPUTY: We don't have that capability.

24

THE COURT: I don't know how we would do that.

25

MR. WOODWARD: We would plug one of our computers in

50 1 and have it run through one of our laptops.

2

THE COURT: And we all gather around the table and

3 look at your laptop?

4

MR. WOODWARD: I was anticipating that it would come

5 up on a screen, but in the alternative --

6

THE COURT: No.

7

Will it?

8

THE COURTROOM DEPUTY: If they use their system, they

9 should be able to do it. I just know from the court's side, we

10 don't do it. We're not allowed to use Skype within our system.

11 Whether it's a security issue or not, I was just told by IT

12 that we're not allowed to bring it up on our computers.

13

THE COURT: But does that mean he can or can't put it

14 on our screens?

15

THE COURTROOM DEPUTY: I believe as long as it's on

16 their laptop and they have the capability, we don't have Wifi

17 or anything, so you'd have to have a card, an Internet card to

18 do it.

19

MR. WOODWARD: Okay.

20

THE COURTROOM DEPUTY: But I believe that's still --

21 it's new for me, Your Honor.

22

THE COURT: Well, if it's new for you, what you do

23 think it is for me.

24

THE COURTROOM DEPUTY: I'm sure we can make to work.

25

THE COURT: I had to look at a video the other day for

51 1 a case, and I ran into a problem right away. I had to have my

2 law clerk come into my office and show me how to put the

3 cassette in my computer. So that's what you're dealing with.

4

MR. WOODWARD: And we'll go above and beyond to make

5 sure that we make it work on our side, Your Honor.

6

THE COURT: Okay. We'll keep you up to date as best

7 we can on what's going on with the Capra case and whether that

8 means we have to delay the start of this case.

9

MR. WOODWARD: Certainly, and we appreciate that. And

10 just one more thing which is demonstratives. We've disclosed

11 all the underlying data to defendants for demonstratives. We

12 don't have the demonstratives put together. We anticipate

13 having three or four of them. And we have just proposed to

14 defendants to have those finished and exchanged a week before

15 trial and we wanted to ask the Court if that was okay.

16

THE COURT: Fine with me, if it's okay with Mr. Alber.

17

MR. ALBER: That's okay, Your Honor.

18

MR. WOODWARD: Then that's all I have related to the

19 trial preparation, Your Honor.

20

THE COURT: Okay.

21

Anything else?

22

MR. ALBER: Your Honor, I just have one small issue.

23

THE COURT: Okay.

24

MR. ALBER: One of the motions the Court granted this

25 morning or earlier today was plaintiff's motion to amend the --

52

1

THE COURT: To do what?

2

MR. ALBER: Was plaintiff's motions to amend the

3 exhibit list, to add some more, more of the current updated

4 mental-health records.

5

THE COURT: They put that it was unopposed.

6

MR. ALBER: It was.

7

THE COURT: Okay.

8

MR. ALBER: However. They were seeking just to add

9 some of those exhibits to their list. I would seek the same,

10 to add all of the records to the defendants' exhibits. To the

11 extent that they're not joint exhibits.

12

THE COURT: Well, they couldn't very well oppose that,

13 could they.

14

MR. ALBER: No. And I believe they represented that

15 they don't. I just wanted to address it with the Court or at

16 least question whether I should file a written motion.

17

THE COURT: No. You're fine.

18

MR. ALBER: Okay. Thank you.

19

THE COURT: Anything else?

20

MR. WOODWARD: Nothing more from plaintiff, Your

21 Honor.

22

THE COURT: Okay.

23

See you at trial.

24

(Recess at 3:22 p.m.)

25

REPORTER'S CERTIFICATE

53

1

I certify that the foregoing is a correct transcript

2 from the record of proceedings in the above-entitled matter.

3 Dated at Denver, Colorado, this 20th day of March, 2014.

4

5

s/Kara Spitler_________________

Kara Spitler

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

 
 Case 1:12-cv-01326-RBJ-KLM Document 1 Filed 05/21/12 USDC Colorado Page 1 of 13
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No.

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A. PARTIES

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At the time the clai~~) alleged in this complaint arose, was this defendant acting under color of state law? ~Yes _No (CHECK ONE). Briefly explain your answer:
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(If you are suing more than three defendants, use extra paper to provide the information requested above for each additional defendant. The information about additional defendants

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(Rev. 1130/07)

2

Case 1:12-cv-01326-RBJ-KLM Document 1 Filed 05/21/12 USDC Colorado Page 3 of 13
B. JURISDICTION 1. I assert jurisdiction over my civil rights claim(s) pursuant to: (check one if applicable)
~ 28 U.S.C. § 1343 and 42 U.S.C. § 1983 (state prisoners)
28 U.S.C. § 1331 and Bivens v. Six Unknown Named Agents ofFed. Bureau of Narcotics, 403 U.S. 388 (1971) (federal prisoners) 2. I assert jurisdiction pursuant to the following additional or alternative statutes (if any):

C. NATURE OF THE CASE

BRIEFLY state the background of your case. If more space is needed to describe the nature of

the case, use extra paper to complete this section. The additional allegations regarding the nature

ofthe case should be labeled "C. NATURE OF THE CASE."

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D. CAUSE OF ACTION
State concisely every claim that you wish to assert in this action. For each claim, specify the right that allegedly has been violated and state all supporting facts that you consider important, including the date(s) on which the incident(s) occurred, the name(s) of the specific person(s) involved in each claim, and the specific facts that show how each person was involved in each claim. You do not need to cite specific cases to support your claim(s). If additional space is needed to describe any claim or to assert more than three claims, use extra paper to continue that claim or to assert the additional claim(s). The additional pages regarding the cause of action should be labeled "D. CAUSE OF ACTION."

1. Claim One:

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3. Claim Three: D~ /1 ber0--te- ~,-" d: EFu e,_ o ct.
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E. PREVIOUS LAWSIDTS
Have you ever filed a lawsuit, other than this lawsuit, in any federal or state court while you were incarcerated? _j{ Yes _No (CHECK ONE). If your answer is "Yes," complete this section of the form. If you have filed more than one lawsuit in the past, use extra paper to provide the necessary information for each additional lawsuit. The information about additional lawsuits should be labeled "E. PREVIOUS LAWSUITS."
1. Narne(s) of defendant(s) in prior lawsuit:

2. Docket number and court name:

3. Claims raised in prior lawsuit:

4. Disposition of prior lawsuit (for example, is the prior lawsuit still pending? Was it dismissed?):

5. If the prior lawsuit was dismissed, when was it dismissed and why?

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1. Is there a formal grievance procedure at the institution in which you are confined? $Yes _No (CHECK ONE).

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T 1 A CHMEN --r

7~515 HE~H Case 1:12-cv-01326-RBJ-KLM Document 1 Filed 05/21/12 USDC Colorado Page 12 of 13

03/05/2012 22:54

.

BEHAVIORAL

PAGE 04/07

TELE-MEO FOLLOW-UP

---ARTMENT; OF CORRECTION!' AMBULATORY HEALTH RECORD

SARDAKOWSKI, JAMES R

-=---=------ I i.JBJ"ECTIVE

.... .. -,=-"'::;:7=-:::-1

ctive.MEKlication(s): ACETAMINOPHEN- 500MG- TAKE 2

Temperature:

Pulse:!

ABLET(S) BY MOUTH TWICE DAILY AS NEEDED CRUSH NO FLOAT.;

Resplratory:.-L.=~~:___B_P::I_-_--

DOCUSATE - 1OOMG - TAKE 1 CAPSULE($) BY MOUTH TWICE DAILY.;

FLUNISOLIDE- 0.025%- USE 2 SPRAY($) IN BOTH NOSTRILS TWICE DAILY.;
LEVOTHYROXINE ~ 25 MCG- TAKE 1 TABLET(S) BY MOUTH ONCE DAILY IN THE MORNING.;

PLANS I ORDERS llergfes: CEPHALEXIN/KEFLEX; CETIRIZINEJZYRTEC; THORAZINE INJ ML/CHLORPROMAZINE INJ

PANCRELIPASE- 5000 UNIT- TAKE 1 CAPSULE($) BY

MOUTH TWICE DAILY BEFORE MEALS.;

PSYLLIUM FIBER- 0.52 GM- TAKE 3 CAPSULE(S) BY

MOUTH TWICE DAILY WITH MEALS.

Off psychiatric meds due to hoarding Seroquel and Artane.

He has been tying stuff around his testes as acts of self harm.

His mood has been down and depressed. Sleep has been

poor. Energy is normal. Appetite has been poor (forces self

to eat.) Concentration is poor. Future outlook - "I have no

future; we're all dead." NoAH or VH. MH clinician reports

_--=--·· irritability and hostility at times (none during this interview.)

He feels angry all the time; feels like hurting people.

NOAeDJE__C,__T_IVE__-.-.·--,·_-' __ . .

_ ..

--

NEW - Rx#: 2900293 Drug Name: HALOPERIDOL- 1MG Alternate
ame: HALDOL Rx Oate: 03101312012 Oisc Date: 09/02/2012 Rx tructions: TAKE 1 TABLET(S) BY MOUTH TWICE DAILY CRUSH AND
LOAT.
EW: K'ite#: 1959632 For PSYCHIATRY~ RETURN TO CLIN;c:---- .... SIGNED TO PSYCHIATRY- Return to Clinic: 04/05/2012 ·Generated by ~aff. " Return to Clinic Date: 0410512012

1\lert
Neatly dressed; appropriately groomed Speech clear, fluent with nl r/r/v/t
\formal psychomotor activity; in restraints per SEG protocol '~liomoitdeddoowb/sirerritvaabtlieo;nAvfiafectetleflavtideo) rp concrete; organiled; goal
rc no AVH, no delusions
/J poor and impulsive
Offender able to weigh risks and benefits of informing vs not nforming staff of SIIHI or psychotic symptoms.) .ASSN/A
ASSESSMENr-·
~xis 1:·- MoOd disorder N6s;H"x of PSD ·
I.Xis II: (primary) ASPD; Borderline PO; Borderline IF iis hx of medication abuse has created an obstacle to tppropriate psychiatric treatment. He has been
D ecommended transfer to more structured psychiatric setting
~he deteriorated, but he is still at CSP for now. Considered ,orazine for mood stability and control of agtitation. Further :~view of chart showed allergy. Will switch to Haldol and
D ave nursing advise offender of need for change. Will try to
rush and float, but he has hoarded this form in the past, too. 70.2- OTH&UNSPEC GENERAL PSYC EXAMINATION

Datetlme: 03/06/2012 09:11

AINP/RD - - - - - - - - - PHYSICIAN

/J.,..,.

)atetime: 03/0612012 09:11

Provider: jSIWOER, KEVIN K

Case 1:12-cv-01326-RBJ-KLM Document 1 Filed 05/21/12 USDC Colorado Page 13 of 13

G. REQUEST FOR RELIEF

State the relief you are requesting. If you need more space to complete this section, use extra

paper. The additional requests for relief should be labeled "G. REQUEST FOR RELIEF."

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DECLARATION UNDER PENALTY OF PERJURY
I declare under penalty of perjury that I am the plaintiff in this action, that I have read this
complaint, and that the information in this complaint is true and correct. See 28 U.S.C. §
1746; 18 u.s.c. § 1621.
Executed on (Dilte)
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(Rev. 1130/07)

8

 
 Case 1:12-cv-01326-RBJ-KLM Document 62 Filed 11/19/12 USDC Colorado Page 1 of 37
FILED UNITED STATES DISTRICT COURT
DENVER, COLORADO
11/19/12 IN THE UNITED STATES DISTRICT COURTJEFFREY P. COLWELL, CLERK
FOR THE DISTRICT OF COLORADO Civil Action No. 12-cv-01326-RBJ-KLM JAMES SARDAKOWSKI,
Plaintiff, v. TOM CLEMENTS, in his official capacity as Director of Colorado Department of Corrections; JOANIE SHOEMAKER, in her official capacity as Deputy Director of Prisons, Clinical Services for Colorado Department of Corrections; PAULA FRANTZ, in her official capacity as Chief Medical Officer for Colorado Department of Corrections; TRAVIS TRANI, in his official capacity as Warden of Colorado State Penitentiary; JAMES MICHAUD, in his official capacity as Mental Health Program Administrator for Colorado Department of Corrections; JILL LAMPELA, in her official capacity as Behavior Health Supervisor for Colorado State Penitentiary; and STATE OF COLORADO, DEPARTMENT OF CORRECTIONS,
Defendants.
PLAINTIFF’S AMENDED COMPLAINT
Plaintiff James Sardakowski, who is incarcerated in the Colorado State Penitentiary in Cañon City, Colorado, submits this Amended Complaint for violations of his rights under the Eighth Amendment to the United States Constitution, the Americans with Disabilities Act, and the Rehabilitation Act.
2

Case 1:12-cv-01326-RBJ-KLM Document 62 Filed 11/19/12 USDC Colorado Page 2 of 37
NATURE OF THE CASE 1. Mr. Sardakowski suffers from severe mental illness and has a developmental disability. He is
currently incarcerated in administrative segregation (solitary confinement) at Colorado State Penitentiary. 2. Since his incarceration beginning in September 2006, Mr. Sardakowski has been denied adequate mental health treatment including, but not limited to, denial of appropriate and necessary medication. As a result, Mr. Sardakowski has engaged and continues to engage in escalating self-injurious behaviors including multiple attempts at castration and suicide. Mr. Sardakowski’s mental health has deteriorated and continues to deteriorate as a result of the Defendants’ provision of inadequate mental health treatment. 3. Despite recommendations of Colorado Department of Corrections (CDOC) psychiatrists and CDOC’s knowledge that prolonged isolation exacerbates symptoms of severe mental illness, CDOC refuses to transfer Mr. Sardakowski to an appropriate facility. 4. CDOC has discriminated against Mr. Sardakowski on the basis of his mental illness and developmental disability by failing to provide him with reasonable accommodations that would enable him to progress out of administrative segregation.
PARTIES 5. Plaintiff JAMES SARDAKOWSKI is, and was at all times relevant herein, a citizen of the
United States. Mr. Sardakowski has been a prisoner confined in CDOC since October 2006. Mr. Sardakowski suffers from severe mental illness and has a developmental disability. Each of these conditions substantially limits several of his major life activities, including, but not limited to, learning, concentrating, thinking, impulse control, pursuing long-term goals, and
3

Case 1:12-cv-01326-RBJ-KLM Document 62 Filed 11/19/12 USDC Colorado Page 3 of 37
interacting with others. Mr. Sardakowski also has a record of such impairments and is regarded by Defendants as having such impairments. 6. Defendant TOM CLEMENTS is the Executive Director of CDOC and as such, is responsible for the custody and care of Mr. Sardakowski and all prisoners in CDOC. He oversees all employees in CDOC, and has authority to establish, alter, and implement all policies and procedures within CDOC. 7. Defendant JOANIE SHOEMAKER is the Deputy Director of Prisons, Clinical Services for CDOC and as such, is responsible for setting and reviewing policies for mental health treatment programs and services. 8. Defendant PAULA FRANTZ is the Chief Medical Officer for CDOC and as such, oversees the health care policy that governs the delivery of health care services to prisoners in CDOC. 9. Defendant TRAVIS TRANI is the Warden of Colorado State Penitentiary (CSP) and as such, is responsible for the custody and care of Mr. Sardakowski, and all prisoners in CSP. He oversees all employees at CSP, and has authority for the establishment and implementation of all policies and procedures at the institution. 10. Defendant JAMES MICHAUD is the Mental Health Program Administrator for CDOC and as such, oversees the clinical mental health programs. He supervises clinical staff and is responsible for mental health policies and treatments. 11. Defendant JILL LAMPELA is the Behavior Health Supervisor for CSP and as such, oversees and manages the Offenders with Mental Illness (OMI) program at CSP. 12. Defendant COLORADO DEPARTMENT OF CORRECTIONS is a department of the State of Colorado. The Department is responsible for all prisoners in the state’s prison population.
4

Case 1:12-cv-01326-RBJ-KLM Document 62 Filed 11/19/12 USDC Colorado Page 4 of 37
The Department receives and benefits from federal financial assistance as that term is used in 29 U.S.C. § 794 through the Prison Rape Elimination Act and other sources.
JURISDICTION AND VENUE 13. This Court possesses subject matter jurisdiction over Plaintiff’s claims pursuant to 28 U.S.C.
§§ 1331 and 1343. 14. Venue of this action is proper in the District of Colorado under 28 U.S.C. § 1391(b). Mr.
Sardakowski is currently incarcerated in the Colorado Department of Corrections, and the events giving rise to his claims occurred in facilities in the state of Colorado.
FACTS Mr. Sardakowski has a long history of serious mental illness and a developmental disability. 15. Mr. Sardakowski is a 26-year old native of Colorado. He is serving an 18-year sentence in
the Colorado Department of Corrections. Mr. Sardakowski is currently incarcerated at the Colorado State Penitentiary (CSP) in Cañon City, Colorado. 16. Mr. Sardakowski had a nightmarish childhood. He was raped by his brother at the age of four and was the victim of ongoing sexual, physical and psychological abuse throughout his childhood. These instances of abuse were a source of great trauma for Mr. Sardakowski. 17. In addition to trauma from victimization, Mr. Sardakowski has struggled with mental illness throughout his life. His CDOC record indicates that he attempted suicide on multiple occasions. He began receiving treatment for mental illness at age five. 18. At age eleven, Mr. Sardakowski was placed in a children’s psychiatric hospital to be stabilized with psychiatric medication.
5

Case 1:12-cv-01326-RBJ-KLM Document 62 Filed 11/19/12 USDC Colorado Page 5 of 37
19. Mr. Sardakowski was hospitalized at Fort Logan Mental Health Center in 1998, at age twelve, for evaluation and treatment of a number of psychiatric symptoms. Records from his time at Fort Logan indicate that Mr. Sardakowski “has serious deficits in reality testing.”
20. Records of Mr. Sardakowski’s stay at Fort Logan are contained in CDOC’s medical record for Mr. Sardakowski.
21. CDOC’s mental health record for Mr. Sardakowski indicates that at various points he has been diagnosed with Schizophrenia, Psychotic Disorder NOS, Depression with Psychotic Features, Post Traumatic Stress Disorder, Chronic Depression, Attention Deficit Hyperactivity Disorder, Mood Disorder NOS, Polysubstance Dependence, Antisocial Personality Disorder, and Borderline Personality Disorder. Mental health staff at CSP also have opined that Schizoaffective Disorder may be an appropriate diagnosis for Mr. Sardakowski.
22. Mr. Sardakowski’s CDOC mental health record indicates that he has a developmental disability. His Full Scale IQ has been measured with varied results including Mild Mental Retardation and Borderline Intellectual Functioning. Mr. Sardakowski’s CDOC medical record also refers to a likely diagnosis of Fetal Alcohol Syndrome.
Incarceration at San Carlos Correctional Facility, Colorado Territorial Correctional Facility, and Sterling Correctional Facility 23. In September 2006, Mr. Sardakowski was sentenced to 18 years in prison. The judge in Mr.
Sardakowski’s sentencing hearing strongly recommended that he be placed at San Carlos Correctional Facility (“San Carlos”).
6

Case 1:12-cv-01326-RBJ-KLM Document 62 Filed 11/19/12 USDC Colorado Page 6 of 37
24. CDOC’s website describes San Carlos as serving “the Colorado Department of Corrections by successfully providing specialized treatment, care, and programming to mental health special need male offenders in a level V Correctional Facility.”
25. Mr. Sardakowski’s CDOC medical record states that he was referred to San Carlos because he was not stable on medication and was responding poorly to medication. Additionally, mental health staff noted that Mr. Sardakowski was at risk for self-injury and suicide.
26. Mr. Sardakowski was stabilized at San Carlos on a medication regimen that included Seroquel.
27. Seroquel is an anti-psychotic medication used to treat symptoms of schizophrenia, bipolar disorder, and at lower doses, depression.
28. Mr. Sardakowski was assigned to the Developmentally Disabled unit (DD unit) at San Carlos in April 2007.
29. Mr. Sardakowski was transferred to Colorado Territorial Correctional Facility (“Territorial”) in October 2007, where he was housed in the general population unit.
30. In November 2007, Mr. Sardakowski began participating in a program for offenders with developmental disabilities at Territorial (“DD program”).
31. While in the DD program at Territorial, Mr. Sardakowski’s mental health improved dramatically, he was able to earn his GED, he went three months without write-ups for negative behavior, and did not engage in self-injurious behavior.
32. Mr. Sardakowski eventually stopped taking psychiatric medications. His mental health deteriorated and he stopped attending DD programming at Territorial.
7

