Case: 1:16-cv-2733 As of: 10/26/2019 09:30 AM MDT 1 of 16
APPEAL,CONMAG,JD1,LEAD,MJ CIV PP
U.S. District Court − District of Colorado District of Colorado (Denver)
CIVIL DOCKET FOR CASE #: 1:16−cv−02733−STV−NRN

Rogers v. Colorado Department of Corrections et al Assigned to: Magistrate Judge Scott T. Varholak Referred to: Magistrate Judge N. Reid Neureiter Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 11/03/2016 Jury Demand: None Nature of Suit: 550 Prisoner − Civil Rights (U.S. not a defendant) Jurisdiction: Federal Question

Bionca Charmaine Rogers

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

Martha M. Lafferty Civil Rights Education and Enforcement Center−Nashville 525 Royal Parkway Suite 293063 Nashville, TN 37229 615−913−5099 Fax: 303−872−9072 Email: mlafferty@creeclaw.org ATTORNEY TO BE NOTICED

Plaintiff Cathy Begano

represented by Amy Farr Robertson (See above for address) ATTORNEY TO BE NOTICED

Martha M. Lafferty (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Andrew Atkins

represented by Martha M. Lafferty (See above for address) ATTORNEY TO BE NOTICED

Amy Farr Robertson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Marc Trevithick

represented by Martha M. Lafferty (See above for address) ATTORNEY TO BE NOTICED

Amy Farr Robertson (See above for address) ATTORNEY TO BE NOTICED

Case: 1:16-cv-2733 As of: 10/26/2019 09:30 AM MDT 2 of 16

Plaintiff
Kandyce Vessey TERMINATED: 01/10/2018

represented by Amy Farr Robertson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Jennifer Saugause TERMINATED: 10/25/2018

represented by Amy Farr Robertson (See above for address) ATTORNEY TO BE NOTICED

V. Consol Plaintiff Leonid Rabinkov

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

V. Defendant Colorado Department of Corrections

represented by Kathleen L. Spalding Colorado Attorney General's Office Ralph L. Carr Colorado Judicial Center 1300 Broadway Denver, CO 80203 720−508−6000 Fax: 720−508−6032 Email: kit.spalding@coag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Wayne Alber Colorado Attorney General's Office Ralph L. Carr Colorado Judicial Center 1300 Broadway Denver, CO 80203 720−508−6612 Fax: 720−508−6032 Email: chris.alber@coag.gov ATTORNEY TO BE NOTICED
Maritza D. Braswell Colorado Attorney General's Office−Dept.of Law Ralph Carr Judicial Building 1300 Broadway 10th Floor Denver, CO 80203 800−222−4444 Email: maritza.braswell@coag.gov

Case: 1:16-cv-2733 As of: 10/26/2019 09:30 AM MDT 3 of 16

ATTORNEY TO BE NOTICED

Defendant
Rick Raemisch in his official capacity

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

Maritza D. Braswell (See above for address) ATTORNEY TO BE NOTICED

Defendant
Ryan Long In his official capacity

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

Maritza D. Braswell (See above for address) ATTORNEY TO BE NOTICED

Defendant
Mike Romero in his official capacity as Warden of thr Colorado Territorial Correctional Facility

represented by Christopher Wayne Alber (See above for address) ATTORNEY TO BE NOTICED
Maritza D. Braswell (See above for address) ATTORNEY TO BE NOTICED

Defendant
Denver Women's Correctional Facility TERMINATED: 03/24/2017

Date Filed 11/03/2016 11/03/2016 11/08/2016 12/08/2016
12/08/2016 12/12/2016 12/12/2016 01/19/2017 01/19/2017 01/24/2017

# Docket Text
1 NOTICE and Claims for Acts and Omissions by Plaintiff Bionca Charmaine Rogers (Attachments: # 1 Envelope)(dbera, ) (Entered: 11/07/2016)
2 Case assigned to Magistrate Judge Gordon P. Gallagher. Text Only Entry (dbera, ) (Entered: 11/07/2016)
3 ORDER DIRECTING PLAINTIFF TO CURE DEFICIENCIES by Magistrate Judge Gordon P. Gallagher on 11/8/16. (dkals, ) (Entered: 11/08/2016)
4 [AMENDED] COMPLAINT against A. Anthony DeCesaro, Michelle Brothers, Terry Jaques, Janet Smith, Adrienne Jacobson, Marshall Griffith, Jason Lopez, Bryon Sparling, Keegan Fowler, David Johnson, filed by Bionca Charmaine Rogers.(dkals, ) (Entered: 12/08/2016)
5 MOTION and Affidavit for Leave to Proceed Under 28 U.S.C. 1915 by Plaintiff Bionca Charmaine Rogers. (dkals, ) (Entered: 12/08/2016)
6 ORDER granting 5 Motion for Leave to Proceed in Forma Pauperis by Magistrate Judge Gordon P. Gallagher on 12/12/16. (dkals, ) (Entered: 12/12/2016)
7 LETTER by Plaintiff Bionca Charmaine Rogers. (dkals, ) (Entered: 12/12/2016)
8 ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 1/19/17. (dkals, ) (Entered: 01/19/2017)
9 LETTER by Plaintiff Bionca Charmaine Rogers. (dkals, ) (Entered: 01/19/2017)
10 MINUTE ORDER directing the Clerk to mail Plaintiff the Prisoner Complaint form by Magistrate Judge Gordon P. Gallagher on 1/24/17 (mailed as ordered). (dkals, )

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02/21/2017 03/24/2017 03/24/2017 03/24/2017 03/30/2017 03/30/2017 03/30/2017 04/05/2017
04/07/2017 04/10/2017
04/10/2017 04/10/2017 04/11/2017
05/05/2017 05/09/2017
05/09/2017
05/30/2017

(Entered: 01/24/2017)
11 [AMENDED] COMPLAINT against Denver Women's Correctional Facility, Rick Raemisch, filed by Bionca Charmaine Rogers.(dkals, ) (Entered: 02/22/2017)
12 ORDER TO DISMISS IN PART AND TO DRAW CASE by Judge Lewis T. Babcock on 3/24/17. Denver Women's Correctional Facility is dismissed. (dkals, ) (Entered: 03/24/2017)
13 CASE REASSIGNED pursuant to 12 Order: This case is randomly reassigned to Magistrate Judge Scott T. Varholak. All future pleadings should be designated as 16−cv−02733−STV. (Text Only Entry) (dkals, ) (Entered: 03/24/2017)
14 Magistrate Judge consent form issued pursuant to D.C.COLO.LCivR 40.1, direct assignment of civil actions to full time magistrate judges. (dkals, ) (Entered: 03/24/2017)
15 CERTIFICATE of Service by Clerk of Court re 12 Order to Dismiss in Part and Draw, 11 Amended Complaint for Service of Process. (sphil, ) (Entered: 03/30/2017)
16 WAIVER OF SERVICE Returned Executed Rick Raemisch waiver sent on 3/30/2017, answer due 5/30/2017. (slibi, ) (Entered: 03/30/2017)
17 *DISREGARD* SUMMONS issued by Clerk. (slibi, ) Modified on 3/31/2017 filed inadvertently (slibi, ). (Entered: 03/30/2017)
18 ORDER Setting Deadline for Filing Election Concerning Consent/Non−Consent to Magistrate Jurisdiction Form and Setting Scheduling Conference, by Magistrate Judge Scott T. Varholak on 4/05/2017. Consent/Non−Consent Form due on or before 5/25/2017. Scheduling Conference set for 6/8/2017 10:00 AM in Courtroom C205 before Magistrate Judge Scott T. Varholak. (slibi, ) (Entered: 04/05/2017)
19 MOTION to Appoint Counsel, by Plaintiff Bionca Charmaine Rogers. (Attachments: # 1 Envelope)(nmarb, ) (Entered: 04/07/2017)
20 STRICKEN CONSENT to Jurisdiction of Magistrate Judge, by Plaintiff Bionca Charmaine Rogers. All parties consent. (Attachments: # 1 Envelope)(slibi, ) Modified on 4/11/2017 to strike document pursuant to 23 Minute Order (morti, ). (Entered: 04/10/2017)
21 LETTER re: 19 MOTION to Appoint Counsel by Plaintiff Bionca Charmaine Rogers. (slibi, ) (Entered: 04/10/2017)
22 ORDER denying without prejudice 19 Motion for Appointment of Counsel, by Magistrate Judge Scott T. Varholak on 4/10/2017. (slibi, ) (Entered: 04/10/2017)
23 MINUTE ORDER The Clerk of the Court shall strike the Consent/Non−consent form 20 filed by Plaintiff for failure to comply with the Civil Rules for the District of Colorado. Plaintiff shall refile the Consent/Non−consent form once she has had the opportunity to confer with Defendant or counsel for Defendant. By Magistrate Judge Scott T. Varholak on 4/11/2017. Text Only Entry (stvlc2, ) (Entered: 04/11/2017)
24 MOTION for Extension of Time, by Plaintiff Bionca Charmaine Rogers. (Attachments: # 1 Envelope)(slibi, ) (Entered: 05/05/2017)
25 ORDER granting in part 24 Motion for Extension of Time, by Magistrate Judge Scott T. Varholak on 5/09/2017. Scheduling Conference set for 6/08/2017 is VACATED and RESET as a Status Conference set for 6/8/2017 10:00 AM in Courtroom C205 before Magistrate Judge Scott T. Varholak. (slibi, ) (Entered: 05/09/2017)
26 CERTIFICATE of Service by Clerk of Court re 25 Order and a copy of the Consent/Non−Consent Form, to CASE MANAGER FOR BIONCA CHARMAINE ROGERS #169704, DENVER WOMENS CORRECTIONAL FACILITY (DWCF), P.O. BOX 392005, DENVER, CO 80239. Text Only Entry (slibi, ) (Entered: 05/09/2017)
27 MOTION for Extension of Time to File Answer or Otherwise Respond re 11 Amended Complaint by Defendant Rick Raemisch. (Alber, Christopher) (Entered: 05/30/2017)

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05/30/2017
05/31/2017 06/06/2017 06/07/2017
06/08/2017
06/15/2017 06/15/2017 06/29/2017 06/30/2017 06/30/2017 07/21/2017 07/21/2017 08/04/2017 08/21/2017 08/21/2017
08/28/2017
09/08/2017 09/12/2017

28 ORDER granting 27 Motion for Enlargement of Time to Answer or Otherwise Respond to Plaintiff's Amended Complaint. Defendant Rick Raemisch shall respond to the Amended Complaint on or before 6/27/2017. SO ORDERED, by Magistrate Judge Scott T. Varholak on 5/30/2017. Text Only Entry (stvlc1, ) (Entered: 05/30/2017)
29 NOTICE of Entry of Appearance by Amy Farr Robertson on behalf of Bionca Charmaine RogersAttorney Amy Farr Robertson added to party Bionca Charmaine Rogers(pty:pla) (Robertson, Amy) (Entered: 05/31/2017)
30 CONSENT to Jurisdiction of Magistrate Judge by Plaintiff Bionca Charmaine Rogers All parties consent.. (Robertson, Amy) (Entered: 06/06/2017)
31 ORDER OF REFERENCE Upon Consent to Jurisdiction of Magistrate Judge: Upon consent of the parties evidenced by Docket Entry #30, this case is referred to Magistrate Judge Scott T. Varholak for all purposes pursuant to D.C.COLO.LCivR 72.2(d) and 28 U.S.C. § 636(c). by Chief Judge Marcia S. Krieger on 6/7/17. Text Only Entry (msksec, ) (Entered: 06/07/2017)
32 MINUTE ENTRY forS tatus Conference held before Magistrate Judge Scott T. Varholak on 6/8/2017. Status Conference set for 8/24/2017 09:30 AM in Courtroom C203 before Magistrate Judge Scott T. Varholak. Hearing concluded. FTR: STV − C205. (morti, ) (Entered: 06/08/2017)
33 NOTICE of Filing Amended Pleading by Plaintiff Bionca Charmaine Rogers (Robertson, Amy) (Entered: 06/15/2017)
34 AMENDED COMPLAINT against Rick Raemisch, filed by Bionca Charmaine Rogers.(Robertson, Amy) (Entered: 06/15/2017)
35 Unopposed MOTION for Extension of Time to File Answer or Otherwise Respond re 34 Amended Complaint by Defendant Rick Raemisch. (Alber, Christopher) (Entered: 06/29/2017)
36 ORDER granting 35 Motion for Extension of Time to Answer or Otherwise Respond. Rick Raemisch answer due 6/30/2017. By Magistrate Judge Scott T. Varholak on 6/30/2017. Text Only Entry (stvlc2, ) (Entered: 06/30/2017)
37 MOTION to Dismiss by Defendant Rick Raemisch. (Alber, Christopher) (Entered: 06/30/2017)
38 RESPONSE to 37 MOTION to Dismiss filed by Plaintiff Bionca Charmaine Rogers. (Attachments: # 1 Exhibit Robertson Dec. w Exhibits, # 2 Exhibit Mincberg Dec. w Exhibits)(Robertson, Amy) (Entered: 07/21/2017)
39 DECLARATION of Amy Robertson with Attached Exhibits regarding Response to Motion 38 by Plaintiff Bionca Charmaine Rogers. (Robertson, Amy) (Entered: 07/21/2017)
40 REPLY to Response to 37 MOTION to Dismiss filed by Defendant Rick Raemisch. (Alber, Christopher) (Entered: 08/04/2017)
41 Unopposed MOTION to Reset Status Conference by Defendant Rick Raemisch. (Alber, Christopher) (Entered: 08/21/2017)
42 ORDER granting 41 Motion to Reset. Status Conference set for 8/24/2017 09:30 AM is VACATED and RESET for 8/28/2017 10:30 AM in Courtroom C203 before Magistrate Judge Scott T. Varholak. By Magistrate Judge Scott T. Varholak on 8/21/2017. Text Only Entry (stvlc2, ) (Entered: 08/21/2017)
43 MINUTE ENTRY for Status Conference held before Magistrate Judge Scott T. Varholak on 8/28/2017. Status Conference set for 10/4/2017 11:00 AM in Courtroom C203 before Magistrate Judge Scott T. Varholak. Hearing concluded. FTR: STV − C203. (morti, ) (Entered: 08/28/2017)
44 MOTION to Stay by Defendant Rick Raemisch. (Alber, Christopher) (Entered: 09/08/2017)
45 RESPONSE to 44 MOTION to Stay filed by Plaintiffs Cathy Begano, Bionca Charmaine Rogers, Jennifer Saugause, Kandyce Vessey. (Robertson, Amy) (Entered: 09/12/2017)

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09/19/2017 09/21/2017 09/21/2017
09/28/2017
09/28/2017 09/29/2017 09/29/2017 10/04/2017
10/13/2017 10/16/2017 10/16/2017 10/17/2017 10/24/2017
10/24/2017

46 REPLY to Response to 44 MOTION to Stay filed by Defendant Rick Raemisch. (Alber, Christopher) (Entered: 09/19/2017)
47 MOTION for Leave to File a One−Paragraph Sur−Reply Clarifying Position in 45 Response to Motion by Plaintiffs Cathy Begano, Bionca Charmaine Rogers, Jennifer Saugause, Kandyce Vessey. (Robertson, Amy) (Entered: 09/21/2017)
48 ORDER granting 47 Plaintiff's Motion for Leave to File a One−Paragraph Sur−Reply Clarifying Position (the "Motion for Leave"). The Court will consider the clarification of 45 Plaintiff's Response to Defendants' Motion to Stay contained in the Motion for Leave in its consideration of Defendants' Motion to Stay. SO ORDERED, by Magistrate Judge Scott T. Varholak on 9/21/2017. Text Only Entry (stvlc1, ) (Entered: 09/21/2017)
49 MINUTE ORDER The Court notes that additional defendants have been added to this case, pursuant to the Third Amended Complaint 34 , since the filing of the Consent/Non−Consent to Magistrate Jurisdiction Form 30 . Although all Defendants are represented by the same counsel, the Court believes it necessary that the parties submit a new Consent/Non−Consent to Magistrate Jurisdiction Form. Consent/Non−Consent Form due on or before 10/3/2017. SO ORDERED by Magistrate Judge Scott T. Varholak on 9/28/2017. Text Only Entry (stvlc2, ) (Entered: 09/28/2017)
50 WAIVER OF SERVICE Returned Executed by Cathy Begano, Bionca Charmaine Rogers, Jennifer Saugause, Kandyce Vessey. Colorado Department of Corrections waiver sent on 9/28/2017, answer due 11/27/2017; Ryan Long waiver sent on 9/28/2017, answer due 11/27/2017. (Robertson, Amy) (Entered: 09/28/2017)
51 CONSENT to Jurisdiction of Magistrate Judge by Plaintiffs Cathy Begano, Bionca Charmaine Rogers, Jennifer Saugause, Kandyce Vessey All parties consent.. (Robertson, Amy) (Entered: 09/29/2017)
52 ORDER; 37 Defendant's Motion to Dismiss is DENIED. 44 Motion to Stay is DENIED AS MOOT, by Magistrate Judge Scott T. Varholak on 9/29/17. (morti, ) (Entered: 09/29/2017)
53 MINUTE ENTRY for Status Conference held before Magistrate Judge Scott T. Varholak on 10/4/2017. Scheduling Conference set for 10/24/2017 10:30 AM in Courtroom C203 before Magistrate Judge Scott T. Varholak. The Proposed Scheduling Order is due on or before October 17, 2017. FTR: STV − C203. (morti, ) (Entered: 10/04/2017)
54 Unopposed MOTION for Extension of Time to File Answer or Otherwise Respond re 11 Amended Complaint, 34 Amended Complaint by Defendants Colorado Department of Corrections, Ryan Long, Rick Raemisch. (Alber, Christopher) (Entered: 10/13/2017)
55 ORDER granting 54 Motion for Extension of Time to File Answer. Defendants Colorado Department of Corrections, Ryan Long, and Rick Raemisch answer due 10/16/2017. SO ORDERED, by Magistrate Judge Scott T. Varholak on 10/16/2017. Text Only Entry (stvlc2, ) (Entered: 10/16/2017)
56 ANSWER to 34 Amended Complaint by Colorado Department of Corrections, Ryan Long, Rick Raemisch.(Alber, Christopher) (Entered: 10/16/2017)
57 Proposed Scheduling Order by Plaintiffs Cathy Begano, Bionca Charmaine Rogers, Jennifer Saugause, Kandyce Vessey. (Robertson, Amy) (Entered: 10/17/2017)
58 MINUTE ENTRY for Scheduling Conference held before Magistrate Judge Scott T. Varholak on 10/24/2017. Discovery due by 7/27/2018. Dispositive Motions due by 8/31/2018. Final Pretrial Conference set for 11/5/2018 09:30 AM in Courtroom C203 before Magistrate Judge Scott T. Varholak. FTR: STV − C203. (morti, ) (Entered: 10/24/2017)
59 SCHEDULING ORDER: by Magistrate Judge Scott T. Varholak on 10/24/17. (morti, ) (Entered: 10/24/2017)

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12/15/2017 12/15/2017 01/09/2018 01/10/2018 01/10/2018
01/10/2018 01/22/2018
01/22/2018 01/29/2018 02/05/2018 02/12/2018 02/12/2018 02/12/2018 05/24/2018 05/24/2018
07/12/2018

60 Unopposed MOTION to Amend/Correct/Modify 59 Scheduling Order by Plaintiffs Cathy Begano, Bionca Charmaine Rogers, Jennifer Saugause, Kandyce Vessey. (Robertson, Amy) (Entered: 12/15/2017)
61 ORDER granting 60 Motion to Amend/Correct/Modify. Deadline for joinder of parties and amendment of pleadings set for 1/22/2018. SO ORDERED, by Magistrate Judge Scott T. Varholak on 12/15/2017. Text Only Entry (stvlc2, ) (Entered: 12/15/2017)
62 STIPULATION of Dismissal of Party Kandyce Vessey by Plaintiffs Cathy Begano, Bionca Charmaine Rogers, Jennifer Saugause, Kandyce Vessey. (Robertson, Amy) (Entered: 01/09/2018)
63 STIPULATION of Dismissal of Party Kandyce Vessey by Plaintiffs Cathy Begano, Bionca Charmaine Rogers, Jennifer Saugause, Kandyce Vessey. (Robertson, Amy) (Entered: 01/10/2018)
64 MINUTE ORDER. Per 63 Stipulation of Dismissal, the Clerk of Court is instructed to dismiss Plaintiff Kandyce Vessey from this matter. The Court notes that the original Stipulation of Dismissal 62 contained a typo and 63 is thus the operative Stipulation. SO ORDERED, by Magistrate Judge Scott T. Varholak on 1/10/2018. Text Only Entry (stvlc2, ) (Entered: 01/10/2018)
65 Party Kandyce Vessey terminated pursuant to Minute Order # 64 . Text Only Entry (jgonz, ) (Entered: 01/10/2018)
66 AMENDED COMPLAINT against Colorado Department of Corrections, Ryan Long, Rick Raemisch, Mike Romero Attorney Amy Farr Robertson added to party Andrew Neil Atkins(pty:pla), Attorney Amy Farr Robertson added to party Marc C Trevithick(pty:pla), filed by Cathy Begano, Bionca Charmaine Rogers, Jennifer Saugause, Andrew Neil Atkins, Marc C Trevithick.(Robertson, Amy) (Entered: 01/22/2018)
67 NOTICE of Filing Amended Pleading re 66 Amended Complaint, by Plaintiffs Andrew Neil Atkins, Cathy Begano, Bionca Charmaine Rogers, Jennifer Saugause, Marc C Trevithick (Robertson, Amy) (Entered: 01/22/2018)
68 WAIVER OF SERVICE Returned Executed by Andrew Atkins, Marc Trevithick, Cathy Begano, Bionca Charmaine Rogers, Jennifer Saugause. Mike Romero waiver sent on 1/29/2018, answer due 3/30/2018. (Robertson, Amy) (Entered: 01/29/2018)
69 ANSWER to 66 Amended Complaint, Attorney Christopher Wayne Alber added to party Mike Romero(pty:dft) by Colorado Department of Corrections, Ryan Long, Rick Raemisch, Mike Romero.(Alber, Christopher) (Entered: 02/05/2018)
70 Stipulated MOTION for Protective Order by Plaintiffs Andrew Atkins, Cathy Begano, Bionca Charmaine Rogers, Jennifer Saugause, Marc Trevithick. (Robertson, Amy) (Entered: 02/12/2018)
71 ORDER granting 70 Motion for Protective Order. The proposed Stipulated Protective Order is adopted. SO ORDERED, by Magistrate Judge Scott T. Varholak on 2/12/2018. Text Only Entry (stvlc2, ) (Entered: 02/12/2018)
72 STIPULATED PROTECTIVE ORDER by Magistrate Judge Scott T. Varholak on 2/12/2018. (jgonz, ) (Entered: 02/12/2018)
73 Unopposed MOTION to Amend/Correct/Modify 59 Scheduling Order to Extend Expert and Other Deadlines by Two Weeks by Plaintiffs Andrew Atkins, Cathy Begano, Bionca Charmaine Rogers, Jennifer Saugause, Marc Trevithick. (Robertson, Amy) (Entered: 05/24/2018)
74 ORDER granting 73 Motion to Amend/Correct/Modify. Affirmative expert disclosures due by 6/14/2018. Rebuttal expert disclosures due by 7/12/2018. Discovery due by 8/10/2018. Dispositive Motions due by 9/14/2018. SO ORDERED, by Magistrate Judge Scott T. Varholak on 5/24/2018. Text Only Entry (stvlc2, ) (Entered: 05/24/2018)
75 MOTION to Amend/Correct/Modify 59 Scheduling Order by Defendants Colorado Department of Corrections, Ryan Long, Rick Raemisch, Mike Romero. (Alber, Christopher) (Entered: 07/12/2018)