Case 1:12-cv-01326-RBJ-KLM Document 62 Filed 11/19/12 USDC Colorado Page 7 of 37
33. On October 6, 2008, Mr. Sardakowski was transferred to San Carlos for stabilization as a result of his recent deterioration.
34. While at San Carlos, mental health staff specifically tested whether Mr. Sardakowski was malingering, or exaggerating or fabricating symptoms of mental disorders. He took the Structured Inventory of Malingered Symptomatology, a test designed to identify malingering. The report concluded that his symptoms were genuine, specifically finding that “his endorsement of psychiatric and cognitive symptoms is consistent with symptoms described by individuals who have a genuine disorder.”
35. On October 31, 2008, mental health staff at San Carlos gave Mr. Sardakowski a new prescription for Seroquel, noting that Seroquel had improved his mental health in the past.
36. In March 2009, Mr. Sardakowski was transferred to Fort Lyon Correctional Facility, a facility that housed mentally ill prisoners in need of constant care.
37. On April 28, 2009, despite CDOC staff approving him to return to the DD program at Territorial, Mr. Sardakowski was transferred to Sterling Correctional Facility (“Sterling”). Sterling does not have a DD program.
38. Sterling mental health staff continued to treat Mr. Sardakowski’s mental illness with a medication regimen including Seroquel.
39. In May 2009, mental health staff noted that Mr. Sardakowski had an MR/DD (mental retardation/developmental disability) code of 4 and an IQ of 84, indicating that he had a developmental disability. Based on this scoring, Mr. Sardakowski should be housed in a facility where his developmental disabilities can be accommodated, such as Territorial.
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40. Because his needs could not be accommodated at Sterling, Mr. Sardakowski’s case manager immediately contacted mental health to see if they would approve him for Territorial. Mental health staff reported, “We have no concerns over him going back to Territorial and would support case management in that move.” Despite the request of his case manager and mental health’s position, Mr. Sardakowski was never transferred.
41. On July 7, 2009, Mr. Sardakowski’s Seroquel was discontinued after he was accused of “cheeking” his medication.
42. Mr. Sardakowski repeatedly told mental health staff at Sterling that prisoners threatened to beat him with a lock in a sock if he did not provide them with doses of Seroquel.
43. Mental health staff at Sterling had full knowledge of Mr. Sardakowski’s serious mental illness as evidenced by his medical records, entries by staff, and his treatment plan that included the non-formulary anti-psychotic drug Seroquel. Mental health staff were fully aware of Mr. Sardakowski’s previous suicide attempts as evidenced by entries in his mental health record. Mental health staff knew that persons with serious mental illness experience increased symptoms when they are not properly medicated. Despite this knowledge, CDOC punished Mr. Sardakowski by discontinuing his antipsychotic medication Seroquel.
44. No longer on Seroquel, Mr. Sardakowski’s mental health deteriorated. Over the next sixteen months, Mr. Sardakowski was written up for negative behavior approximately forty-five times. Mr. Sardakowski was written up fewer than five times in the three years prior to discontinuation of his medication.
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45. Mr. Sardakowski describes feeling as though he were in a dream state during the period he was off medication. He had trouble distinguishing between what was real and what was not real.
46. In August 2009, Mr. Sardakowski was forcibly extracted from his cell after he refused to stop beating his head against a wall.
47. In response to Mr. Sardakowski’s deterioration, CDOC staff scheduled a hearing to determine whether he should be placed in solitary confinement at Colorado State Penitentiary (CSP). In the past when Mr. Sardakowski deteriorated after discontinuing medication, he was sent to San Carlos, a more structured facility where he could be stabilized. Despite a history of successful stabilization at San Carlos, CDOC staff responded to his deterioration at Sterling by sending him to solitary confinement in CSP.
48. On or about November 10, 2009, Mr. Sardakowski was transferred to Denver Reception and Diagnostic Center (DRDC) due to an administrative oversight.
49. Mr. Sardakowski attempted to hang himself on November 13, 2009 while at DRDC. 50. Mr. Sardakowski was subsequently transferred back to Sterling and given an administrative
segregation classification on December 14, 2009. He arrived at CSP on December 23, 2009. Conditions of Solitary Confinement at CSP 51. Mr. Sardakowski has endured the conditions of administrative segregation at CSP since
December 2009. 52. All prisoners housed at CSP are held in solitary confinement.
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53. Mr. Sardakowski’s cell is approximately 10’ x 8’ (80 square feet) – the size of a small bathroom. The cell has a concrete bed, a metal desk, a metal stool, and three shelves. There is also a metal toilet and sink. All furniture in his cell is made of metal or concrete.
54. Mr. Sardakowski has a small window that is approximately five inches wide and two feet tall. It is permanently sealed and does not allow air in.
55. Mr. Sardakowski has limited ability to communicate with other prisoners. He has a hearing disability and uses hearing aids. This disability prevents him from using the very limited communication available by yelling through the slot in the door.
56. Mr. Sardakowski must eat every meal in his cell alone within arm’s reach of his toilet. 57. Mr. Sardakowski’s hands and feet are shackled every time he leaves his cell. His hands are
shackled behind his back. 58. Mr. Sardakowski is allowed to own only two personal books at any time, which includes his
Bible. These books can be exchanged only once a year. 59. Mr. Sardakowski is allowed, at most, one hour a day, five days a week out of his cell to
shower and exercise in the indoor recreation room. 60. Prisoners at CSP are never allowed outdoor exercise at any time. 61. During prison lockdowns, Mr. Sardakowski cannot leave his cell at all, sometimes for several
days in a row. 62. The conditions of solitary confinement at CSP subject Mr. Sardakowski to prolonged and
indefinite isolation. 63. CSP has two programs designed to allow prisoners to “level out” of administrative
segregation based on good behavior. The Offenders with Mental Illness (OMI) program has
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twelve levels to progress to general population, eight of which must be completed at CSP. The minimum time to complete each level ranges from one to four weeks. Other prisoners must progress through the Privilege Level Program, which takes a minimum of nine months to complete. Thus, even prisoners who progress as quickly as possible through the “leveling out” programs are subjected to prolonged isolation at CSP. 64. Many prisoners remain in solitary confinement for much longer than the minimum time possible through the “leveling out” programs. 65. For Mr. Sardakowski, solitary confinement in CSP is indefinite. He has no hope of leveling out through the OMI program. Mr. Sardakowski has spent the majority of his time at CSP in the lowest levels of the program. Even while on psychiatric medication, the highest level he has ever reached is level five. Mr. Sardakowski is unable to progress beyond this level because his mental illness prevents him from meeting the behavior-based requirements for long periods of time. 66. The harmful effects of prolonged isolation on individuals with severe mental illness are well documented in the correctional community. Numerous cases have highlighted the profound psychological risks and dangers long-term isolation represents. In Madrid v. Gomez, the court emphasized that “[s]ocial science and clinical literature have consistently reported that when human beings are subjected to social isolation and reduced environmental stimulation, they may deteriorate mentally....” 889 F. Supp. 1146, 1230 (N.D. Cal. 1995). In Ruiz v. Johnson, the court characterized administrative segregation units as “virtual incubators of psychoses-seeding illness in otherwise healthy inmates and exacerbating illness in those already suffering from mental infirmities.” 37 F. Supp. 2d 855, 907 (S.D. Tex. 1999).
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In Jones ‘El v. Berge, the court acknowledged that severe psychological symptoms and disorders could result from long-term isolated confinement. 164 F. Supp. 2d 1096 (W.D. Wis. 2001). 67. CDOC officials have known and continue to know that the conditions of solitary confinement at CSP exacerbate symptoms of mental illness. 68. Despite knowledge of Mr. Sardakowski’s history and record of serious mental illness, and his deterioration and attempted suicide on November 13, 2009, CDOC officials transferred Mr. Sardakowski to solitary confinement at CSP on December 23, 2009. 69. In placing and retaining Mr. Sardakowski in solitary confinement, Defendants ignored and continue to ignore a substantial risk that the conditions of confinement in CSP would seriously exacerbate his mental illness and result in self-injurious behaviors. Offenders with Mental Illness Program at CSP 70. Mr. Sardakowski has been placed in the OMI program at various times during his confinement at CSP. However, he has been repeatedly removed due to disruptive behaviors, excluding him from the program. 71. Many of the disruptive behaviors CDOC administrators punish Mr. Sardakowski for are manifestations of symptoms of his mental illness. 72. The highest level Mr. Sardakowski has achieved while in the OMI program is level five. This is due to the short-term nature of the goals contained in the lower levels. 73. Mr. Sardakowski’s mental health record states that at various points in time, mental health staff have told Mr. Sardakowski that he could be transferred to the DD program at Territorial if he exhibited several months of appropriate conduct.
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74. Mr. Sardakowski has communicated his inability to progress to the upper levels of the OMI program because progressing to those levels requires lengthy periods with no behavior problems. Mr. Sardakowski has similar problems with the behavior-based goals of the Privilege Level Program.
75. Mr. Sardakowski’s mental illness interferes with his cognitive functioning, impulse control, and behavior management. These symptoms are exacerbated by prolonged isolation and lack of appropriate medication. Mr. Sardakowski’s difficulty thinking in the abstract and controlling impulsive behaviors make it virtually impossible to achieve the long-term goals involved in levels five and above.
76. Mr. Sardakowski is quoted in the mental health record as saying, “I have a hard time with long goals, I need short term goals, If you tell me two months it’s like telling me a billion years, It just doesn’t seem possible.” His record indicates that he made this statement in the context of “express[ing] a willingness to work with the treatment team to expedite recovery and promote success in DOC treatment programs.”
Signs of Deterioration in Solitary Confinement 77. CDOC has failed to provide adequate mental health treatment since Mr. Sardakowski’s
arrival at CSP. 78. On February 15, 2010, CSP correctional staff noted in Mr. Sardakowski’s file that he was
experiencing confusion, disorientation, depression, and overwhelming fears. Corrections staff reported that they worried that Mr. Sardakowski’s mental health condition was deteriorating.
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79. On March 12, 2010, Mr. Sardakowski submitted a written medical request form, or “kite,” stating that mental health staff were scheduled to follow-up with him after his clinic visit on February 25, 2010, but that no follow-up had been performed.
80. Mental health did not respond to the substance of his kite. Rather, mental health staff dismissed the kite as “malingering.” He was not given any test to verify whether he was malingering.
81. Mental health staff characterized Mr. Sardakowski’s kites as malingering despite the 2008 examination performed by CDOC that indicated that Mr. Sardakowski is not a malingerer.
82. On April 27, 2010, Mr. Sardakowski was seen by a CDOC psychiatrist who noted that Mr. Sardakowski had been stabilized on Seroquel at San Carlos. She decided to restart Mr. Sardakowski on Seroquel after he had been off of this medication for over nine months.
83. Even though Mr. Sardakowski was taking Seroquel, he continued to experience symptoms of his severe mental illness.
84. On June 15, 2010, Mr. Sardakowski attempted to castrate himself “for religious reasons.” His mental health record noted that there were “deep open wounds circumferentially” around his scrotum. Mr. Sardakowski stated that he did not want antibiotics “because it is God’s will.”
85. Mental health staff met with Mr. Sardakowski on June 15, 2010 as a result of his selfinjurious behavior. Mental health staff’s entry in Mr. Sardakowski’s record indicates that “Offender’s psychological state does appear to be stable.” Mental health staff ignored the fact that Mr. Sardakowski had just attempted to castrate himself in response to apparent religious delusions.
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86. On January 23, 2011, Mr. Sardakowski again engaged in self-injury by tying a string around his testicles (tying off). He was hospitalized at St. Thomas Moore where the doctor noted that “there is no way to predict whether [Mr. Sardakowski’s] testes will survive this event.”
87. Mr. Sardakowski was seen cell-side by mental health staff on May 24, 2011. According to CDOC records from that meeting, Mr. Sardakowski told mental health staff that God had called on him to be a “Eunuch.” He said that he had coveted another man’s wife and that the urges would not go away unless he castrated himself. Staff asked Mr. Sardakowski if he had a plan to which he replied that he did not, but would be ready when God called on him to castrate himself.
88. Mental health staff asked Mr. Sardakowski if he would tell staff before he attempted to castrate himself. He replied that he was not sure if he would remember. He stated that he was unable to remember what he had eaten for lunch. A member of CDOC’s mental health staff documented this interaction in Mr. Sardakowski’s mental health record and indicated that she notified her supervisor. There is no indication that there was any follow-up regarding this interview.
89. Based on this report, mental health staff recognized that Mr. Sardakowski’s delusional thought process represented a substantial risk of serious self-injury. Given Mr. Sardakowski’s prior attempt to castrate himself in June 2010, the risk of harm was and is substantial and apparent.
90. Mr. Sardakowski’s mental health continued to deteriorate over the next three months. On August 24, 2011, he was forced to declare a medical emergency.
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91. Mr. Sardakowski was seen by a psychiatrist on August 25, 2011 who prescribed several medications that yielded positive results.
Discontinuation of Psychiatric Medication 92. Mr. Sardakowski’s brief period of improvement came to an end in December 2011 when he
was accused of attempting to hoard medications. 93. As punishment for alleged medication abuse, one of Mr. Sardakowski’s primary psychiatric
medications was discontinued. 94. In a December 23, 2011 meeting with mental health staff, Mr. Sardakowski stated that he
was upset about accusations of medication abuse and that he felt like “offing himself.” Mr. Sardakowski later relayed the same feelings to a psychiatrist in a telepsychiatry appointment. 95. Telepsychiatry appointments are not conducted in person; rather, Mr. Sardakowski meets with a psychiatrist via closed-circuit television. These impersonal television appointments comprise the vast majority of Mr. Sardakowski’s opportunities to meet with a psychiatric professional. 96. CDOC and its mental health staff refused to modify Mr. Sardakowski’s treatment despite his suicidal ideation and evidence of deterioration. 97. On January 11, 2012, mental health staff visited with Mr. Sardakowski after he expressed a desire to commit suicide. Mental health staff responded by putting Mr. Sardakowski in restraints for “being disruptive.” 98. A mere two weeks after he communicated suicidal thoughts, all of Mr. Sardakowski’s remaining psychiatric medications were discontinued due to “safety concerns.”
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99. CDOC’s own psychiatrist acknowledged the risk that Mr. Sardakowski would decompensate after discontinuing his psychiatric medication. A CDOC psychiatrist recommended Mr. Sardakowski be transferred to a more structured facility should he deteriorate from discontinuation of psychiatric medication.
100. In proceeding with the discontinuation of medication, mental health staff ignored evidence of the substantial risk of future harm that discontinuation of medication posed. Specifically, Mr. Sardakowski’s record was replete with instances where he deteriorated after the discontinuation of medications.
101. Further, CDOC staff discontinued Mr. Sardakowski’s medication despite their awareness of the exacerbating effects of prolonged isolation on severe mental illness. CDOC’s decision to discontinue a severely mentally ill person’s medication while in prolonged isolation is evidence of deliberate indifference.
Escalation of Self-Injurious Behaviors 102. Mr. Sardakowski’s mental health deteriorated soon after the discontinuation of his
medication at CSP in January 2012. 103. On February 6, 2012, Mr. Sardakowski declared a mental health emergency. Mr.
Sardakowski reported to mental health staff that he was hearing voices. 104. Instead of offering treatment, mental health staff responded by reporting Mr. Sardakowski
to security staff for covering his cell window, which was treated as a rule violation. 105. On February 8, 2012, Mr. Sardakowski told correctional staff that he was hearing voices
and needed to see mental health staff. A mental health staff member went to Mr. Sardakowski’s cell to inform him that he could not be pulled from his cell because the unit
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was on lockdown. The staff member recorded that Mr. Sardakowski asked, “Then what is the point?” 106. On February 18, 2012, Mr. Sardakowski attempted to castrate himself. One week later, he attempted to castrate himself again. Mental health staff recorded that Mr. Sardakowski said he tied off his penis “to relieve stress, it’s the only way I have to relieve stress because they took all my meds away.” 107. On March 5, 2012, Mr. Sardakowski repeated his self-injurious behavior. He reported to mental health staff that he ties off his genitals twice a day for stress relief. He stated that, “If I don’t tie myself, then I will cut myself.” 108. On March 6, 2012, a psychiatrist saw Mr. Sardakowski in a telepsychiatric appointment. The psychiatrist noted that Mr. Sardakowski had slurred speech, low energy, loss of appetite, and appeared to be seeking medication. Mr. Sardakowski told the psychiatrist, “I have no future, we’re all dead.” 109. The psychiatrist noted that he had previously recommended Mr. Sardakowski for transfer to a more structured psychiatric setting if he deteriorated, but that Mr. Sardakowski remained at CSP for the time being. 110. Following the appointment, Mr. Sardakowski met with a mental health clinician. Mr. Sardakowski stated that he had not showered for twenty days. Mental health staff documented that Mr. Sardakowski said he did not want to leave his cell out of fear that he would hurt someone. 111. Mr. Sardakowski submitted a written complaint, or grievance, about his lack of transfer to an appropriate facility where his mental illness could be adequately treated. CDOC
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administrators responded that the doctor’s recommendation for transfer was not an order and denied his grievance. 112. The CDOC psychiatrist’s recommendation that Mr. Sardakowski be transferred to San Carlos for stabilization put CDOC administrators on notice that Mr. Sardakowski was a risk to himself. CDOC’s refusal to transfer Mr. Sardakowski despite the psychiatrist’s recommendation demonstrates disregard for the risk that Mr. Sardakowski posed to himself. 113. In March 2012, Mr. Sardakowski submitted a grievance stating that administrative segregation was worsening his lifelong issues with mental illness and thoughts of harming himself. Mr. Sardakowski’s grievances were denied at steps one, two, and three on procedural grounds. 114. CDOC staff ignored the substance of Mr. Sardakowski’s grievance despite knowledge of his suicide attempt in January and self-castration attempts in February and March. In ignoring the substance of his grievance, CDOC staff disregarded a substantial risk of serious harm to Mr. Sardakowski. 115. On March 12, 2012, just days after he submitted the grievance discussed above, Mr. Sardakowski again engaged in self-injury by tying off his testes. However, tying off was no longer relieving symptoms of his mental illness and his behavior began to escalate. 116. In escalating his behavior, Mr. Sardakowski repeatedly banged his head on the wall and bit his hands. The encounter left Mr. Sardakowski with an abrasion and large contusion on his forehead and bite marks on his hands. 117. Rather than treat Mr. Sardakowski, CDOC staff placed him in extremely restrictive restraints called “four-pointing.”
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118. “Four-pointing” involves restraining a prisoner on a bed with all four limbs tied down, sometimes for days at a time. The prisoner’s hands are strapped down at his sides and his legs are spread and restrained with leg irons (a chain connecting shackles around each ankle). Prisoners are not permitted to use a toilet to relieve themselves and are instead forced to wear diapers. The restraints permit so little movement that the staff must periodically remove the restraints and “pump” the prisoner’s limbs to prevent loss of circulation.
119. Mr. Sardakowski was sent to Territorial Infirmary and placed in restraints for ten days. During three of those days he was in four-point restraints.
120. Mr. Sardakowski was seen on March 13, 2012 by mental health staff. The interview was conducted while Mr. Sardakowski was in four-point restraints. He again emphasized that he could not continue in solitary confinement without treatment. He stated that he would break his own bones if sent back to solitary confinement. Mental health staff documented that Mr. Sardakowski said he perceived three possible solutions: “I kill myself, I end up crippled, or I go to GP [general population].”
121. A March 14, 2012 clinical note by mental health staff documented that Mr. Sardakowski again expressed the intent to kill himself if sent back to administrative segregation at CSP.
122. An entry that same day recorded that staff were “perturbed” that Mr. Sardakowski was frequently urinating. However, Mr. Sardakowski had to endure the humiliating experience of urinating into an adult diaper and having it changed by prison staff.
123. Mental health staff acknowledged in a clinical note that Mr. Sardakowski’s mental health symptoms remained disabling and an immediate risk to his safety. However, at this point his
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treatment focused on “contracting for safety” (obtaining an agreement from Mr. Sardakowski that he would not harm himself) so that he could be sent back to isolation in CSP. 124. On March 15, 2012, mental health staff interviewed Mr. Sardakowski again while he was in four-point restraints. According to the CDOC record, Mr. Sardakowski stated, “you’re gonna think I’m crazy, but if I go back to CSP, I will have to kill myself for the good of the world.” He explained that, “he was born a ‘portal’ and there are other ‘worlds’ that are trying to ‘infiltrate this world because it is neutral.’” He reported that he was the “cause of 9/11” and that if he returned to CSP there would be a “world war three.” Mr. Sardakowski communicated that he was looking forward to talking to a psychiatrist about getting something “so that my mind can’t get hacked, but I can’t go to a stale place.” 125. Mr. Sardakowski “contracted for safety” that same day and was removed from four-point restraints. This “contract for safety” ignored clear symptoms of severe psychosis and the fact that Mr. Sardakowski indicated that he would engage in significant self-harm if sent back to solitary confinement under any circumstances. 126. On March 19, 2012, Mr. Sardakowski again communicated the dire circumstances that prolonged isolation posed, stating that he would either go back to CSP and “leave in a body bag, or I’ll stay here and do the DD program,” referring to Territorial’s program for developmentally disabled prisoners. Mental health staff reported that Mr. Sardakowski said he would break a light and cut an artery if sent back to CSP. 127. On March 20, 2012, Mr. Sardakowski wrote a letter to mental health staff communicating his concerns about returning to prolonged isolation at CSP. The first item on the list stated, “I am tired of self harm for my mental health issues, depression, anxiety, rage, and anger.” He
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again stated, “The only two ways I will get out of CSP is going out in a body bag or mental health can re-classify me so I can get treatment.” He added, “If I was brought to Territorial DD program, I would feel better being around my own kind, because I could get treatment and not feel like people are using me like they do at CSP.” 128. The same day, in an entry in Mr. Sardakowski’s medical record, a CDOC psychiatrist determined that Mr. Sardakowski could benefit from returning to Territorial. 129. Despite Mr. Sardakowski’s suicidal ideation and delusional conversations with mental health staff, and despite the CDOC psychiatrist’s recommendation that Mr. Sardakowski be transferred to Territorial, Mr. Sardakowski was sent back to solitary confinement in CSP on March 21, 2012. Return to Solitary Confinement at CSP 130. An April 25, 2012 entry in Mr. Sardakowski’s medical record indicates that he continued to struggle with mental illness while off psychiatric medication. 131. On May 26, 2012, Mr. Sardakowski again engaged in self-injury by trying to castrate himself. This behavior resulted in Mr. Sardakowski being put on mental health watch, where he used the string from his “safety smock” to tie off his testes again. 132. After again attempting to castrate himself while on mental health watch, Mr. Sardakowski was transferred to Territorial Infirmary and put in four-point restraints for three days. 133. On May 29, 2012, Mr. Sardakowski was seen by a CDOC psychiatrist. In that interview, Mr. Sardakowski stated that he could not stop thinking about self-harm while at CSP. He also stated that he “really needs to get back on medications….” After four months of repeated
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incidents of self-injury, the CDOC psychiatrist submitted a non-formulary drug request to have Mr. Sardakowski prescribed Seroquel. 134. In an individual contact with mental health staff that same day, Mr. Sardakowski was told that “his safe behaviors were primary in changing his custody level and making other treatment programs besides the OMI program available to him.” 135. In an additional interview, Mr. Sardakowski again told mental health staff that he could not be safe in prolonged isolation at CSP. A May 29, 2012 entry in his record states, “he indicated no belief that he could successfully return to CSP and remain safe. He indicated indifference to his welfare and powerlessness to control his behaviors of self-injury.” 136. Mental health staff discharged Mr. Sardakowski on May 31, 2012 and returned him to solitary confinement at CSP. 137. CDOC mental health staff returned Mr. Sardakowski to CSP and prolonged isolation despite his statement that he was “powerless to control his behaviors of self-injury.” 138. On August 7, 2012, Mr. Sardakowski broke an audio tape and used the shard of plastic to cut himself. He again began to beat his head against the wall. Mr. Sardakowski reported that this was the only way he could relieve his stress. He stated that he would rather hang himself than remain in administrative segregation. 139. Despite knowledge of Mr. Sardakowski’s severe mental illness, his inability to control selfharming behaviors, and the recommendations of CDOC’s own psychiatrists, Mr. Sardakowski remains at CSP in solitary confinement.
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EXHAUSTION OF ADMINISTRATIVE REMEDIES Mr. Sardakowski exhausted all administrative remedies that were available to him related to his denial of adequate mental health treatment claim. 140. On February 13, 2012, Mr. Sardakowski submitted a Step One grievance (C-CS11/12-
15066, attached as Exhibit 2, at 1) stating that he was being denied psychiatric medication. Mr. Sardakowski noted that his psychiatrist stated that he required psychiatric medication but needed a more structured treatment setting where his medication could be safely administered. Mr. Sardakowski noted that he had not been transferred to a more structured facility and since that recommendation, had been put in special controls (restraints) twice. Mr. Sardakowski stated that without his medication, he would likely get into trouble and be unable to progress out of administrative segregation. 141. The prison’s response to the grievance (Ex. 2 at 1) noted that Mr. Sardakowski received mental health visits and that his medication had been discontinued as a result of two disciplinary convictions for medication abuse, including abuse of crush and float medications. 142. On March 3, 2012, Mr. Sardakowski submitted a Step Two grievance (Ex. 2 at 2) answering the prison’s Step One response. He stated that since being taken off medication, he had hurt himself on numerous occasions, sometimes up to five times per day. He stated that he was doing so to “get stress, depression, and anger out of my mind.” He noted the connection between disciplinary violations and his being off medication and that without medication, he was a danger to himself and others. 143. The prison’s response (Ex. 2 at 2) mischaracterized his grievance as a complaint about crush and float medications and stated that because he had previously grieved that issue in
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two other sets of grievances,1 further grievances on crush and float medications would not be addressed. Those previous grievances, however, were either unrelated to his new grievance or procedurally denied. 144. Despite the prison’s mischaracterization of the issue in the response to his Step Two grievance, Mr. Sardakowski submitted a Step Three grievance (Ex. 2 at 3). He re-emphasized that since being off psychiatric medication, he had engaged in self-injurious behaviors and had “severe thoughts of self-homicide.” He stated he felt he was a risk to himself and others. 145. The final Step Three response (Ex. 2 at 4) again denied Mr. Sardakowski’s grievance on procedural grounds as “previously addressed.” The response stated that “issues which have previously been grieved will not be addressed again,” and yet also informed Mr. Sardakowski that his grievance was not exhausted. 146. At no time did Defendants address the substance of Mr. Sardakowski’s grievance about the denial of psychiatric medication. 147. Defendants’ responses rendered the administrative remedy system unavailable to him. Mr. Sardakowski has exhausted his administrative remedies in relation to his claim that, as a person with severe mental illness, placement in administrative segregation is a violation of his right to be free from cruel and unusual punishment. 148. Mr. Sardakowski submitted a Step One grievance (R-CS11/12-17973, attached as Ex. 5, at 1), stating that his two and a half year stay in administrative segregation caused his anxiety, auditory hallucinations, and self-harming behaviors to increase.
1 Grievance C-CS11/12-12967 (Ex. 3) was a three-step grievance submitted by Mr. Sardakowski complaining that he was no longer being given medication for his Irritable Bowel Syndrome (IBS). The grievance was denied procedurally for having been filed out of time. Grievance C-CS11/12-12969 (Ex. 4) was a three-step grievance about the discontinuation of Mr. Sardakowski’s psychiatric medication and the resulting effects on his mental health. The prison responded that it would not address previously grieved matters, citing the unrelated IBS grievance that was denied on procedural grounds.
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149. The prison’s response (Ex. 5 at 1) denied his grievance, stating that the issue was previously grieved.2
150. In his Step Two grievance (Ex. 5 at 2), Mr. Sardakowski stated that the previous grievance “wasn’t exhausted & if not exhausted I must exhaust it thus this is being refiled to exhaust this grievance.” He reiterated his concerns about the effect of solitary confinement on his mental health.
151. The prison’s Step Two response (Ex. 5 at 2) again denied his grievance on procedural grounds, again stating that the issue was already grieved.
152. Mr. Sardakowski submitted a Step Three grievance (Ex. 5 at 3) reiterating that the previous grievance was not exhausted and that he was attempting to exhaust his administrative remedies on this issue.
153. The prison’s final Step Three response (Ex. 5 at 4) stated that he was not allowed to grieve duplicate issues and stated that the previous grievance was exhausted. This response directly contradicts the prison’s Step Three response to the previous grievance (Ex. 6 at 4), which stated that Mr. Sardakowski did not exhaust his administrative remedies.
154. Mr. Sardakowski followed CDOC’s procedures for exhausting his administrative remedies. The prison’s conflicting responses demonstrate that there are are no further administrative remedies available to him for grieving this issue.
2 Grievance C-CS11/12-6411 (Ex. 6) grieved multiple mental health concerns. The prison denied it on procedural grounds, stating that a prisoner can grieve only one issue at a time. The Step Three response (Ex. 6 at 4) stated that Mr. Sardakowski had not exhausted his administrative remedies.
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Mr. Sardakowski exhausted all administrative remedies related to his claims under the Americans with Disabilities Act and the Rehabilitation Act. 155. Mr. Sardakowski filed a Step One grievance (R-CS11/12-11708, attached as Ex. 7, at 1)
claiming that he was unable to progress out of CSP solitary confinement through the available program (OMI). He stated that he was unable to do so because of his disabilities. As a remedy, Mr. Sardakowski requested that he be given an alternative means to progress out of solitary confinement. He noted that this was an ADA issue. 156. The prison responded (Ex. 7 at 1) that Mr. Sardakowski had equal opportunity to progress out of solitary confinement through the OMI program, but that Mr. Sardakowski failed to take advantage of that opportunity. 157. In his Step Two grievance (Ex. 7 at 2), Mr. Sardakowski responded that he was unable to complete programs that require long-term goals and thus, he was being denied equal opportunity to progress to general population. Mr. Sardakowski again requested that he be given an alternative means to progress out of solitary confinement. 158. The prison’s Step Two response (Ex. 7 at 2) denied his grievance, noting that he had “6 COPD convictions,” “numerous chrons,” and that he had failed to take advantage of his opportunity to participate in the OMI program. 159. Mr. Sardakowski submitted a Step Three grievance (Ex. 7 at 3) reiterating his inability to progress toward long-term goals and his frustration with “long term classes.” As a remedy, he again requested that he be given an alternative means to progress out of solitary confinement.
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160. The prison denied Mr. Sardakowski’s Step Three grievance on procedural grounds (Ex. 7 at 4), stating that the issue was previously grieved. The previous grievance referred to was denied on procedural grounds as a non-grievable issue.3
161. Mr. Sardakowski followed the prison’s exhaustion procedures. The prison’s characterization of this grievance as a non-grievable issue rendered administrative remedies unavailable. CAUSES OF ACTION FIRST CLAIM FOR RELIEF Against Defendants Tom Clements, Joanie Shoemaker, Paula Frantz, Travis Trani, James Michaud, and Jill Lampela
Failure to Provide Adequate Mental Health Treatment Violated Mr. Sardakowski’s Right to be Free from Cruel and Unusual Punishment Under the Eighth Amendment. (42 U.S.C. § 1983 – Eighth Amendment Violation of Plaintiff’s Right to be Free from Cruel and Unusual Punishment)
162. Mr. Sardakowski incorporates herein by reference all other paragraphs of this complaint as if those allegations were set out explicitly herein.
163. The Eighth Amendment to the United States Constitution forbids cruel and unusual punishment. The Eighth Amendment prohibits deliberate indifference to serious mental health needs of prisoners.
164. Defendants have violated Mr. Sardakowski’s right to be free from cruel and unusual punishment by failing to provide him with adequate mental health care, including but not limited to appropriate and necessary medication and ignoring transfer recommendations made by CDOC mental health staff.
3 Grievance R-CS11/12-14383 (Ex. 8) was a three-step grievance about Mr. Sardakowki’s classification for administrative segregation, and the process by which he was classified. The prison denied the grievance on procedural grounds, stating that classification was not a grievable issue per AR 850-04, IV.
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165. Mr. Sardakowski has obvious serious mental health needs. His medical history includes diagnoses of several serious mental illnesses and a developmental disability that require treatment, including but not limited to appropriate medication.
166. Defendants are aware of Mr. Sardakowski’s serious mental health needs as indicated by diagnoses in his medical file, treatment history contained in his medical file, recommendations of CDOC mental health staff, his history of suicide attempts, and instances of self-injurious behavior. Mr. Sardakowski’s self-injurious behavior makes the severity of his mental illness obvious even to non-medical correctional staff.
167. Despite this knowledge, Defendants have acted with deliberate indifference to Mr. Sardakowski’s serious mental health needs.
168. Defendants’ inadequate treatment of Mr. Sardakowski’s mental health conditions and their refusal to follow recommendations to transfer Mr. Sardakowski to an appropriate facility constitute cruel and unusual punishment.
169. Defendants’ intentional and/or deliberate indifference to Mr. Sardakowski’s serious mental health needs has severely exacerbated his mental illness. SECOND CLAIM FOR RELIEF Against Defendants Tom Clements, Joanie Shoemaker, Paula Frantz, Travis Trani, James Michaud, and Jill Lampela Placing and Retaining Mr. Sardakowski, an Individual with Mental Illness, in Administrative Segregation Violates His Right to Be Free from Cruel and Unusual Punishment. (42 U.S.C. § 1983 – Eighth Amendment Violation of Plaintiff’s Right to be Free from Cruel and Unusual Punishment)
170. Mr. Sardakowski incorporates herein by reference all other paragraphs of this complaint as if those allegations were set out explicitly herein.
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171. The Eighth Amendment to the United States Constitution forbids cruel and unusual punishment. The Eighth Amendment prohibits deliberate indifference to serious mental health needs of prisoners.
172. Defendants have violated Mr. Sardakowski’s right to be free from cruel and unusual punishment by being deliberately indifferent to the substantial deterioration of his mental health due to prolonged isolation.
173. Subjecting Mr. Sardakowski to indefinite isolation in solitary confinement has exacerbated his preexisting mental illnesses and has led to the significant deterioration of his mental health. Subjecting Mr. Sardakowski to such conditions does not comply with evolving standards of decency.
174. Mr. Sardakowski has an obvious serious mental health need. He has been diagnosed throughout his lifetime with severe mental illnesses and is now manifesting signs of significant mental deterioration.
175. The ongoing risk of significant deterioration that Mr. Sardakowski is exposed to as a result of his placement in solitary confinement is objectively, sufficiently serious to trigger intervention on the part of the Defendants.
176. Defendants were and are aware of Mr. Sardakowski’s severe mental illness as his prison file documents his various diagnoses and repeated incidents of self-injury. Defendants were aware of the substantial risk that prolonged isolation would cause deterioration in Mr. Sardakowski’s mental health.
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177. Furthermore, Mr. Sardakowski’s self-harming behavior has noticeably escalated over the period of time he has been in isolation at CSP, as the nature of his acts has become more aggressive and their frequency has increased.
178. Defendants were and are aware of the substantial risk that prolonged isolation would exacerbate Mr. Sardakowski’s mental illness and lead to severe deterioration of his mental health, and they ignored that risk.
179. Defendants ignored that risk by placing and retaining Mr. Sardakowski in solitary confinement.
180. Placing Mr. Sardakowski in solitary confinement and continuing to subject him to conditions of prolonged isolation violates his right under the Eighth Amendment to be free from cruel and unusual punishment. THIRD CLAIM FOR RELIEF Against Defendants Tom Clements, Joanie Shoemaker, Paula Frantz, Travis Trani, James Michaud, and Jill Lampela Discrimination Against Mr. Sardakowski on the Basis of Disability in Violation of the Americans with Disabilities Act. (42 U.S.C. § 12101 – Violation of ADA)
181. Mr. Sardakowski incorporates herein by reference all other paragraphs of this complaint as if those allegations were set out explicitly herein.
182. Mr. Sardakowski is an individual with a mental impairment, a record of such an impairment, and is regarded as having such impairment within the meaning of 42 U.S.C. § 12102. His serious mental illness and developmental disability constitute mental impairments that substantially limit him in several major life activities, including but not limited to learning, concentrating, thinking, impulse control, pursuing long-term goals, and interacting
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with others. These limitations on his life activities have had a profound effect on Mr. Sardakowski’s life as more fully described above. 183. As a prisoner in the custody of CDOC, Mr. Sardakowski is qualified for the programs, activities, aids, benefits, and services offered by CDOC. 184. Mr. Sardakowski is qualified for “leveling out” programs at CSP designed to allow prisoners to progress out of solitary confinement. At various times, CDOC staff have placed Mr. Sardakowski in both of the “leveling out” programs at CSP. Mr. Sardakowski, with or without reasonable modifications to rules, policies or practices, met and continues to meet the essential eligibility requirements for participation in “leveling out” programs provided by Defendants. 185. Mr. Sardakowski is also qualified for CDOC programs and services for developmentally disabled prisoners. His eligibility for these programs and services is evidenced by his previous placement in the DD unit at San Carlos and the DD program at Territorial. 186. Thus, Mr. Sardakowski is a “qualified individual with disabilities” within the meaning of the ADA, 42 U.S.C. § 12131(2). 187. Defendants are public entities as that term is used in 42 U.S.C. § 12131. 188. Title II of the ADA states that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.
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189. Defendants have discriminated against Mr. Sardakowski on the basis of disability in violation of 42 U.S.C. § 12132 and its implementing regulations as more fully described above.
190. Such discrimination includes but is not limited to failure to make reasonable accommodations and modifications to the policies, practices, or procedures in the CSP “leveling out” programs. See 28 C.F.R. § 35.130(b)(7). Mr. Sardakowski is incapable of progressing out of solitary confinement through the OMI program or Privilege Level Program because of his mental illness and developmental disability. Reasonable modifications to these programs are necessary to avoid discrimination on the basis of Mr. Sardakowski’s disability and allow Mr. Sardakowski a meaningful opportunity to progress out of solitary confinement.
191. “Provid[ing] a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others” constitutes discrimination under the ADA. 28 C.F.R. § 35.130(b)(1)(iii).
192. Although Defendants have allowed Mr. Sardakowski to participate in the OMI and Quality of Life/Privilege Level programs, he does not have the same opportunity as prisoners without his disabilities to gain the benefit of these “leveling out” programs. Defendants have discriminated against Mr. Sardakowski on the basis of disability by failing to provide him an equal opportunity to progress out of solitary confinement.
193. Defendants have also discriminated against Mr. Sardakowski by excluding him from programs and services for developmentally disabled prisoners. DD programs and services
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that are available at Territorial and San Carlos are unavailable to prisoners at CSP. Defendants have denied Mr. Sardakowski access to these because he is unable to progress out of administrative segregation at CSP without reasonable accommodations for his disability. 194. Mr. Sardakowski has been injured and aggrieved by and will continue to be injured and aggrieved by Defendants’ discrimination.
FOURTH CLAIM FOR RELIEF Against Defendant CDOC
Discrimination Against Mr. Sardakowski on the Basis of Disability in Violation of the Rehabilitation Act of 1973
(29 U.S.C. § 794 – Violation of Rehabilitation Act) 195. Mr. Sardakowski incorporates herein by reference all other paragraphs of this complaint as
if those allegations were set out explicitly herein. 196. Section 504 of the Rehabilitation Act of 1973 states that “No otherwise qualified individual
with a disability in the United States, as defined in section 706(8) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794. 197. Defendants receive and benefit from federal financial assistance as that term is used in 29 U.S.C. § 794 through the Prison Rape Elimination Act and other sources. 198. Mr. Sardakowski is an individual with a mental impairment, a record of such an impairment, and is regarded as having such an impairment within the meaning of 42 U.S.C. § 12102 (as incorporated into 29 U.S.C. § 705(b)(9)(B)). His serious mental illnesses and developmental disability constitute mental impairments that substantially limit him in several
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major life activities, including but not limited to learning, concentrating, thinking, pursuing long-term goals, and interacting with others. These limitations on his life activities have had a profound effect on Mr. Sardakowski’s life as more fully described above. 199. As a prisoner in the custody of CDOC, Mr. Sardakowski is qualified for the programs, activities, aids, benefits, and services offered by CDOC. 200. Mr. Sardakowski, with or without reasonable modifications to rules, policies or practices, met and continues to meet the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by Defendants. Thus, Mr. Sardakowski is a “qualified handicapped person” within the meaning of the Rehabilitation Act. See, e.g., 28 C.F.R. § 41.32(b). 201. Defendants have discriminated against Mr. Sardakowski on the basis of disability in violation of 29 U.S.C. § 794 and its implementing regulations as more fully described above. 202. Such discrimination includes but is not limited to exclusion of Mr. Sardakowski from prison services and programs on the basis of his disability. Defendants also have failed to make reasonable accommodations and modifications to policies, practices, and procedures that are necessary for Mr. Sardakowski to be able to participate in Defendants’ services, programs and activities, including but not limited to “leveling out” programs at CSP and DD programs. 203. Mr. Sardakowski has been injured and aggrieved by and will continue to be injured and aggrieved by Defendants’ discrimination.
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PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests:
A. A declaration that Mr. Sardakowski has been and is being deprived by Defendants of his right to be free from cruel and unusual punishment in violation and contravention of the Eighth Amendment to the United States Constitution;
B. A declaration that Mr. Sardakowski has been and is being deprived by Defendants of his right to be free from discrimination on the basis of disability in violation of the Americans with Disabilities Act and the Rehabilitation Act by Defendants’ exclusion and segregation of him on the basis of his disability and refusal to make reasonable modifications to policies, practices and procedures necessary to avoid such discrimination;
C. An injunction requiring Defendants to comply with the Eighth Amendment to the United States Constitution, including but not limited to: 1. requiring evaluation of Mr. Sardakowski’s mental health and level of intellectual functioning by an independent mental health professional; 2. requiring proper treatment of Mr. Sardakowski’s mental illness and developmental disability; 3. providing Mr. Sardakowski the proper medications to accommodate his mental health disabilities and prevent self-harm; 4. requiring transfer out of administrative segregation to an appropriate facility;
D. An injunction requiring Defendants to comply with the Americans with Disabilities Act and Rehabilitation Act, including but not limited to:
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1. providing Mr. Sardakowski with reasonable accommodations to ensure that he has a meaningful opportunity to progress out of administrative segregation;
2. requiring reasonable modifications to rules, policies, and practices in CSP leveling out programs to provide Mr. Sardakowski with equal opportunity to progress out of administrative segregation.
E. An award of attorneys’ fees and costs of this action, including expert witness fees, on all claims allowed by law;
F. Any additional or alternative relief as may be just, proper and equitable.
DATED: October 25, 2012
Respectfully submitted, STUDENT LAW OFFICE s/ Laura Rovner Laura Rovner Mary Dewey, Student Attorney Jordan Isaacs, Student Attorney University of Denver Sturm College of Law 2255 E. Evans Ave., Denver, CO 80208 Telephone: 303.871.6140 Fax: 303.871.6847 E-mail: lrovner@law.du.edu Counsel for Plaintiff James Sardakowski
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 Case 1:12-cv-01326-RBJ-KLM Document 195 Filed 07/24/15 USDC Colorado Page 1 of 3
	  