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07/13/2018
07/13/2018 07/13/2018 07/13/2018 07/13/2018
07/17/2018 07/18/2018 08/30/2018 08/30/2018
10/25/2018 10/25/2018 10/29/2018

76 ORDER granting 75 Motion to Amend/Correct/Modify. Rebuttal expert disclosures due by 8/27/2018. Discovery due by 9/10/2018. The Court notes that the discovery cutoff date extension applies only to discovery with respect to experts. All other discovery is due by 8/10/2018. Dispositive Motions due by 10/29/2018. The Final Pretrial Conference set for 11/5/2018 09:30 AM is VACATED and RESET for 12/5/2018 09:30 AM in Courtroom C203 before Magistrate Judge Scott T. Varholak. The parties shall submit a Proposed Pretrial Order by 11/28/2018. SO ORDERED, by Magistrate Judge Scott T. Varholak on 7/13/2018. Text Only Entry (stvlc2, ) Modified on 7/18/2018 to add additional text (morti, ). (Entered: 07/13/2018)
77 MOTION for Leave to Be Heard In Opposition To Defendants' Partially Unopposed Motion To Amend Scheduling Order by Plaintiffs Andrew Atkins, Cathy Begano, Bionca Charmaine Rogers, Jennifer Saugause, Marc Trevithick, Kandyce Vessey. (Robertson, Amy) (Entered: 07/13/2018)
78 ORDER granting 77 Motion for Leave. Plaintiffs may file an opposition to Defendants' Motion to Amend/Correct/Modify 75 , and/or move for the Court to reconsider its order granting the Motion 76 , on or before 7/16/2018. SO ORDERED, by Magistrate Judge Scott T. Varholak on 7/13/2018. Text Only Entry (stvlc2, ) (Entered: 07/13/2018)
79 BRIEF in Opposition to 75 MOTION to Amend/Correct/Modify 59 Scheduling Order filed by Plaintiffs Andrew Atkins, Cathy Begano, Bionca Charmaine Rogers, Jennifer Saugause, Marc Trevithick. (Attachments: # 1 Affidavit Declaration of Amy F. Robertson in Support of Plaintiffs' Brief)(Robertson, Amy) (Entered: 07/13/2018)
80 MINUTE ORDER. Defendants shall file a reply to 79 Brief in Opposition to Motion on or before 7/17/2018. Telephonic Discovery Hearing re 75 Motion to Amend/Correct/Modify set for 7/18/2018 09:00 AM in Courtroom C203 before Magistrate Judge Scott T. Varholak. The parties may appear telephonically by initiating a conference call amongst all individuals participating by phone before calling the Court at 303.335.2365. SO ORDERED, by Magistrate Judge Scott T. Varholak on 7/13/2018. Text Only Entry (stvlc2, ) (Entered: 07/13/2018)
81 REPLY to Response to 75 MOTION to Amend/Correct/Modify 59 Scheduling Order filed by Defendants Colorado Department of Corrections, Ryan Long, Rick Raemisch, Mike Romero. (Alber, Christopher) (Entered: 07/17/2018)
82 MINUTE ENTRY for Telephonic Discovery Hearing held before Magistrate Judge Scott T. Varholak on 7/18/2018. FTR: STV − C203. (morti, ) (Entered: 07/18/2018)
83 Unopposed MOTION to Amend/Correct/Modify 59 Scheduling Order Due to Death of Expert by Plaintiffs Andrew Atkins, Cathy Begano, Bionca Charmaine Rogers, Jennifer Saugause, Marc Trevithick. (Robertson, Amy) (Entered: 08/30/2018)
84 ORDER granting 83 Motion to Amend/Correct/Modify. Plaintiff shall serve Defendants with expert Professor Andrews's report and other information required by Fed. R. Civ. P. 26(a)(2) on or before 9/7/2018. Defendants may take discovery of Plaintiffs' experts up to and including 10/19/2018. SO ORDERED, by Magistrate Judge Scott T. Varholak on 8/30/2018. Text Only Entry (stvlc2, ) (Entered: 08/30/2018)
85 STIPULATION of Dismissal of Party Jennifer Saugause by Plaintiffs Andrew Atkins, Cathy Begano, Bionca Charmaine Rogers, Jennifer Saugause, Marc Trevithick. (Robertson, Amy) (Entered: 10/25/2018)
86 MINUTE ORDER. Pursuant to 85 Stipulation of Dismissal of Party, the Clerk of Court is instructed to dismiss Plaintiff Jennifer Saugause from this matter. SO ORDERED, by Magistrate Judge Scott T. Varholak on 10/25/2018. Text Only Entry (stvlc2, ) (Entered: 10/25/2018)
87 MOTION for Partial Summary Judgment by Plaintiffs Andrew Atkins, Cathy Begano, Bionca Charmaine Rogers, Marc Trevithick. (Attachments: # 1 Declaration of Amy F. Robertson in Support of Pltfs' Motion of Partial Summary Judgment, # 2 Robertson Decl. Exhibit 1, # 3 Robertson Decl. Exhibit 2, # 4 Robertson Decl. Exhibit 3, # 5 Robertson Decl. Exhibit 4, # 6 Robertson Decl. Exhibit 5, # 7 Robertson Decl. Exhibit 6, # 8 Robertson Decl. Exhibit 7, # 9 Robertson Decl. Exhibit 8, # 10 Robertson Decl. Exhibit 9, # 11 Robertson Decl. Exhibit 10, # 12 Declaration of Andrew Atkins, # 13

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10/29/2018 10/31/2018 10/31/2018 11/14/2018 11/15/2018 11/16/2018
11/19/2018 11/20/2018 11/20/2018 11/27/2018 12/06/2018 12/11/2018 12/11/2018

Declaration of Cathy Begano, # 14 Declaration of Teresa Jordan, # 15 Declaration of Bionca Charmaine Rogers, # 16 Declaration of Marc Trevithick)(Robertson, Amy) (Entered: 10/29/2018)
88 MOTION for Summary Judgment by Defendants Colorado Department of Corrections, Ryan Long, Rick Raemisch, Mike Romero. (Attachments: # 1 Exhibit A−1, # 2 Exhibit A−2, # 3 Exhibit A−3, # 4 Exhibit A−4, # 5 Exhibit A−5)(Alber, Christopher) (Entered: 10/29/2018)
89 Unopposed MOTION for Leave to Restrict by Plaintiffs Andrew Atkins, Cathy Begano, Bionca Charmaine Rogers, Marc Trevithick. (Robertson, Amy) (Entered: 10/31/2018)
90 ORDER granting 89 Motion for Leave to Restrict. The Clerk of Court is instructed to file Exhibit A−5 [88−5] to Defendants' 88 MOTION for Summary Judgment, under RESTRICTION LEVEL 1. SO ORDERED, by Magistrate Judge Scott T. Varholak on 10/31/2018. Text Only Entry (stvlc2, ) (Entered: 10/31/2018)
91 NOTICE OF CASE ASSOCIATION by Amy Farr Robertson on behalf of Andrew Atkins, Cathy Begano, Bionca Charmaine Rogers, Marc Trevithick (Robertson, Amy) (Entered: 11/14/2018)
92 Unopposed MOTION for Extension of Time to File Response/Reply as to 87 MOTION for Partial Summary Judgment and to Reset Final Pretrial Conference by Defendants Colorado Department of Corrections, Ryan Long, Rick Raemisch, Mike Romero. (Alber, Christopher) (Entered: 11/15/2018)
93 ORDER granting 92 Motion for Extension of Time to File Response/Reply. Defendants shall respond to Plaintiffs' 87 Partial Motion for Summary Judgment on or before 12/31/2018. Defendants shall file a reply in support of their 88 Motion for Summary Judgment on or before 12/31/2018. Plaintiffs shall file a reply in support of their 87 Partial Motion for Summary Judgment on or before 1/14/2019. The Final Pretrial Conference set for 12/5/2018 09:30 AM is VACATED and RESET for 3/8/2019 09:30 AM in Courtroom A 402 before Magistrate Judge Scott T. Varholak. Proposed Pretrial Order due by 3/1/2019. SO ORDERED, by Magistrate Judge Scott T. Varholak on 11/16/2018. Text Only Entry (stvlc2, ) (Entered: 11/16/2018)
94 RESPONSE to 88 MOTION for Summary Judgment filed by Plaintiffs Andrew Atkins, Cathy Begano, Bionca Charmaine Rogers, Marc Trevithick. (Attachments: # 1 Rogers Declaration, # 2 Peterson Declaration with Exhibits 1−5)(Robertson, Amy) (Entered: 11/19/2018)
95 MOTION to Consolidate Cases by Plaintiffs Andrew Atkins, Cathy Begano, Bionca Charmaine Rogers, Marc Trevithick. (Robertson, Amy) (Entered: 11/20/2018)
96 MINUTE ORDER re: 95 MOTION to Consolidate Cases . Defendants shall file a response on or before 12/6/2018. Plaintiffs shall file a reply on or before 12/13/2018. SO ORDERED, by Magistrate Judge Scott T. Varholak on 11/20/2018. Text Only Entry (stvlc2, ) (Entered: 11/20/2018)
97 MINUTE ORDER. Due to a conflict on the Court's calendar, the Final Pretrial Conference set for 3/8/2019 09:30 AM is VACATED and RESET for 3/4/2019 09:30 AM in Courtroom A 402 before Magistrate Judge Scott T. Varholak. Proposed Pretrial Order due by 2/25/2019. SO ORDERED, by Magistrate Judge Scott T. Varholak on 3/4/2018. Text Only Entry (stvlc2, ) (Entered: 11/27/2018)
98 RESPONSE to 95 MOTION to Consolidate Cases filed by Defendants Colorado Department of Corrections, Ryan Long, Rick Raemisch, Mike Romero. (Alber, Christopher) (Entered: 12/06/2018)
99 REPLY to Response to 95 MOTION to Consolidate Cases filed by Plaintiffs Andrew Atkins, Cathy Begano, Bionca Charmaine Rogers, Marc Trevithick. (Attachments: # 1 Declaration of Amy F. Robertson with Exhibit 1)(Robertson, Amy) (Entered: 12/11/2018)
100 MINUTE ORDER. Motion Hearing re: 95 MOTION to Consolidate Cases set for 1/11/2019 02:00 PM in Courtroom A 402 before Magistrate Judge Scott T. Varholak. SO ORDERED, By Magistrate Judge Scott T. Varholak on 12/11/2018. Text Only

Case: 1:16-cv-2733 As of: 10/26/2019 09:30 AM MDT 10 of 16

12/11/2018 12/20/2018 12/21/2018 12/27/2018
12/31/2018 01/02/2019
01/07/2019
01/11/2019 01/11/2019 01/14/2019

Entry (stvlc2, ) (Entered: 12/11/2018)
101 MINUTE ORDER Per the request of the parties, the Motion Hearing re: 95 Plaintiffs' Motion to Consolidate set for 1/11/2019 02:00 PM is VACATED and RESET for 1/7/2019 01:00 PM in Courtroom A 402 before Magistrate Judge Scott T. Varholak. Counsel for Plaintiff shall promptly provide a copy of this Minute Order to counsel in the proposed consolidated case, Rabinkov v. Colorado Department of Corrections, 18−cv−02926−MEH (D. Colo.). SO ORDERED, By Magistrate Judge Scott T. Varholak on 12/11/2018. Text Only Entry (stvlc1, ) (Entered: 12/11/2018)
103 ORDER granting 95 Motion to Consolidate Cases The Motion Hearing set for January 7, 2019 at 1:00 p.m. in Courtroom A 402 before Magistrate Judge Scott T. Varholak. is CONVERTED TO A STATUS HEARING. By Magistrate Judge Scott T. Varholak on 12/20/2018. (jgonz, ) (Entered: 12/21/2018)
102 SUPPLEMENT/AMENDMENT to 88 MOTION for Summary Judgment , 87 MOTION for Partial Summary Judgment , 94 Response to Motion, by Plaintiffs Andrew Atkins, Cathy Begano, Bionca Charmaine Rogers, Jennifer Saugause, Marc Trevithick, Kandyce Vessey. (Attachments: # 1 Plaintiffs' Separate Statement of Facts ISO Motion for Partial Summary Judgment, # 2 Plaintiffs' Separate Statement of Facts in Response to Defendants' Motion for Summary Judgment)(Robertson, Amy) (Entered: 12/21/2018)
104 WITHDRAWN MOTION to Certify Class by Plaintiffs Andrew Atkins, Cathy Begano, Marc Trevithick, Leonid Rabinkov. (Attachments: # 1 Rabinkov Declaration, # 2 Begano Declaration, # 3 Atkins Declaration, # 4 Trevithick Declaration, # 5 Martinez Declaration, # 6 McDaniel Declaration, # 7 Knobbe Declaration, # 8 Gallegos Declaration, # 9 Andrews Declartaion w Exhibit, # 10 Robertson Declaration, # 11 Robertson Declaration Ex 1, # 12 Robertson Declaration Ex 2, # 13 Robertson Declaration Ex 3, # 14 Robertson Declaration Ex 4, # 15 Robertson Declaration Ex 5, # 16 Robertson Declaration Ex 6)(Robertson, Amy) Modified on 1/11/2019 (jgonz, ). (Entered: 12/27/2018)
105 Joint STATUS REPORT AND MOTION TO MODIFY BRIEFING SCHEDULE by Plaintiffs Andrew Atkins, Cathy Begano, Leonid Rabinkov, Bionca Charmaine Rogers, Marc Trevithick. (Robertson, Amy) (Entered: 12/31/2018)
106 MINUTE ORDER re: 105 Status Report. The parties' proposed amended briefing schedule regarding 87 MOTION for Partial Summary Judgment , 88 MOTION for Summary Judgment , and 104 MOTION to Certify Class is ADOPTED. Defendants shall respond to Plaintiffs' 87 Partial Motion for Summary Judgment on or before 1/17/2019. Defendants shall file a reply in support of their 88 Motion for Summary Judgment on or before 1/17/2019. Defendants shall respond to Plaintiffs' 104 MOTION to Certify Class on or before 1/17/2019. Plaintiffs shall file their replies in support of their 87 Partial Motion for Summary Judgment and 104 MOTION to Certify Class on or before 1/31/2019. SO ORDERED, by Magistrate Judge Scott T. Varholak on 1/2/2019. Text Only Entry (stvlc2, ) (Entered: 01/02/2019)
107 MINUTE ENTRY for Status Conference held before Magistrate Judge Scott T. Varholak on 1/7/2019. Scheduling Conference set for 1/17/2019 09:00 AM in Courtroom A 402 before Magistrate Judge Scott T. Varholak. The partiesshall have until noon on January 16, 2019 to file a ProposedScheduling Order. The Final Pretrial Conference set for March 4, 2019 at 9:30 a.m. before Magistrate Judge Varholak is converted to a Status Conference. The court is not denying the two Motions for Summary Judgment [Doc. Nos. 87 and 88]. The motions shall remain pending.FTR: STV − 402. (morti, ) (Entered: 01/07/2019)
108 MOTION to Withdraw Document re 104 MOTION to Certify Class by Plaintiffs Andrew Atkins, Cathy Begano, Leonid Rabinkov, Marc Trevithick. (Robertson, Amy) (Entered: 01/11/2019)
109 ORDER granting 108 Motion to Withdraw Document. The 104 MOTION to Certify Class is WITHDRAWN. SO ORDERED, by Magistrate Judge Scott T. Varholak on 1/11/2019. Text Only Entry (stvlc2, ) (Entered: 01/11/2019)
110 MOTION to Dismiss Complaint Filed in 18−cv−02926 by Defendant Colorado Department of Corrections. (Spalding, Kathleen) (Entered: 01/14/2019)

Case: 1:16-cv-2733 As of: 10/26/2019 09:30 AM MDT 11 of 16

01/16/2019 01/17/2019
01/17/2019 01/17/2019 01/17/2019 01/17/2019 01/17/2019
01/23/2019
01/25/2019 02/07/2019
02/14/2019 02/14/2019 02/21/2019 02/21/2019 03/05/2019

111 Proposed Scheduling Order by Plaintiffs Andrew Atkins, Cathy Begano, Leonid Rabinkov, Bionca Charmaine Rogers, Marc Trevithick. (Robertson, Amy) (Entered: 01/16/2019)
112 MINUTE ENTRY for Scheduling Conference held before Magistrate Judge Scott T. Varholak on 1/17/2019. Discovery due by 4/5/2019. Dispositive Motions due by 5/6/2019. Final Pretrial Conference set for 3/4/2019 is VACATED and RESET for 6/24/2019 10:00 AM in Courtroom A 402 before Magistrate Judge Scott T. Varholak. FTR: 402. (morti, ) (Entered: 01/17/2019)
113 SCHEDULING ORDER: by Magistrate Judge Scott T. Varholak on 1/17/19. (morti, ) (Entered: 01/17/2019)
114 NOTICE of Filing Amended Pleading by Plaintiffs Andrew Atkins, Cathy Begano, Leonid Rabinkov, Marc Trevithick (Robertson, Amy) (Entered: 01/17/2019)
115 AMENDED COMPLAINT against Colorado Department of Corrections, filed by Andrew Atkins, Marc Trevithick, Cathy Begano, Leonid Rabinkov.(Robertson, Amy) (Entered: 01/17/2019)
116 ORDER. In light of 115 Amended Complaint, Defendants' 110 Motion to Dismiss is DENIED without prejudice as moot. SO ORDERED, by Magistrate Judge Scott T. Varholak on 1/17/2019. Text Only Entry (stvlc2, ) (Entered: 01/17/2019)
117 MOTION for Partial Summary Judgment by Plaintiff Marc Trevithick. (Attachments: # 1 Robertson Decl., # 2 Robertson Decl. Ex. #1, # 3 Robertson Decl. Ex. #2, # 4 Robertson Decl. Ex. #3, # 5 Robertson Decl. Ex. #4, # 6 Robertson Decl. Ex. #5, # 7 Robertson Decl. Ex. #6, # 8 Robertson Decl. Ex. #7, # 9 Robertson Decl. Ex. #8, # 10 Robertson Decl. Ex. #9, # 11 Robertson Decl. Ex. #10, # 12 Trevithick Decl., # 13 Rogers Decl., # 14 Begano Decl.)(Robertson, Amy) (Entered: 01/17/2019)
118 ORDER. Pursuant to the oral order on 1/17/2019, see 112 , Recording at 9:31:43−9:31:56, 87 Motion for Partial Summary Judgment and 88 Motion for Summary Judgment are DENIED WITHOUT PREJUDICE. SO ORDERED, by Magistrate Judge Scott T. Varholak on 1/17/2019. Text Only Entry (stvlc2, ) (Entered: 01/23/2019)
119 MOTION to Dismiss for Failure to State a Claim by Defendant Colorado Department of Corrections. (Spalding, Kathleen) (Entered: 01/25/2019)
120 RESPONSE to 117 MOTION for Partial Summary Judgment filed by Defendant Colorado Department of Corrections. (Attachments: # 1 Exhibit Response to Statement of Facts, # 2 Exhibit A−1, # 3 Exhibit A−2, # 4 Exhibit A−3, # 5 Exhibit A−4, # 6 Exhibit A−5, # 7 Exhibit A−6, # 8 Exhibit A−7, # 9 Exhibit A−8, # 10 Exhibit A−9, # 11 Exhibit A−10)(Alber, Christopher) (Entered: 02/07/2019)
121 Unopposed MOTION for Extension of Time to File Response/Reply as to 119 MOTION to Dismiss for Failure to State a Claim by Plaintiffs Andrew Atkins, Cathy Begano, Bionca Charmaine Rogers, Marc Trevithick, Consol Plaintiff Leonid Rabinkov. (Robertson, Amy) (Entered: 02/14/2019)
122 ORDER granting 121 Plaintiffs' Motion for Extension of Time to File Opposition to Defendant Colorado Department of Corrections' Motion to Dismiss Amended Complaint until 2/22/2019, by Magistrate Judge Scott T. Varholak on 2/14/2019. Text Only Entry. (jgonz, ) (Entered: 02/14/2019)
123 BRIEF in Opposition to 119 MOTION to Dismiss for Failure to State a Claim filed by Plaintiffs Andrew Atkins, Cathy Begano, Marc Trevithick, Consol Plaintiff Leonid Rabinkov. (Robertson, Amy) (Entered: 02/21/2019)
124 REPLY to Response to 117 MOTION for Partial Summary Judgment filed by Consol Plaintiff Marc Trevithick. (Robertson, Amy) Modified on 2/21/2019 (jgonz, ). (Entered: 02/21/2019)
125 MOTION for Extension of Time to File Response/Reply as to 119 MOTION to Dismiss for Failure to State a Claim by Defendant Colorado Department of Corrections. (Spalding, Kathleen) (Entered: 03/05/2019)

Case: 1:16-cv-2733 As of: 10/26/2019 09:30 AM MDT 12 of 16

03/05/2019 03/14/2019 03/17/2019
03/21/2019 04/09/2019 04/20/2019
04/23/2019 05/06/2019 05/07/2019 05/07/2019

126 ORDER granting 125 Motion for Extension of Time to File Response/Reply. Defendant CDOC shall file a reply in support of its motion to dismiss 119 on or before 3/14/2019. SO ORDERED, by Magistrate Judge Scott T. Varholak on 3/5/2019. Text Only Entry (stvlc2, ) (Entered: 03/05/2019)
127 REPLY to Response to 110 MOTION to Dismiss Complaint Filed in 18−cv−02926 filed by Defendant Colorado Department of Corrections. (Spalding, Kathleen) (Entered: 03/14/2019)
128 TRANSCRIPT of Rule 16(b) Scheduling Conference held on January 17, 2018 before Magistrate Judge Varholak. Pages: 1−23. 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. 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. (Patterson Transcription Company, ) (Entered: 03/17/2019)
129 NOTICE of Entry of Appearance by Martha M. Lafferty on behalf of Andrew Atkins, Cathy Begano, Leonid Rabinkov, Bionca Charmaine Rogers, Marc TrevithickAttorney Martha M. Lafferty added to party Andrew Atkins(pty:pla), Attorney Martha M. Lafferty added to party Cathy Begano(pty:pla), Attorney Martha M. Lafferty added to party Leonid Rabinkov(pty:conpla), Attorney Martha M. Lafferty added to party Bionca Charmaine Rogers(pty:pla), Attorney Martha M. Lafferty added to party Marc Trevithick(pty:pla) (Lafferty, Martha) (Entered: 03/21/2019)
130 ORDER denying 119 Motion to Dismiss the Amended Complaint by Magistrate Judge Scott T. Varholak on 4/9/2019. (jgonz, ) (Entered: 04/10/2019)
131 TRANSCRIPT of Status Conference held on January 7, 2019 before Magistrate Judge Varholak. Pages: 1−21. 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. 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. (Patterson Transcription Company, ) (Entered: 04/20/2019)
132 DEFENDANT COLORADO DEPARTMENT OF CORRECTIONS ANSWER to 115 Amended Complaint by Colorado Department of Corrections.(Spalding, Kathleen) (Entered: 04/23/2019)
133 MOTION for Summary Judgment by Defendants Colorado Department of Corrections, Ryan Long, Rick Raemisch, Mike Romero. (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)(Alber, Christopher) Modified on 5/7/2019 to restrict level 1 Exhibit A−5pending ruling on # 134 (jgonz, ). (Entered: 05/06/2019)
134 Unopposed MOTION for Leave to Restrict by Plaintiffs Andrew Atkins, Cathy Begano, Bionca Charmaine Rogers, Marc Trevithick, Consol Plaintiff Leonid Rabinkov. (Robertson, Amy) (Entered: 05/07/2019)
135 MINUTE ORDER re: 133 MOTION for Summary Judgment . Pursuant to Section V of Magistrate Judge Varholak's Civil Practice Standards (revised November 1, 2018), Defendants shall file a Separate Statement of Facts to accompany their Motion, in the three−column format set forth in the Civil Practice Standards, on or before 5/14/2019. SO ORDERED, by Magistrate Judge Scott T. Varholak on 5/7/2019. Text Only Entry (stvlc2, ) (Entered: 05/07/2019)