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01326-RBJ-KLM JAMES SARDAKOWSKI,
Plaintiff, v. TOM CLEMENTS, et al.,
Defendants.

STIPULATION OF DISMISSAL WITH PREJUDICE

	  

	  

Plaintiff, through his counsel, and Defendants, through their counsel, file this Stipulation

of Dismissal with Prejudice in this matter pursuant to Fed.R.Civ.P. 41(a)(1)(A)(ii), and state as

follows:

1. The parties have agreed to a settlement of the claims brought by Plaintiff. 2. As a result of the settlement, Defendants and Plaintiff seek an order from the
Court dismissing, with prejudice, all claims brought by Plaintiff in this case.

WHEREFORE, the parties respectfully request that the Court enter an order directing that all claims brought by Plaintiff in this matter are dismissed with prejudice.

	  

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Case 1:12-cv-01326-RBJ-KLM Document 195 Filed 07/24/15 USDC Colorado Page 2 of 3
	  

DATED: July 24, 2015

Respectfully submitted,
STUDENT LAW OFFICE
s/ Laura Rovner Laura Rovner Lauren Fontana Civil Rights Clinic University of Denver College of Law 2255 E. Evans Ave., Suite 335 Denver, CO 80208 Tel: 303.871.6441 Email: lrovner@law.du.edu Counsel for Plaintiff, James Sardakowski
CYNTHIA H. COFFMAN Attorney General
s/ Christopher Alber Christopher Alber Assistant Attorney General Civil Litigation & Employment Law Section 1300 Broadway, 10th Floor Denver, CO 80203 Tel: 720.508.6612 Email: chris.alber@state.co.us Counsel for Defendants

	  

2	  

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CERTIFICATE OF SERVICE I hereby certify that on July 24, 2015, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following: Christopher Alber Assistant Attorney General Chris.alber@state.co.us
s/ Laura Rovner Laura Rovner

	  

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 Case 1:12-cv-01326-RBJ-KLM Document 92 Filed 03/26/13 USDC Colorado Page 1 of 17
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01326-RBJ-KLM
JAMES SARDAKOWSKI,
Plaintiff,
v.
TOM CLEMENTS, in his official capacity as Director of Colorado Department of Corrections, JOANIE SHOEMAKER, in her official capacity as Deputy Director of Prisons, Clinical Services for Colorado Department of Corrections, PAULA FRANTZ, in her official capacity as Chief Medical Officer for Colorado Department of Corrections, TRAVIS TRANI, in his official capacity as Warden of Colorado State Penitentiary, JAMES MICHAUD, in his official capacity as Mental Health Program Administrator for Colorado Department of Corrections, JILL LAMPELA, in her official capacity as Behavior Health Supervisor for Colorado State Penitentiary, and STATE OF COLORADO DEPARTMENT OF CORRECTIONS,
Defendants. _____________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE _____________________________________________________________________ ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendants’ Motion to Dismiss Plaintiff’s
Amended Complaint [Docket No. 79; Filed February 4, 2013] (the “Motion”). The Motion
is referred to this Court for recommendation [#80]. On February 25, 2013, Plaintiff filed a
Response [#85]. On March 11, 2013, Defendants filed a Reply [#90]. The Court has
reviewed the briefing, the case file, and the applicable law, and is fully advised in the
premises. For the reasons stated below, the Court respectfully recommends that
Plaintiff’s claims for retrospective declaratory relief be dismissed without prejudice and
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the Motion [#79] be DENIED. I. Background
Plaintiff is a state prisoner who has been in the custody of the Colorado Department of Corrections (“CDOC”) since September 2006. Am. Compl. [#62] at 2. Plaintiff initiated this lawsuit pursuant to 42 U.S.C. § 1983 on May 21, 2012 [#1]. On November 19, 2012, Plaintiff filed his Amended Complaint [#62]. In short, he brings four claims regarding his conditions of confinement and mental health treatment by CDOC personnel. Am. Compl. [#62] at 28-35.
Plaintiff alleges that he suffers from severe mental illness which includes a developmental disability. Id. at 2. He is presently incarcerated at Colorado State Penitentiary (“CSP”) and is housed in administrative segregation, i.e., solitary confinement. Id. He alleges that since the initiation of his incarceration, he has been denied adequate mental health treatment, including in part the denial of appropriate and necessary medication. Id. Because of this alleged denial, Plaintiff “has engaged and continues to engage in escalating self-injurious behaviors including multiple attempts at castration and suicide.” Id. He avers that his mental health has deteriorated, and continues to do so, because of Defendants’ inadequate mental health treatment. Id. Plaintiff asserts that CDOC psychiatrists have explicitly recommended that Plaintiff be transferred to an appropriate facility because prolonged isolation is exacerbating the symptoms of his severe mental illness. Id. Plaintiff also avers that Defendants have discriminated against him on the basis of his mental illness by failing to provide him with reasonable accommodations that would enable him to progress out of administration segregation. Id.
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In connection with these underlying events, Plaintiff asserts four claims against Defendants: (1) failure to provide adequate mental health treatment in violation of Plaintiff’s right to be free from cruel and unusual punishment pursuant to the Eighth Amendment; (2) placement and retainment of Plaintiff in administrative segregation in violation of his right to be free from cruel and unusual punishment, because of his mental illness; (3) discrimination against Plaintiff on the basis of his disability in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101; and (4) discrimination against Plaintiff on the basis of his disability in violation of the Rehabilitation Act of 1973 (“RA”), 29 U.S.C. § 794. Id. at 28-35.
Aside from attorney fees and costs of this action, Plaintiff only seeks declaratory and injunctive relief. Am. Compl. [#62] at 36. He seeks declarations that he “has been and is being deprived by Defendants of his right to be free” (1) “from cruel and unusual punishment in violation and contravention of the Eighth Amendment to the United States Constitution;” and (2) “from discrimination on the basis of disability in violation of the [ADA] and the [RA] by Defendants’ exclusion and segregation of him on the basis of his disability and refusal to make reasonable modifications to policies, practices and procedures necessary to avoid such discrimination.” Id. He further seeks injunctions requiring Defendants to comply with the Eighth Amendment, the ADA, and the RA. Id. Regarding the Eighth Amendment, Plaintiff wants: (1) an “evaluation of [Plaintiff’s] mental health and level of intellectual functioning by an independent mental health professional;” (2) “proper treatment of [Plaintiff’s] mental illness and developmental disability;” (3) “proper medications to accommodate his mental health disabilities and prevent self-harm;” and (4) “transfer out of administrative segregation to an appropriate facility.” Id. Regarding the
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ADA and the RA, Plaintiff seeks: (1) “reasonable accommodations to ensure that he has a meaningful opportunity to progress out of administrative segregation;” and (2) “reasonable modifications to rules, polices, and practices in CSP leveling out programs to provide Plaintiff with equal opportunity to progress out of administrative segregation.” Id. at 36-37.
Defendants seek dismissal of Plaintiff’s entire lawsuit. Motion [#79]. First, they assert that Plaintiff fails to state a cognizable Eighth Amendment claim because he has not alleged facts relating to the subjective component of deliberate indifference, because failing to provide a particular course of medical treatment is not an Eighth Amendment violation, and because Plaintiff has no constitutional right to a particular facility, classification or program. Id. at 3-8. Second, Defendants assert that Plaintiff does not allege disparate treatment and therefore fails to state a claim for relief pursuant to the ADA or the RA. Id. at 8-10. Third, they argue that Plaintiff’s requests for declaratory and injunctive relief should be denied. Id. at 10-12.
II. Standard of Review A. Fed. R. Civ. P. 12(b)(1)
Subject matter jurisdiction may be challenged by a party or raised sua sponte by the court at any point in the proceeding. E.g., Am. Fire & Cas. Co. v. Finn, 341 U.S. 6, 16-19, (1951); Harris v. Illinois-California Express, Inc., 687 F.2d 1361, 1366 (10th Cir. 1982); Fed. R. Civ. P. 12(h)(3). A motion to dismiss pursuant to Rule 12(b)(1) may take two forms: a facial attack or a factual attack. When reviewing a facial attack on a complaint pursuant to Rule 12(b)(1), the Court accepts the allegations of the complaint as true. Holt v. United States, 46 F.2d 1000, 1002 (10th Cir. 1995). When reviewing a factual attack on a
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complaint supported by affidavits or other documents, the Court makes its own factual findings and need not convert the motion to one brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. Id. at 1003.
Rule 12(b)(1) concerns whether the Court has jurisdiction to properly hear the case before it. Dismissal of a federal claim for lack of subject-matter jurisdiction “is proper only when the claim is ‘so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (quoting Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666 (1974)). Because “federal courts are courts of limited jurisdiction,” the Court must have a statutory basis to exercise its jurisdiction. Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002); see Fed. R. Civ. P. 12(b)(1). Statutes conferring subject-matter jurisdiction on federal courts are to be strictly construed. F. & S. Const. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964). “The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction.” Id. (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). B. Fed. R. Civ. P. 12(b)(6)
The Rule 12(b)(6) standard tests “the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). To survive a Rule 12(b)(6) motion, “[t]he complaint must plead sufficient facts, taken as true, to provide ‘plausible grounds’ that discovery will reveal evidence to support plaintiff’s allegations.” Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[P]lausibility refers to the scope of the allegations in a complaint: if they are so general that
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they encompass a wide swath of conduct, much of it innocent, then the plaintiff[ ] [has] not nudged [his] claims across the line from conceivable to plausible.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (internal quotations and citations omitted).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the alleged misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). However, “[a] pleading that offers ‘labels and conclusions’ or a formulaic recitation of the elements of a cause of action will not do. Nor does the complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (citation omitted). That said, “[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what the . . . claim is and the grounds upon which it rests;” the 12(b)(6) standard does not “require that the complaint include all facts necessary to carry the plaintiff’s burden.” Khalik, 671 F.3d at 1192.
“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citation omitted). As the Tenth Circuit has explained, “the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’” Iqbal, 556 U.S. at 678 (citation omitted).
The Court must construe the filings of a pro se litigant liberally. See Haines v. -6-

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Kerner, 404 U.S. 594, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be the pro se litigant’s advocate, nor should the Court “supply additional factual allegations to round out [the pro se litigant’s] complaint or construct a legal theory on [his or her] behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935 F.2d at 1110). Despite this relaxed pleading standard, a pro se plaintiff retains “the burden of alleging sufficient facts on which a recognizable legal claim could be based.” Hall, 935 F.2d at 1110. In addition, pro se litigants must follow the same procedural rules that govern other litigants. Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
As an additional preliminary matter, the Court “must accord substantial deference to the professional judgment of prison administrators, who bear a significant responsibility for defining the legitimate goals of a corrections system and for determining the most appropriate means to accomplish them.” Overton v. Bazzetta, 539 U.S. 126, 132 (2003). To this end, the Court notes the well-established law that prison management functions should be left to the broad discretion of prison administrators to enable them to manage prisons safely and effectively. See, e.g., Meachum v. Fano, 427 U.S. 215 (1976). Accordingly, courts should interfere with the management of prisons only under exceptional and compelling circumstances. Citizens Concerned for Separation of Church & State v. Denver, 628 F.2d 1289, 1299 (10th Cir. 1980); accord Taylor v. Freeman, 34 F.3d at 266, 268-70 (4th Cir. 1994). Indeed, the Tenth Circuit has stated that it “abhor[s] any situation or circumstance requiring the intervention of the federal courts in matters involving the administration, control and maintenance by the sovereign states of their penal systems. It is a delicate role assigned to the federal courts to display that restraint so necessary ‘in
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the maintenance of proper federal-state relations.’” Battle v. Anderson, 564 F.2d 388, 392 (10th Cir. 1977) (citing Townsend v. Sain, 372 U.S. 293, 318 (1963)). As such, “sweeping intervention in the management of state prisons is rarely appropriate when exercising the equitable powers of the federal courts.” Taylor, 34 F.3d at 269 (citations omitted).
III. Analysis A. Subject Matter Jurisdiction
Defendants do not raise a subject matter jurisdiction argument pursuant to Rule 12(b)(1) in the Motions. However, the Court must consider the question sua sponte when it comes to the Court's attention that the Court may lack jurisdiction over a matter. McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1252 (10th Cir. 1988); Smith v. Krieger, 643 F. Supp. 2d 1274, 1293 n.6 (D. Colo. 2009). Accordingly, the Court first considers whether it has subject matter jurisdiction over Plaintiff's requests for declaratory relief.1 See Herrara v. Alliant Specialty Ins. Servs., Inc., No. 11-00050, 2012 WL 959405, at *3 (D. Colo. March 21, 2012) (stating that issues of subject matter jurisdiction “must be resolved before the court may address other issues presented in the motion”).
The Declaratory Judgment Act (“DJA”), 28 U.S.C. § 2201, “validly confer[s] jurisdiction on federal courts to issue declaratory judgments in appropriate cases.” Calderon v. Ashmus, 523 U.S. 740, 745 (1998). The DJA explicitly incorporates the case or controversy requirement of the Constitution by stating: “In a case of actual controversy within its jurisdiction, . . . any court of the United States . . . may declare the rights and
1 Although Defendants argue that Plaintiff is not entitled to declaratory relief, they do so in a Rule 12(b)(6) context and not pursuant to Rule 12(b)(1), as the Court must first do here. See Motion [#79] at 10-12.
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other legal relations of any interested party seeking such declaration.” 28 U.S.C. § 2201(a). The Court therefore considers the issue of jurisdiction pursuant to Rule 12(b)(1) with respect to Plaintiff's requests for declaratory judgment. See, e.g., Van Deelen v. Fairchild, No. 05-2017, 2005 WL 3263885, at *7 (D . Kan. Dec. 1, 2005).
“Where a plaintiff seeks both an injunction and declaratory relief, the district court has a duty to decide the appropriateness and the merits of the declaratory request irrespective of its conclusion as to the propriety of the issuance of an injunction.” Jordan v. Sosa, 654 F.3d 1012, 1025 (10th Cir. 2011) (internal quotations omitted) (quoting Super Tire Eng'g Co. v. McCorckle, 416 U.S. 115, 121 (1974)). “It is well established that what makes a declaratory judgment action a proper judicial resolution of a case or controversy rather than an advisory opinion is the settling of some dispute which affects the behavior of the defendant toward the plaintiff.” Id. (citations omitted). In other words, “where a plaintiff seeks a declaratory judgment against his opponent, he must assert a claim for relief that, if granted, would affect the behavior of the particular parties listed in his complaint.” Id.
To establish that a case or controversy exists, Plaintiff must demonstrate that the controversy is: (1) definite, concrete, and touches on the legal relations of the parties, and (2) sufficiently immediate and real. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41 (1937); Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941). In short, “[t]he ultimate question is whether declaratory relief will have some effect in the real world.” Van Deelen, 2005 WL 3263885, at *7 (citing Citizens for Responsible Gov't State Political Action Comm. v. Davidson, 236 F.3d 1174, 1182 (10th Cir. 2000)). The mere fact that Plaintiff’s requested relief would give Plaintiff the satisfaction that he was wronged in the past does
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not create an actual, live controversy. Id. (citing Bauchman v. West High Sch., 132 F.3d 542, 548-49 (10th Cir. 1997) (holding that the case or controversy requirement was not met because the plaintiff's requested declaratory relief was moot)). Further, “[e]ven if subject matter jurisdiction exists, the Court has unique and substantial discretion to determine the propriety of declaratory judgment[.]” Id. (citing Exec. Risk Indem. Inc. v. Sprint Corp., 282 F. Supp. 2d 1196, 1202 (D. Kan. 2003)).
Plaintiff seeks a declaratory judgment that he “has been and is being deprived by Defendants of his right to be free” (1) “from cruel and unusual punishment in violation and contravention of the Eighth Amendment to the United States Constitution;” and (2) “from discrimination on the basis of disability in violation of the [ADA] and the [RA] by Defendants’ exclusion and segregation of him on the basis of his disability and refusal to make reasonable modifications to policies, practices and procedures necessary to avoid such discrimination.” Am. Compl. [#62] at 36. Thus, in part, Plaintiff seeks a declaration that his constitutional rights were violated and that Defendants have discriminated against him. However, even if the Court were to grant his request, the declaratory judgment would not “affect[] the behavior of [D]efendant[s] toward [P]laintiff,” because Defendants would not be required to take any course of action. See Rhodes v. Stewart, 488 U.S. 1, 4 (1988). In other words, Plaintiff is seeking a retrospective opinion that these Defendants wrongly harmed him, which is an impermissible use of a declaratory judgment. See Ashcroft v. Mattis, 431 U.S. 171, 172 (1977) (holding that a claim for declaratory relief was moot where the “primary claim of a present interest in the controversy is that [the plaintiff] will obtain emotional satisfaction from [the] ruling”); Green v. Branson, 108 F.3d 1296, 1299 (10th Cir. 1997) (“This ‘legal interest’ must be more than simply the satisfaction of a declaration that
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a person was wronged.”). Plaintiff seeks a declaration that Defendants violated his rights in the past: Even if [P]laintiff demonstrated past constitutional violations, the relief would do nothing more than give [P]laintiff the satisfaction of a declaration that in the past, [D]efendants wronged him. Retrospective declaratory relief would not impact the present or future legal relations of the parties. In this instance, declaratory relief would be hollow and fruitless.
Van Deelen, 2005 WL 3263885, at *8. Thus, because there is no case or controversy with regard to this part of Plaintiff's requested declaratory relief, the Court finds that Plaintiff's requests for declaratory relief against these Defendants should be dismissed for lack of subject matter jurisdiction to the extent that they seek a retrospective declaration that Plaintiff’s rights were violated in the past.2
Accordingly, the Court respectfully recommends that Plaintiff's requests for retrospective declaratory relief against all Defendants be dismissed without prejudice for lack of subject matter jurisdiction. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216-17 (10th Cir. 2006). B. Claims One and Two: Eighth Amendment
Defendants move to dismiss Plaintiff’s Eighth Amendment claims for cruel and unusual punishment arising from Defendants’ treatment of Plaintiff regarding his mental health. Motion [#79] at 3-8. The first claim is based on Defendants’ alleged deliberate indifference to providing Plaintiff with adequate mental health treatment. Am. Compl. [#62] at 28-29. The second claim is based on the alleged exacerbation of Plaintiff’s mental
2 In the interest of clarity, the Court notes that it is not recommending dismissal of Plaintiff’s requests for declaratory judgment that seek declarations that Plaintiff’s rights are currently being violated by Defendants or of the injunctive relief that relates to such declarations.
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illness due to his extended stay in administrative segregation. Id. at 29-31. 1. Inadequate Mental Health Treatment The Eighth Amendment protects against prison officials’ “deliberate indifference to
serious medical needs of prisoners” if that indifference “constitutes the unnecessary and wanton infliction of pain.” Anderson v. Colo., Dep’t of Corrs., 848 F. Supp. 2d 1291, 1299 (D. Colo. Mar. 26, 2012) (quoting Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006)). To survive a motion to dismiss a deliberate indifference claim, Plaintiff must both objectively demonstrate that his medical need is sufficiently serious as well as subjectively show that Defendants “knew of and disregarded an excessive risk to inmate health and safety.” Anderson, 848 F. Supp. 2d at 1299 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Defendants do not argue that Plaintiff fails to meet the objective component of this test. See Reply [#90] at 2-7; see also Response [385] at 6. Thus, the Court examines only whether Plaintiff has failed to sufficiently allege the subjective component of his deliberate indifference claim.
To support a favorable finding on this aspect of a deliberate indifference claim, Plaintiff must provide allegations that Defendants were both “aware of facts from which the inference could be drawn that a substantial risk of serious harm exists” and that they actually drew that inference. Anderson, 848 F. Supp. 2d at 1299 (quoting Farmer, 511 U.S. at 834). Serious harm means a “lifelong handicap, permanent loss, or considerable pain.” Anderson, 848 F. Supp. 2d at 1299 (quoting Garrett v. Stratman, 254 F.3d 946, 949-50 (10th Cir. 2001)). There is no argument that prison officials had actual knowledge of
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Plaintiff’s serious medical need.3 Motion [#79] at 4-5; see also Response [#85] at 7.
In part, Plaintiff alleges that prison officials failed to follow the recommendation of
CDOC mental health staff to transfer Plaintiff to an appropriate facility, that they have
denied him appropriate and necessary medication, and that this failure has lead to
Plaintiff’s continued suicide attempts and self-injurious behavior. Am. Compl. [#62] at 2,
29. Defendants are correct that “a difference in medical judgment is not sufficient to
establish an Eighth Amendment violation.” Anderson, 848 F. Supp. 2d at 1299 (citing Coppinger v. Townsend, 398 F.2d 392, 394 (10th Cir. 1968) (stating that “[t]he prisoner’s
right is to medical care–not to the type or scope of medical care which he personally
desires”)); Motion [#79] at 4-5. “However, that does not foreclose the possibility that
medical or mental health treatment will be so inadequate that it will rise to the level of an
Eighth Amendment violation.” Anderson, 848 F. Supp. 2d at 1299. Based on these
allegations of Defendants’ deliberate indifference to Plaintiff’s mental health issues, along
with a thorough review of the Amended Complaint, the Court finds that Plaintiff’s deliberate
indifference Eighth Amendment claim should not be dismissed as a matter of law at this
stage of the proceedings. Accordingly, the Court recommends that Defendants’ Motion
3 Defendants for the first time assert in the Reply that Plaintiff did not allege facts suggesting that any specific Defendant was exposed to information concerning any risk to Plaintiff. Reply [#90] at 3. Generally, the Court does not address an issue raised for the first time in a reply brief. Boone v. Carlsbad Bancorporation, 972 F.2d 1545, 1554 n.6 (10th Cir. 1992). The Court therefore does not address this aspect of Defendants’ argument. However, the Court notes, without deciding, that careful review of the Amended Complaint appears to sufficiently allege that each Defendant knew something about Plaintiff’s mental illness and treatment, even though the extent of knowledge held by each person is unclear. This question would be sufficient to survive a motion to dismiss at this early stage of the litigation. See, e.g., Edwards v. Farmers Ins. Co., No. 08-CV730-TCK-PJC, 2009 WL 4506218, at *8 (N.D. Okla. Nov. 24, 2009) (holding that motion to dismiss should be denied and that discovery was warranted where the plaintiff sufficiently alleged that the defendant engaged in wrongful activities and conduct but where the precise role played by the defendant was unclear).
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to Dismiss this claim be denied. 2. Administrative Segregation Defendants move to dismiss Plaintiff’s second Eighth Amendment claim based on
the conditions of his confinement. Motion [#79] at 6-8. Plaintiff asserts that his “indefinite isolation in solitary confinement has exacerbated his preexisting mental illnesses and has led to the significant deterioration of his mental health.” Am. Compl. [#62] at 30. Plaintiff states that his “self-harming behavior has noticeably escalated over the period of time he has been in isolation . . . as the nature of his acts has become more aggressive and their frequency has increased.” Id. at 31.
In order to show that the conditions of Plaintiff’s confinement constitute cruel and unusual punishment pursuant to the Eighth Amendment, Plaintiff must demonstrate an objective and a subjective component. Anderson, 848 F. Supp. 2d at 1295. Objectively, the prison deprivation must be sufficiently serious, such as “denying the minimal civilized measure of life necessities.” Id. (citing Wilson v. Seiter, 501 U.S. 294, 298-304 (1991)). Subjectively, the prison officials must have acted with a culpable state of mind, such as “some form of wanton conduct at least amounting to deliberate indifference as compared to inadvertence or good faith error.” Anderson, 848 F. Supp. 2d at 1295 (citing Wilson, 501 U.S. at 298-304).
Regarding the objective component, Plaintiff has alleged that his prolonged isolation is causing the further deterioration of his mental health and a significant increase in physical self-injury and suicide attempts. See, e.g., Am. Compl. [#62] at 30-31. These allegations clearly demonstrate conditions that put Plaintiff’s life in danger. Subjectively,
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Plaintiff has alleged that prison officials are aware of “the substantial risk that prolonged isolation would exacerbate [Plaintiff’s] mental illness and lead to severe deterioration of his mental health,” that they “ignored that risk by placing and retaining [Plaintiff] in solitary confinement,” and that they know of Plaintiff’s self-harming and suicidal behavior. See, e.g., id. The Court finds that these allegations are sufficient to meet the threshold to withstand a motion to dismiss this conditions of confinement claim at this early stage of the case. See, e.g., Ruiz v. Estelle, 503 F. Supp. 1265, 1339 (S.D. Tex. 1980), aff’d in part and rev’d in part, 679 F.2d 1115 (5th Cir. 1982). Accordingly, the Court recommends that Defendants’ Motion to Dismiss this claim be denied. C. Claims Three and Four: ADA and RA
Both the ADA and the RA prohibit discrimination by public entities on the basis of disability. Anderson, 848 F. Supp. 2d at 1300. They are materially identical, and the elements to state a claim under each are the same except that the defendant must receive federal funds to be liable under the RA. Id. at 1300 n.2 (citing Crawford v. Ind. Dep’t of Corrs., 115 F.3d 481, 483 (7th Cir. 1997)). To state a claim under either act, the plaintiff must allege: “(1) he is a qualified individual with a disability, (2) who was excluded from participation in or denied the benefits of a public entity’s services, programs, or activities, and (3) such exclusion, denial of benefits, or discrimination was by reason of a disability.” Anderson, 848 F. Supp. 2d at 1300 (quoting Robertson v. Las Animas Cnty. Sheriff’s Dep’t, 500 F. 3d 1185, 1193 (10th Cir. 2007)).
First, Defendants do not contest that Plaintiff sufficiently alleges that he suffers from a mental impairment that rises to the level of a disability within the meaning of the ADA and
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the RA. Motion [#79] at 8-10; Am. Compl. [#62] ¶ 182 (stating that Plaintiff’s “serious medical illness and developmental disability constitute mental impairments that substantially limit him in several major life activities, including but not limited to learning, concentrating, thinking, impulse control, pursuing long-term goals, and interacting with others); see also Response [#85] at 19-20.
Defendants argue that Plaintiff has not sufficiently alleged disparate treatment, and thus his claims pursuant to the ADA and RA fail as a matter of law. Motion [#79] at 8-10. Plaintiff argues that his disabilities foreclose any meaningful access to CDOC’s leveling-out programs that allow individuals to progress out of solitary confinement. Response [#85] at 21-23. Defendants reply that Plaintiff’s ADA and RA claims are “in actuality Eighth Amendment claims” based on CDOC’s alleged refusal to provide reasonable accommodations to Plaintiff regarding his medication and treatment. Reply [#90] at 10.
Defendants are correct that “the ADA and the [RA] do not provide a private right of action for substandard medical care.” Anderson, 848 F. Supp. at 1300 (citing Fitzgerald v. Corrs. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir. 2005)). There is no federal remedy pursuant to the ADA and RA for causes of action that equate to medical malpractice. Anderson, 848 F. Supp. at 1300. However, this characterization misses the point of Plaintiff’s claims here. Plaintiff avers that he has been unable to complete the requirements of the leveling-out program successfully because of his mental impairment and because CDOC officials have prevented him from obtaining adequate treatment and accommodation so that he may progress out of solitary confinement. See Response [#85] at 21-24; Am. Compl. [#62] at 31-35. Thus, at this early stage of the litigation, the Court cannot find that Plaintiff’s claims pursuant to the ADA and RA should be dismissed as a matter of law for
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failure to state a claim. Accordingly, the Court recommends that Defendants’ Motion to Dismiss these claims be denied.
IV. Conclusion Based on the foregoing, IT IS RESPECTFULLY RECOMMENDED that Plaintiff’s claims for retrospective declaratory relief be dismissed without prejudice and that Defendants’ Motion [#79] be DENIED. IT IS HEREBY ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this Recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). Dated March 26, 2013, at Denver, Colorado.
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 Case: 1:12-cv-1326 As of: 09/18/2016 07:55 PM MDT 1 of 17
ADMAPP,TERMED
U.S. District Court District of Colorado (Denver) CIVIL DOCKET FOR CASE #: 1:12−cv−01326−RBJ−KLM

Sardakowski v. Clements et al Assigned to: Judge R. Brooke Jackson Referred to: Magistrate Judge Kristen L. Mix
Magistrate Judge Craig B. Shaffer (Settlement) Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 05/21/2012 Date Terminated: 04/09/2014 Jury Demand: Plaintiff Nature of Suit: 555 Prisoner − Prison Condition (U.S. not a defendant) Jurisdiction: Federal Question

James Sardakowski

represented by Laura Lee Rovner University of Denver−Sturm College of Law 2255 East Evans Avenue Denver, CO 80208−0632 303−871−6140 Fax: 303−871−6847 Email: lrovner@law.du.edu ATTORNEY TO BE NOTICED

Lauren Louise Fontana Civil Rights Education and Enforcement Center 104 Broadway Suite 400 Denver, CO 80203 303−757−7901 Email: lauren.fontana@ucdenver.edu ATTORNEY TO BE NOTICED

Lisa Shawn Graybill University of Denver−Sturm College of Law 2255 East Evans Avenue Denver, CO 80208−0632 303−871−6230 Fax: 303−871−6847 Email: lgraybill@law.du.edu TERMINATED: 04/02/2014

V.
Defendant
Tom Clements in his official capacity as Director of Colorado Department of Corrections

represented by Christopher Wayne Alber Colorado Attorney General's Office Ralph L. Carr Colorado Judicial Center 1300 Broadway 10th Floor Denver, CO 80203 720−508−6612 Fax: 720−508−6032 Email: chris.alber@state.co.us ATTORNEY TO BE NOTICED
Kristin A. Ruiz Colorado Attorney General's Office Ralph L. Carr Colorado Judicial Center 1300 Broadway Denver, CO 80203

Case: 1:12-cv-1326 As of: 09/18/2016 07:55 PM MDT 2 of 17

720−508−6000 Fax: 720−508−6032 Email: kristin.ruiz@state.co.us TERMINATED: 01/18/2013

Lisa Amatangel Colorado Attorney General's Office Ralph L. Carr Colorado Judicial Center 1300 Broadway 10th Floor Denver, CO 80203 720−508−6000 Fax: 720−508−6032 Email: lisa.amatangel@state.co.us TERMINATED: 12/09/2013

Nicole S. Gellar Colorado Attorney General's Office Ralph L. Carr Colorado Judicial Center 1300 Broadway Denver, CO 80203 720−508−6614 Fax: 720−508−6032 Email: nicole.gellar@coag.gov ATTORNEY TO BE NOTICED

Defendant
Joanie Shoemaker in her official capacity as Deputy Director of Prisons, Clinical Services for Colorado Department of Corrections

represented by Christopher Wayne Alber (See above for address) ATTORNEY TO BE NOTICED
Lisa Amatangel (See above for address) TERMINATED: 12/09/2013

Nicole S. Gellar (See above for address) ATTORNEY TO BE NOTICED

Defendant
Paula Frantz in her official capacity as Chief Medical Officer for Colorado Department of Corrections

represented by Christopher Wayne Alber (See above for address) ATTORNEY TO BE NOTICED
Lisa Amatangel (See above for address) TERMINATED: 12/09/2013

Nicole S. Gellar (See above for address) ATTORNEY TO BE NOTICED

Defendant
Travis Trani in his official capacity as Warden of Colorado State Penitentiary

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

Kristin A. Ruiz (See above for address) TERMINATED: 01/18/2013

Lisa Amatangel (See above for address)

Case: 1:12-cv-1326 As of: 09/18/2016 07:55 PM MDT 3 of 17

TERMINATED: 12/09/2013

Defendant
James Michaud in his official capacity as Mental Health Program Administrator for Colorado Department of Corrections

represented by Christopher Wayne Alber (See above for address) ATTORNEY TO BE NOTICED
Lisa Amatangel (See above for address) TERMINATED: 12/09/2013

Nicole S. Gellar (See above for address) ATTORNEY TO BE NOTICED

Defendant
Jill Lampela in her official capacity as Behavior Health Supervisor for Colorado State Penitentiary

represented by Christopher Wayne Alber (See above for address) ATTORNEY TO BE NOTICED
Lisa Amatangel (See above for address) TERMINATED: 12/09/2013

Nicole S. Gellar (See above for address) ATTORNEY TO BE NOTICED

Defendant
State of Colorado Department of Corrections

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

Lisa Amatangel (See above for address) TERMINATED: 12/09/2013

Nicole S. Gellar (See above for address) ATTORNEY TO BE NOTICED

Defendant
Kavin Snyder actually named as Kavin Snyder (Individual capacitys [sic]), JURY DEMEND [sic], EMERGANCY [sic] TERMINATED: 11/19/2012

represented by Kristin A. Ruiz (See above for address) TERMINATED: 01/18/2013

Date Filed 05/21/2012
05/21/2012 05/21/2012

# Docket Text
1 Prisoner COMPLAINT against Tom Clements, Kavin Snyder, Travis Trani, filed by James Sardakowski. ( Event changed into a Motion for Temporary Restraining Order (dkals, ) Modified on 7/3/2012 to change event into a motion (sahsl, ). (Entered: 05/21/2012)
2 Prisoner's MOTION and Affidavit for Leave to Proceed Under 28 U.S.C. 1915 by Petitioner James Sardakowski. (dkals, ) (Entered: 05/21/2012)
3 Case assigned to Magistrate Judge Boyd N. Boland Text Only Entry (dkals, ) (Entered: 05/21/2012)

Case: 1:12-cv-1326 As of: 09/18/2016 07:55 PM MDT 4 of 17

05/29/2012 05/29/2012 05/30/2012 05/30/2012
06/05/2012 06/05/2012 06/07/2012 06/25/2012 06/25/2012 06/25/2012 06/27/2012 07/02/2012 07/03/2012
07/09/2012 07/09/2012
07/10/2012

4 ORDER Drawing Case. This case shall be drawn to a district judge and to a magistrate judge, by Magistrate Judge Boyd N. Boland on 5/29/2012. (skssl, ) (Entered: 05/29/2012)
5 CASE REASSIGNED pursuant to 4 Order. This case is reassigned to Judge R. Brooke Jackson. All future pleadings should be designated as 12−cv−01326−RBJ−KLM. Text Only Entry (skssl, ) (Entered: 05/29/2012)
6 CERTIFICATE of Service by Clerk of Court re 1 Complaint for Service of Process. (agarc, ) (Entered: 05/30/2012)
7 WAIVER OF SERVICE Returned Executed by Teresa Reynolds. Tom Clements waiver sent on 5/9/2012, answer due 7/9/2012; Kavin Snyder waiver sent on 5/9/2012, answer due 7/9/2012; Travis Trani waiver sent on 5/9/2012, answer due 7/9/2012. (sahsl, ) (Entered: 05/31/2012)
8 ORDER REFERRING CASE to Magistrate Judge Kristen L. Mix by Judge R. Brooke Jackson on 6/5/12. (sgrim) (Entered: 06/05/2012)
9 ORDER. The Prisoners Motion and Affidavit for Leave to Proceed Pursuantto 28 U.S.C. § 1915, 2 , is granted. By Magistrate Judge Kristen L. Mix on 6/5/2012.(sahsl, ) (Entered: 06/05/2012)
10 NOTICE of Avialability of a United States Magistrate Judge to Exercise Jurisdiction by Petitioner James Sardakowski (sahsl, ) (Entered: 06/07/2012)
11 Request a Clearification of Court Order by Petitioner James Sardakowski. (sahsl, ) (Entered: 06/26/2012)
12 Inmate trust fund account STATEMENT re 9 Order on Motion for Leave to Proceed in Forma Pauperis by Petitioner James Sardakowski. (sahsl, ) (Entered: 06/26/2012)
13 CERTIFICATE of Mailing/Service re 11 MOTION to Clarify re 4 Order, 12 Statement by Petitioner James Sardakowski. (sahsl, ) (Entered: 06/26/2012)
14 MEMORANDUM regarding 11 MOTION to Clarify re 4 Order filed by James Sardakowski. Motion 11 referred to Magistrate Judge Kristen L. Mix. By Judge R. Brooke Jackson on 06/27/2012. Text Only Entry (rbjsec. ) (Entered: 06/27/2012)
15 MINUTE ORDER. Plaintiffs Request [for] a [Clarification] of CourtOrder 25 is GRANTED. By Magistrate Judge Kristen L. Mix on 7/2/2012.(sahsl, ) (Entered: 07/03/2012)
16 MEMORANDUM regarding 1 MOTION for Temporary Restraining Order filed by James Sardakowski. Motion referred to Magistrate Judge Kristen L. Mix by Judge R. Brooke Jackson on 7/3/2012. Text Only Entry (rbjlc2, ) (Entered: 07/03/2012)
17 MOTION to Dismiss by Respondents Tom Clements, Kavin Snyder, Travis Trani. (Ruiz, Kristin) (Entered: 07/09/2012)
19 MINUTE ORDER. This matter is before the Court on Defendants Motion to Dismiss 17 (the Motion). The Motion is referred to this Court for recommendation 18 . Defendants bring the Motion pursuant to Fed. R. Civ. P. 12(b)(6) and make several arguments, including that Plaintiff has failed to properly exhaust administrative remedies as required by the Prison Litigation Reform Act. Plaintiff shall file a Response to the Motion no later than 7/25/2012. Plaintiff shall ONLY respond to Defendants argument concerning exhaustion of administrative remedies. See Motion 17 at 2−5. Defendants may file a Reply no later than 8/8/2012, replying only to the issue of exhaustion of administrative remedies. By Magistrate Judge Kristen L. Mix on 7/9/2012. (sahsl, ) (Entered: 07/11/2012)
18 MEMORANDUM regarding 17 MOTION to Dismiss filed by Kavin Snyder, Tom Clements, Travis Trani. Motion 17 referred to Magistrate Judge Kristen L. Mix. By Judge R. Brooke Jackson on 07/10/2012. Text Only Entry (rbjsec. ) (Entered: 07/10/2012)