Case: 1:16-cv-2733 As of: 10/26/2019 09:30 AM MDT 13 of 16

05/13/2019 05/14/2019 05/21/2019 05/21/2019 05/31/2019
06/14/2019 06/17/2019 06/21/2019 06/24/2019 06/24/2019 06/24/2019 06/27/2019 07/11/2019

136 ORDER granting 134 Motion for Leave to Restrict. The Clerk of Court is instructed to maintain Exhibit A−5 to Defendants' 133 Motion for Summary Judgment, [133−5], under RESTRICTION LEVEL 1. SO ORDERED, by Magistrate Judge Scott T. Varholak on 5/13/2019. Text Only Entry(stvlc2, ) (Entered: 05/13/2019)
137 NOTICE re 133 MOTION for Summary Judgment and Defendants' Statement of Material Facts by Defendants Colorado Department of Corrections, Ryan Long, Rick Raemisch, Mike Romero (Attachments: # 1 Exhibit Statement of Material Facts)(Alber, Christopher) (Entered: 05/14/2019)
138 Unopposed MOTION for Extension of Time to File Response/Reply as to 133 MOTION for Summary Judgment by Plaintiffs Andrew Atkins, Cathy Begano, Bionca Charmaine Rogers, Marc Trevithick, Consol Plaintiff Leonid Rabinkov. (Robertson, Amy) (Entered: 05/21/2019)
139 ORDER granting 138 Motion for Extension of Time to File Response/Reply. The deadline for Plaintiffs to file their response to Defendants' 133 Motion for Summary Judgment is extended to 5/31/2019. Any reply by Defendants shall be filed on or before 6/14/2019. SO ORDERED, by Magistrate Judge Scott T. Varholak on 5/21/2019. Text Only Entry(stvlc2, ) (Entered: 05/21/2019)
140 BRIEF in Opposition to 133 MOTION for Summary Judgment filed by Plaintiffs Andrew Atkins, Cathy Begano, Bionca Charmaine Rogers, Marc Trevithick, Consol Plaintiff Leonid Rabinkov. (Attachments: # 1 Plaintiffs' Separate Statement of Facts, # 2 Robertson Declaration, # 3 Robertson Decl. Exhibit 1, # 4 Robertson Decl. Exhibit 2, # 5 Robertson Decl. Exhibit 3, # 6 Robertson Decl. Exhibit 4, # 7 Robertson Decl. Exhibit 5, # 8 Robertson Decl. Exhibit 6, # 9 Robertson Decl. Exhibit 7, # 10 Robertson Decl. Exhibit 8, # 11 Robertson Decl. Exhibit 9, # 12 Robertson Decl. Exhibit 10, # 13 Robertson Decl. Exhibit 11, # 14 Robertson Decl. Exhibit 12, # 15 Robertson Decl. Exhibit 13, # 16 Robertson Decl. Exhibit 14, # 17 Rogers Declaration, # 18 Rabinkov Declaration, # 19 Begano Declaration, # 20 Trevithick Declaration, # 21 Atkins Declaration, # 22 Saugause Declaration, # 23 Jordan Declaration)(Robertson, Amy) (Entered: 05/31/2019)
141 REPLY to Response to 133 MOTION for Summary Judgment filed by Defendants Colorado Department of Corrections, Ryan Long, Rick Raemisch, Mike Romero. (Attachments: # 1 Exhibit Statement of Material Facts, # 2 Exhibit A−7)(Alber, Christopher) (Entered: 06/14/2019)
142 Proposed Pretrial Order by Plaintiffs Andrew Atkins, Cathy Begano, Bionca Charmaine Rogers, Marc Trevithick, Consol Plaintiff Leonid Rabinkov. (Robertson, Amy) (Entered: 06/17/2019)
143 MOTION to Dismiss as Moot by Defendants Colorado Department of Corrections, Ryan Long, Rick Raemisch, Mike Romero. (Attachments: # 1 Exhibit A−1, # 2 Exhibit A−2)(Alber, Christopher) (Entered: 06/21/2019)
144 MINUTE ENTRY for Final Pretrial Conference held before Magistrate Judge Scott T. Varholak on 6/24/2019. ORDERED: Three day Bench Trial set to commence on 12/11/2019 09:00 AM in Courtroom A 402 before Magistrate Judge Scott T. Varholak. Trial Preparation Conference set for 11/18/2019 at 10:00 AM in Courtroom A 402 before Magistrate Judge Scott T. Varholak. FTR: 402. (morti, ) (Entered: 06/24/2019)
145 FINAL PRETRIAL ORDER by Magistrate Judge Scott T. Varholak on 6/24/19. (morti, ) (Entered: 06/24/2019)
146 Trial Preparation Conference Order, by Magistrate Judge Scott T. Varholak on 6/24/2019. (jgonz, ) (Entered: 06/24/2019)
147 BRIEF in Opposition to 143 MOTION to Dismiss as Moot filed by Plaintiffs Andrew Atkins, Cathy Begano, Bionca Charmaine Rogers, Marc Trevithick, Consol Plaintiff Leonid Rabinkov. (Attachments: # 1 Robertson Declaration with Exhibit, # 2 Nordell Declaration with Exhibits, # 3 Rabinkov Declaration, # 4 Trevithick Declaration, # 5 Atkins Declaration)(Robertson, Amy) (Entered: 06/27/2019)
148 REPLY to Response to 143 MOTION to Dismiss as Moot filed by Defendants Colorado Department of Corrections, Ryan Long, Rick Raemisch, Mike Romero. (Attachments: # 1 Exhibit A−3)(Alber, Christopher) (Entered: 07/11/2019)

Case: 1:16-cv-2733 As of: 10/26/2019 09:30 AM MDT 14 of 16

07/18/2019
07/25/2019
07/26/2019 07/31/2019 08/08/2019 08/08/2019 08/22/2019 09/05/2019 09/10/2019
09/18/2019

149 MINUTE ORDER Motion Hearing re: 117 Plaintiff Marc Trevithick's Motion for Partial Summary Judgment, 133 Defendants' Motion for Summary Judgment, and 143 Defendants' Motion to Dismiss as Moot set for 7/26/2019 01:30 PM in Courtroom A 402 before Magistrate Judge Scott T. Varholak. In particular, the parties should be prepared to address what impact, if any, the lack of a formal policy regarding the installation and maintenance of videophones has on the mootness issue. SO ORDERED, by Magistrate Judge Scott T. Varholak on 7/18/2019. Text Only Entry (stvlc1, ) (Entered: 07/18/2019)
150 SUPPLEMENT/AMENDMENT to 140 Brief in Opposition to Motion,,, 147 Brief in Opposition to Motion, by Plaintiffs Andrew Atkins, Cathy Begano, Bionca Charmaine Rogers, Marc Trevithick, Consol Plaintiff Leonid Rabinkov. (Attachments: # 1 Robertson Declaration, # 2 Robertson Declaration Ex. 1, # 3 Robertson Declaration Ex. 2, # 4 Robertson Declaration Ex. 3, # 5 Robertson Declaration Ex. 4, # 6 Robertson Declaration Ex. 5, # 7 Robertson Declaration Ex. 6, # 8 Robertson Declaration Ex. 7, # 9 Robertson Declaration Ex. 8, # 10 Robertson Declaration Ex. 9, # 11 Robertson Declaration Ex. 10, # 12 Robertson Declaration Ex. 11, # 13 Robertson Declaration Ex. 12, # 14 Atkins Declaration, # 15 Rabinkov Declaration)(Robertson, Amy) (Entered: 07/25/2019)
151 MINUTE ENTRY for Motion Hearing proceedings held before Magistrate Judge Scott T. Varholak on 7/26/2019. Taking under advisement 117 Motion for Partial Summary Judgment; Taking under advisement 133 Motion for Summary Judgment; Taking under advisement 143 Motion to Dismiss. FTR: B. Abiakam. (babia) (Entered: 07/26/2019)
152 BRIEF re 143 MOTION to Dismiss as Moot, 133 MOTION for Summary Judgment Post−Hearing Brief by Plaintiffs Andrew Atkins, Cathy Begano, Bionca Charmaine Rogers, Marc Trevithick, Consol Plaintiff Leonid Rabinkov. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Robertson, Amy) (Entered: 07/31/2019)
153 MOTION to Strike 152 Brief, by Defendants Colorado Department of Corrections, Ryan Long, Rick Raemisch, Mike Romero. (Alber, Christopher) (Entered: 08/08/2019)
154 ORDER granting in part and denying in part 153 Motion to Strike. The Motion is GRANTED to the extent Defendants seek 14 days to respond to Plaintiffs' 152 Post−Hearing Brief. Any response to the 152 Post−Hearing Brief shall be filed on or before 8/22/2019 and shall be limited to 10 pages, excluding exhibits. The Motion is DENIED to the extent Defendants seek to strike Plaintiffs' 152 Post−Hearing Brief. SO ORDERED, by Magistrate Judge Scott T. Varholak on 8/8/2019. Text Only Entry(stvlc2, ) (Entered: 08/08/2019)
155 RESPONSE to 152 Brief, Post−Hearing by Defendants Colorado Department of Corrections, Ryan Long, Rick Raemisch, Mike Romero. (Alber, Christopher) (Entered: 08/22/2019)
156 MINUTE ORDER; An expedited Transcript of the Motion Hearing Proceedings 151 is requested, by Magistrate Judge Scott T. Varholak on 9/5/19. Text Only Entry (morti, ) (Entered: 09/05/2019)
157 TRANSCRIPT of Motion Hearing held on July 26, 2019 before Magistrate Judge Varholak. Pages: 1−25. 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. 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. (Patterson Transcription Company, ) (Entered: 09/10/2019)
158 ORDER granting 117 Plaintiff Trevithicks Motion for Partial Summary Judgment; granting in part and denying in part 133 Defendants Motion for Summary Judgment; denying 143 Defendants Motion to Dismiss as Moot, by Magistrate Judge Scott T. Varholak on 9/18/2019.(jgonz, ) (Entered: 09/18/2019)

Case: 1:16-cv-2733 As of: 10/26/2019 09:30 AM MDT 15 of 16

10/04/2019 10/04/2019 10/04/2019 10/07/2019 10/07/2019 10/11/2019 10/11/2019 10/11/2019
10/11/2019
10/15/2019 10/15/2019 10/15/2019 10/16/2019 10/17/2019
10/17/2019

159 Joint MOTION for Referral For Settlement Conference by Plaintiffs Andrew Atkins, Cathy Begano, Bionca Charmaine Rogers, Marc Trevithick, Consol Plaintiff Leonid Rabinkov. (Robertson, Amy) (Entered: 10/04/2019)
160 ORDER granting 159 Motion for Referral. The Clerk of Court is directed to randomly assign this matter to another Magistrate Judge solely for the purpose of conducting a settlement conference. SO ORDERED, by Magistrate Judge Scott T. Varholak on 10/4/2019. Text Only Entry(stvlc2, ) (Entered: 10/04/2019)
161 CASE Drawn to Magistrate Judge N. Reid Neureiter for the purpose of conducting a settlement conference pursuant to Order #160. (Text Only Entry) (jgonz, ) (Entered: 10/04/2019)
162 MINUTE ORDER re: 160 Order on Motion for Referral, by Magistrate Judge N. Reid Neureiter on 10/7/2019. PLEASE READ ATTACHED MINUTE ORDER. (tsher, ) (Entered: 10/07/2019)
163 MINUTE ORDER by Magistrate Judge N. Reid Neureiter on 10/7/2019. Settlement Conference set for 10/28/2019 10:30 AM in Courtroom C203 before Magistrate Judge N. Reid Neureiter. PLEASE READ ATTACHED MINUTE ORDER. (tsher, ) (Entered: 10/07/2019)
164 Unopposed MOTION for Leave to Appear Telephonically by Plaintiffs Andrew Atkins, Cathy Begano, Bionca Charmaine Rogers, Marc Trevithick, Consol Plaintiff Leonid Rabinkov. (Lafferty, Martha) (Entered: 10/11/2019)
165 MOTION for Writ of Habeas Corpus ad testificandum by Plaintiffs Andrew Atkins, Cathy Begano, Bionca Charmaine Rogers, Marc Trevithick, Consol Plaintiff Leonid Rabinkov. (Robertson, Amy) (Entered: 10/11/2019)
166 ORDER REFERRING MOTION(S): 164 Unopposed MOTION for Leave to Appear Telephonically filed by Cathy Begano, Marc Trevithick, Leonid Rabinkov, Bionca Charmaine Rogers, Andrew Atkins.Motions referred to Magistrate Judge N. Reid Neureiter By Magistrate Judge Scott T. Varholak on 10/11/2019. Text Only Entry (jgonz, ) (Entered: 10/11/2019)
167 ORDER REFERRING MOTION(S): 165 MOTION for Writ of Habeas Corpus ad testificandum filed by Cathy Begano, Marc Trevithick, Leonid Rabinkov, Bionca Charmaine Rogers, Andrew Atkins.Motions referred to Magistrate Judge N. Reid Neureiter. By Magistrate Judge Scott T. Varholak on 10/11/2019. Text Only Entry (jgonz, ) (Entered: 10/11/2019)
168 MINUTE ORDER granting 164 Motion for Leave to Appear Telephonically at Settlement Conference, by Magistrate Judge N. Reid Neureiter on 10/15/2019. (tsher, ) (Entered: 10/15/2019)
169 ORDER granting 165 Motion for Writ of Habeas Corpus ad Testificandum by Magistrate Judge N. Reid Neureiter on 10/15/2019.(tsher, ) (Entered: 10/15/2019)
170 WRIT of Habeas Corpus ad Testificandum issued. (Attachments: # 1 Writ of Habeas Corpus ad Testificandum, # 2 Writ of Habeas Corpus ad Testificandum, # 3 Writ of Habeas Corpus ad Testificandum) (tsher, ) Modified on 10/16/2019 to correct PDF of #170−3 (tsher, ). (Entered: 10/15/2019)
171 Partial MOTION for Reconsideration re 158 Order on Motion for Partial Summary Judgment,, Order on Motion for Summary Judgment,, Order on Motion to Dismiss, by Defendants Colorado Department of Corrections, Ryan Long, Rick Raemisch, Mike Romero. (Alber, Christopher) (Entered: 10/16/2019)
172 WITHDRAWN NOTICE OF APPEAL as to 158 Order on Motion for Partial Summary Judgment,, Order on Motion for Summary Judgment,, Order on Motion to Dismiss, by Plaintiff Cathy Begano (Filing fee $ 505, Receipt Number 1082−6948970) (Lafferty, Martha) Modified on 10/21/2019 to withdraw pursuant to Order #177 (jgonz, ). (Entered: 10/17/2019)
173 WITHDRAWN MINUTE ORDER re: 172 Notice of Appeal. The filing of a notice of appeal is an event of jurisdictional significance−−it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." Stewart v. Donges, 915 F.2d 572, 574 (10th Cir. 1990)

Case: 1:16-cv-2733 As of: 10/26/2019 09:30 AM MDT 16 of 16

10/17/2019 10/18/2019
10/18/2019 10/18/2019

(quoting Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982)). The Court notes that it may maintain jurisdiction over the 171 Partial Motion for Reconsideration. See, e.g., Sain v. Snyder, No. CIV 08−1019 RB/LFG, 2009 WL 10707109, at *1 (D.N.M. July 17, 2009); Millers Mut. Fire Ins. Co. v. Sw. Surveying Co., Inc., No. CIV 99−499 MV/RLP, 2001 WL 37124825, at *2 (D.N.M. Aug. 5, 2001) (citing Aldridch Enters., Inc. v. United States, 938 F.2d 1134, 1143 (10th Cir. 1991)). The parties are ORDERED to file a joint brief identifying what impact, if any, the 172 Notice of Appeal has on the Court's jurisdiction over the remaining aspects of this matter. The parties shall file the brief on or before 10/24/2019. SO ORDERED, by Magistrate Judge Scott T. Varholak on 10/17/2019. Text Only Entry (stvlc2, ) Modified on 10/21/2019 to withdraw pursuant to Order #177 (jgonz, ). (Entered: 10/17/2019)
174 ORDER denying 171 Motion for Reconsideration by Magistrate Judge Scott T. Varholak on 10/17/2019.(jgonz, ) (Entered: 10/17/2019)
175 NOTICE of Entry of Appearance by Maritza D. Braswell on behalf of Colorado Department of Corrections, Ryan Long, Rick Raemisch, Mike RomeroAttorney Maritza D. Braswell added to party Colorado Department of Corrections(pty:dft), Attorney Maritza D. Braswell added to party Ryan Long(pty:dft), Attorney Maritza D. Braswell added to party Rick Raemisch(pty:dft), Attorney Maritza D. Braswell added to party Mike Romero(pty:dft) (Braswell, Maritza) (Entered: 10/18/2019)
176 MOTION to Dismiss Appeal re 172 Notice of Appeal, by Plaintiff Cathy Begano. (Lafferty, Martha) (Entered: 10/18/2019)
177 ORDER granting 176 Motion to Dismiss Dismiss Appeal. The 172 Notice of Appeal is WITHDRAWN. In light of this ruling, the Court also WITHDRAWS 173 Minute Order re 172 Notice of Appeal. SO ORDERED, by Magistrate Judge Scott T. Varholak on 10/18/2019. Text Only Entry(stvlc2, ) (Entered: 10/18/2019)

 
 Case 1:16-cv-02733-STV Document 66 Filed 01/22/18 USDC Colorado Page 1 of 21
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-02733-STV BIONCA CHARMAINE ROGERS, CATHY BEGANO, JENNIFER SAUGAUSE, ANDREW ATKINS, and MARC TREVITHICK,
Plaintiffs, v. COLORADO DEPARTMENT OF CORRECTIONS, RICK RAEMISCH, in his official capacity as Executive Director of the Colorado Department of Corrections, RYAN LONG, in his official capacity as Warden of the Denver Women’s Correctional Facility, and MIKE ROMERO, in his official capacity as Warden of the Colorado Territorial Correctional Facility,
Defendants.
FOURTH AMENDED COMPLAINT
Plaintiffs Bionca Charmaine Rogers, Cathy Begano, Jennifer Saugause, Andrew Atkins, and Marc Trevithick, by and through counsel, hereby file this Fourth Amended Complaint against the Colorado Department of Corrections, Rick Raemisch in his official capacity as Executive Director of the Colorado Department of Corrections, Ryan Long in his official capacity as Warden of the Denver Women’s Correctional Facility, and Mike Romero in his official capacity as Warden of the Colorado Territorial Correctional Facility.