Case: 1:12-cv-1326 As of: 09/18/2016 07:55 PM MDT 5 of 17

07/23/2012 07/23/2012
07/23/2012 07/23/2012 07/23/2012 07/23/2012 07/23/2012 07/24/2012
08/02/2012 08/02/2012
08/08/2012 09/04/2012 09/07/2012 09/07/2012
09/11/2012
09/14/2012 09/17/2012

20 Inmate Trust Account and Inability to make payments STATEMENT re 9 Order on Motion for Leave to Proceed in Forma Pauperis by Petitioner James Sardakowski. (ervsl, ) (Entered: 07/23/2012)
21 MOTION to Amend Original Complaint changed to a 1 MOTION for Temporary Restraining Order by Petitioner James Sardakowski. (ervsl, ) (Additional attachment(s) added on 7/23/2012: # 1 Proposed Document Amended complaint) (ervsl, ). (Entered: 07/23/2012)
22 MOTION to Appoint Counsel by Petitioner James Sardakowski. (ervsl, ) (Entered: 07/23/2012)
23 MOTION to Clarify the Record by Petitioner James Sardakowski. (ervsl, ) (Entered: 07/23/2012)
24 RESPONSE to 17 MOTION to Dismiss filed by Petitioner James Sardakowski. (ervsl, ) (Entered: 07/23/2012)
25 CERTIFICATE of Mailing/Service re 24 Response to Motion by Petitioner James Sardakowski. (ervsl, ) (Entered: 07/23/2012)
26 CERTIFICATE of Mailing/Service re 23 MOTION to Clarify, 20 Statement by Petitioner James Sardakowski. (ervsl, ) (Entered: 07/23/2012)
27 MEMORANDUM regarding 21 MOTION to Amend/Correct/Modify 1 MOTION for Temporary Restraining Order filed by James Sardakowski, 22 MOTION to Appoint Counsel filed by James Sardakowski, and 23 MOTION to Clarify filed by James Sardakowski. Motion 21 , 22 , and 23 referred to Magistrate Judge Kristen L. Mix. By Judge R. Brooke Jackson on 07/24/2012. Text Only Entry (rbjsec. ) (Entered: 07/24/2012)
28 MINUTE ORDER Denying Without Prejudice 21 Plaintiffs Motion to Amend Original Complaint, by Magistrate Judge Kristen L. Mix on 8/2/2012. (Attachments: # 1 Blank Prisoner Complaint Form)(ervsl, ) (Entered: 08/03/2012)
29 ORDER granting 22 that the Motion to Appoint 22 is GRANTED to the extent that the Clerk of Court is directed to include this matter on the list of pro se cases available for volunteer counsel; IT IS FURTHER ORDERED that the Motion to Clarify 23 is GRANTED to the extent outlined above, by Magistrate Judge Kristen L. Mix on 8/2/2012.(ervsl, ) (Entered: 08/03/2012)
30 REPLY to Response to 17 MOTION to Dismiss filed by Respondents Tom Clements, Kavin Snyder, Travis Trani. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Ruiz, Kristin) (Entered: 08/08/2012)
31 Inmate trust account, inability to make payments, STATEMENT re 9 Order on Motion for Leave to Proceed in Forma Pauperis by Petitioner James Sardakowski. (alvsl, ) (Entered: 09/04/2012)
32 NOTICE of Entry of Appearance by Laura Lee Rovner on behalf of James Sardakowski (Rovner, Laura) (Entered: 09/07/2012)
33 ORDER Scheduling Conference set for 10/2/2012 11:00 AM in Courtroom C204 before Magistrate Judge Kristen L. Mix. by Magistrate Judge Kristen L. Mix on 09/07/12. (Attachments: # 1 Attachment 1, # 2 Attachment 2, # 3 Attachment 3) (alvsl, ) (Entered: 09/07/2012)
34 MINUTE ORDER This matter is before the Court sua sponte. Due to a conflict on the Courts calendar, IT IS HEREBY ORDERED that the Scheduling Conference set for October 2, 2012 at 11:00 a.m. is VACATED and RESET. Scheduling Conference Reset for 10/4/2012 11:00 AM in Courtroom C204 before Magistrate Judge Kristen L. Mix, by Magistrate Judge Kristen L. Mix on 9/11/2012. (ervsl, ) (Entered: 09/11/2012)
35 MOTION to Continue Scheduling Conference by Petitioner James Sardakowski. (Rovner, Laura) (Entered: 09/14/2012)
36 MEMORANDUM regarding 35 MOTION to Continue Scheduling Conference filed by James Sardakowski. Motion 35 is referred to Magistrate Judge Kristen L.

Case: 1:12-cv-1326 As of: 09/18/2016 07:55 PM MDT 6 of 17

09/17/2012 09/20/2012 09/24/2012 09/24/2012 09/24/2012 09/25/2012 09/25/2012 10/16/2012 10/23/2012 10/25/2012 10/25/2012
10/25/2012
10/26/2012 11/02/2012

Mix. By Judge R. Brooke Jackson on 09/17/2012. Text Only Entry (rbjsec. ) (Entered: 09/17/2012)
37 MINUTE ORDER granting 35 Plaintiffs Motion to Continue SchedulingConference. Scheduling Conference Reset for 11/15/2012 09:30 AM in Courtroom C204 before Magistrate Judge Kristen L. Mix, by Magistrate Judge Kristen L. Mix on 9/17/2012.(ervsl, ) (Entered: 09/17/2012)
38 MOTION for Order to Hold in Abeyance Defendants' Motion to Dismiss (Doc. 17) by Petitioner James Sardakowski. (Rovner, Laura) (Entered: 09/20/2012)
39 MEMORANDUM regarding 38 MOTION for Order to Hold in Abeyance Defendants' Motion to Dismiss (Doc. 17) filed by James Sardakowski. Motion 38 is referred to Magistrate Judge Kristen L. Mix. By Judge R. Brooke Jackson on 09/24/2012. Text Only Entry (rbjsec. ) (Entered: 09/24/2012)
40 MINUTE ORDER granting 38 Motion to Hold in Abeyance Defendant's Motion to Dismiss. The Court shall hold in abeyance the Motion to Dismiss 17 through and including October 25, 2012, by Magistrate Judge Kristen L. Mix on 09/24/12. (alvsl) (Entered: 09/24/2012)
41 Unopposed MOTION for Leave to Appear As Student Attorney by Petitioner James Sardakowski. (Attachments: # 1 Proposed Order (PDF Only))(Rovner, Laura) (Entered: 09/24/2012)
42 MEMORANDUM regarding 41 Unopposed MOTION for Leave to Appear As Student Attorney filed by James Sardakowski. Motion 41 referred to Magistrate Judge Kristen L. Mix. By Judge R. Brooke Jackson on 09/25/2012. Text Only Entry (rbjsec. ) (Entered: 09/25/2012)
43 MINUTE ORDER granting 41 Motion for Leave to Appear, by Magistrate Judge Kristen L. Mix on 09/25/12.(alvsl) (Entered: 09/26/2012)
44 FINAL PAYMENT RECEIVED from James Sardakowski in the amount of $ 350.00; Receipt Number COX051018. (alvsl) (Entered: 10/16/2012)
45 Unopposed MOTION for Leave to Appear As Student Attorney (Mary Dewey) by Petitioner James Sardakowski. (Attachments: # 1 Proposed Order (PDF Only))(Rovner, Laura) (Entered: 10/23/2012)
46 MEMORANDUM regarding 45 Unopposed MOTION for Leave to Appear As Student Attorney (Mary Dewey) filed by James Sardakowski. Motion 45 is referred to Magistrate Judge Kristen L. Mix, by Judge R. Brooke Jackson on 10/25/2012. Text Only Entry (rbjsec. ) (Entered: 10/25/2012)
47 MINUTE ORDER; Plaintiff's 45 Unopposed Motion for Leave to Appear is GRANTED. Student Attorney Mary Dewey of the Civil Rights Clinic of Denver Sturm College of Law may appear before the Court and represent Plaintiff while under the direct supervision of Attorney Laura Rovner, current counsel for Plaintiff, by Magistrate Judge Kristen L. Mix on 10/25/2012.(klmcd, ) (Entered: 10/25/2012)
48 MOTION to Amend/Correct/Modify 1 MOTION for Temporary Restraining Order − MOTION TO AMEND COMPLAINT by Petitioner James Sardakowski. (Attachments: # 1 Exhibit Proposed Amended Complaint, # 2 Exhibit 2 − C−CS11/12−15066, # 3 Exhibit 3 − C−CS11/12−12967, # 4 Exhibit 4 − C−CS11/12−12969, # 5 Exhibit 5 − R−CS11/12−17973, # 6 Exhibit 6 − C−CS11/12−6411, # 7 Exhibit 7 − R−CS11/12−11708, # 8 Exhibit 8 − R−CS11/12−14383)(Rovner, Laura) (Entered: 10/25/2012)
49 MEMORANDUM regarding 48 MOTION to Amend/Correct/Modify 1 MOTION for Temporary Restraining Order − MOTION TO AMEND COMPLAINT filed by James Sardakowski. Motion 48 is referred to Magistrate Judge Kristen L. Mix. By Judge R. Brooke Jackson on 10/26/2012. (rbjsec. ) (Entered: 10/26/2012)
50 MOTION to Vacate and Reset Scheduling Conference by Respondents Tom Clements, Kavin Snyder, Travis Trani. (Ruiz, Kristin) (Entered: 11/02/2012)

Case: 1:12-cv-1326 As of: 09/18/2016 07:55 PM MDT 7 of 17

11/02/2012 11/02/2012
11/02/2012 11/05/2012 11/05/2012 11/05/2012 11/08/2012 11/08/2012 11/09/2012 11/15/2012 11/19/2012 11/19/2012
11/19/2012 11/20/2012

51 MEMORANDUM regarding 50 MOTION to Vacate and Reset Scheduling Conference filed by Kavin Snyder, Tom Clements, Travis Trani. Motion 50 referred to Magistrate Judge Kristen L. Mix, by Judge R. Brooke Jackson on 11/02/2012. Text Only Entry (rbjsec. ) (Entered: 11/02/2012)
52 MINUTE ORDER; Defendants' 50 Motion to Vacate and Reset Scheduling Conference is GRANTED. Scheduling Conference set for 11/15/2012 is VACATED and RESET to 1/7/2013 09:30 AM in Courtroom C204 before Magistrate Judge Kristen L. Mix. Parties shall submit the proposed scheduling order no later than 1/2/2013, by Magistrate Judge Kristen L. Mix on 11/2/2012.(klmcd, ) (Entered: 11/02/2012)
53 CONSENT to Jurisdiction of Magistrate Judge by Respondents Tom Clements, Kavin Snyder, Travis Trani. (Ruiz, Kristin) (Entered: 11/02/2012)
54 Unopposed MOTION to Withdraw as Attorney − Student Attorney (Jordan Isaacs) by Petitioner James Sardakowski. (Rovner, Laura) (Entered: 11/05/2012)
55 MEMORANDUM regarding 54 Unopposed MOTION to Withdraw as Attorney − Student Attorney (Jordan Isaacs) filed by James Sardakowski. Motion 54 is referred to Magistrate Judge Kristen L. Mix, by Judge R. Brooke Jackson on 11/5/2012. Text Only Entry (rbjsec. ) (Entered: 11/05/2012)
56 MINUTE ORDER; Plaintiff's 54 Unopposed Motion to Withdraw Appearance of Former Student Attorney is GRANTED. Student Attorney Jordan Isaacs of the Civil Rights Clinic at the University of Denver Sturm College of Law is relieved of any further representation of the Plaintiff in this case, by Magistrate Judge Kristen L. Mix on 11/5/2012.(klmcd, ) (Entered: 11/05/2012)
57 ORDER OF REFERENCE Pursuant to 28 U.S.C. 636(c) Upon Consent to Jurisdiction of Magistrate Judge by Judge R. Brooke Jackson on 11/8/12. (nmmsl, ) (Entered: 11/08/2012)
58 CASE REASSIGNED pursuant to 57 Order on Consent to Jurisdiction of Magistrate Judge. This case is reassigned to Magistrate Judge Kristen L. Mix. All future pleadings should be designated as 12−cv−1326−KLM. Text Only Entry (nmmsl, ) (Entered: 11/08/2012)
59 MOTION to Withdraw Reference to Magistrate Judge by Petitioner James Sardakowski. (Attachments: # 1 Exhibit 1 − Kaade Decl.)(Rovner, Laura) (Entered: 11/09/2012)
60 RESPONSE to 48 MOTION to Amend/Correct/Modify 1 MOTION for Temporary Restraining Order − MOTION TO AMEND COMPLAINT filed by Respondents Tom Clements, Kavin Snyder, Travis Trani. (Ruiz, Kristin) (Entered: 11/15/2012)
61 MINUTE ORDER by Magistrate Judge Kristen L. Mix on 11/19/12 GRANTING 48 Motion to Amend; DENYING as moot 17 Motion to Dismiss;and DENYING without prejudice 1 Motion for Temporary Restraining Order. ORDERED that the Clerk of the Court shall accept Plaintiff's Amended Complaint [#48−1] for filing as of the date of this Minute Order.(nmmsl, ) (Entered: 11/19/2012)
62 AMENDED COMPLAINT against Tom Clements, Travis Trani, Joanie Shoemaker, Paula Frantz, James Michaud, Jill Lampela, State of Colorado Department of Corrections, filed by James Sardakowski. (Attachments: # 1 Exhibit 2, # 2 Exhibit 3, # 3 Exhibit 4, # 4 Exhibit 5, # 5 Exhibit 6, # 6 Exhibit 7, # 7 Exhibit 8)(nmmsl, ) (Main Document 62 replaced on 11/28/2012) (nmmsl, ). Modified on 11/28/2012 to put filing date on document. (nmmsl, ). (Entered: 11/19/2012)
63 ORDER granting 59 Motion to Withdraw Reference. However, the withdrawal is for purposes of trial only. The order of reference to the magistrate judge stands with respect to all other matters, subject of course to the parties' normal right to file objections to orders or recommendations with which they disagree. by Judge R. Brooke Jackson on 11/19/12. Text Only Entry(rbj) (Entered: 11/19/2012)
64 LETTER RETURNING CONSENT CASE. Consent to Jurisdiction of Magistrate Judge is withdrawn pursuant to 63 Order. Case returned to Judge R. Brooke

Case: 1:12-cv-1326 As of: 09/18/2016 07:55 PM MDT 8 of 17

11/29/2012 11/30/2012 12/01/2012 12/03/2012
12/12/2012 12/12/2012 01/17/2013 01/18/2013 01/25/2013 01/25/2013 01/28/2013
01/29/2013

Jackson and Magistrate Judge Kristen L. Mix for all further proceedings. All future pleadings should be designated as 12−cv−01326−RBJ−KLM. Text Only Entry. (nmmsl, ) (Entered: 11/20/2012)
65 Unopposed MOTION for Extension of Time to File Answer or Otherwise Respond re 62 Amended Complaint, by Defendants Tom Clements, Travis Trani. (Ruiz, Kristin) (Entered: 11/29/2012)
66 MEMORANDUM regarding 65 Unopposed MOTION for Extension of Time to File Answer or Otherwise Respond re 62 Amended Complaint, filed by Tom Clements, Travis Trani. Motion 65 is referred to Magistrate Judge Kristen L. Mix. By Judge R. Brooke Jackson on 11/30/2012. Text Only Entry (rbjsec. ) (Entered: 11/30/2012)
67 WAIVER OF SERVICE Returned Executed by James Sardakowski. Jill Lampela waiver sent on 11/28/2012, answer due 1/28/2013; Joanie Shoemaker waiver sent on 11/28/2012, answer due 1/28/2013; State of Colorado Department of Corrections waiver sent on 11/28/2012, answer due 1/28/2013. (Rovner, Laura) (Entered: 12/01/2012)
68 MINUTE ORDER; Defendants Tom Clements and Travid Trani's 65 Unopposed Motion for Enlargement of Time to Answer or Otherwise Respond to Plaintiff's Amended Complaint is GRANTED. Defendants Tom Clements and Travis Trani shall file an an answer or other response to Plaintiff's Amended Complaint 62 on or before 1/28/2013. Scheduling Conference set for 1/7/2013 is VACATED and RESET to 2/27/2013 10:30 AM in Courtroom C204 before Magistrate Judge Kristen L. Mix. Parties shall submit their proposed scheduling order no later than 2/22/2013, by Magistrate Judge Kristen L. Mix on 12/3/2012.(klmcd, ) (Entered: 12/03/2012)
69 WAIVER OF SERVICE Returned Executed by Paula Frantz. Paula Frantz waiver sent on 12/11/2012, answer due 2/11/2013. (Rovner, Laura) (Entered: 12/12/2012)
70 WAIVER OF SERVICE Returned Executed by James Michaud. James Michaud waiver sent on 12/11/2012, answer due 2/11/2013. (Rovner, Laura) (Entered: 12/12/2012)
71 MOTION to Withdraw as Attorney /Motion for Substitution of Counsel by Defendants Tom Clements, Paula Frantz, Jill Lampela, James Michaud, Joanie Shoemaker, State of Colorado Department of Corrections, Travis Trani. (Amatangel, Lisa) (Entered: 01/17/2013)
72 ORDER granting 71 Motion to Withdraw as Attorney. Attorney Kristin A. Ruiz terminated. By Judge R. Brooke Jackson on 01/18/2013. Text Only Entry(rbjsec. ) (Entered: 01/18/2013)
73 NOTICE of Entry of Appearance by Lisa Amatangel by Nicole S. Gellar on behalf of Tom Clements, Paula Frantz, Jill Lampela, James Michaud, Joanie Shoemaker, State of Colorado Department of Corrections (Gellar, Nicole) (Entered: 01/25/2013)
74 Unopposed MOTION for Extension of Time to File Answer or Otherwise Respond re 62 Amended Complaint, by Defendants Tom Clements, Paula Frantz, Jill Lampela, James Michaud, Joanie Shoemaker, State of Colorado Department of Corrections. (Gellar, Nicole) (Entered: 01/25/2013)
75 MEMORANDUM regarding 74 Unopposed MOTION for Extension of Time to File Answer or Otherwise Respond re 62 Amended Complaint, filed by Joanie Shoemaker, Tom Clements, James Michaud, Paula Frantz, Jill Lampela, State of Colorado Department of Corrections. Motion 74 is referred to Magistrate Judge Kristen L. Mix, by Judge R. Brooke Jackson on 01/28/2013. Text Only Entry (rbjsec. ) (Entered: 01/28/2013)
76 Unopposed MOTION for Leave to Appear As Student Attorneys (A. Essex &D. Kaade) by Plaintiff James Sardakowski. (Attachments: # 1 Proposed Order (PDF Only) (Amanda Essex, Student Attorney), # 2 Proposed Order (PDF Only) (Donald Kaade, Student Attorney))(Rovner, Laura) (Entered: 01/29/2013)

Case: 1:12-cv-1326 As of: 09/18/2016 07:55 PM MDT 9 of 17

01/30/2013 01/30/2013
02/04/2013 02/05/2013 02/21/2013 02/22/2013 02/22/2013 02/22/2013 02/25/2013 02/27/2013
02/27/2013 02/27/2013
03/07/2013

77 MEMORANDUM regarding 76 Unopposed MOTION for Leave to Appear As Student Attorneys (A. Essex &D. Kaade) filed by James Sardakowski. Motion 76 is referred to Magistrate Judge Kristen L. Mix, by Judge R. Brooke Jackson on 01/30/2013. Text Only Entry (rbjsec. ) (Entered: 01/30/2013)
78 MINUTE ORDER granting 74 Motion for Extension of Time to Answer or Otherwise Respond. Defendants shall file an answer or otherwise respond to Plaintiff's Amended Complaint on or before February 4, 2013. IT IS FURTHER ORDERED that the Motion to Appear 76 is GRANTED. Student Attorney Amanda Essex and Student Attorney Donald Kaade of the Civil Rights Clinic at the University of Denver Sturm College of Law may appear before the Court and represent Plaintiff while under the direct supervision of Attorney Laura Rovner, current counsel for Plaintiff. By Magistrate Judge Kristen L. Mix on 01/30/13. (alvsl) (Entered: 01/30/2013)
79 MOTION to Dismiss by Defendants Tom Clements, Paula Frantz, Jill Lampela, James Michaud, Joanie Shoemaker, State of Colorado Department of Corrections. (Attachments: # 1 Exhibit Robinson v. Corriveau)(Amatangel, Lisa) (Entered: 02/04/2013)
80 MEMORANDUM regarding 79 MOTION to Dismiss filed by Joanie Shoemaker, Tom Clements, James Michaud, Paula Frantz, Jill Lampela, State of Colorado Department of Corrections. Motion 79 is referred to Magistrate Judge Kristen L. Mix, by Judge R. Brooke Jackson on 02/05/2013. Text Only Entry (rbjsec. ) (Entered: 02/05/2013)
81 NOTICE of Entry of Appearance by Christopher Wayne Alber on behalf of Tom Clements, Paula Frantz, Jill Lampela, James Michaud, Joanie Shoemaker, State of Colorado Department of Corrections, Travis Trani (Alber, Christopher) (Entered: 02/21/2013)
82 Proposed Scheduling Order by Plaintiff James Sardakowski. (Rovner, Laura) (Entered: 02/22/2013)
83 MOTION to Stay Discovery by Defendants Tom Clements, Paula Frantz, Jill Lampela, James Michaud, Joanie Shoemaker, State of Colorado Department of Corrections. (Alber, Christopher) (Entered: 02/22/2013)
84 MEMORANDUM regarding 83 MOTION to Stay Discovery filed by Joanie Shoemaker, Tom Clements, James Michaud, Paula Frantz, Jill Lampela, State of Colorado Department of Corrections. Motion 83 is referred to Magistrate Judge Kristen L. Mix, By Judge R. Brooke Jackson on 02/22/2013. Text Only Entry (rbjsec. ) (Entered: 02/22/2013)
85 RESPONSE to 79 MOTION to Dismiss filed by Plaintiff James Sardakowski. (Rovner, Laura) (Entered: 02/25/2013)
86 MINUTE ENTRY for proceedings held before Magistrate Judge Kristen L. Mix: Scheduling Conference held on 2/27/2013; Discovery due by 8/27/2013. Dispositive Motions due by 9/26/2013. Final Pretrial Conference set for 1/27/2014 10:00 AM in Courtroom C204 before Magistrate Judge Kristen L. Mix. Court Reporter: FTR − Monique Wiles. (Attachments: # 1 Requirements of Practice) (klmcd, ) (Entered: 02/27/2013)
87 SCHEDULING ORDER: by Magistrate Judge Kristen L. Mix on 2/27/2013. (klmcd, ) (Entered: 02/27/2013)
88 ORDER SETTING TRIAL AND TRIAL PREPARATION CONFERENCE: This matter has been scheduled for a five−day bench trial on the docket of Judge R. Brooke Jackson in the U.S. District Courthouse, Courtroom A902, 9th Floor, 901 19th Street, Denver, Colorado, to commence on March 17, 2014 at 9:00 a.m. A Trial Preparation Conference is set for February 25, 2014 at 2:00 p.m. By Judge R. Brooke Jackson on 02/27/2013. (rbjsec. ) (Entered: 02/27/2013)
89 RESPONSE to 83 MOTION to Stay Discovery filed by Plaintiff James Sardakowski. (Rovner, Laura) (Entered: 03/07/2013)

Case: 1:12-cv-1326 As of: 09/18/2016 07:55 PM MDT 10 of 17

03/11/2013 03/21/2013 03/26/2013
03/26/2013 05/31/2013 06/04/2013 06/05/2013
06/10/2013 06/11/2013 06/17/2013
06/18/2013 07/01/2013 07/15/2013

90 REPLY to Response to 79 MOTION to Dismiss filed by Defendants Tom Clements, Paula Frantz, Jill Lampela, James Michaud, Joanie Shoemaker, State of Colorado Department of Corrections, Travis Trani. (Amatangel, Lisa) (Entered: 03/11/2013)
91 REPLY to Response to 83 MOTION to Stay Discovery filed by Defendants Tom Clements, Paula Frantz, Jill Lampela, James Michaud, Joanie Shoemaker, State of Colorado Department of Corrections, Travis Trani. (Alber, Christopher) (Entered: 03/21/2013)
92 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 79 MOTION to Dismiss filed by Joanie Shoemaker, Tom Clements, James Michaud, Paula Frantz, Jill Lampela, State of Colorado Department of Corrections. The Court respectfully RECOMMENDS that Plaintiff's claims for retrospective declaratory relief be dismissed without prejudice and that Defendants' Motion 79 be DENIED, by Magistrate Judge Kristen L. Mix on 3/26/2013. (klmcd, ) (Entered: 03/26/2013)
93 MINUTE ORDER finding as moot 83 Motion to Stay. By Magistrate Judge Kristen L. Mix on 03/26/13. (alvsl ) (Entered: 03/26/2013)
94 NOTICE of Entry of Appearance by Lisa Shawn Graybill on behalf of James Sardakowski (Graybill, Lisa) (Entered: 05/31/2013)
95 Stipulated MOTION for Protective Order by Defendants Tom Clements, Paula Frantz, Jill Lampela, James Michaud, Joanie Shoemaker, State of Colorado Department of Corrections. (Attachments: # 1 Proposed Order (PDF Only) Stipulated Protective Order)(Amatangel, Lisa) (Entered: 06/04/2013)
96 ORDER denying 95 Stipulated MOTION for Protective Order. The Court has no objection to any restrictions the parties want to place on one another. However, documents filed in the court files are presumptively available to the public. The Court does not have an objection to a protective order as to documents that must be filed with the Court so long as it is narrowly tailored to assure that only truly confidential information, such as medical information or information concerning correctional security, is restricted. The proposed order is too broad. By Judge R. Brooke Jackson on 06/05/2013. Text Only Entry(rbjsec. ) (Entered: 06/05/2013)
97 Unopposed MOTION for Extension of Time to Disclose Expert Witnesses and for Extension of Other Deadlines by Plaintiff James Sardakowski. (Attachments: # 1 Proposed Order (PDF Only))(Graybill, Lisa) (Entered: 06/10/2013)
98 MEMORANDUM regarding 97 Unopposed MOTION for Extension of Time to Disclose Expert Witnesses and for Extension of Other Deadlines filed by James Sardakowski. Motion 97 is referred to Magistrate Judge Kristen L. Mix, by Judge R. Brooke Jackson on 06/11/2013. Text Only Entry (rbjsec. ) (Entered: 06/11/2013)
99 MINUTE ORDER granting 97 Unopposed Motion for Extension of Deadlines. The Scheduling Order entered on February 27, 2013 # 87 is amended to extend the following deadlines: Affirmative Expert Disclosure Deadline July 19, 2013; Rebuttal Expert Disclosure Deadline August 28, 2013; Discovery Deadline September 27, 2013; Dispositive Motions Deadline October 28, 2013. By Magistrate Judge Kristen L. Mix on 06/17/13. (alvsl) (Entered: 06/17/2013)
100 AMENDED MINUTE ORDER: The Minute Order (# 99 ) entered on June 17, 2013 is hereby amended solely to correct the Affirmative Expert Disclosure Deadline. By Magistrate Judge Kristen L. Mix on 06/18/13. (alvsl) (Entered: 06/18/2013)
101 ORDER. It is ORDERED that the Recommendation of United States Magistrate Judge (# 92 ) is AFFIRMED and ADOPTED. Plaintiff's claims for retrospective declaratory relief are DISMISSED without prejudice, and Defendant's Motion to Dismiss (# 79 ) is DENIED. By Judge R. Brooke Jackson on 07/01/13. (alvsl) (Entered: 07/01/2013)
102 ANSWER to 62 Amended Complaint, by Tom Clements, Paula Frantz, Jill Lampela, James Michaud, Joanie Shoemaker, State of Colorado Department of

Case: 1:12-cv-1326 As of: 09/18/2016 07:55 PM MDT 11 of 17

07/26/2013 08/27/2013 08/27/2013 08/27/2013 08/28/2013
08/29/2013 09/05/2013 09/05/2013 09/10/2013 09/13/2013
12/02/2013
12/03/2013 12/06/2013

Corrections, Travis Trani.(Alber, Christopher) (Entered: 07/15/2013)
103 NOTICE of Entry of Appearance by Lauren Louise Fontana on behalf of James Sardakowski (Fontana, Lauren) (Entered: 07/26/2013)
104 Unopposed MOTION to Withdraw as Attorney A. Essex and D. Kaade by Plaintiff James Sardakowski. (Graybill, Lisa) (Entered: 08/27/2013)
105 ORDER granting 104 Unopposed MOTION to Withdraw as Attorney A. Essex and D. Kaade. By Judge R. Brooke Jackson on 08/27/2013. Text Only Entry(rbjsec. ) (Entered: 08/27/2013)
106 MOTION for Extension of Time to Disclose Rebuttal Expert Witnesses and for Extension of Other Deadlines by Defendants Tom Clements, Paula Frantz, Jill Lampela, James Michaud, Joanie Shoemaker, State of Colorado Department of Corrections, Travis Trani. (Alber, Christopher) (Entered: 08/27/2013)
107 MEMORANDUM regarding 106 MOTION for Extension of Time to Disclose Rebuttal Expert Witnesses and for Extension of Other Deadlines filed by Joanie Shoemaker, Tom Clements, James Michaud, Paula Frantz, Jill Lampela, State of Colorado Department of Corrections, Travis Trani. Motion 106 is referred to Magistrate Judge Kristen L. Mix, by Judge R. Brooke Jackson on 08/28/2013. Text Only Entry (rbjsec. ) (Entered: 08/28/2013)
108 MINUTE ORDER re: 106 Defendants' Motion to Modify the Scheduling Order. IT IS HEREBY ORDERED that Plaintiff shall file a Response to the Motion on or before September 10, 2013. No Reply will be permitted. By Magistrate Judge Kristen L. Mix on 08/29/13. (alvsl) (Entered: 08/29/2013)
109 Unopposed MOTION for Leave to Appear as Student Attorneys by Plaintiff James Sardakowski. (Attachments: # 1 Proposed Order (PDF Only) Virginia Thompson − Student Attorney, # 2 Proposed Order (PDF Only) Zachary Woodward − Student Attorney)(Rovner, Laura) (Entered: 09/05/2013)
110 ORDER granting 109 Unopposed MOTION for Leave to Appear as Student Attorneys by Plaintiff James Sardakowski. (Virginia Thompson − Student Attorney and Zachary Woodward − Student Attorney). By Judge R. Brooke Jackson on 09/05/2013. Text Only Entry(rbjsec. ) (Entered: 09/05/2013)
111 RESPONSE to 106 MOTION for Extension of Time to Disclose Rebuttal Expert Witnesses and for Extension of Other Deadlines filed by Plaintiff James Sardakowski. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Rovner, Laura) (Entered: 09/10/2013)
112 MINUTE ORDER granting 106 Motion to Modify the Scheduling Order. The Scheduling Order entered on February 27, 2013 (# 87 ), as amended on June 17, 2013 (# 99 ), is further modified to extend the following deadlines: Rebuttal Expert Disclosure Deadline October 1, 2013; Discovery Deadline October 31, 2013; Dispositive Motions Deadline December 2, 2013. By Magistrate Judge Kristen L. Mix on 09/13/13. (alvsl) (Entered: 09/16/2013)
113 MOTION for Summary Judgment by Defendants Tom Clements, Paula Frantz, Jill Lampela, James Michaud, Joanie Shoemaker, State of Colorado Department of Corrections, Travis Trani. (Attachments: # 1 Exhibit A−1, # 2 Exhibit A−2, # 3 Exhibit A−3, # 4 Exhibit A−4, # 5 Exhibit A−5, # 6 Exhibit A−6, # 7 Exhibit A−7, # 8 Exhibit A−8, # 9 Exhibit A−9, # 10 Exhibit A−10, # 11 Exhibit A−11, # 12 Exhibit A−12, # 13 Exhibit A−13)(Alber, Christopher) (Entered: 12/02/2013)
114 MEMORANDUM regarding 113 MOTION for Summary Judgment filed by Joanie Shoemaker, Tom Clements, James Michaud, Paula Frantz, Jill Lampela, State of Colorado Department of Corrections, Travis Trani. Motion 113 is referred to Magistrate Judge Kristen L. Mix, by Judge R. Brooke Jackson on 12/3/2013. Text Only Entry (rbjsec ) (Entered: 12/03/2013)
115 MOTION to Withdraw as Attorney by Defendants Tom Clements, Paula Frantz, Jill Lampela, James Michaud, Joanie Shoemaker, Travis Trani. (Amatangel, Lisa) (Entered: 12/06/2013)

Case: 1:12-cv-1326 As of: 09/18/2016 07:55 PM MDT 12 of 17

12/09/2013 12/26/2013 12/26/2013 12/26/2013 12/26/2013 12/26/2013 12/26/2013 12/26/2013 12/26/2013 12/26/2013 12/26/2013 12/26/2013 12/26/2013 12/26/2013 12/26/2013 12/26/2013

116 ORDER granting 115 Motion to Withdraw as Attorney. Attorney Lisa Amatangel is withdrawn. By Judge R. Brooke Jackson on 12/9/2013. Text Only Entry(rbjsec. ) (Entered: 12/09/2013)
117 RESPONSE to 113 MOTION for Summary Judgment filed by Plaintiff James Sardakowski. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 2−A, # 4 Exhibit 2−B, # 5 Exhibit 2−C, # 6 Exhibit 3)(Rovner, Laura) (Entered: 12/26/2013)
118 Exhibits in Support of 117 Response to Motion for Summary Judgment by Plaintiff James Sardakowski. (Attachments: # 1 Exhibit 5, # 2 Exhibit 6, # 3 Exhibit 7, # 4 Exhibit 8, # 5 Exhibit 9, # 6 Exhibit 10, # 7 Exhibit 11)(Fontana, Lauren) (Entered: 12/26/2013)
119 Exhibits in Support of 117 Response to Motion for Summary Judgment by Plaintiff James Sardakowski. (Attachments: # 1 Exhibit 13, # 2 Exhibit 14, # 3 Exhibit 15, # 4 Exhibit 16, # 5 Exhibit 17)(Rovner, Laura) (Entered: 12/26/2013)
120 Exhibits in Support of 117 Response to Motion for Summary Judgment by Plaintiff James Sardakowski. (Attachments: # 1 Exhibit 19, # 2 Exhibit 20, # 3 Exhibit 21, # 4 Exhibit 22, # 5 Exhibit 23, # 6 Exhibit 24, # 7 Exhibit 25)(Fontana, Lauren) (Entered: 12/26/2013)
121 Exhibits in Support of 117 Response to Motion for Summary Judgment by Plaintiff James Sardakowski. (Attachments: # 1 Exhibit 27, # 2 Exhibit 28, # 3 Exhibit 29, # 4 Exhibit 30, # 5 Exhibit 31, # 6 Exhibit 32)(Rovner, Laura) (Entered: 12/26/2013)
122 Exhibits in Support of 117 Response to Motion for Summary Judgment by Plaintiff James Sardakowski. (Attachments: # 1 Exhibit 34, # 2 Exhibit 35, # 3 Exhibit 36, # 4 Exhibit 37, # 5 Exhibit 38, # 6 Exhibit 39, # 7 Exhibit 39−A, # 8 Exhibit 40)(Fontana, Lauren) (Entered: 12/26/2013)
123 Exhibits in Support of 117 Response to Motion for Summary Judgment by Plaintiff James Sardakowski. (Attachments: # 1 Exhibit 42, # 2 Exhibit 43, # 3 Exhibit 44, # 4 Exhibit 44−1, # 5 Exhibit 44−2(A), # 6 Exhibit 44−2(B), # 7 Exhibit 44−2(C))(Rovner, Laura) (Entered: 12/26/2013)
124 Exhibits in Support of 117 Response to Motion for Summary Judgment by Plaintiff James Sardakowski. (Attachments: # 1 Exhibit 46, # 2 Exhibit 47, # 3 Exhibit 48, # 4 Exhibit 49, # 5 Exhibit 50, # 6 Exhibit 51, # 7 Exhibit 52, # 8 Exhibit 53)(Fontana, Lauren) (Entered: 12/26/2013)
125 Exhibits in Support of 117 Response to Motion for Summary Judgment by Plaintiff James Sardakowski. (Attachments: # 1 Exhibit 55, # 2 Exhibit 56, # 3 Exhibit 57, # 4 Exhibit 58, # 5 Exhibit 59, # 6 Exhibit 60)(Rovner, Laura) (Entered: 12/26/2013)
126 Exhibits in Support of 117 Response to Motion for Summary Judgment by Plaintiff James Sardakowski. (Attachments: # 1 Exhibit 62, # 2 Exhibit 63, # 3 Exhibit 64, # 4 Exhibit 65, # 5 Exhibit 66(B), # 6 Exhibit 66(B))(Fontana, Lauren) (Entered: 12/26/2013)
127 Exhibits in Support of 117 Response to Motion for Summary Judgment by Plaintiff James Sardakowski. (Attachments: # 1 Exhibit 68, # 2 Exhibit 69, # 3 Exhibit 70, # 4 Exhibit 71, # 5 Exhibit 72)(Rovner, Laura) (Entered: 12/26/2013)
128 Exhibits in Support of 117 Response to Motion for Summary Judgment by Plaintiff James Sardakowski. (Attachments: # 1 Exhibit 74, # 2 Exhibit 75, # 3 Exhibit 76, # 4 Exhibit 77, # 5 Exhibit 78, # 6 Exhibit 79, # 7 Exhibit 80)(Fontana, Lauren) (Entered: 12/26/2013)
129 Exhibits in Support of 117 Response to Motion for Summary Judgment by Plaintiff James Sardakowski. (Attachments: # 1 Exhibit 82, # 2 Exhibit 83, # 3 Exhibit 84, # 4 Exhibit 85, # 5 Exhibit 86, # 6 Exhibit 87)(Rovner, Laura) (Entered: 12/26/2013)
130 Exhibits in Support of 117 Response to Motion for Summary Judgment by Plaintiff James Sardakowski. (Attachments: # 1 Exhibit 89, # 2 Exhibit 90(A), # 3 Exhibit 90(B), # 4 Exhibit 90(C), # 5 Exhibit 91)(Fontana, Lauren) (Entered: 12/26/2013)
131 RESTRICTED DOCUMENT − Level 1: by Plaintiff James Sardakowski..Motion to Restrict per LCivR 7.2(e) and LCrR 47.1(e) due 1/9/2014 if not already filed.