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INTRODUCTION 1. Plaintiff Bionca Charmaine Rogers is a prisoner at the Denver Women’s Correctional Facility. While Ms. Rogers is able to hear, both of her parents are deaf. Ms. Rogers communicates with her parents using American Sign Language (“ASL”). 2. Ms. Rogers has requested that she be permitted to communicate with her parents using a videophone (“VP”), which would permit them to communicate directly, as hearing prisoners communicate directly by telephone with members of their families who are also hearing. 3. Defendants have refused to permit Ms. Rogers to communicate with her mother and father by VP, insisting that she use a teletypewriter (“TTY”), which, as the name suggests, requires users to type their conversation back and forth, and requires the individuals at both ends of the conversation to have specialized equipment to participate. 4. Ms. Rogers’s parents do not have TTY equipment so it is impossible for Ms. Rogers to communicate with her parents using a TTY. Defendants are thus not providing effective communication to either Ms. Rogers or her parents. 5. Plaintiffs Cathy Begano and Jennifer Saugause are prisoners at the Denver Women’s Correctional Facility. Both are Deaf and both have requested to be able to use a videophone to communicate with friends and family. All requests have been refused. 6. Plaintiffs Andrew Atkins and Marc Trevithick are prisoners at the Colorado Territorial Correctional Facility. Both are Deaf and have requested to be able to use a videophone to communicate with friends and family. All requests have been refused.
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7. Plaintiffs bring these claims under the First Amendment to the United States Constitution, title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. (“ADA” or “Title II”), and section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (“Section 504”), to challenge this infringement of their right to free speech and the discrimination against them and by which they have been injured.
JURISDICTION AND VENUE 8. This action arises under the Constitution and laws of the United States. Jurisdiction is conferred upon this court pursuant to 28 U.S.C. §§ 1331 and 1343. 9. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b)(2), as all of the events giving rise to the claims occurred in the District of Colorado.
PARTIES 10. Plaintiff Bionca Charmaine Rogers is a prisoner at the Denver Women’s Correctional Facility (“DWCF”) in Denver, Colorado. Ms. Rogers is able to hear. Her mother, Teresa Jordan, and her father, Charles Buddy Rogers, are both deaf, unable to hear, and communicate using ASL. Ms. Rogers is thus an individual who has a known relationship or association with persons with known disabilities. See 28 C.F.R. § 35.130(g). 11. Plaintiff Cathy Begano is a prisoner at DWCF. Ms. Begano is Deaf, and as such is a qualified individual with a disability as that term is used in Title II and Section 504. Plaintiff Begano has been deaf since she was a young child and ASL is her primary language. 12. Plaintiff Jennifer Saguause is a prisoner at DWCF. Ms. Saguause is Deaf, and as such is a qualified individual with a disability as that term is used in Title II and Section 504. Plaintiff Saugause has been deaf since she was a young child and ASL is her primary language.
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13. Plaintiff Andrew Atkins is a prisoner at the Colorado Territorial Correctional Facility (“CTCF”) in Cañon City, Colorado. Mr. Atkins is Deaf, and as such is a qualified individual with a disability as that term is used in Title II and Section 504. Plaintiff Atkins was born deaf and ASL is his primary language.
14. Plaintiff Marc Trevithick is a prisoner at CTCF. Mr. Trevithick is Deaf, and as such is a qualified individual with a disability as that term is used in Title II and Section 504. Plaintiff Trevithick has been deaf since he was a young child and ASL is his primary language.
15. Defendant Colorado Department of Corrections (“CDOC”) is a department of the State of Colorado. CDOC has custody of all Plaintiffs.
16. Defendant Rick Raemisch is the Executive Director of the Colorado Department of Corrections. Director Raemisch is sued in his official capacity.
17. Defendant Ryan Long is the Warden of the DWCF. Warden Long is sued in his official capacity.
18. Defendant Mike Romero is the Warden of CTCF. Warden Romero is sued in his official capacity.
FACTS 19. ASL is a visual language. It is “a complete, complex language that employs signs made by moving the hands combined with facial expressions and postures of the body.” For example, “English speakers ask a question by raising the pitch of their voice; ASL users ask a question by raising their eyebrows, widening their eyes, and tilting their bodies forward.” https://www.nidcd.nih.gov/health/american-sign-language
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20. ASL is not just English in gestures. It has grammar and syntax that are completely different from English. When deaf people are raised using ASL as their first or primary language, written English is a foreign language, which is often acquired incompletely and imperfectly.
21. Because deaf people cannot use a conventional telephone, technology has developed to permit them to communicate at a distance.
22. The earliest such technology, the teletypewriter or TTY, was invented in approximately 1964. It involved placing a standard telephone handset into an “acoustic coupler” connected to a teleprinter machine. Over time, the device evolved into a single piece of equipment that included a QWERTY keyboard and was connected to a phone jack.
23. A TTY requires that individuals at both ends of the communication have specific TTY equipment.
24. In a TTY communication, each participant types out his or her side of the conversation, then waits while the other person types back.
25. As such, it is a more cumbersome form of communication than a telephone conversation between hearing people.
26. For the same reason, it is a more cumbersome form of communication than a videophone conversation between deaf people or a deaf person and a hearing person who knows ASL.
27. As technology has evolved, fewer and fewer deaf people own or use TTYs. 28. It is more and more common for deaf people to use videophones rather than TTYs.
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29. As the name suggests, a videophone has a camera and a screen and transmits a video signal, permitting deaf people -- or a deaf person and a hearing person who signs -- to see each other and communicate directly with one another in ASL.
30. Ms. Rogers’s father and mother both have videophone service, and that is the way they communicate telephonically with others.
31. Plaintiff Rogers was arrested in February, 2014, and detained in the El Paso County Jail from that time until her conviction in August, 2015.
32. At the El Paso County Jail, Ms. Rogers was able to communicate with her parents using a videophone.
33. Ms. Rogers was convicted in August, 2015, and sentenced to life without parole. Since that time, she has been housed at the DWCF.
34. CDOC permits prisoners to make phone calls to individuals who are on their phone list. Administrative Regulation (“AR”) 850-12 ¶ IV(B)(1). Calls are limited to 20 minutes each; the number of calls permitted is governed by the policies of each facility. Id. ¶ IV(B)(2).
35. The telephones at DWCF are available at any time from 6:00 a.m. to 12:00 midnight. Id. ¶ IV(C)(2).
36. Hearing prisoners who wish to contact hearing family members are permitted to walk up to the phones at any time they are available and place a call, provided they have paid for the time (or are calling collect) and are calling someone on their phone list.
37. AR 850-12 provides that “[o]ffenders with hearing and/or speech disabilities, and offenders who wish to communicate with parties who have such disabilities, are afforded access to a [TTY] or comparable equipment.” Id. ¶ IV(A)(4)
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38. Almost as soon as she arrived at DWCF, Ms. Rogers began requesting access to a videophone so that she could communicate with her parents and her children.
39. Ms. Rogers has two children, ages seven and two. Ms. Jordan, Ms. Rogers’s mother, has guardianship of Ms. Rogers’s children. Although the children are hearing, it is essential that Ms. Rogers be able to communicate with Ms. Jordan about matters relating to the care and upbringing of her children.
40. On August 28, 2015, Ms. Rogers asked for access to a videophone, “due to sign language being a visual language where I, and my family are able to effectively communicate through expressions, demeanor, and facials as sign language uses such to understand one another. It is equal to a telephone that a hearing family uses because the ability to determine moods etc. is easily heard through vocal language and having a deaf family, I am at a disadvantage because I cannot vocally commune with my parents.”
41. Ms. Rogers first grieved the lack of a videophone on or about September 9, 2015. 42. On or about September 17, 2015, CDOC responded that “[a] videophone pilot plan is being considered for [Colorado Territorial Correctional Facility] where the majority of the DOC’s deaf offenders reside. Eventually this will be available in all of the DOC’s facilities. You have been approved for TTY access.” 43. Neither of Ms. Rogers’s parents has a TTY, so this solution does not permit her to communicate with them. 44. Nevertheless, at or about this time, Ms. Rogers attempted to use the TTY but was unable to do so because the TTY was broken.
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45. On or about September 24, 2015, Ms. Rogers submitted her Step 2 grievance, requesting access to a videophone and again explaining in detail why it was necessary.
46. On or about October 19, 2015, CDOC responded (among other things), “You have been authorized to utilize the TTY and the TTY is an effective alternate means of communication.”
47. On or about October 28, 2015, Ms. Rogers submitted her Step 3 grievance, again explaining in detail why a videophone was necessary and why the TTY was not sufficient.
48. On or about November 16, 2015, CDOC responded, stating that it could not “improve upon the information provided by the Step 1 and Step 2 Responders,” and that Ms. Rogers had “provided no verifiable documentation which requires CDOC to provide you with the use of a videophone. . . . It is your burden to prove your allegations stated in your Step 3 grievance. I have reviewed the facts of this case and determine that you did not meet this burden. There was no corroborating evidence to provide proof of your allegations.”
49. On or about January 2, 2016, Ms. Rogers submitted a kite asking for clarification of the November, 2015, denial and providing contact information for an individual at “Sorenson Video Phone” who would be able to confirm that her parents are deaf and have videophones, and provide confirmation of their videophone numbers.
50. This kite was returned to Ms. Rogers with a note stuck to the front reading, “[s]he needs to have this sent to HQ through proper channels. This does not go through the grievance coordinator.”
51. On or about February 9, 2016, Ms. Rogers submitted a grievance form asking that the November 16, 2015 letter be explained.
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52. In that form, Ms. Rogers again provided contact information for an individual at “Sorenson Video Phone” who would be able to confirm that her parents are deaf and have videophones, and provide confirmation of their videophone numbers.
53. Because “Sorenson Communications provides videophones and software exclusively to deaf individuals who require Video Relay Service (VRS) to place and receive calls,” https://apply.sorensonvrs.com/secured_ntouch_apply_form (last visited 6/11/2017), Ms. Rogers was, in her January 2 and February 9, 2016 communications, substantiating the fact that her parents were deaf and providing information concerning the communications technology they used.
54. On or about February 12, 2016, CDOC responded, “Grievance previously went to Step 3 and denied. Denied.”
55. On or about February 23, 2016, CDOC sent a letter to Ms. Rogers, once again denying her grievance.
56. On or about November 3, 2016, Ms. Rogers filed the present lawsuit pro se. 57. On or about March 24, 2017, Ms. Rogers sent a “kite” stating that she was unable to access the TTY. 58. On or about March 31, 2017, CDOC sent a memo to Ms. Rogers titled “TTY Access Denied,” and stating that the CDOC “require[d] that all people with a TTY must submit in writing proof to headquarters in order to be able to put Colorado relay on their offender’s phone list. This means that your parents must submit in writing that they are deaf and have a TTY as well as the model of the TTY. . . . In addition, you are not an ADA offender and you are
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not deaf so you have been denied access to the TTY. If headquarters approves for you to use the TTY then you will be granted access.”
59. Again, however, neither of Ms. Rogers’s parents has a TTY and she had previously submitted proof that they were deaf.
60. On several occasions prior to April, 2017, Ms. Rogers attempted to reach her mother using “video relay service” or “VRS.”
61. VRS permits a deaf person and a hearing person who does not sign to communicate. Using VRS, a hearing caller uses a conventional telephone to call the deaf person’s VP number. The call is answered by a sign language interpreter, who then connects to the deaf person’s VP. As the hearing caller speaks, the interpreter interprets for the deaf recipient through VP; as the deaf person signs, the interpreter interprets into spoken English.
62. Starting in April, Ms. Rogers has been able to call her mother using VRS. 63. For Ms. Rogers, VRS does not constitute communication that is in any way equivalent to a phone call between a hearing prisoner and her hearing family members, as the entire conversation is mediated by the interpreter. Participants in a VRS call do not speak with each other directly, and still cannot perceive emotion, tone, and other “non-spoken” features of a conversation between family members. Thus although VRS is a convenient solution for conversations between deaf people and non-signing hearing people, it is by definition indirect. As such, it is an inferior way for a deaf and hearing person to communicate when both know ASL. 64. In investigating this matter prior to entering an appearance, on May 28, 2017, counsel for Ms. Rogers submitted a Colorado Open Records Act request to the CDOC to attempt
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to learn more about the “videophone pilot plan . . . being considered for [Colorado Territorial Correctional Facility],” as mentioned in the CDOC’s September 17, 2015 grievance response.
65. A representative of CDOC responded, on May 1, 2017, that “[t]here is no pilot program at CTCF. Two years ago, there was an attempt to do so. Unfortunately, the technology available did not work from a security standpoint and the pilot did not start,” and that “[t]here are currently no plans to install sign language specific video phones; we do have tablets for offenders now and we have plans to look into how we can expand their use.”
66. Plaintiffs Begano and Saugause have both made requests to their case managers for videophones on a number of occasions during their time at DWCF.
67. Ms. Begano was detained at the El Paso County Jail and was able to us the VP there.
68. Plaintiffs Begano and Saugause have each attempted to use a TTY at DWCF on a number of occasions. The people with whom they communicate are largely hearing, rather than deaf. These individuals do not have TTYs. Plaintiffs Begano and Saugause have thus used TTY relay, a system in which they type their half of the conversation into the TTY, while an operator reads the text to the hearing person at the other end. When the hearing person responds, the operator types the response back to the DWCF TTY.
69. Even when it works properly, this process is far more cumbersome and time consuming than a phone call or VP or VRS call. As explained below, it is even more cumbersome when both parties to the call are deaf.
70. When Plaintiffs Begano and Saugause use the TTY, it has not worked properly. The TTY often skips words and when there is background noise or interference, the words are
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garbled. On many occasions when one of them wanted to use the TTY, it was broken and they were asked to wait until it was fixed to place their call. This is in stark contrast to hearing inmates, who are able to use the phone at any time between 6:00 a.m. and midnight.
71. Plaintiffs Atkins and Trevithick have each attempted to use a TTY at CTCF on a number of occasions. The people with whom they communicate include both hearing and deaf individuals. Since Plaintiffs Atkins and Trevithick arrived at CTCF, they have not been able to communicate effectively telephonically with friends and family. Both have lost contact with friends and family members due to the lack of effective communication.
72. Similarly to Plaintiffs Begano and Saugause, Plaintiffs Atkins and Trevithick have attempted to use TTY relay, a system in which they type their half of the conversation into the TTY, while a TTY operator reads the text to a hearing person at the other end. However, when Plaintiffs Atkins and Trevithick communicate with deaf family members and friends, TTY relay involves an additional step. After the deaf caller types into the TTY, the TTY operator reads the text to a hearing VRS interpreter who signs to the deaf individual receiving the call. When the deaf called-party responds, they sign back to the VRS interpreter who speaks to the TTY operator who types the response back to the deaf caller. This process thus adds two intermediaries to a conversation between two people and can cause extreme delays and miscommunication in the communication.
73. When Plaintiffs Atkins and Trevithick use the TTY at CTCF, it regularly freezes or disconnects and its keys are extremely sensitive, causing typographical errors. When the TTY is broken, it often takes the CDOC an unreasonable time to fix it. Occasionally, Plaintiffs have
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specific dates or times that they have scheduled to call their family and friends, but when they get to the TTY, it is broken. This has led to strained relationships between friends and family.
74. Additionally, Plaintiffs Atkins and Trevithick pay for their TTY calls using the debit system, but these TTY calls are apparently presented to the called party as collect calls. This creates problems for friends and family members who cannot afford to accept collect calls.
75. The policy limiting Plaintiffs to communicating through a TTY essentially limits them to writing letters -- some on paper, some on the TTY -- while prisoners with hearing family are permitted two different modes of communication: letters; and the more direct and intimate communication of a phone call.
76. Plaintiffs are not able to communicate effectively telephonically with friends and family. This has caused Plaintiffs emotional and psychological distress, inconvenience, frustration, depression, and heartache.
77. Defendants’ actions in refusing to provide a videophone to Plaintiffs are and have been intentional and/or constituted deliberate indifference to the strong likelihood that pursuit of this policy will likely result in a violation of Plaintiffs’ federally protected rights. Plaintiffs have alerted Defendants to the need for a videophone and that need is obvious. Defendants have knowingly and intentionally refused to provide the requested videophone
FIRST CLAIM FOR RELIEF: 42 U.S.C. § 1983/VIOLATION OF THE FIRST AMENDMENT TO THE
CONSTITUTION OF THE UNITED STATES (against all Defendants)
78. Plaintiffs incorporate the allegations set forth in the remainder of this Fourth Amended Complaint as if fully set forth herein.
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79. Defendants have impermissibly deprived, and continue to deprive, Plaintiffs of their First Amendment right to freedom of speech by failing to provide them with telecommunication equipment necessary for them to communicate with their family and friends.
80. Defendants’ refusal to provide Plaintiffs with access to a videophone serves no legitimate or compelling need and is not rationally related or narrowly tailored to any identified penological or rehabilitative need.
81. Provision of appropriate telecommunication equipment to Plaintiffs would have negligible effects, if any, on other prisoners and prison employees at CDOC facilities.
82. Defendants’ failure to comply with the First Amendment of the United States Constitution has resulted and will continue to result in harm to Plaintiffs, as more fully described above.
83. As a direct and proximate result of Defendants’ acts, omissions, and violations alleged above, Plaintiffs have suffered damages, as more fully described above.
84. Plaintiffs have been injured and aggrieved by and will continue to be injured and aggrieved by Defendants’ violation of the First Amendment.
SECOND CLAIM FOR RELIEF: VIOLATION OF TITLE II OF THE AMERICANS WITH DISABILITIES ACT
42 U.S.C. § 12131 et seq. (against Defendant CDOC)
85. Plaintiffs incorporate the allegations set forth in the remainder of this Fourth Amended Complaint as if fully set forth herein.
86. Title II prohibits public entities such as Defendant CDOC from excluding individuals with disabilities from participation in or denying them the benefits of their services,
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programs or activities, or otherwise subjecting such individuals to discrimination. 42 U.S.C. § 12132.
87. Because they are deaf and are parents of an inmate at DWCF, Ms. Rogers’s parents are qualified individuals with disabilities within the meaning of the Americans with Disabilities Act. 42 U.S.C. § 12102.
88. Defendant CDOC knows that Ms. Rogers’s parents are deaf, and knows that she has a relationship or association with them, as described in 28 C.F.R. § 35.130(g).
89. Because they are deaf and are prisoners in the custody of the CDOC, Plaintiffs Begano, Saugause, Atkins, and Trevithick are qualified individuals with disabilities within the meaning of the Americans with Disabilities Act. 42 U.S.C. § 12102.
90. Defendant CDOC excluded Plaintiffs and Ms. Rogers’s parents from participation in and/or denied them the benefits of it services, programs, and/or activities and/or subjected them to discrimination on the basis of disability and, in the case of Ms. Rogers, on the basis of her relationship or association with her deaf parents, in violation of Title II and its implementing regulations as more fully described in this Fourth Amended Complaint.
91. Such discrimination includes but is not limited to: a. denying Plaintiffs and Ms. Rogers’s parents the opportunity to participate in or benefit from an aid, benefit, or service, 28 C.F.R. § 35.130(b)(1)(i); b. affording Plaintiffs and Ms. Rogers’s parents the opportunity to participate in or benefit from an aid, benefit, or service that is not equal to that afforded others, see id. § 35.130(b)(1)(ii);
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c. providing Plaintiffs and Ms. Rogers’s parents with aids, benefits, and services that are 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, see id. § 35.130(b)(1)(iii);
d. using criteria and methods of administration that have the effect of subjecting Plaintiffs and Ms. Rogers’s parents to discrimination on the basis of disability, see id. § 35.130(b)(3)(i);
e. using criteria and methods of administration have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of CDOC’s program with respect to Plaintiffs and Ms. Rogers’s parents, see id. § 35.130(b)(3)(ii);
f. failing to make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination against Plaintiffs and Ms. Rogers’s parents on the basis of disability, see id. § 35.130(b)(7);
g. failing to ensure that communications with Plaintiffs and Ms. Rogers’s parents are as effective as communications with others, see id. § 35.160(a)(1);
h. failing to furnish appropriate auxiliary aids and services where necessary to afford Plaintiffs and Ms. Rogers’s parents an equal opportunity to participate in, and enjoy the benefits of, CDOC’s services, programs, or activities, see id. § 35.160(b)(1); and/or
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i. failing to give primary consideration to the requests of Plaintiffs and Ms. Rogers’s parents concerning the types of auxiliary aids and services necessary, see id. § 35.160(b)(2).
92. Plaintiffs and Ms. Rogers’s parents are qualified to participate in CDOC services, programs, and activities within the meaning of Title II.
93. Defendant CDOC’s actions described in this Fourth Amended Complaint were intentional and/or were taken with deliberate indifference to the strong likelihood that pursuit of its questioned policies would likely result in a violation of the Title II rights of Plaintiffs and Ms. Rogers’s parents.
94. As a direct and proximate result of Defendant CDOC’s acts, omissions, and violations alleged above, Plaintiffs have suffered damages as more fully described above.
95. Plaintiffs have been injured and aggrieved by and will continue to be injured and aggrieved by Defendant CDOC’s discrimination against Plaintiffs and Ms. Rogers’s parents.
96. Defendant CDOC’s actions that violate Title II also violate the First Amendment to the United States Constitution.
THRID CLAIM FOR RELIEF: VIOLATION OF SECTION 504 OF THE REHABILITATION ACT
49 U.S.C. § 794 (against Defendant CDOC)
97. Plaintiffs incorporate the allegations set forth in the remainder of this Fourth Amended Complaint as if fully set forth herein.
98. Section 504 prohibits discrimination on the basis of disability by recipients of federal financial assistance. 29 U.S.C. § 794.
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99. Defendant CDOC receives federal financial assistance as that term is used in Section 504.
100. Because they are deaf and are prisoners in the custody of the CDOC, Plaintiffs Begano, Saugause, Atkins, and Trevithick are qualified individuals with disabilities within the meaning of Section 504. 29 U.S.C. § 705(9) (incorporating by reference 42 U.S.C. § 12102).
101. Because they are deaf and are parents of an inmate at DWCF, Ms. Rogers’s parents are qualified individuals with disabilities within the meaning of Section 504. 29 U.S.C. § 705(9) (incorporating by reference 42 U.S.C. § 12102).
102. Defendant CDOC excluded Plaintiffs and Ms. Rogers’s parents from participation in and/or denied them the benefits of it programs and/or activities and/or subjected them to discrimination on the basis of disability and, in the case of Ms. Rogers, on the basis of her relationship or association with her deaf parents, in violation of Section 504 and its implementing regulations as more fully described in this Fourth Amended Complaint.
103. Such discrimination includes but is not limited to: a. denying Plaintiffs and Ms. Rogers’s parents the opportunity to participate in CDOC’s programs and activities, see 28 C.F.R. § 42.503(b)(1)(i); b. denying Plaintiffs and Ms. Rogers’s parents an equal opportunity to achieve the same benefits that others achieve in CDOC’s programs and activities, id. § 42.503(b)(1)(ii); c. using criteria or methods of administration that either purposely or in effect discriminate on the basis of disability or defeat or substantially impair
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accomplishment of the objectives of CDOC’s programs or activities with respect Plaintiffs and Ms. Rogers’s parents; id. § 42.503(b)(3); d. failing to provide appropriate auxiliary aids to Plaintiffs and Ms. Rogers’s parents, there by discriminatorily impairing or excluding them from participation in CDOC’s programs and activities, see id. § 42.503(f); and/or e. failing to provide reasonable accommodations to Plaintiffs and Ms. Rogers’s parents as necessary to ensure that they have meaningful access to CDOC’s programs, activities, or benefits, see Alexander v. Choate, 469 U.S. 287, 301 (1985). 104. Plaintiffs and Ms. Rogers’s parents are qualified to participate in CDOC services, programs, and activities within the meaning of Section 504. 105. Defendant CDOC’s actions described in this Fourth Amended Complaint were intentional and/or were taken with deliberate indifference to the strong likelihood that pursuit of its questioned policies would likely result in a violation of the Section 504 rights of Plaintiffs and Ms. Rogers’s parents. 106. As a direct and proximate result of Defendant CDOC’s acts, omissions, and violations alleged above, Plaintiffs have suffered damages, as more fully described above. 107. Plaintiffs have been injured and aggrieved by and will continue to be injured and aggrieved by Defendant CDOC’s discrimination against Plaintiffs and Ms. Rogers’s parents. 108. Defendant CDOC’s actions that violate Section 504 also violate the First Amendment to the United States Constitution.
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WHEREFORE, Plaintiff respectfully requests: 1. That this Court assume jurisdiction; 2. That this Court declare the actions of all Defendants described in this Fourth
Amended Complaint to be in violation of the First Amendment to the United States Constitution (and therefore 42 U.S.C. § 1983), and the actions of Defendant CDOC to be in violation of Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act;
3. That this Court enter an injunction ordering Defendants to cease violating Plaintiffs’ rights under the First Amendment, Title II, and Section 504, and to cease discriminating against them and against Ms. Rogers’s parents on the basis of disability;
4. That this Court award Plaintiffs compensatory damages pursuant to Title II, and Section 504;
5. That this Court award Plaintiffs and/or their attorneys their reasonable attorneys’ fees and costs; and
6. That this Court award such additional or alternative relief as may be just, proper, and equitable.
Respectfully submitted, s/ Amy F. Robertson Amy F. Robertson Civil Rights Education and Enforcement Center 104 Broadway, Suite 400 Denver, CO 80203 303.757.7901 arobertson@creeclaw.org Attorney for Plaintiffs Dated: January 22, 2018
20

Case 1:16-cv-02733-STV Document 66 Filed 01/22/18 USDC Colorado Page 21 of 21
CERTIFICATE OF SERVICE I hereby certify that on January 22, 2018 I electronically filed the foregoing document with the Clerk of Court using the CM/ECF system, which will provide electronic service to the following: Chris Alber Chris.Alber@coag.gov Counsel for Defendant
/s/ Jean Peterson Jean Peterson, Paralegal Civil Rights Education and Enforcement Center
21

 
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 Case 1:16-cv-02733-STV Document 11 Filed 02/21/17 USDC Colorado Page 1 of 17

Civil Action No.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
16-cv-02733-GPG (To be supplied by the court)

FILED
UNITED STATES DISTRICT COURT DENVER, COLO~
FEB 21 2017
JEF-rt\t: Y P. liUL\IVELL
CLERK

Bionca Charmaine Rogers
vs.
Denver Women's Correctional Facility P.O. Box 392005 Denver, CO, 80239
Rick Raemisch Department of Corrections 1250 Academy Park Loop Colorado Springs, CO, 80910

, Plaintiff, , Defendant , Defendant

(List each named defendant on a separate line.)

PRISONER COMPLAINT
A. PARTIES
1. Rogers, Bionca Charmaine, 169704, Denver Women's Correctional Facility P.O. Box 392005 Denver, CO, 80239
(Plaintiff's name, prisoner identification number, and complete mailing address)

Case 1:16-cv-02733-STV Document 11 Filed 02/21/17 USDC Colorado Page 2 of 17

2 Rick Raemisch Department of Corrections 1250 Academy Park Loop Colorado Springs, CO, 80910

Defendants

(Name, title, and address of first defendant)
At the time the claim(s) alleged in this complaint arose, was this defendant acting under color of state law? ___K_Yes _No (CHECK ONE). Briefly explain your answer:

Department of Colorado Corrections (DOC) enforces the Department Women's Correctional Facility to reject installment of a Sorenson Video Phone (SVP). The Facility is authorize to allow A TTY telephone Device to be used for every inmate located in DWCF, myself included as the 14th amendment Equal Protection Clause requires, but does not permit the Use of a SVP. It should be noted that DOC agrees and follows the regulations and rules both Spanish and English offers when in use of a telephone. Therefore both Spanish and English are options that can be chosen to communicate on the Phone. However, American Signlanguage (ASL) is also its separate language and requires rules and regulations to be met to comprehend and understand the language itself, and DOC ignores the demands ofASL such as the use of Visual Contact. The use of an outdated telephone machine TTY is mockery itself because it only allows a typed method to be expressed for a sender and a responder to have a conversation when clearly indifference is demonstrated when Spanish and English are being used on the Regular Telephone itself. DOC Executive Director Mr. Rick Raemisch, has the authority to authorize a SVP to be installed, due to having control over protocols that must be met for every Prison located in Colorado, and he and his organization choose to dismiss the Rules ofASL, in a form of a shortcut in technology, by only allowing a Written method to be Used for Communicating.

3 Department of Corrections Prison System 1250 Academy Park Loop Colorado Springs, CO, 80910

A. PARTIES

(Name, title, and address of second defendant)

At the time the claim(s) alleged in this complaint arose, was this defendant acting under color of state law? ___K_Yes _No (CHECK ONE). Briefly explain your answer:
Department of Corrections Prison System are authorized to successfully Protect the 14th Amendment Equal Protections Clause, by ensuring that essentially all persons similarly situated should be treated alike. In a sense that all inmates are approved to use the Telephone for TTY- Sign- language, Spanish, and English, it is agreed that in use of either choice of Communication, that the Rules would be met to consider a person's needs when

Case 1:16-cv-02733-STV Document 11 Filed 02/21/17 USDC Colorado Page 3 of 17
in use of that specific language. The actual Telephone offers a Person to Either use Spanish or English, and when one option is chosen immediately the responses on the phone speak that language. This symbolizes that the Rules of that Language are being met so that understanding of what is being spoken, is given. The TTY does not apply to ensuring that the Rules ofASL will be met, such as the visual contact, equalizing that Spanish, English, and Sign-language are all being used to its full effect by abiding to the Rules of that Language. ASL is not Protected under the 14th amendment Clause- under DOC authorization because the benefits that Spanish and English Receive are not given to ASL due to it only supplying a written method such as only Text, TTY. This identifiers that Discrimination and Inequality towards American Sign-language is being met and the 1st amendment of Free Speech thereof that I have the right to use ASL is not being taken into consideration because I can't Appropriately use ASL as its rules requires.
4 (Name, title, and address ofthird defendant)
At the time the claim(s) alleged in this complaint arose, was this defendant acting under color of state law? _Yes _No (CHECK ONE). Briefly explain your answer:
(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 should be labeled "A. PARTIES.")
B. JURISDICTION
1. I assert jurisdiction over my civil rights claim(s) pursuant to: (check one if applicable)
_x_ 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):

Case 1:16-cv-02733-STV Document 11 Filed 02/21/17 USDC Colorado Page 4 of 17
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 of the case should be labeled "C. NATURE OF THE CASE."
On the dates ofAugust 25, 2015, September: 17, 2015, September 23, 2015, September 24, 2015, October 28, 2015, February 09, 2016, February 17, 2016 etc.
I, Bionca Rogers 169704, requested Denver Woman's Correctional Facility to obtain a Sorenson Video Phone (SVP) in DWCF, for my use, to be able to exercise my 1st Amendment of Free Speech, which prohibits the free exercise thereof to speak to persons of my choice. The Woman's Correctional Facility has no authority to authorize the installment of a SVP, however the Executive Director Rick Raemisch, ofDept. of Corrections 1250 Academy Park Loop, Colorado Springs CO, 80910, as the Woman's Correctional Facility Superior has the authority to do so. In my Grievance Responses you'll find that numerous people have been contacted in order for me to obtain the SVP. It is my Understanding, that though no responder can technically be held accountable for violation of my amendment Rights, and that Rick Raemisch and Department of Correction Prison System are the Defendants in this matter, I'd like to make each Responders names aware to the Courts: Anthony DeCesaro, Michelle Brothers (12725), Terry Jaques, Janet Smith (16460), Adrienne Jacobson (14299), Marshall Griffith (14298), Jason Lopez (15866), Bryon Sparling, Keegan Fowler, and David Johnson. It is my belief that the named individuals were attempting to supply answers to enforce the Policy of Dept. Of Corrections- the Correctional system that enforces the policies and regulations of all the Prisons located in Colorado.
I have been rejected by all the above listed responders and with answers that clearly identify Discrimination and Inequality in regards to: Sexism, and Hearing vs Non-Hearing individuals in a series of responses throughout Grievances. Therefore, I am under the impression my rights remain as violated due to what their responses dispute, and the approval of DOC policies to allow the responses that were given
My dispute of claims considered the Major Differences in ASL and English. It should be noted that though my ability to hear is a factor, I am affected greatly due to not being able to use ASL the way it is required in an appropriate manner to develop ongoing conversation with a Deaf Person of my choice since I do speak ASL. This creates Heartache and misunderstanding of Communication to me due to not being able to express and visualize through Facials, Body Language, and Hand Gestures to provide meaning to my listening party. As I participate in an ongoing conversation with a hearing person I do not face the complications of communications or suffer as bad because my voice detects the Demeanor, Attitude, Pitch, and Tone. etc. When either listening or speaking to a Hearing individual. My knowledge and Factual information determining that ASL is not similar to English in the way it is used; depresses me mentally because I can't exercise my 1st amendment effectively and formulate a complete comprehensive conversation with anyone involved in the Deaf Community outside of the prison.
The idea that I am being forced to submit to one form of Communication to contact Deaf Individuals to type my thoughts on a TTY device- as demanded by DOC through Denver Women s Correctional Facility creates Inequality in communication and also links very similar communication as when a letter is being written. Hearing individuals who haven't requested an effective way to communicate with Deaf People receive the opportunity and pleasure of using a telephone device and a very different form of communication method such as writing letters. This Unequal use of a TTY Phone method eliminates me from being able to understand my home language- ASL in the most appropriate way. The meaning of Communication for me is Lost (Rev. 1/30/07)

Case 1:16-cv-02733-STV Document 11 Filed 02/21/17 USDC Colorado Page 5 of 17
Removes the Specific Requirements ASL demands to receive a comprehensive conversation.
"C. NATURE OF CASE" DOC enforces Denver Woman's Correctional Facility to express their intentions of possibly providing a Man's Facility with the Sorenson Video Phone, because they are "Majority" and did not specify if they were definite about Placing a Sorenson Video Phone in the women's Facility, only that they are considering it since women are "Minority". The mention of this statement demonstrates Sexism. DOC regulates and approves of Rules that neglect my 14th amendment Rights of Equality for Men and Women and it also does not prove a blue print or an outline of an expectancy date for the installment of a Sorenson Video Phone inside the Corrections Facilities. It only creates a pacified thought to remove any further complaints I may have. I have taken a series of routes to process my Grievance Complaints through my Chain of Command and its Superiors of DOC: Rick Raemisch, and have been disregarded and rejected each time, despite my legitimate reasoning for having effective communication such as the Sorenson Video Phone to use with my Biological Parents. I cannot stress how important it is for a Person to have equal understanding of one another when occurring in an ongoing conversation. Especially when the rules and regulations of a language- Such as American Sign-language requires such. Yet, DOC refuses to recognize the importance of effective communication. While DOC permits all inmates as a whole access to an outdated phone system such as the TTY- yet ignores the idea that approving the outdated TTY welcomes the idea of being allowed to communicate with deaf people in which could now possibly be a misunderstood technique of writing an ongoing conversation since many words are spelled alike however call for a totally different sign. This method leads myself into broken conversations and is emotionally damaging, due to not being able to comprehend what is said on both the Responder and Listening Parities. DOC symbolizes they are fine with inmates connecting to outside parties through TTYhowever removes and ignores the actual rules ASL requires- which would enforce DOC to change the telephone method to a Video Device. While DOC accepts and allow all inmates access to communicate on the actual telephone through Spanish Or English, if inmates choosesDOC respects The Rules Spanish or English demands by changing the entire wording heard through the phone to make a phone call and does not offer the same treatment to ASL. It is Present that DO C follows the Rules of either languages but dismisses the obligations that ASL requires to communicate. ASL is exempt from the same procedure of having its languages rules obeyed. A SVP allows such and offers much more that what a TTY can give in following the rules ofASL's languages. However, this is the only telephone method provided for by DOC. Allowing myself and all inmates, so that we're all treated similarly alike access to a SVP would be equivalent to how Spanish and English rules are followed by DOC. By changing the polices to authorize a SVP inside the Prisons, My 14th Amendment Rights are protected and are not violated due to DOC choosing to only allow all inmates access to a TTY which isn't equal.

Case 1:16-cv-02733-STV Document 11 Filed 02/21/17 USDC Colorado Page 6 of 17
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 dates(s) on which the incident{s) occurred, the names(s) of the specific person(s) involved in each claim. You do not need to cite specific cases to support your claims(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 claims(s). The additional pages regarding the cause of action should be labeled "D. CAUSE OF ACTION."
1. Claim One: Amendment I {1791). Freedom of Religion, Speech, Press, Assembly, and PetitionCongress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Supporting Facts: On August 28, 2015- I notified My Case Manager- Jason Lopez {15866) and Captain Keegan Fowler, that my request for Accommodation was due to my Biological Parents being Deaf. The Substantial Limitation that are required in the documentation "Offender Request for Accommodation" exist for my request for help, they are as follows: Hearing, Speaking, and Communicating. I requested the Sorenson Video Phone {SVP) to be installed in the DWCF Prison located in Colorado which lies under DOC Jurisdiction. It is the most appropriate effective communication up todate. I did not receive approval for this phone, nor acknowledgement for the SVP device, yet was expected to only use a TTY device for communication. I disagreed with the approval, and was denied Proper Communication. The usage of a TTY device is very similar to that of a letter being written.
The fact that I am being eliminated from being able to communicate with anyone apart of the Deaf Community; via an updated and effective device such as a SVP; without specific Cause from DOC expressing their objection deliberately emphasizes that DOC has no plausible legitimate reasoning behind the Denial of installment. I have been ordered by Judge Prudek, Marla R, Division 14, of EL Paso County, Colorado, to be sentenced to Custody of the Executive Director of the Dept. of Correctionswhich would now be considered Rick Raemisch, to serve sentencing time, not having or including a Restraining Order that involves my Ability to contact my Biological Deaf Parents. I have not been recommended any Refusal of communicating with anyone in the Deaf Community such as my Parents; reserving my right to exercise my 1st Amendment- This information can factually be found under my Archive Mittimus Data: Action date and Time beginning at 08/05/2015 at 17:37:19.
My continuous complaints/ Request for an SVP have been instead rejected without the approval of the study of my punishment demanding I not be afforded communication with the deaf community of my parents via SVP. I'd like to also include the factual information that a SVP is being considered for CTCF as grievance #1 suggest which I recognized as not being a threat to prison management, such as a possible security breach dispute due to CTCF being one of the prisons under DOC'S control management just as DWCF is, which I'd argue have the same or very similar regulations under Mr. Rick Raemisch's management and the concerns for any possible security breach can be resolved under very similar resolutions- i.e if CTCF has a private room available for the possibility of a SVP, it should be expected that DWCF follow the same procedure. The protocol for prison management protects the safety of both

Case 1:16-cv-02733-STV Document 11 Filed 02/21/17 USDC Colorado Page 7 of 17
inmates and staff and the prison itself and the operation itself is highly organized so that all prisons are safe. In knowing this information the prison's rejection to install a phone into DWCF as their considering for CTCF demonstrates that the policies for safety protocol for Security Breach have been infringed to protect Men and employees of CTCF and tampers safety Protocol for the rest of Colorado's prisons. In this argument I'd like the opportunity to petition the government for a redress of my submitted grievances to DWCF since it is clear that my 1st Amendment Rights aren't being respected or protected from DOC as a woman prisoner in DWCF. In making this claim I do not believe the decision to reject a SVP is "reasonably related to a legitimate penological interest."

Case 1:16-cv-02733-STV Document 11 Filed 02/21/17 USDC Colorado Page 8 of 17
D. CAUSE OF ACTION
2 Claim Two: XIV Amendment (1868) Protection of Civil Liberties: Definition of citizenship; Due Process of Law and Equal Protection of the Laws.
Supporting Facts: On September 09, 2015- Denver Woman's Correctional Facility received My Step 1 Grievance expressing the lack of equality for communication through telephone device(s) to outside links, which I have to suffer from because my outside link members include Deaf people when compared to a hearing individual. I carefully explained the misunderstanding that consists when I cannot appropriately sign in ASL to my audiencedemonstrating my 1st Amendment violation; abridging my Freedom of speech since I am hindered from communicating in the way it requires.
Under Mr. Rick Raemisch regulations, both Grievance Coordinator Michelle Brothers (12725) received a receipt of complaint on September 17, 2015 acknowledging that she was aware of the Denial of a Sorenson Video Phone, which was replied to by Smith, Janet (16460), on September 17, 2015. The Response stated that all offenders, both hearing and deaf are allowed access to the TTY telephone device.
It expressed that a Video Phone is being considered for CTCF- which is Colorado Territorial Correctional Facility- a Man's Facility due to majority deaf offenders' residential placement being there. It also stated that eventually a video phone will be available to all DOC facilities. This response demonstrates Sexism and Inequality since I, as a woman who speaks ASL have to abide to limitations since my gender is rejected from equal protection of receiving a video phone in the woman's facility due to my sexuality being "minority."
The idea that DOC enforces the Dept ofW omen's Corrections to allow such separation in how to communicate effectively in the language ASL, on how it is required between men and women- yet gives hearing phones the pleasure of effectively speaking in the language Spanish or English requires violates my XIV amendment rights. It demonstrates that due to Men being the gender majority they are able to receive privileges, such as the possibility of a Video Phone being installed.
Though all offenders have access to use of a TTY -recognized from the statement, "all offenders both deaf and hearing are able and allowed to use the TTY" It should also be noted that just the same all offenders have access to choice to use Spanish or English by their own choice on a Regular hearing phone. In both options offenders are given the advantage of Following the Procedure and Rules obligated to communicate in either language. Inequality is demonstrated due to my only choice of Using a telephone device, such as access to the TTY to speak with Deaf People provides a major disadvantage to me since I am not given freewill choice to use ASL's facials, hand gestures, body language etc. to communicate. I am forced to type a text written conversation removing all ASL requirements to communicate.
In enforcing the TTY to be the only available telephone link conversation for offenders unequal form of communication is produced between the regular telephone itself and the TTY, due to the fact that they do not both comply to having very similar or closely linked goals in being able to address the way the phone is used. I.E TTY is only readable; while the phone allows voicing to demonstrate what a person is saying and how they are saying it. As a hearing person whom uses ASL to converse with individuals such as my parents; I am excluded from actually reaching my desired goal of communicating freely how I need to with Deaf People. The TTY does not obtain the ability to receive the option of learning how I am saying something to recognize what frame of mindset I could potentially be in. In enforcing my use of TTY to be the only link to deaf people, I'd have to use symbols to express my figure of speech, which could
Continued Claim 2
(Rev. 1/30/07)

Case 1:16-cv-02733-STV Document 11 Filed 02/21/17 USDC Colorado Page 9 of 17 easily lead to confusion, because a Deaf person could possibly identify the symbols such
as !, @, ; , and , etc. in the wrong form of context. I, myself, am not skilled enough in ASL writing to correctly place pronouns, verbs, symbols, etc. in a written sentence. Although all offenders have access to the TTY and could possibly struggle with the same concerns of correctly writing ASL, more so than not do they have to handle this concern. Most people here at DWCF can hear and their attracted audience member are hearing individuals.
ASL is not my 1st language, so I do struggle with writing since my audience leads to my deaf parents mainly and I am unfortunately still unable to accomplish my goal of Talking to my family equivalent to other offenders since the TTY and Regular phone's objective is completely different, providing different outcomes. This is a major Barrier to effectively communicating in ASL, satisfying the idea that DOC demands DWCF to prohibit the free exercise ofhow I am able to speak accurately in ASL.
(Rev. 1/30/07)

Case 1:16-cv-02733-STV Document 11 Filed 02/21/17 USDC Colorado Page 10 of 17

3. Claim Three:

D. CAUSE OF ACTION
Amendment I (1791). Freedom of Religion, Speech, Press, Assembly, and Petition- Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Supporting Facts: On September 24, 2015 Denver Women's Correctional Facility became aware of my Second (2nd) Grievance stating major concerns of misinterpretation that a TTY phone consists of, leading to the purpose of a Video Phone. I stated the difference in communication American Sign-language (ASL) requires compared to English.
I also stated that the sentence that Department of Corrections carries is at a minimum of one (1) year and one (1) day demanding a person to be on a hold in a correctional facilitysupplying them with living arrangements.
Following Rick Raemisch orders from DOC, DWCF employees- Michelle Brothers (12725) and Jacobson, Adrienne (14299) rejected this acknowledgment and by-passed my several claims and reasoning behind obtaining a Video Phone. DOC response remained with the TTY telephone device being the provided telephone device. This rejection occurred on October 05, 2015. The Desire to speak with my family in an appropriate way and in a way that expresses my 1st Amendment Rights are being used successfully and in a way that American SignLanguage (ASL) requires is disallowed by my Authoritative Chain of Command- Rick Raemisch through DWCF.
The TTY telephone device is approved for use to all inmates at DWCF; just as other inmates and I are allowed to communicate with outside links such as Family members, through both telephone and written letters. The objective of a telephone device is to allow both the listening and responding party a chance to have a comprehensive conversation where both parties can have somewhat of clear understanding between one another. This goal can be more closely reached by determining vocals, pitch, demeanor, attitude, tone etc. of dialect through listening to what's being spoken from the Responder. In exercising to successfully attempt to satisfy this goal- both the mouth piece and the hearing piece of a telephone must be of Clarity and functioning properly. If and when this stipulation is met; other inmates- such as hearing people can obtain the Goal/ objective at having a comprehensive conversation. In either speaking English or Spanish: which are both available options on the telephone- providing access to all inmates; the Rules of that Language fall into the category of determining the type of dialect through the pitch, tone, attitude, etc.
In offering all these factors through both the mouth and hearing piece of a phone- Both Spanish speaking and English speaking individuals successfully are allowed the protection of their 1st Amendment rights. However, As a (ASL) American sign language speaker which is its own separate language I am not given the pleasure of protection of my 1st Amendment rights from DOC through DWCF, in fact a major violation of my U.S. Constitutional rights are being broken. DOC is abridging my freedom of speech through DWCF due to not allowing ASL to be used in the same likeness Spanish and English are being used -I.e reaching a comprehensive conversation by use of factors that are required ofboth such as vocals, tone, etc.
It is a known fact that ASL is considered to be a visual language and in many Signlanguage Books-due to its use connecting to audience that may include deaf members such as both my parents. In reaching a comprehensive conversation successfully requirements include visual contact through hand gestures, facials, body language, etc. a regular telephone includes both a mouth, speaking and hearing, listening piece, which both are limitations that a deaf person
(Rev. 1/30/07)

Case 1:16-cv-02733-STV Document 11 Filed 02/21/17 USDC Colorado Page 11 of 17 suffers from, due to their use not being of use to one who can't hear or speak themselves. In this issue, I am shortened able opportunity to communicate with my parents or deaf community since I cannot freely exercise my 1st amendment, through a regular telephone device, since they can't understand me or I understand them. DOC dismisses the rules ASL demands to communicate effectively while Participating in the rules Spanish and English demand. DOC refuses to install a SVP which possesses the qualities to fulfill ASL requirements of Visual Contact and in doing so DOC entertains a violation to my 1st Amendment Rights- abridging my free speech. Instead of meeting the necessary requirements to fulfill the idea my rights are safe; DOC enforces TTY to be the only available telephone device- which only gives way to having a Text written conversation, this is unacceptable due to it not giving consideration to what creates barriers to successfully being able to speak ASL- and in this neglect DOC subjects me to using ASLin a broken form; presenting prohibition towards me using the free exercise thereofASL demands. This does not offer any form of" reasonably related legitimate penological interest." due to DOC going above and beyond to meet English and Spanish requirements; however offering a TTY to use to communicate with Deaf community members to justify their actions of not going above and beyond to meet ASL requirements which is to connect with the Deaf community and after they've already submitted to using a device to reach Deaf People- but not to the extent in the way ASL demands of me to use to communicate effectively.
(Rev. 1/30/07)

Case 1:16-cv-02733-STV Document 11 Filed 02/21/17 USDC Colorado Page 12 of 17
"D. CAUSE OF ACTION"
Claim Four: Amendment XIV (1868). Protection of Civil Liberties- Definition of Citizenship, Due Process of Law and Equal Protection of the Laws.
On October 28, 2015 Denver Woman's Correctional Facility accepted my Step 3 Grievance under DOC executive Director Rick Raemisch furthering evidence on Factual Information that separates American Sign-Language (ASL) from English. I submitted knowledge to the Department of Corrections explaining that same like spelling words such as "Gay" "Mow" "Gather" etc. influences a different hand gesture in Sign-language to provide a comprehensive conversation with a Deaf Person. I also took the liberty of including the idea of a sentence being totally misinterpreted if spelled and not seen, due to the same-likeness of spelled words- as ASL requires. This information is found in American Sign- Language labeled books such as The American SignLanguage phrase book by Lou Fant and Barbara Bernstein Fant.
In Providing this updated information to DOC, I spoke about the unfair treatment being placed upon me since I am eliminated from equal communication or equivalent communication that would allow me to express myself through hand gestures, body language, facials etc. through the SVP phone. In doing all these actions it is giving an opportunity to allow my deaf audience to detect my demeanor, attitude, tone etc. just as the regular telephone allows.
DOC Employee Anthony A. DeCesaro supplied the Final Response on November 16, 20 ISBrothers, Michelle (12725) was aware of and accepting receipt of complaint on October 29,2015, and Griffith, Marshall (14298) denied the Grievance on November 12,2016. I was and am still unable to understand the separation I am forced to have; knowing that my 1st amendment rights protects my free speech, with whom I desire and makes recognition that if my choice of free speech is abridged, it is disallowed constitutionally. The continuous rejected Grievances offers the idea that Denial ofAuthorizations on a Video Phone installment is approved/ or recommend under Mr. Raemisch executive decision ignoring the fact I have 1st amendments rights still, even as a prisoner. My 1st amendment violation exist because due to my biological parents being deaf it creates a different form of communication I must have to appropriately speak ASL, and that needs to be equivalent to use of a Regular telephone- which abides to the rules ofthe Spanish/ English language. In factually knowing ASL is a visual language its rules requires visual contact. In rejecting my need to abide by the ASL rules to communicate, DO C entertains prohibiting free exercise of my Free speech and also hinders and abridges my needs of Free Speech with my desired audience. I have declined to Sign my Step 3 Grievance, The uncertainty of Denver Woman's Corrections that proclaims "eventually submitting a Sorenson Video Phone in the Facility" expresses no blue print or outline of the actual probability of receiving one.
Furthermore, I have been housed in Colorado Springs, El Paso County, Colorado and the jail itself has a Sorenson Video Phone. This creates major concern to myself, since the County is not labeled as permanent living arrangements or permanent placement for individuals. It is simply a place for temporary living, until a decision is recommended and ordered by a Judge of the Court of Law for the release of freedom to a person or to be sentenced elsewhere. The judgment of allowing a Sorenson Video Phone into a Temporary place such as County Jail when a Permanent place of Living is in a Prison Setting, demonstrates a major hazard to me.

Case 1:16-cv-02733-STV Document 11 Filed 02/21/17 USDC Colorado Page 13 of 17
E. PREVIOUS LAWSUITS Have you ever filed a lawsuit, other than this lawsuit, in any federal or state court while you were incarcerated?_Yes _x_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?
6. Result(s) of any appeal in the prior lawsuit:
F. ADMINISTRATIVE RELIEF 1. Is there a formal grievance procedure at the institution in which you are confined?
X Yes _No (CHECK ONE).
2. Did you exhaust available administrative remedies? _x_Yes _No (CHECK ONE).