Case: 1:12-cv-1326 As of: 09/18/2016 07:55 PM MDT 13 of 17

12/26/2013 12/27/2013 01/07/2014 01/09/2014 01/10/2014 01/13/2014 01/14/2014
01/15/2014 01/16/2014
01/23/2014 01/24/2014
02/03/2014 02/06/2014 02/09/2014

(Rovner, Laura) (Entered: 12/26/2013)
132 Exhibits in Support of 117 Response to Motion by Plaintiff James Sardakowski. Public entry for 131 Restricted Document − Level 1. (text entry only) (trlee, ) (Entered: 12/27/2013)
133 Conventionally Submitted Material : CD, exhibit 4−A to Response to Motion 117 , by Plaintiff James Sardakowski. Text Only Entry (trlee, ) Modified on 1/10/2014 to reflect that this exhibit is restricted level 1 per 136 (trlee, ). (Entered: 12/27/2013)
134 Unopposed MOTION to Reset /Consolidate Pretrial Conference with Trial Preparation Conference by Plaintiff James Sardakowski. (Rovner, Laura) (Entered: 01/07/2014)
135 Unopposed MOTION for Leave to Restrict Document as to docket entry # 117, Ex. 4−A by Plaintiff James Sardakowski. (Rovner, Laura) (Entered: 01/09/2014)
136 ORDER granting 135 Motion for Leave to Restrict. By Judge R. Brooke Jackson on 01/10/2014. Text Only Entry(rbjsec. ) (Entered: 01/10/2014)
137 MOTION for Extension of Time to File Response/Reply as to 113 MOTION for Summary Judgment by Defendants Tom Clements, Paula Frantz, Jill Lampela, James Michaud, Joanie Shoemaker, State of Colorado Department of Corrections, Travis Trani. (Alber, Christopher) (Entered: 01/13/2014)
138 MEMORANDUM regarding 137 MOTION for Extension of Time to File Response/Reply as to 113 MOTION for Summary Judgment filed by Joanie Shoemaker, Tom Clements, James Michaud, Paula Frantz, Jill Lampela, State of Colorado Department of Corrections, Travis Trani. Motion 137 is referred to Magistrate Judge Kristen L. Mix, by Judge R. Brooke Jackson on 01/14/2014. Text Only Entry (rbjsec. ) (Entered: 01/14/2014)
139 MINUTE ORDER granting 137 Motion for Extension of Time to File Response/Reply. Defendants shall file a Reply in support of the Motion for Summary Judgment on or before February 3, 2014. by Magistrate Judge Kristen L. Mix on 1/15/2014.(trlee, ) (Entered: 01/15/2014)
140 ORDER granting 134 Unopposed MOTION to Reset /Consolidate Pretrial Conference with Trial Preparation Conference. After consulting with Magistrate Judge Mix, the January 17 final pretrial conference is vacated. The Court will address pending matters at the February 25, 2014 trial preparation conference. By Judge R. Brooke Jackson on 01/16/2014. Text Only Entry(rbjsec. ) (Entered: 01/16/2014)
141 MOTION for Hearing/Conference re 113 MOTION for Summary Judgment by Plaintiff James Sardakowski. (Fontana, Lauren) (Entered: 01/23/2014)
142 ORDER granting 141 Plaintiff's Motion for Oral Argument on Defendants' Motion for Summary Judgment. 113 Motion for Summary Judgment is no longer referred to Magistrate Judge Mix. Oral Argument set for 2/25/2014 02:00 PM in Courtroom A 902 before Judge R. Brooke Jackson. by Judge R. Brooke Jackson on 1/24/14.(rbjcd, ) (Entered: 01/24/2014)
143 REPLY to Response to 113 MOTION for Summary Judgment filed by Defendants Tom Clements, Paula Frantz, Jill Lampela, James Michaud, Joanie Shoemaker, State of Colorado Department of Corrections, Travis Trani. (Alber, Christopher) (Entered: 02/03/2014)
144 MOTION for Writ of Habeas Corpus ad testificandum by Plaintiff James Sardakowski. (Attachments: # 1 Exhibit 1 − Sardakowski Dec, # 2 Exhibit 2 − Rovner Dec)(Rovner, Laura) (Entered: 02/06/2014)
145 Unopposed MOTION for Leave to Take Expert Witness Testimony Via Contemporaneous Video Transmission, Or, In the Alternative, To Modify the Scheduling Order to Take Expert Testimony After the Trial Date by Plaintiff James Sardakowski. (Rovner, Laura) (Entered: 02/09/2014)

Case: 1:12-cv-1326 As of: 09/18/2016 07:55 PM MDT 14 of 17

02/10/2014
02/10/2014
02/11/2014 02/11/2014 02/18/2014 02/18/2014 02/20/2014 02/21/2014 02/24/2014 02/25/2014
02/25/2014 02/25/2014 02/26/2014 02/27/2014 03/05/2014

146 ORDER granting 144 Motion for Writ of Habeas Corpus ad Testificandum. This means that if there is a trial, the plaintiff will be permitted to appear and testify. However, the parties just this week completed their briefing of a summary judgment motion. The briefs and exhibits are voluminous (except the reply brief), and I cannot predict when the Court will be able to rule on the motion. I simply want to emphasize that this indication that plaintiff will be permitted to be present for trial does not assume that the summary judgment motion will be denied or that there necessarily will be a trial. The Court expresses no opinion whatsoever about the merits of the motion, which it has not yet begun to evaluate. Please email to jackson_chambers@cod.uscourts.gov a proposed form of the writ and the court will issue it. By Judge R. Brooke Jackson on 02/10/2014. Text Only Entry(rbjsec.) (Entered: 02/10/2014)
147 ORDER granting 145 Unopposed MOTION for Leave to Take Expert Witness Testimony Via Contemporaneous Video Transmission, Or, In the Alternative, To Modify the Scheduling Order to Take Expert Testimony After the Trial Date. Granted as to taking the testimony by video conference. By Judge R. Brooke Jackson on 02/10/2014. Text Only Entry(rbjsec.) (Entered: 02/10/2014)
148 ORDER for issuance of writ of habeas corpus ad testificandum to transport plaintiff James Sardakowski, by Judge R. Brooke Jackson on 2/11/2014. (trlee, ) (Entered: 02/11/2014)
149 WRIT of Habeas Corpus Ad Testificandum issued (trlee, ) (Entered: 02/11/2014)
150 Witness List by Plaintiff James Sardakowski. (Rovner, Laura) (Entered: 02/18/2014)
151 Exhibit List − Joint by Plaintiff James Sardakowski. (Rovner, Laura) (Entered: 02/18/2014)
152 Witness List by Defendants Tom Clements, Paula Frantz, Jill Lampela, James Michaud, Joanie Shoemaker, State of Colorado Department of Corrections, Travis Trani. (Alber, Christopher) (Entered: 02/20/2014)
153 MOTION to Strike Defendants' Witness, or, in the Alternative, to Re−Open Discovery for the Limited Purpose of Conducting a Deposition of Dr. Diaz−Enriquez by Plaintiff James Sardakowski. (Fontana, Lauren) (Entered: 02/21/2014)
154 Unopposed MOTION to Amend/Correct/Modify 151 Exhibit List by Plaintiff James Sardakowski. (Rovner, Laura) (Entered: 02/24/2014)
155 ORDER granting in part and denying in part 153 MOTION to Strike Defendants' Witness, or, in the Alternative, to Re−Open Discovery for the Limited Purpose of Conducting a Deposition of Dr. Diaz−Enriquez. Deny to the extent the motion seeks to strike Dr. Diaz−Enriquez but grant to the extent plaintiff seeks leave to depose the witness before trial. By Judge R. Brooke Jackson on 02/25/2014. Text Only Entry(rbjsec.) (Entered: 02/25/2014)
156 ORDER granting 154 Unopposed MOTION to Amend/Correct/Modify 151 Exhibit List. By Judge R. Brooke Jackson on 02/25/2014. Text Only Entry(rbjsec. ) (Entered: 02/25/2014)
157 COURTROOM MINUTES/MINUTE ENTRY for proceedings held before Judge R. Brooke Jackson: Trial Preparation Conference/Oral Argument Hearing held on 2/25/2014. 113 Motion for Summary Judgment is DENIED. Court Reporter: Kara Spitler. (rbjcd, ) (Entered: 02/25/2014)
158 STIPULATION for Trial by Plaintiff James Sardakowski. (Rovner, Laura) (Entered: 02/26/2014)
159 AMENDED STIPULATION re 158 Stipulation by Plaintiff James Sardakowski. (Rovner, Laura) Modified on 2/28/2014 to correct text (trlee, ). (Entered: 02/27/2014)
160 MINUTE ORDER: Due to a conflict with a criminal jury trial, the 5−day bench trial scheduled for March 17, 2014 has been RESET to April 28, 2014 at 9:00 a.m. in Courtroom A 902 before Judge R. Brooke Jackson. By Judge R. Brooke Jackson

Case: 1:12-cv-1326 As of: 09/18/2016 07:55 PM MDT 15 of 17

03/10/2014 03/10/2014 03/21/2014
03/28/2014 04/01/2014 04/02/2014 04/02/2014 04/02/2014 04/02/2014
04/07/2014
04/08/2014 04/09/2014

on 03/05/2014. Text Only Entry (rbjsec. ) (Entered: 03/05/2014)
161 ORDER for issuance of writ of habeas corpus ad testificandum, by Judge R. Brooke Jackson on 3/10/2014. (trlee, ) (Entered: 03/10/2014)
162 WRIT of HABEAS CORPUS AD TESTIFCANDUM issued (trlee, ) (Entered: 03/10/2014)
163 TRANSCRIPT of Hearing on Motion for Summary Judgment and final Trial Preparation Conference held on 2−25−14 before Judge Jackson. Pages: 1−53. <br> NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 6/23/2014. (kspit, ) (Entered: 03/21/2014)
164 Unopposed MOTION for Order to Appoint Judicial Officer for Settlement Conference by Plaintiff James Sardakowski. (Rovner, Laura) (Entered: 03/28/2014)
165 Unopposed MOTION to Withdraw as Attorney Lisa Graybill by Plaintiff James Sardakowski. (Graybill, Lisa) (Entered: 04/01/2014)
166 ORDER granting 165 Unopposed Motion to Withdraw as Attorney. Attorney Lisa Shawn Graybill is withdrawn. By Judge R. Brooke Jackson on 04/02/2014. Text Only Entry(rbjsec. ) (Entered: 04/02/2014)
167 ORDER granting 164 Unopposed MOTION for Order to Appoint Judicial Officer for Settlement Conference. The Court will refer this matter for a settlement conference to be handled by Magistrate Judge Craig Shaffer. By Judge R. Brooke Jackson on 04/02/2014. Text Only Entry(rbjsec. ) (Entered: 04/02/2014)
168 ORDER REFERRING CASE to Magistrate Judge Shaffer, as outlined in the attached order, by Judge R. Brooke Jackson on 4/2/2014. (trlee, ) (Entered: 04/02/2014)
169 ORDER: Pursuant to District Judge Jackson's request, a Settlement Conference is set for Monday, April 7, 2014 at 10:30 a.m. in Courtroom A 402 before Magistrate Judge Craig B. Shaffer. Mr. Sardakowski and/or his case manager shall arrange for his participation by telephone by calling (303) 844−2117 at the scheduled time. The parties shall submit their confidential settlment statements to Shaffer_Chambers@cod.uscourts.gov on or before 12:00 noon on Friday, April 4, 2014. By Magistrate Judge Craig B. Shaffer on 04/02/2104. Text Only Entry (cbslc1) (Entered: 04/02/2014)
170 COURTROOM MINUTES/MINUTE ORDER for proceedings held before Magistrate Judge Craig B. Shaffer: Settlement Conference held on 4/7/2014. ORDERED: The parties shall file a Stipulated Motion to Administratively Close the Case by 5:00 PM on 4/8/2014. ORDERED: A further Settlement Conference is set for 4/22/2014 at 1:30 PM in Courtroom A 402 before Magistrate Judge Craig B. Shaffer. The parties are to exchange proposals, copying the court, between 4/8/2014 and 4/18/2014. FTR: Courtroom A402 − C. Covington. (ccovi) (Entered: 04/08/2014)
171 Joint MOTION for Order to Administratively Close Case by Plaintiff James Sardakowski. (Rovner, Laura) (Entered: 04/08/2014)
172 ORDER granting 171 Joint MOTION for Order to Administratively Close Case. The bench trial scheduled April 28, 2014 is VACATED. The Court directs the Clerk of Court's office to administratively close this case for a period of six months. In addition, the Court requests that the parties submit a dismissal paper, or in the alternative, a joint status report on or before October 10, 2014. By Judge R. Brooke Jackson on 04/09/2014. Text Only Entry(rbjsec. ) (Entered: 04/09/2014)

Case: 1:12-cv-1326 As of: 09/18/2016 07:55 PM MDT 16 of 17

04/22/2014 05/09/2014 05/27/2014 05/28/2014
05/28/2014 07/10/2014 10/27/2014 11/07/2014 12/16/2014 03/31/2015 04/02/2015 05/29/2015 06/01/2015

173 MINUTE ENTRY for proceedings held before Magistrate Judge Craig B. Shaffer: Settlement Conference held on 4/22/2014. No settlement was reached as to any claims. (ccovi) (Entered: 04/23/2014)
174 MINUTE ORDER: Due to an emergency conflict on the court's calendar, the Settlement Conference set for Monday May 12, 2014 at 12:00 noon before Magistrate Judge Shaffer IS RESET TO TUESDAY JUNE 3, 2014 at 1:30 p.m. By Magistrate Judge Craig B. Shaffer on 05/09/2014. Text Only Entry (cbslc1) (Entered: 05/09/2014)
175 Unopposed MOTION to Reset Settlement Conference by Defendants Tom Clements, Paula Frantz, Jill Lampela, James Michaud, Joanie Shoemaker, State of Colorado Department of Corrections, Travis Trani. (Alber, Christopher) (Entered: 05/27/2014)
176 MEMORANDUM regarding 175 Unopposed MOTION to Reset Settlement Conference filed by Joanie Shoemaker, Tom Clements, James Michaud, Paula Frantz, Jill Lampela, State of Colorado Department of Corrections, Travis Trani. Motion 175 is referred to Magistrate Judge Craig B. Shaffer, by Judge R. Brooke Jackson on 05/28/2014. Text Only Entry (rbjsec.) Modified on 5/28/2014 to correct referral judge(trlee, ). (Entered: 05/28/2014)
177 ORDER granting 175 Defendants' Unopposed Motion to Reset Settlement Conference. The Settlement Conference set for June 3, 2014 IS RESET TO THURSDAY, JULY 10, 2014 at 1:30 1:30 p.m. before Magistrate Judge Craig B. Shaffer. By Magistrate Judge Craig B. Shaffer on 05/28/2014. Text Only Entry (cbslc1) (Entered: 05/28/2014)
178 MINUTE ENTRY for proceedings held before Magistrate Judge Craig B. Shaffer: Settlement Conference held on 7/10/2014. FTR: Courtroom A−402. (amont) (Entered: 07/15/2014)
179 Joint STATUS REPORT by Plaintiff James Sardakowski. (Rovner, Laura) (Entered: 10/27/2014)
180 MINUTE ORDER setting a further Settlement Conference on 12/16/2014 at 1:30 PM in Courtroom A 402 before Magistrate Judge Craig B. Shaffer. Plaintiff, or his case manager, shall arrange for his participation via telephone and shall call (303) 844−2117 at the scheduled time. Text Only Entry by Magistrate Judge Craig B. Shaffer on 11/7/14. (cbssec) (Entered: 11/07/2014)
181 MINUTE ENTRY for proceedings held before Magistrate Judge Craig B. Shaffer: Settlement Conference held on 12/16/2014. FTR: Courtroom A−402. (amont) (Entered: 12/17/2014)
182 MINUTE ORDER setting a Telephone Status Conference for 4/2/2015 at 9:00 AM before Magistrate Judge Craig B. Shaffer. Counsel shall first initiate a conference call among themselves before contacting the court (303.844.2117) at the scheduled time. Text Only Entry by Magistrate Judge Craig B. Shaffer on 3/31/15. (cbssec) (Entered: 03/31/2015)
183 COURTROOM MINUTES/MINUTE ORDER for proceedings held before Magistrate Judge Craig B. Shaffer: Telephonic Status Conference held on 4/2/2015. Judge Shaffer will RECOMMEND this case remain administratively closed and that parties file dismissal paperwork by May 29, 2015. FTR: Courtroom A−402. (amont) (Entered: 04/02/2015)
184 Unopposed MOTION for Extension of Time to File Dismissal Papers by Defendants Tom Clements, Paula Frantz, Jill Lampela, James Michaud, Joanie Shoemaker, State of Colorado Department of Corrections. (Alber, Christopher) (Entered: 05/29/2015)
185 MEMORANDUM regarding 184 Unopposed MOTION for Extension of Time to File Dismissal Papers filed by Joanie Shoemaker, Tom Clements, James Michaud, Paula Frantz, Jill Lampela, State of Colorado Department of Corrections. Motion 184 is referred to Magistrate Judge Craig B. Shaffer, Text Only Entry (rbjsec. ) (Entered: 06/01/2015)

Case: 1:12-cv-1326 As of: 09/18/2016 07:55 PM MDT 17 of 17

06/01/2015 06/11/2015
06/12/2015
07/10/2015 07/13/2015 07/13/2015 07/17/2015 07/20/2015 07/20/2015 07/24/2015 07/27/2015

186 ORDER granting 184 Motion for Extension of Time to File Dismissal Paperwork. The deadline is extended to on or before 6/15/2015. Text Only Entry by Magistrate Judge Craig B. Shaffer on 6/1/15. (cbssec) (Entered: 06/01/2015)
187 MINUTE ORDER Pursuant to a request from the parties, a Telephone Status Conference is set for 6/12/2015 at 03:30 PM in Courtroom A 402 before Magistrate Judge Craig B. Shaffer. The parties shall initiate a conference call amongst themselves before calling chambers (303.844.2117) at the designated time. If the parties wish the court to consider any documents prior to the conference, they should be emailed to chambers (Shaffer_chambers@cod.uscourts.gov) no later than noon tomorrow. By Magistrate Judge Craig B. Shaffer on 06/11/2015. Text Only Entry (cbslc2) (Entered: 06/11/2015)
188 COURTROOM MINUTES/MINUTE ORDER for proceedings held before Magistrate Judge Craig B. Shaffer: Telephonic Status Conference held on 6/12/2015. Dismissal Paper due by 7/10/2015. If parties are unable to reach a settlement by 7/10/2015, parties shall submit a status report stating that the case will move forward with litigation. FTR: Courtroom A−402. (amont, ) (Entered: 06/12/2015)
189 Unopposed MOTION for Extension of Time to File Stipulation of Dismissal by Plaintiff James Sardakowski. (Rovner, Laura) (Entered: 07/10/2015)
190 MEMORANDUM regarding 189 Unopposed MOTION for Extension of Time to File Stipulation of Dismissal filed by James Sardakowski. Motion 189 is referred to Magistrate Judge Craig B. Shaffer, by Judge R. Brooke Jackson on 7/13/2015. Text Only Entry (rbjsec. ) (Entered: 07/13/2015)
191 ORDER granting 189 Motion for Extension of Time. Pursuant to the representations made in the unopposed motion, the parties may have an extension of time, up to and including 7/17/2015, to file their dismissal paperwork. By Magistrate Judge Craig B. Shaffer on 07/13/2015. Text Only Entry(cbslc2) (Entered: 07/13/2015)
192 Unopposed MOTION for Extension of Time to File Stipulation of Dismissal by Defendants Tom Clements, Paula Frantz, Jill Lampela, James Michaud, Joanie Shoemaker, State of Colorado Department of Corrections, Travis Trani. (Alber, Christopher) (Entered: 07/17/2015)
193 MEMORANDUM regarding 192 Unopposed MOTION for Extension of Time to File Stipulation of Dismissal. Motion 192 is referred to Magistrate Judge Craig B. Shaffer, by Judge R. Brooke Jackson on 7/20/2015. Text Only Entry (rbjsec. ) (Entered: 07/20/2015)
194 ORDER granting 192 Motion for Extension of Time to File Dismissal Paperwork up to and including 7/24/2015. Text Only Entry by Magistrate Judge Craig B. Shaffer on 7/20/15.(cbssec) (Entered: 07/20/2015)
195 STIPULATION of Dismissal of Case by Plaintiff James Sardakowski. (Rovner, Laura) (Entered: 07/24/2015)
196 MINUTE ORDER re: 195 Stipulation of Dismissal of Case filed by James Sardakowski. The Court orders that all claims brought by Plaintiff in this matter are dismissed with prejudice. By Judge R. Brooke Jackson on 7/27/2015. Text Only Entry (rbjsec. ) (Entered: 07/27/2015)