(Rev. 1/30/07)

G. REQUEST FOR RELIEF

Case 1:16-cv-02733-STV Document 11 Filed 02/21/17 USDC Colorado Page 14 of 17
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."
I am requesting that DOC and Denver Women's Correctional Facility and neighboring Prisons recognize that American Sign-language (ASL) is in fact its own separate language which demands visual attention to respond effectively should be offered and accepted as a second language, just as Spanish is offered and accepted.
I am asking politely for DOC to allow the Department of Denver Woman's Corrections to Immediately Install a Sorenson Video Phone due to it being the most appropriate telephone device. I ask that a Blue Print be created and Completed outlining the latest date and Expiration date not to be exceeded for the installment of the Sorenson Video Phone inside DOC's prison named, Denver Woman's Correctional Facilities.
I desire a relocation of housing facilities into another Prison state if Colorado DOC and or Woman's Department of Corrections and/ or its employees, or business associates seek retaliation against me for disputing and challenging the Prison for intentionally violating my Amendment rights. I do Fear that due to my mandatory sentence of Life without Parole, the Facility will attempt to place me in much worse harm- creating a danger to my Life and Liberty as a Person. . I wish not to involve myself in any more danger of mental or physical harm, upon DOC or Denver Woman's Corrections discretion to impose on me for voicing my concerns legally.
I also am seeking the relief of currency in the amount of 15 Million American Currency dollars for the difficulties and hardships I have faced here at the Denver Women's Corrections Facility because I cannot connect with my family, due to the DWCF facilities discretion, under DOC management. I am still currently to this date, suffering tremendously with the disconnection my family and I are forced to have.
The fact that the DOC allows and acknowledges Denver Women's Correctional Facility the possibility of installment of a Sorenson Video Phone- into a Man's Facility named "Colorado Territorial Correctional Facility (CTCF)" due to their gender being labeled as the "Majority" factually deprives me of my 14th amendment rights as a woman since we are grouped as "Minority" The discrimination that DOC allows the Colorado Woman's Department of Corrections approves of in regards to Women Vs Men places society as a whole; in Grave danger of back pedaling and shows no appreciation for the Advocacy of People- both Men and Women have overcome to Accept Women as equal to Men. DOC has even gone so far as to challenge America as One Nation under God, by singling women out to be the lesser ofthe group since we are "minority." DOC shows their lack of concern to and for the judicial system and equality amongst all.
I, Bionca Charmaine Rogers, hearby certify that I have mailed a copy ofthe Foregoing 1983 Civil Complaint to the below named agency by placing this document in the United States Mail
Postage Prepaid. This dayFeb . I lo, ZO 17
Clerk of the Court Alfred A. Arraj United States Courthouse United States Courthouse 901 19th St. RoomA105 Denver, CO, 80294-3589
(Rev. 1/30/07)

Case 1:16-cv-02733-STV Document 11 Filed 02/21/17 USDC Colorado Page 15 of 17
Denver District Attorney Mitchell R. Morrissey 201 W. Colfax Ave Denver, CO, 80202
_,fj'-'-"'-'-~-=--:.:.._-~.tk.a;_:_l.:...!_'fYlW'{'--'---'l,..1"'-,,.--"'·=·<r"'--- Bionca Charmaine Rogers 169704
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 fCOu/2/fP-J I~, 2.0F7
(Date)
~-% Bionca Rogers
(Prisoner's Original Signature)

Case 1:16-cv-02733-STV Document 11 Filed 02/21/17 USDC Colorado Page 16 of 17
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Case 1:16-cv-02733-STV Document 11 Filed 02/21/17 USDC Colorado Page 17 of 17

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Civil Action No.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

16-cv-02733-GPG (To be supplied by the court)

FILED
UNITED STATES DISTRICT COURT DENVER, COLORADO
DEC -8 2016

Bionca Charmaine Rogers

JEFFREY P. COLWELL

, Plaintiff,

CLERK

v. Denver Women's Correctional Facility P.O. Box 392005 Denver, CO, 80239

DeCesaro A. Anthony

Defendant(s)

Brothers, Mic;helle (12725) Jaques, Terry

Defendant(s) Defendant(s)

Smith,Janet(16460)

Defendant(s)

Jacobson, Adrienne (14299)

Defendant(s)

Griffith, Marshall (14298)

Defendant(s)

Lopez, Jason (15866)

Defendant(s)

Sparling, Bryon

Defendant(s)

(Rev. 1/30/07)

Case 1:16-cv-02733-STV Document 4 Filed 12/08/16 USDC Colorado Page 2 of 31

Fowler, Keegan Johnson, David

, Defendant(s) , Defendant(s)

(List each named defendant on a separate line.)

Case 1:16-cv-02733-STV Document 4 Filed 12/08/16 USDC Colorado Page 3 of 31
PRISONER COMPLAINT A. PARTIES
1. Rogers, Bionca Charmaine, 169704, Denver Women's Correctional Facility P.O. Box 392005 Denver, CO, 80239
(Plaintiff's name, prisoner identification number, and complete mailing address)
2 DeCesaro A. Anthony Grievance Officer Office of Legal Services 2862 S. Circle Drive Colorado Springs, CO, 80906 (Name, title, and address of first defendant)
At the time the claim(s) alleged in this complaint arose, was this defendant acting under color of state law? _x_Yes _No (CHECK ONE). Briefly explain your answer: Mr. DeCesaro denied the Final Grievance and expressed rp.y remedy relief options has/ have been exhausted. Mr. DeCesaro was and is in agreement with previous rejections responses: which describe acceptance to Inequality, Discrimination and Unfair Treatment for ADA offenders, noted from my Previous Grievances throughout the Grievance Procedure.
3 Brothers, Michelle (12725) Grievance Coordinator Denver Women's Correctional Facility P.O. Box 392005 Denver, CO, 80239 (Name, title, and address of second defendant)
At the time the claim(s) alleged in this complaint arose, was this defendant acting under color of state law? _x_Yes _No (CHECK ONE). Briefly explain your answer: Mrs. Brothers acknowledges receipt of complaint for each listed Grievance date from offender: Rogers, Bionca 169704 in regards to the subject: Unfair treatment, Inequality and Discrimination. Mrs. Brothers demonstrated no concern or objection to each responder listed throughout the Grievance Procedure, Creating a showing to her agreement to Inequality and Discrimination for ADA offenders.
(Rev. 1/30/07)

Case 1:16-cv-02733-STV Document 4 Filed 12/08/16 USDC Colorado Page 4 of 31

4 Jaques, Terry Associate Warden Associate Warden Office P.O. Box 392005 Denver, CO 80239-8005

A. PARTIES

(Name, title, and address ofthird defendant)
At the time the claim(s) alleged in this complaint arose, was this defendant acting under color of state law? __x_Yes _No (CHECK ONE). Briefly explain your answer:
Mr. Jaques refused to reverse the Denial ofDecision from the Final Administrative Grievance, answered by Mr. DeCesare. Mr. Jaques aligned his decision with the Facilitators of the Denver Woman's Correctional Facility, without objection to the noticeable Discrimination and Inequality being Presented. Mr. Jaques allows Denver Woman's Correctional Facility to provide unfair treatment to ADA offenders under his monitoring as a Superior to the Chain of Command.

(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 should be labeled "A. PARTIES.")

B. JURISDICTION 1. I assert jurisdiction over my civil rights claim(s) pursuant to: (check one if applicable)
_x_ 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):
(Rev. 1/30/07)

Case 1:16-cv-02733-STV Document 4 Filed 12/08/16 USDC Colorado Page 5 of 31

5 Smith, Janet (16460) Responder P.O. Box 392005 Denver, CO, 80239

A. PARTIES (Name, title, and address of fourth defendant)

At the time the claim(s) alleged in this complaint arose, was this defendant acting under color of state law? __x_Yes _No (CHECK ONE). Briefly explain your answer:
Mrs. Smith answered Step 1 Grievance with Rejection of installment of a Sorenson Video Phone. Mrs. Smith assumes the position of Discrimination, Sexism, and Inequality by recognizing men from the "Colorado Territorial Correctional Facility" to be reserved under a higher state of Privilege- since they are "majority" deaf members over the "minority" of deaf women.
6 Jacobson, Adrienne (14299) Responder P.O. Box 392005 Denver, CO, 80239
(Name, title, and address of fifth defendant)

At the time the claim(s) alleged in this complaint arose, was this defendant acting under color of state law? __x_Yes _No (CHECK ONE). Briefly explain your answer:
Mr. Jacobson denied my Step 2 Grievance and disputes that the entity TTY is an effective method of communication under the American with Disabilities Act. Mr. Jacobson refuses to answer to the factual basis that American Sign-language (ASL) is it's own separate language and requires facials, hand gestures, and body language to appropriately understand or comprehend what's being spoken. Mr. Jacobson demonstrates negligence to requirements that any languageas such as ASL demands to have a comprehensive conversation on both a sender and responder responses.

Case 1:16-cv-02733-STV Document 4 Filed 12/08/16 USDC Colorado Page 6 of 31
A. PARTIES
7 Griffith, Marshall (14298) Responder P.O. Box 392005 Denver, CO, 80239 (Name, title, and address of sixth defendant)
At the time the claim(s) alleged in this complaint arose, was this defendant acting under color of state law? ___x_Yes _No (CHECK ONE). Briefly explain your answer:
Mr. Griffith, denied Step 3 Grievances without any response, yet requested offender: Rogers,
Bionca 169704 to review attached document, submitted by Mr. DeCesaro, A. Anthony. Mr.
Griffith decision to not announce his perspective on the Subject matter, provides great assumption to negligence on his behalf and to question his position ofAuthority due to his inability to acknowledge his own judgment in answering to the fact that ASL demands facials, hand gestures, and body language- which is all provided through the updated phone system technology Sorenson Video Phone.
8 Lopez, Jason (15866) Case Manager P.O. Box 392005 Denver, CO, 80239 (Name, title, and address of seventh defendant)
At the time the claim(s) alleged in this complaint arose, was this defendant acting under color of state law? ___x_Yes _No (CHECK ONE). Briefly explain your answer:
Mr. Lopez, remains in agreement with the Denial Decision of the Sorenson Video Phone from the Department of W omens' Corrections, by submitting his signature of approval on each Grievance throughout the entire Grievance Procedure, acknowledging that offender Rogers, Bionca 169704 has in fact been served with documentation stating a Sorenson Video Phone will not be installed.

Case 1:16-cv-02733-STV Document 4 Filed 12/08/16 USDC Colorado Page 7 of 31

9 Fowler, Keegan Captain P.O. Box 392005 Denver, CO, 80239

A. PARTIES
(Name, title, and address of eight defendant)

At the time the claim(s) alleged in this complaint arose, was this defendant acting under color of state law? ...x...Yes _No (CHECK ONE). Briefly explain your answer:

Mr. Fowler, accepted the "Offender Request for Accommodation" documentation offered by Dept. ofW omen's Corrections to myself, Rogers, Bionca. I, Bionca Rogers submitted the documentation "Offender Request for Accommodation." on August 28, 2015 admitting that I needed a Sorenson Video Phone to contact my deaf family members due to the difficulties and hardship American Sign-language faces that provides substantial limitation including but not
limited to: Hearing, Speaking, and Communication. Mr. Fowler rejected my request for a Sorenson Video Phone, stating the only accommodation available is the TTY. Mr. Fowler has
demonstrated ignoring the substantial limitation guideline inserted inside the "Offender Request for Accommodation", and negligence to the requirements that ASL demands to have reasonable accommodation.

10 Sparling, Bryon Major P.O. Box 392005 Denver, CO, 80239

.,.
(Name, title, and address ofninth defendant)

At the time the claim(s) alleged in this complaint arose, was this defendant acting under color of state law? ...x...Yes _No (CHECK ONE). Briefly explain your answer:
I made an attempt to include my complaint to the higher chain of Command Superior, as such as Mr. Bryon Sparling to receive his opinion and decision on the matter to help reverse the Final
Denial Decision given by Mr. DeCesare, A. Anthony. Mr. Sparling chose to deliberately ignore my plea without any cause of response. Mr. Sparling's negligence provides a risk to Society and
to offender Rogers, Bionca 169704 due to his lack of concern in being a higher ranked official, who offenders may turn to to risk dangerous circumstances.

Case 1:16-cv-02733-STV Document 4 Filed 12/08/16 USDC Colorado Page 8 of 31

11 Johnson, David Warden P.O. Box 392005 Denver, CO, 80239

A. PARTIES
(Name, Title, and address of the tenth defendant)

at the time the claim(s) alleged in this complaint arose, was this defendant acting under color of state law? ___x_Yes _No (CHECK ONE). Briefly explain your answer:
Approximately a week after my final decision from Mr. DeCesaro A. Anthony was received, I went into a Major Depression, and turned to Mental Experts for help. I also looked to Mr. Johnson the Warden during Chow Time in the Dining hall, for insight on what possibilities I could look into, to appease the matter and subject, that A Sorenson Video Phone would not be installed inside the Facility, despite my continuous disputes throughout my Grievances. Mr. Johnson was aware of my Mental State of Mind, because I alerted him when I approached Mr. Johnson. Mr. Johnson looked me in my eyes and chuckled with the response, "Don't fight a losing Battle." In this response it should be noted that Mr. Johnson was not using his authoritative position ofpower for positive reinforcement but in a negative manner, bringing my spirit and heartache into a further worse position. In Following his direction, I began to give up hope, and reported his behavior to my Mental Therapist, Chandra Brandt.

Case 1:16-cv-02733-STV Document 4 Filed 12/08/16 USDC Colorado Page 9 of 31
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." On the dates ofAugust 25, 2015, September: 17, 2015, September 23, 2015, September 24, 2015, October 28, 2015, February 09, 2016, February 17, 2016 etc. I, Bionca Rogers 169704, requested Denver Woman's Correctional Facility to obtain a Sorenson Video Phone (SVP) for Offenders, who qualify as Americans With Disabilities Act (ADA), like myself. My request was/ and is based solely on the factual evidence of both my biological Parents being Deaf and also deaf offenders residing here at the Denver Women's Correctional Faclility.
I have been rejected by all the above listed Defendants and with answers that clearly identify Discrimination and Inequality in regards to: Sexism, and Hearing vs Non-Hearing individuals in a series of responses throughout Grievances proving Negligence in answers.
My dispute of claims considered the Major Differences in Communication for Deaf Individuals, whom use American Sign-language (ASL) when compared to Hearing individuals. I stated the Heartache and misunderstanding of Communication easily made when Deaf Individuals cannot express their Facials, Body Language, and Hand Gestures to provide meaning to the listening Party such as : Demeanor, Attitude, Pitch, Tone. etc Hearing Individuals do not have as high of concerns in misinterpretation since their listening party can detect a form of understanding when listening to their opposing party by using their ear(s) to hear Pitch ofVoice, Tone, Attitude, and Demeanor etc. to express their meanings.
The idea of an ADA offender being forced to type their thoughts on a TTY device- as demanded by Denver Women s Correctional Facility creates an Unequal environment of communication and also links very similar communication as when a letter is being written. A Hearing individual receives the opportunity and pleasure of using a telephone device and a very different form of communication method such as writing letters. It also eliminates the ADA offenders from being able to understand their own language in the most appropriate way. The meaning of Communication for ADA offenders who use American Sign-language is Lost and Removes the Specific Requirements ASL demands to receive a comprehensive conversation. Due to this Separation of Groups Communication methods, ADA offenders are discriminated against with unequal treatment compared to Non- ADA offenders. Denver Woman's Correctional Facility expressed their intentions ofpossibly providing a Man's Facility with the Sorenson Video Phone, because they are "Majority" and did not specify if they were definite about Placing a Sorenson Video Phone in theW omen's Facility, only that they are considering it since women are "Minority". The mention of this statement demonstrates Sexism. It also does not prove a blue print or an outline of an expectancy date for the installment of a Sorenson Video Phone inside the Corrections Facilities. It only creates a pacified thought process to offenders, like myself, to remove any further complaints.I have taken a series of routes to process my Grievance Complaints through my Chain of Command and its Superiors, and have been disregarded and rejected each time, despite my legitimate reasoning for having effective communication such as the Sorenson Video Phone with my Biological Parents. I cannot stress how important it is for a Person to have equal understanding of one another when occurring in an ongoing conversation. Especially when the rules and regulations of a language- Such as American Sign-language requires such. Yet, Denver W omens Correctional Facility refuses to recognize the importance of effective communication and chooses to permit and continues to provide Unequal treatment and to Discriminate against ADA offenders in comparison to nonADA offenders.
(Rev. 1/30/07)

Case 1:16-cv-02733-STV Document 4 Filed 12/08/16 USDC Colorado Page 10 of 31
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) ofthe 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: VIII Amendment (1791) Violated- No Excessive Bail or Cruel Punishments: Excessive Bail Shall Not be Required, nor excessive fines imposed, nor Cruel and Unusual Punishment Inflicted
Supporting Facts: On August 28, 2015- I notified My Case Manager- Jason Lopez (15866) and Captain Keegan Fowler, that My request for Accommodation was due to my Biological Parents being Deaf. The Substantial Limitation that are required in the documentation "Offender Request for Accommodation" exist for my request for help, they are as 'follows: Hearing, Speaking, and Communicating. I requested the Sorenson Video Phone (SVP) to be installed in the Dept. OfW omen's Corrections since it is the only form of Telephone Device my family current holds and has held for several years, and it is the most appropriate effective communication up to-date. I did not receive approval for this phone, nor acknowledgment for the
SVP Device from Mr. Fowler or Mr. Lopez, yet was expected to only use a TTY device for
communicating. I Disagreed with the approval, and was denied Proper Communication. The usage of a TTY device is very similar to that of a letter being written which is unfair. The negligence of mental impairment this causes myself is ignored, despite my several complaints and Mental Health sessions. The Fact that I am being eliminated from equal communication as Non- ADA offenders are, is/was disregarded in the response. Cruel and Unusual Punishment is being taken towards myself and DeafADA offenders alike, because we are expected to accept being denied equal telephone communication as Hearing individuals are.
(Rev. 1/30/07)

Case 1:16-cv-02733-STV Document 4 Filed 12/08/16 USDC Colorado Page 11 of 31

D. CAUSE OF ACTION
2 Claim Two: XIV Amendment (1868) Protection of Civil Liberties: Definition of citizenship; Due Process of Law and Equal Protection ofthe Laws.

Supporting Facts: On September 09, 2015- Denver Woman's Correctional Facility

received My Step 1 Grievance expressing the lack of equality for communication through

telephone device(s) to outside links between Non-Hearing and Hearing individuals. I carefully

explained the misunderstanding that consists when not using American Sign-Language in the

way it requires.

,

Grievance Coordinator Michelle Brothers (12725) received a receipt of complaint on

September 17, 2015 acknowledging that she was aware of the Denial of a Sorenson Video Phone,

that was replied to by Smith, Janet (16460), on September 17, 2015. The Response stated that

all offenders, both hearing and deaf are allowed access to the TTY telephone device.

It expressed that a Video Phone is being Considered for CTCF- which is Colorado

Territorial Correctional Facility- a Man's Facility due to majority deaf offenders residential

placement being there. It also stated that eventually a video phone will be available to all DOC

facilities. This response demonstrates Sexism and Inequality since Deaf Women are considered

to be the minority, they do not receive the same treatment as Men and Non-ADA offenders. A

Deaf Person is eliminated from the accurate use of a hearing person telephone device due to their

inability to hear.

This statement "all ~ffenders both deaf and hearing are able and allowed to use the TTY"

demonstrates unequal treatment for Deaf offenders compared to hearing offenders since the Deaf

individuals can only effectively communicate with one (1) device such as the Sorenson Video

Phone or TTY; as offered by Smith, Janet, compared to the Two (2) telephone devices hearing

individuals are allowed access to: A TTY telephone device and a Hearing ability Phone device.

The Deaf Community are at a disadvantage because a hearing person does not get excluded from

neither phone. This Creates an Inequality Barrier to Deaf individuals.

The idea that Dept of W omen's Corrections allows such separation violates the XIV

amendment rights for the Deaf Community and Women just as well. It demonstrates that due to

Men being the gender majority they are able to receive privileges, such as the possibility of a

Video Phone being installed in a Man's Prison. The given right Deaf women and Women in

General are allowed same opportunities as Deaf Men and Men in general are violated, due to to

the Deaf Women, and Women in General being considered the Minority.
'to

(Rev. 1/30/07)

Case 1:16-cv-02733-STV Document 4 Filed 12/08/16 USDC Colorado Page 12 of 31
D. CAUSE OF ACTION 3. Claim Three: VIII Amendment (1791) Violated- No Excessive Bail or Cruel Punishments
:Excessive Bail Shall Not be Required, nor excessive fmes imposed, nor Cruel and Unusual Punishment Inflicted Supporting Facts: On September 24, 2015 Denver Women's Correctional Facility became aware of my Second (2"d) Grievance stating major concerns of misinterpretation that a TTY phone consists of, leading to the purpose of a Video Phone. I stated the difference in communication American Sign-language (ASL) requires compared to English. I also stated that the sentence that Department of Corrections carries is at a minimum of one (1) year and one (1) day demanding a person to be on a hold in a correctional facilitysupplying them with living arrangements. The length of this time frames enables a person to consider a setting as such to be home and with housing an effective method to living somewhat comfortable, includes being able to communicate with outside links through appropriate telephone devices, which is clearly denied for ADA offenders such as myself. DOC employees- Michelle Brothers (12725) and Jacobson, Adrienne (14299) rejected this acknowledgment and by-passed my several claims and reasoning behind obtaining a Video Phone for ADA Offenders. DOC response remained with the TTY telephone device being the provided telephone device. This rejection occirrred on October 05, 2015. Due to my sentence and Judge's Order to be held by the government, I am Forced to live in DOC. However, my sentence exceeds to Cruel and Unusual Punishment being Inflicted upon me, because I cannot effectively communicate with my Outside links, such as family members like my Deaf Biological Parents. I am mentally impaired and undergo several mental health evaluations through a mental health expert who sees me frequently. The Desire to speak with my family in an appropriate way and in a way that American Sign-Language (ASL) requires is disallowed by my Authoritative Chain of Command and I am unable to withstand the Pain and Suffering imposed upon me- due to my Parent's Disability.
(Rev. 1/30/07)

Case 1:16-cv-02733-STV Document 4 Filed 12/08/16 USDC Colorado Page 13 of 31

D. CAUSE OF ACTION

Claim Four:

VIII Amendment (1791) Violated- No Excessive Bail or Cruel Punishments: Excessive Bail Shall Not be Required, nor excessive fines imposed, nor Cruel and Unusual Punishment Inflicted
On October 28,2015 Denver Woman's Correctional Facility accepted my Step 3 Grievance furthering evidence on Factual Information that separates American Sign-Language (ASL) from English. I submitted knowledge to the Department of Corrections explaining that same like spelling words such as "Gay" "Mow" "Gather" etc. influences a different hand gesture in Sign-language to provide a comprehensive conversation with a Deaf Person.
I also took the liberty of including the idea of a sentence being totally misinterpreted if spelled and not seen, due to the same-likeness of spelled words- as ASL requires.
In Providing this updated information to DOC, I spoke about the unfair treatment being placed upon me as an ADA offender and Deaf Offenders alike, since I, (we're) eliminated from equal communication as Non- ADA offenders.
DOC Employee Anthony A. DeCesaro supplied the Final Response on November 16,2015- Brothers, Michelle (12725) was aware of and accepting receipt of complaint on October 29,2015, and Griffith, Marshall (14298) denied the Grievance on November 12,2016 adding the input that I needed to review the attached
document provided by Mr. DeCesaro. Mr. DeCesaro argument demonstrated my
remedy relief has been rejected and due to the responsive answers given in Step 1 from Michelle Brothers (12725) and Janet Smith (16460) and Step 2 from Michelle Brothers (12725) and Jacobson, Adrienne, (14299) the decision will not be lifted and or altered and will remain denied since "their information is correct and appropriate" .
The Final Decision to Remain Rejected Upset me Terribly and caused me to have several mental break downs , leading to being monitored by Officers employed by the Denver Women's Correctional Facility. I was and am still unable to understand the separation I and the Deaf community at Denver Woman's Corrections are forced to have compared to Hearing Individuals who have Hearing Parents since my Biological Parents are Hearing Impaired and the Deaf Community themselves are actually deaf. I have declined to Sign my Step 3 Grievance- while speaking with my
Case Manager Mr. Jason Lopez (15866).
The reason listed behind my refusal stands firm that I will not agree to sign a documentation that allows me to accept the Discrimination and Inequality I and the Deaf Community receive at the Denver Woman's Corrections. I am in a strong alliance with disagreement in the Facility's Final Decision. The uncertainty Denver Woman's Corrections proclaims with "eventually submitting a Sorenson Video Phone in the Facility" expresses no blue print or outline of the actual probability of rece1vmg one.

Case 1:16-cv-02733-STV Document 4 Filed 12/08/16 USDC Colorado Page 14 of 31
D. CAUSE OF ACTION
continuance of Claim 4
Furthermore, I have been housed in Colorado Springs, El Paso County, Colorado and the jail itself has a Sorenson Video Phone. This creates major concern to myself, since the County is not labeled as permanent living arrangements or permanent placement for individuals. It is simply a place for temporary living, until a decision is recommended and ordered by a Judge of the Court of Law for the release of freedom to a person or to be sentenced elsewhere. The judgment of allowing a Sorenson Video Phone into a Temporary place such as County Jail when a Permanent place of Living is in a Prison Setting, demonstrates a major hazard to individuals, like myself, who do not have the opportunity to go free legally- as of yet.
This is Cruel and Unusual punishment, for it shows no progression in the Prison system, yet shows growth in County Jails for updated telephone devices. The Prison system chooses to not follow protocol of allowing families a chance to rehabilitate and reunify in the most effective way as the goal of prisons are supposed to demonstrate. despite the several reasonable reasons and continuous complaints from ADA offenders. It simply offers credits and benefits to certain types of groups, such as the Non- ADA offenders to show that they are somewhat examining and following regulations the government of the United States sets upon them to obey. The Cruelty of the Prisons efforts to follow certain regulations in their own way falls heavily upon Deaf Individuals and ADA offenders like myself, because we are eliminated from obtaining the Maximum Positive Outcome at reconnecting with Outside links, through the most appropriate telephone device.

Case 1:16-cv-02733-STV Document 4 Filed 12/08/16 USDC Colorado Page 15 of 31

Claim Five:

D. CAUSE OF ACTION
VIII Amendment (1791) Violated- No Excessive Bail or Cruel Punishments: Excessive Bail Shall Not be Required, nor excessive fines imposed, nor Cruel and Unusual Punishment Inflicted
I chose to resume my dispute ofunfair treatment with the Denver W omens Corrections regarding negligence and equal communication. I than started a Grievance Procedure all over again with an Informal Grievance on February 09,2016. I had/ and have had much confusion as to the Response Mr. Anthony A. DeCesaro provided in Step 3. I expressed a lack of understanding and I
asked for clarification. I was rejected a thorough understanding by Mr. Jason
Lopez (15866)- Case Manager and the Unknown Responder to my Informal Grievance. Unfortunately, due to Denver Women s Corrections refusal to grant myself understanding I still lack adequate responses. This Creates a Barrier to my Understanding in knowledge of the polices DOC chooses to follow when compared to the Government of Americas policies. Due, to this lack of comprehension I am left with uneasy thoughts on how to appropriately handle this matter oflnequality and Discrimination, and this is cruel and Unusual Punishment because I lack appropriate resources to follow the correct procedures ofAmerica, when and after I've requested content on what is the exact protocol I must follow, since I'm not in complete clarification of what's being order of me or said to me in the Final Response from my Step 3 Grievance.
My Informal Grievance was immediately denied and sent back on February 12, 2016. Upon the Response- I'd like to note that again Denver Women's Corrections completed yet another successful attempt at negligence. DOC neglected to inform me of a comprehension on what exactly was expected of, for me in my Step 3 Response. This lack of understanding is yet another reason why I am mentally impaired. I desire and seek safety in looking for help when I am lost and lacking understanding yet I am refused the opportunity to be allowed understanding of why my allegations of unfairness are supplied but not answered to, towards me by DOC.

(Rev. 1/30/07)

Case 1:16-cv-02733-STV Document 4 Filed 12/08/16 USDC Colorado Page 16 of 31

D. CAUSE OF ACTION

Claim Six:

VIII Amendment (1791) Violated- No Excessive Bail or Cruel Punishments: Excessive Bail Shall Not be Required, nor excessive fines imposed, nor Cruel and Unusual Punishment Inflicted

I realized that my Issue remained Umesolved as of the date February 17, 2016 with allowing a Soreson Video Phone into the Facility, and that asking for Clarification was denied as well in my Second Initiation of an Informal Grievance; therefore on February 17, 2016, I hand wrote a letter to the Higher Chain of Command requesting a Reversal of Decision from the Exhaust of Remedies in my Step 3 Grievances from the grievance Coordinator -Anthony A. DeCesare . I addressed the Letter to The Wardens of Denver Woman's corrections and Major Sparling of Denver Woman's Corrections. Major Sparling opted to not respond, disregarding the entire subject of Reversal of Decision all together.
This impression has allowed a window ofNegligence to once again surface. As a
Higher Ranked Official affirming Mr. Sparling's position to be placed on the Higher
Chain of Command, it is expected that his voice of reason matters. Unfortunately, Mr. Sparling's direct way of ignoring me placed me in a loop of concern. I have no idea who could and should be listed as an appropriate authoritative figure to turn to when I have been deliberately ignored providing me with no clarified answers. Major Sparling chose to eliminate the topic altogether by avoiding my plea and request for a change. I did however received another typed written reply form the
Associate Warden Terry Jaques on February 23, 2016. Mr Jacques chose to remain
with the decision of denial to a Sorenson Video Phone being placed into Denver Woman's Facility. Mr. Jacques noted that each level of response given throughout the Grievance Procedure were appropriate; therefore he will not change or modify the decision. In taking in all this information, it is clear that Cruel and Unusual Punishment is being forced upon me, because DOC refuses to provide any reasonable answers on why specifically ADA- offenders, and Deaf offenders alike are not treated with the same expectations and usage of phone resources. It is absurd, that in continuing with my complaints, even after my Exhaustion of Remedies, contacting a Higher Chain of Command, proved useless since, each Official agrees with one another that it is acceptable to treat Deaf offenders and ADA- offenders with Unequal Treatment, Negligence, and Discrimination, and Sexism. The Cruelty of this behavior shows that DOC sees itself superior to the Laws ofAmerica and that America's Laws are not applied to the Dept of W omens Correction, therefore we, ADA and Deaf offenders are defenseless when it comes to defending the Constitutional Amendment Rights.

Case 1:16-cv-02733-STV Document 4 Filed 12/08/16 USDC Colorado Page 17 of 31
E. PREVIOUS LAWSUITS
Have you ever filed a lawsuit, other than this lawsuit, in any federal or state court while you were incarcerated? _Yes _K__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. Name(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? 6. Result(s) of any appeal in the prior lawsuit:
F. ADMINISTRATIVE RELIEF
1. Is there a formal grievance procedure at the institution in which you are confined?
_x_Yes _No (CHECK ONE).
2. Did you exhaust available administrative remedies? _x_Yes _No (CHECK ONE).
(Rev. 1/30/07)

Case 1:16-cv-02733-STV Document 4 Filed 12/08/16 USDC Colorado Page 18 of 31
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."
I am Requesting that Denver W omen's Correctional Facility and neighboring Prisons recognize that American Sign-language (ASL) is in fact it's own separate language and should be offered and accepted as a second language, just as Spanish is offered and accepted. ASL demands visual attention to respond effectively.
I am asking politely for the Department of Denver Woman's Corrections to Immediately Install a Sorenson Video Phone due to it being the most appropriate telephone device. I ask that a Blue Print be created and Completed outlining the latest date and Expiration date not to be exceeded for the installment of the Sorenson Video Phone. The Sorenson Video Phone should and needs to be allowed and installed into the Denver Women's Correctional Facility and neighboring Prisons as a form of telephone device to contact individuals outside of the Department of Corrections for offenders who are considered to be an American with Disabilities Act (ACT) offenders.
I desire a relocation of housing facilities into another Prison state if Colorado Women's Department of Corrections and/ or its employees, or business associates seek retaliation against me for disputing and challenging the Prison for intentionally violating my amendment rights. I do Fear that due to my mandatory sentence of Life without Parole, the Facility will attempt to place me in much worse harm- creating a danger to my Life and Liberty as a Person. I am already suffering from Mental Impairment and Physical Impairment as well, under the supervision of the Colorado Woman's Department of Corrections. I wish not to involve myself in any more danger of mental or physical harm, upon the Denver Woman's Corrections discretion to impose on me for voicing my concerns legally.
I also am seeking the relief of currency in the amount of 15 Million American Currency dollars for the difficulties and hardships I have faced here at the Denver W omen's Corrections. This currency is requested and included as well for my constant pleas of help in attempting to obtain a Sorenson Video Phone in the Correctional Facility, through several outside agencies, which can be proven and furthering my complaints through the Chain of Command. The several Grievances and continuance in Persistence to reverse the decision proves my determination to advocate for the Deaf and Hearing Impaired.
This has been a major hardship to my life because I cannot connect with my Family, due to the Facilities discretion, and has caused me severe mental depression and an unstable mindset. I have been unable to cope with life in general and have on a series of occasions been monitored by Mental Health. I also have visited a Psychiatrist and a Mental Health expert within the Denver Women's Correctional Facility numerous times daily to try and maintain my stability. My visits with the experts have led to unsuccessful results, since I am still currently to this date, suffering tremendously with the disconnection my family and I are forced to have since they are singled out for being Deaf. My family and I have been punished Cruel and With Unusual Treatment and discriminated against for an uncontrollable factor and deficit- which is hearing loss.
The fact that Denver W omen's Correctional Facility acknowledges the possibility of installment of a Sorenson Video Phone- into a Man's Facility named "Colorado Territorial Correctional Facility (CTCF)" due to their gender being labeled as the "Majority" factually deprives me of my rights as a woman since we are grouped as "Minority" The discrimination that the Colorado Woman's Department of Corrections approves of in regards to Women Vs Men places society as a whole; in Grave danger of back pedaling and shows no appreciation for
(Rev. 1/30/07)

Case 1:16-cv-02733-STV Document 4 Filed 12/08/16 USDC Colorado Page 19 of 31
the Advocacy of People- both Men and Women have overcome to Accept Women as equal to Men. DOC has even gone so far as to challenge America as One Nation Under God, by singling women out to be the lesser of the group since we are "minority." according to Mrs. Janet Smith(16460)- Denver W omens Corrections Employee.
Denver Women Department of Correction shows their lack of concern to and for the Judicial System and Equality amongst all. Their ability to discriminate knowingly against ADA offenders and the Gender of Women ADA offenders in comparison to Non- ADA offenders; despite the evidential information provided to the Facility arises much concern to the Deaf Community that I am indeed a part of. I am suppressed on all sides for lack of assistance in obtaining equal communication within the walls of The Department of Woman's Correctional Facility and am seeking Remedy Relief in the Form of the requested financial relief of 15 million in American Currency, also that American Sign-language (ASL) is to be recognized as its own separate language ,an Immediate installment of the Sorenson Video Phone and a Blue Print Outlining the latest Date of Expiration not to be exceeded of when the Sorenson Video Phone is to be installed into the Colorado Department of Women Corrections and neighboring Prisons. I desperately desire to be relocated into a different Prison outside ofthe state of Colorado, ifl in fact endure retaliation of any kind from the Colorado Department of Women Corrections or neighboring Prisons or either Prison employees or of it business associates that places my life in jeopardy of any kind. I desire the listed remedy reliefs to accommodate the pain and suffering I · have and am currently enduring and facing as a DOC client with the Colorado Department of Women Corrections.
I, Bionca Charmaine Rogers, hereby certify that I have mailed a copy of the Foregoing 1983 Civil Complaint to the below named agency by placing this document in the United States
Mail Postage Prepaid. This day Nov~robee 26, 201 IP
Clerk of the Court Alfred A. Arraj United States Courthouse United States Courthouse 90119th St. RoomA105 Denver, CO, 80294-3589
Denver District Attorney Mitchell, R. Morrissey 201 W. Colfax Ave Denver, CO 80202
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 No-.Je-rnue~ ze,zo) ~
(Date)
NtJI/embeP. 2f7,ZoJ
Bionca Rogers tJ~
(Prisoner's Original Signature)
(Rev. 1/30/07)

......Cas, e 1:16-cv-02733-STV Document 4 Filed 12/08/16 USDC Colorado Page 20 of 31

..... ;,l

REQUEST APPROVED/DENIED REPORT

Date: 09/17/2015 Offender : ROGERS, BIONCA C
DOC # : 169704
RFA#: 8115

REQUEST

,

TTY access

I

DECISION
APPROVE

REASON

END DATE

If you disagree with this finding you may grieve this decision pursuant to the guidelines in AR 850-04. If your request has been approved, this document serves as your notice of approved accommodations.
If you need an accommodation extended beyond the listed end date you must contact Legal Services/AIC Office at DOC Headquarters.

Case 1:16-cv-02733-STV Document 4 Filed 12/08/16 USDC Colorado Page 21 of 31
AR 750-04A (12/01/14)
COLORADO DEPARTMENT OF CORRECTIONS
OFFENDER REQUEST FOR ACCOMMODATION
According to the Americans with Disabilities/Rehabilitation Acts (ADA), no qualified individual with a disability shall, on the basis of disability, be excludedfrom participation or denied the benefits ofthe services, activities, or programs ofthe Department ofCorrections or be subjected to discrip;!J'!_ation. c:_se ma11_ageme11t will assist with ~ompletio11 o~this form upo11 request. 011e additio11al page of illformation
may be attached. t'L~t- r~OictJ~ lU.\t- \~t}f'Gij~ .-J..:.ope2 I BiiflC.O. ~e.t''> ·1\1?-n'L-"'\C.U..
I. OFFENDER INFORMATION: (Please pri11t) NAME: DOC#: Name & Title of person completing form (if not named offender):'

CARING FOR ONESELF

BREATHING (Asthma)

BOWEL

HEARING EATING SLEEPING WALKING STANDING

X CONCENTRATING
THINKING (Dementia COMMUNICATING WRITING WORKING

BRAIN (Intellectual disability, Brain injury) RESPIRATORY (COPD }( CIRCULATORY (Heart) ENDOCRINE (Diabetes, He atitis BRAIN (mental health)

~BE=N~D=IN~G~-----------------~~~C=E=L=L~G=R~O~W~T~H~(~C~a=nc=e~D~---------+--~C=L=IMB~=IN~G~--------------~~~~-

SPEAKING

X DIGESTIVE

NOT LISTED:

By signing this form voluntarily and without coercion or under duress, I authorize CDOC ADA Coordinator(s) to: request, review and/or

discuss any related protected health medical or mental health, academic, housing, assignment and programming records to the extent

necessary to investigate disability claims/requests. Any information related to this request shall only be disclosed on a need-to-know basis in

order to investigate and implement approved accommodations. I agree to fully participate and cooperate in this process and understand that

additional information may be reqtiired in order to process this request. Failure to provide this information may result in denial ofthe

'~F(:_M~eZ:ti.on

fu~ ~.23 1 2/J\5

Offender Signature Date

Retur11 completedform to: aic doc@state.co.us or CDOC Legal Services ADA Coordinator, 2862 S. Circle Drive, Colorado Spri11gs,

C080906 (Mail to this office can be sent via inter-facility mail, free of cost, and is restricted inspection mail per AR 300-38.)

Attachment "A"

Page I ofl

•. -r'

Case 1:16-cv-02733-STV Document 4 Filed 12/08/16 USDC Colorado Page 22 of 31

..

DC Fonn 8~0-04A (12/15/12)

Colorado De artment of Corrections Informal Resolution Form

Resolution:

I Grievance Issued D Non-Grieveable Date: Date:
Attachment "A:.' Page 1 of 1

er 850-04

Case 1:16-cv-02733-STV Document 4 Filed 12/08/16 USDC Colorado Page 23 of 31
DC Porm 850-0413 (0311511 5)
ible.

Attachrnent ....B ..~ Page I of" I

Step (Circle one)

~

2

3

TO BE COMPLETED BY GRIEVANCE COORDINATOR
RESPONSE
I have read your grievance requesting for the use of a video phone. At this time the DOC provides the use of a TTY for all offenders both deaf and earing. A videophone pilot plan is being considered for CTCF where the majority of the DOC's deaf offenderreside. Eventually this will be available in II of the DOC's facilities. You have been a roved for TTY access.

nature:

Copies: Administrative Head, Offender
J

Case 1:16-cv-02733-STV Document 4 Filed 12/08/16 USDC Colorado Page 24 of 31
DC Form 850-04B (03/IS/IS)

Attachment ~"B"7 Page I of' t

cle one) 3

TO BE COMPLETED BY GRIEVANCE COORDINATOR

RECEIPT: I acknowledge receipt this date of a complaint from the offender in regards to the following subject.

Date 10/05/2015

Grievance Coordinator & ID # BROTHERS, MICHELLE (12725

RESPONSE

~s. Rogers,

~nder the Americans with Disabilities Act, an entity must provide reasonable accommodation to enable those with disablities and impairments to
recess the programs and services provided by the entity.

has been recognized as being aneffective alternative communication method for those with hearing disabilities.

It is not required that an entity provide the preferred accommodation or auxiliary device.

ou have been authorized to utilize the TTY and the TTY is an effective alternate method of communication.

ACOBSON, ADRIENNE Denied

nature:

Copies: Administrative Head, Offender

Case 1:16-cv-02733-STV Document 4 Filed 12/08/16 USDC Colorado Page 25 of 31

I
'i -

DC Form R50-04B (0311511.5)

Attachment ··an
[>age I of I

Step (Circle e)

1

2

3

Date 1 ·

-rezc:esiv-e-dt::.s::::--

..', -' ~~

Case 1:16-cv-02733-STV
I
I

Document 4

Filed 12/08/16

USDC Colorado

Page 26 of 31

.,-

COLORADO

Department of Corrections

Oftice of Legal Services 2862 S. Circle Drive Colorado Springs, CO 80906 p 719.226.4236

November 16, 2015

RE: Grievance #A-DW15/16-80404

Dear Ms. Bionca Rogers #169704:

I have reviewed your Step 3 grievance that you filed with regard to request for video phone.

In review of this matter it is my finding that I cannot improve upon the information provided by

the Step 1 and Step 2 Responders. Their information is correct and appropriate. Per the ADA

reasonable accommodations are being provided with the use of the TIY as an effective method

of communication. You have provided no verifiable documentation which requires CDOC to

provide you with the use of a video phone. Based upon the foregoing I cannot recommend any

relief in this matter.

·

It is your burden to prove your allegations stated in your Step 3 grievance. I have reviewed the facts of this case and determined that you did not meet this burden. There was no corroborating evidence to provide proof of your allegations.

Your request for relief is denied. This is the final administrative response in this matter and you have exhausted your administrative remedies.

Anthony A. DeCesare Grievance Officer
cc: working file grievance file

..,.. ·

I John w. Hicken!ooper, Governor r Rick Raemisch, Executive Director

I '
I

Case 1:16-cv-02733-STV Document 4 Filed 12/08/16 USDC Colorado Page 27 of 31

,.

I

/

• DC Form 8S0-04A (03115/15)

Colorado De

artment

of

Corrections
. -.._

Informal

Resolution

Form

.

This form used for INFORMAL RESOLUTION ONLY

Resolution: ·
I
L

~·
D Non-Grieveable Date: Date:
Attachment "A" Page 1 ofl

Case 1:16-cv-02733-STV Document 4 Filed 12/08/16 USDC Colorado Page 28 of 31

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Case 1:16-cv-02733-STV Document 4 Filed 12/08/16 USDC Colorado Page 29 of 31
I COLORADO
Department of Corrections
I Denver Women's Correctional Facility
Associate Warden Office PO Box 392005 Denver, CO 80239-8005 Phone: 303-371-4804

February 23, 2016

Bionca Rogers DOC #169704 Unit 5

Dear Ms. Rogers,

I am in receipt of your letter dated February 17, 2016 wherein you requested that the wardens of the Denver Women's Correctional Facility override grievance decisions made by professional individuals in the ADA office of the Colorado Department of Corrections.

You have submit~ed and received answers for an ADA grievance through all formal steps in the Grievance Process. ·1 have reviewed your grievances and the responses. The answers given to you _at all levels were appropriate. I will not cause the final decision to be changed or modified.

s:z_;/_' _

)

~
Terry Jaques, Associate Warden Denver Women's Correctional Facility

TJ/jo
cc: Case Manager ~opez ,) · DWCF Grievance Coordinator Facility ADA Coordinator

John W. Hickenlooper, Governor 1 Rick Raemisch, Executive Director

Case 1:16-cv-02733-STV Document 4 Filed 12/08/16 USDC Colorado Page 30 of 31

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Case 1:16-cv-02733-STV Document 4 Filed 12/08/16 USDC Colorado Page 31 of 31
/ /

 
 Case 1:16-cv-02733-STV Document 52 Filed 09/29/17 USDC Colorado Page 1 of 13
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-02733-STV BIONCA CHARMAINE ROGERS, CATHY BEGANO, KANDYCE VESSEY, JENNIFER SAUGAUSE,
Plaintiffs, v. COLORADO DEPARTMENT OF CORRECTIONS, RICK RAEMISCH, in his official capacity as Executive Director of the Colorado Department of Corrections, RYAN LONG, in his official capacity as Warden of the Denver Women’s Correctional Facility, and JOHN/JANE DOE(S) responsible for the decision(s) not to provide videophones at the Denver Women’s Correctional Facility, in their official capacities,
Defendants. ______________________________________________________________________
ORDER ______________________________________________________________________ Magistrate Judge Scott T. Varholak
This matter comes before the Court on Defendants’ Motion to Dismiss [#37] and Motion to Stay [#44]. The motions are before the Court on the Parties’ consent to have a United States magistrate judge conduct all proceedings in this action and to order the entry of a final judgment. [#30, 31, 51] This Court has carefully considered the motions and related briefing, the case file and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the motions. For the following reasons, I DENY both motions.
1

Case 1:16-cv-02733-STV Document 52 Filed 09/29/17 USDC Colorado Page 2 of 13

I.

FACTUAL BACKGROUND1

Plaintiffs are all inmates incarcerated in the Colorado Department of Corrections

(“CDOC”), at the Denver Women’s Correctional Facility (“DWCF”). [#34 at ¶¶ 1, 5]

Plaintiffs Begano, Vessey and Saugause are all deaf and use American Sign Language

(“ASL”) as their primary language. [Id. at ¶¶ 10-12] Plaintiff Rogers, on the other hand,

is able to hear, but both her parents are deaf and communicate using ASL. [Id. at ¶ 9]

Plaintiffs claim that Defendants are denying Plaintiffs the ability to communicate

with friends and relatives outside of DWCF. Plaintiff Rogers has requested permission

to use a videophone inside DWCF to communicate with her parents. [Id. at ¶ 2]

Plaintiffs Begano, Vessey and Saugause have likewise requested permission to use a

videophone inside DWCF to communicate with their friends and family. [Id. at ¶ 5]

Because ASL is a visual language in which communication occurs through the

movement of hands combined with facial expressions and postures of the body [id. at ¶

17], Plaintiffs contend that a videophone will allow them to effectively communicate with

others using ASL [id. at ¶ 27]. Defendants have refused to provide Plaintiffs with a

videophone to communicate with their friends and family members. [Id. at ¶¶ 3, 5]

CDOC permits prisoners to make telephone calls to individuals on their phone

list. [Id. at ¶ 32] Calls are limited to twenty minutes, and the number of calls permitted

is governed by the individual facility. [Id.] The telephones at DWCF are available at any

time from 6:00 a.m. to 12:00 midnight. [Id. at ¶ 33] During these hours, hearing

1 The facts are drawn from the allegations in Plaintiff’s Third Amended Complaint [#34], which must be taken as true when considering a motion to dismiss. See Wilson v. Montano, 715 F.3d 847, 850 n.1 (10th Cir. 2013) (citing Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011)).
2

Case 1:16-cv-02733-STV Document 52 Filed 09/29/17 USDC Colorado Page 3 of 13
prisoners who wish to contact family members can simply walk up to the phones and make a call. [Id. at ¶ 34]
DWCF has a teletypewriter (“TTY”) for deaf inmates.2 [Id. at ¶ 3] In a TTY communication, each participant types out his or her side of the conversation, then waits while the other person types back. [Id. at ¶ 22] For a TTY communication to occur, both participants must own TTY equipment. [Id. at ¶ 21] Plaintiff Rogers alleges that her parents do not own TTY equipment [id. at ¶ 41], and Plaintiffs Begano, Vessey and Saugause allege that many of the people with whom they seek to communicate likewise do not own TTY equipment [id. at ¶ 66].3 Plaintiffs allege that, on multiple occasions, the DWCF TTY has been broken. [Id. at ¶¶ 42, 68] Plaintiffs further allege that the DWCF TTY “often skips words and when there is background noise or interference, the words are garbled.” [Id. at ¶ 68]
Beginning in April 2017, Plaintiff Rogers has been able to call her deaf mother with a conventional telephone, using video relay service (“VRS”). [Id. at ¶ 60] Using VRS, a hearing caller uses a conventional telephone to call the deaf person’s videophone number. [Id. at ¶ 59] The call is answered by a sign language interpreter, who then connects to the deaf person’s videophone and interprets for the deaf recipient.
2 According to the Third Amended Complaint, Plaintiff Rogers was initially allowed to use the TTY to communicate with her parents [id. at ¶ 40], but CDOC later revoked her access to the TTY stating that Plaintiff Rogers was not deaf or otherwise protected by the ADA and that her parents were required to certify in writing that they were deaf and had access to a TTY [id. at ¶ 56]. Plaintiff Rogers asserts that she had previously submitted proof that her parents were deaf. [Id. at ¶ 57] 3 In an attempt to communicate with hearing acquaintances, Plaintiffs Begano, Vessey and Saugause have used a TTY relay, a system in which they type their half of the conversation into the TTY, while an operator reads the text to the hearing person at the other end. [Id.] When the hearing person responds, the operator types the response back to the DWCF TTY. [Id.]
3

Case 1:16-cv-02733-STV Document 52 Filed 09/29/17 USDC Colorado Page 4 of 13
[Id.] The deaf person then signs a response, and the interpreter interprets into spoken English to the hearing caller. [Id.] Because participants in a VRS call do not speak with each other directly, they cannot perceive emotion, tone and other “non-spoken” features of a telephone conversation. [Id. at ¶ 61]
Plaintiffs’ Third Amended Complaint brings three claims. The first claim for relief is brought pursuant to 42 U.S.C. § 1983 and alleges that all Defendants have violated Plaintiffs’ First Amendment rights. [Id. at ¶¶ 72-78] The second claim alleges that Defendant CDOC violated Title II of the Americans with Disabilities Act (“ADA”). [Id. at ¶¶ 79-90] The third claim alleges that Defendant CDOC violated Section 504 of the Rehabilitation Act. [Id. at ¶¶ 91-102] Plaintiffs primarily seek injunctive relief and compensatory damages under Title II of the ADA and Section 504 of the Rehabilitation Act. [Id. at 19] Defendants have moved to dismiss all three claims [#37] and to stay the proceedings pending determination of the Motion to Dismiss [#44]. II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(1) empowers a court to dismiss a complaint for “lack of subject-matter jurisdiction.” Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff’s case, but only a determination that the court lacks authority to adjudicate the matter. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). A court lacking jurisdiction “must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).
4

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Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” In deciding a motion under Rule 12(b)(6), a court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (alteration in original) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.’” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest’ that he or she is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
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III. ANALYSIS Defendants make two primary arguments in support of their Motion to Dismiss.
First, Defendants argue that Plaintiff Rogers lacks standing to assert her claims under the ADA and the Rehabilitation Act. [#37 at 4-5] Second, Defendants argue that all claims must be dismissed for failure to state a claim upon which relief can be granted. [Id. at 5-9] The Court disagrees with both arguments.
A. Plaintiff Rogers has standing to assert her ADA and Rehabilitation Act claims
Although Defendants concede that “[t]he enforcement provisions of Title II of the ADA do not limit relief to ‘qualified individuals with disabilities,’” [#37 at 4 (citing MX Grp., Inc. v. City of Covington, 293 F.3d 326, 335 (6th Cir. 2002))], they argue that Plaintiff Rogers lacks standing to assert her ADA and Rehabilitation Act claims [id. at 45]. Specifically, Defendants assert that Plaintiff “does not allege that she has been discriminated against as a result of her known association with her parents, both of whom are alleged to be deaf.” [Id. at 5]
The Tenth Circuit has held that “the totality of Title II’s plain language, the plain language of its enforcement provision, and the statutory scheme’s anti-discriminatory purpose” demonstrate that “Congress intended Title II to confer standing to the full limits of Article III [of the United States Constitution].” Tandy v. City of Wichita, 380 F.3d 1277, 1287 (10th Cir. 2004). Similarly, “[t]he language of the Rehabilitation Act also evinces Congress’ intent to confer standing to the outer limits of Article III.” Id. For Article III standing to exist, a party must be able to demonstrate that she “has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly
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traceable to the defendant, and that it is likely that a favorable decision will redress that injury.” Massachusetts v. EPA, 549 U.S. 497, 517 (2007).
Plaintiff Rogers has demonstrated each of these requirements. Plaintiff Rogers has alleged actual injury in that she is being deprived of the ability to effectively communicate with her parents. This injury is fairly traceable to Defendants in that Defendants’ refusal to allow videophones has allegedly caused the injury. Finally, because the Third Amended Complaint seeks injunctive relief, a favorable ruling would rectify this injury. Thus, to the extent Plaintiff Rogers need only show Article III standing, she has done so. See Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 280 (2d Cir. 2009) (Wesley, J., concurring) (finding that the standing provision of the Rehabilitation Act extends to the limits of Article III standing and, as a result, a nondisabled person need only establish Article III standing to bring a Rehabilitation Act claim); Weber v. Cranston Sch. Comm., 212 F.3d 41, 47-49 (3d Cir. 2000) (extending Rehabilitation Act’s anti-retaliation provision to non-disabled individuals); Barber v. Colo. Dep’t of Revenue, No. CIVA05CV00807REBCBS, 2006 WL 469021, at *2 (D. Colo. Jan. 4, 2006) (“[A] party, although not herself disabled, may assert claims under Title II of the ADA and under the Rehabilitation Act for discrimination against a disabled person that directly injures that party.”) (footnote omitted).
The Court recognizes that some courts have limited standing for non-disabled individuals under both the Rehabilitation Act and the ADA, finding that these individuals only have standing “if they allege that they were personally excluded, personally denied benefits, or personally discriminated against because of their association with a
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disabled person.” 4 McCullum v. Orlando Reg’l Healthcare Sys., Inc., 768 F.3d 1135, 1143 (11th Cir. 2014); see also R.S. v. Butler County, No. 16–3194, 2017 WL 2787615, at *3 n.19 (3d Cir. June 27, 2017). But even under this more narrow interpretation, Plaintiff Rogers has sufficiently alleged standing. Plaintiff Rogers has alleged that she has been personally denied the same ability to communicate with her parents that other inmates possess solely because her parents are deaf. See S.K. v. North Allegheny Sch. Dist., 146 F. Supp. 3d 700, 717-20 (W.D. Pa. 2015) (finding that non-disabled mother of disabled child had standing to bring an associational discrimination claim where school district refused to make reasonable modification to its transportation service to accommodate her child); Prakel v. Indiana, 100 F. Supp. 3d 661, 672-73 (S.D. Ind. 2015) (finding that non-disabled mother had standing to assert associational claim for defendants’ failure to provide deaf son with interpreter services to attend her criminal proceedings because she alleged distinct injuries, including having to pay for an interpreter and being denied her son’s emotional support when an interpreter was not provided).
B. Plaintiffs have pled plausible claims for relief 1. Plaintiffs’ ADA and Rehabilitation Act claims
“Analysis of a claim under Title II of the ADA is identical to an analysis under the Rehabilitation Act.” Kimble v. Douglas Cty. Sch. Dist. RE-1, 925 F. Supp. 2d 1176, 1182 (D. Colo. 2013) (citing Nielsen v. Moroni Feed Co., 162 F.3d 604, 608 n.7 (10th Cir. 1998); Kimber v. Thiokol Corp., 196 F.3d 1092, 1102 (10th Cir. 1998)); see also
4 The Tenth Circuit does not appear to have yet addressed this issue. The Tandy Court did not expressly consider whether the ADA or the Rehabilitation Act limit standing for non-disabled individuals, because the plaintiffs in that case were disabled. 380 F.3d at 1281-82.
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Anderson v. Colo. Dep’t of Corr., 848 F. Supp. 2d 1291, 1300 n.2 (D. Colo. 2012) (“The Rehabilitation Act is materially identical to and the model for the ADA[—]the elements are the same except the Rehabilitation Act requires that defendant receive federal funds.” (quotations omitted)). Accordingly, and as requested by the parties, the Court will apply the same analysis to Plaintiffs’ ADA and Rehabilitation Act claims.
Title II of the ADA states, in pertinent part, 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. This provision applies to prisoners. See Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998). “To state a claim under Title II, the plaintiff must allege that (1) he is a qualified individual with a disability, (2) who was excluded from participation in or denied the benefits of a public entity’s services, programs, or activities, and (3) such exclusion, denial of benefits, or discrimination was by reason of a disability.”5 Robertson v. Las Animas Cty. Sheriff’s Dep’t, 500 F.3d 1185, 1193 (10th Cir. 2007).
With respect to Defendants’ argument that the Third Amended Complaint fails to state an ADA or Rehabilitation Act claim, Defendants’ Motion to Dismiss only challenges the reasonableness of the accommodations already in place at DWCF. [#37 at 5-7] As
5 When a non-disabled plaintiff, like Plaintiff Rogers, is asserting an ADA claim on the basis of her relationship to a disabled individual, the plaintiff must allege: “(1) a logical and significant association with an individual with disabilities; (2) that a public entity knew of that association; (3) that the public entity discriminated against them because of that association; and (4) they suffered a direct injury as a result of the discrimination.” Schneider v. County of Will, 190 F. Supp. 2d 1082, 1091 (N.D. Ill. 2002) (citing 28 C.F.R. § 35.130(g) (“A public entity shall not exclude or otherwise deny equal services, programs, or activities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association.”)).
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the Tenth Circuit has instructed, the ADA “requires more than physical access to public entities: it requires public entities to provide meaningful access to their programs and services.” Robertson, 550 F.3d at 1193 (emphasis in original) (quotations omitted). To effectuate Title II’s mandate, Department of Justice “regulations require public entities to ‘make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability.’” Id. (quoting 28 C.F.R. § 35.130(b)(7)). Defendants argue that they are only required to make reasonable accommodations for Plaintiffs, not the best possible accommodations, and that they have satisfied this obligation by providing TTY equipment. [#37 at 5-7; #40 at 2 (citing Arce v. Louisiana, 226 F. Supp.3d 643, 651 (E.D. La. 2016) (finding that ADA did not require prison to provide deaf inmate with videophone as a reasonable accommodation))]
Ultimately, for purposes of deciding the instant Motion to Dismiss, the Court need not decide whether Defendants must provide Plaintiffs with a videophone in order to provide a reasonable accommodation, because Plaintiffs have plausibly alleged that they have often been denied any meaningful access to forms of communication with friends and family. As indicated above, Plaintiffs allege that, on multiple occasions, the DWCF TTY has been broken. [ #34 at ¶¶ 42, 68] Plaintiffs further allege that the DWCF TTY “often skips words and when there is background noise or interference, the words are garbled.” [Id. at ¶ 68] Such allegations are sufficient to state both an ADA and a Rehabilitation Act claim. See Tanney v. Boles, 400 F. Supp. 2d 1027, 1041-42 (E.D. Mich. 2005) (denying summary judgment for institution where inmate offered evidence that he was denied reasonable access to TTY machine); Zemedagegehu v.
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Arthur, No. 1:15cv57 (JCC/MSN), 2015 WL 1930539, at *13 (E.D. Va. April 28, 2015) (denying motion to dismiss filed by institution where plaintiff was provided access to TTY services but plaintiff’s inability to read or write English made such access meaningless); cf. Arce, 226 F. Supp.3d at 651 (granting motion to dismiss where the complaint did not allege that the TTY machine failed to function or that the plaintiff could not effectively communicate using the TTY machine). Accordingly, Defendants’ Motion is DENIED to the extent it seeks dismissal of Plaintiffs’ ADA and Rehabilitation Act claims.
2. Plaintiffs’ First Amendment claims In the First Amendment context, the Supreme Court has acknowledged that “federal courts must take cognizance of the valid constitutional claims of prison inmates. Prison walls do not form a barrier separating prison inmates from the protections of the Constitution.” Turner v. Safley, 482 U.S. 78, 84 (1987) (citation omitted). The Supreme Court has also recognized, however, that “courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform.” Id. (quoting Procunier v. Martinez, 416 U.S. 396, 405 (1974)). As a result, prison officials may restrict prisoners’ First Amendment rights in ways that “would raise grave First Amendment concerns outside the prison context.” Thornburgh v. Abbott, 490 U.S. 401, 407 (1989). Accordingly, “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89. Defendants argue that “Plaintiffs have not asserted any facts tending to show that the choice between TTY, VRS, or the use of TTY Relay over videophones [is] not
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related to legitimate penological interests.” [#37 at 8-9] The Tenth Circuit has held that, in light of Turner, a prisoner asserting a First Amendment violation “must include sufficient facts to indicate the plausibility that the actions of which he complains were not reasonably related to legitimate penological interests.” Gee v. Pacheco, 627 F.3d 1178, 1188 (10th Cir. 2010). But the prisoner need not “identify every potential legitimate interest and plead against it.” Id. Rather, “[i]t is sufficient that he plead facts from which a plausible inference can be drawn that the action was not reasonably related to a legitimate penological interest.” Id.
Plaintiffs’ Third Amended Complaint alleges that “Defendants’ refusal to provide Plaintiffs with access to a videophone serves no legitimate or compelling need and is not rationally related or narrowly tailored to any identified penological or rehabilitative need.” [#34 at ¶ 74] Although a CDOC representative informed Plaintiff Rogers that a videophone pilot program was unsuccessful at a different facility because “the technology available did not work from a security standpoint” [id. at ¶ 63], Plaintiffs Rogers, Begano and Vessey have all previously been detained at other Colorado jails where they were able to use videophones [id. at ¶¶ 30, 65]. This allegation suggests that videophones can be used in prisons without impacting security concerns. Plaintiffs also allege that “[p]rovision of appropriate telecommunication equipment to Plaintiffs would have negligible effects, if any, on other prisoners and prison employees at DWCF.” [Id. at ¶ 75] These allegations support a plausible inference that the videophone restrictions are not reasonably related to legitimate penological interests. See Heyer v. U.S. Bureau of Prisons, 849 F.3d 202, 212-18 (4th Cir. 2017) (applying a Turner analysis and reversing grant of summary judgment to defendant Bureau of
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Prisons in case challenging Bureau of Prisons’ refusal to allow deaf inmates to use

videophones). This is especially true here, where Defendants have not identified the

security concerns underling the videophone ban in either their Motion or their Reply. Cf.

Al-Owhali v. Holder, 687 F.3d 1236, 1241 (10th Cir. 2012) (finding deficiencies in

complaint that alleged First Amendment restrictions without explaining why they were

not justified for security reasons, “especially clear given the government’s proffered

justifications for imposing” the restrictions (emphasis added)). Accordingly, Defendants’

Motion is DENIED to the extent it seeks dismissal of Plaintiffs’ First Amendment claim.

IV. CONCLUSION

For the foregoing reasons, the Court DENIES Defendant’s Motion to Dismiss

[#37]. The Court also DENIES the Motion to Stay [#44] as moot.

DATED: September 29, 2017

BY THE COURT:

s/Scott T. Varholak United States Magistrate Judge

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 Case 1:16-cv-02733-STV Document 34 Filed 06/15/17 USDC Colorado Page 1 of 20
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-02733-STV BIONCA CHARMAINE ROGERS, CATHY BEGANO, KANDYCE VESSEY, and JENNIFER SAUGAUSE,
Plaintiffs, v. COLORADO DEPARTMENT OF CORRECTIONS, RICK RAEMISCH, in his official capacity as Executive Director of the Colorado Department of Corrections, RYAN LONG, in his official capacity as Warden of the Denver Women’s Correctional Facility, and JOHN/JANE DOE(S) responsible for the decision(s) not to provide videophones at the Denver Women’s Correctional Facility, in their official capacities,
Defendants.
THIRD AMENDED COMPLAINT
Plaintiffs Bionca Charmaine Rogers, Cathy Begano, Kandyce Vessey, and Jennifer Saugause, by and through counsel, hereby file this Third Amended Complaint against the Colorado Department of Corrections, Rick Raemisch in his official capacity as Executive Director of the Colorado Department of Corrections, Ryan Long in his official capacity as Warden of the Denver Women’s Correctional Facility, and John/Jane Doe(s) who were responsible for the decision(s) not to provide videophones at the Denver Women’s Correctional Facility, in their official capacities.

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INTRODUCTION 1. Plaintiff Bionca Charmaine Rogers is a prisoner at the Denver Women’s Correctional Facility. While Ms. Rogers is able to hear, both of her parents are deaf. Ms. Rogers communicates with her parents using American Sign Language (“ASL”). 2. Ms. Rogers has requested that she be permitted to communicate with her parents using a videophone (“VP”), which would permit them to communicate directly, as hearing prisoners communicate directly by telephone with members of their families who are also hearing. 3. Defendants have refused to permit Ms. Rogers to communicate with her mother and father by VP, insisting that she use a teletypewriter (“TTY”), which, as the name suggests, requires users to type their conversation back and forth, and requires the individuals at both ends of the conversation to have specialized equipment to participate. 4. Ms. Rogers’s parents do not have TTY equipment so it is impossible for Ms. Rogers to communicate with her parents using a TTY. Defendants are thus not providing effective communication to either Ms. Rogers or her parents. 5. Plaintiffs Cathy Begano, Kandyce Vessey, and Jennifer Saugause are all prisoners at the Denver Women’s Correctional Facility. All three are Deaf and all have requested to be able to use a videophone to communicate with friends and family. All have been refused. 6. Plaintiffs bring these claims under the First Amendment to the United States Constitution, title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. (“ADA” or “Title II”), and section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (“Section 504”), to
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challenge this infringement of their right to free speech and the discrimination against them and by which they have been injured.
JURISDICTION AND VENUE 7. This action arises under the Constitution and laws of the United States. Jurisdiction is conferred upon this court pursuant to 28 U.S.C. §§ 1331 and 1343. 8. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b)(2), as all of the events giving rise to the claims occurred in the District of Colorado.
PARTIES 9. Plaintiff Bionca Charmaine Rogers is a prisoner at the Denver Women’s Correctional Facility (“DWCF”) in Denver, Colorado. Ms. Rogers is able to hear. Her mother, Teresa Jordan, and her father, Charles Buddy Rogers, are both deaf, unable to hear, and communicate using ASL. Ms. Rogers is thus an individual who has a known relationship or association with persons with known disabilities. See 28 C.F.R. § 35.130(g). 10. Plaintiff Cathy Begano is a prisoner at the Denver Women’s Correctional Facility (“DWCF”) in Denver, Colorado. Ms. Begano is deaf, and as such is a qualified individual with a disability as that term is used in Title II and Section 504. Plaintiff Begano has been deaf since she was a young child and ASL is her primary language. 11. Plaintiff Kandyce Vessey is a prisoner at the Denver Women’s Correctional Facility (“DWCF”) in Denver, Colorado. Ms. Vessey is deaf, and as such is a qualified individual with a disability as that term is used in Title II and Section 504. Plaintiff Vessey has been deaf since she was a young child and ASL is her primary language.
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12. Plaintiff Jennifer Saguause is a prisoner at the Denver Women’s Correctional Facility (“DWCF”) in Denver, Colorado. Ms. Saguause is deaf, and as such is a qualified individual with a disability as that term is used in Title II and Section 504. Plaintiff Saugause has been deaf since she was a young child and ASL is her primary language.
13. Defendant Colorado Department of Corrections (“CDOC”) is a department of the State of Colorado. CDOC has custody of all Plaintiffs.
14. Defendant Rick Raemisch is the Executive Director of the Colorado Department of Corrections. Director Raemisch is sued in his official capacity.
15. Defendant Ryan Long is the Warden of the Denver Women’s Correctional Facility. Warden Long is sued in his official capacity.
16. Defendants John/Jane Doe(s) are employees of the CDOC who were responsible for the decision(s) not to provide videophones at the Denver Women’s Correctional Facility. They are sued in their official capacity.
FACTS 17. ASL is a visual language. It is “a complete, complex language that employs signs made by moving the hands combined with facial expressions and postures of the body.” For example, “English speakers ask a question by raising the pitch of their voice; ASL users ask a question by raising their eyebrows, widening their eyes, and tilting their bodies forward.” https://www.nidcd.nih.gov/health/american-sign-language 18. ASL is not just English in gestures. It has grammar and syntax that are completely different from English. When deaf people are raised using ASL as their first or
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primary language, written English is a foreign language, which is often acquired incompletely and imperfectly.
19. Because deaf people cannot use a conventional telephone, technology has developed to permit them to communicate at a distance.
20. The earliest such technology, the teletypewriter or TTY, was invented in approximately 1964. It involved placing a standard telephone handset into an “acoustic coupler” connected to a teleprinter machine. Over time, the device evolved into a single piece of equipment that included a QWERTY keyboard and was connected to a phone jack.
21. A TTY requires that individuals at both ends of the communication have specific TTY equipment.
22. In a TTY communication, each participant types out his or her side of the conversation, then waits while the other person types back.
23. As such, it is a more cumbersome form of communication than a telephone conversation between hearing people.
24. For the same reason, it is a more cumbersome form of communication than a videophone conversation between deaf people or a deaf person and a hearing person who knows ASL.
25. As technology has evolved, fewer and fewer deaf people own or use TTYs. 26. It is more and more common for deaf people to use videophones rather than TTYs.
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27. As the name suggests, a videophone has a camera and a screen and transmits a video signal, permitting deaf people -- or a deaf person and a hearing person who signs -- to see each other and communicate directly with one another in ASL.
28. Ms. Rogers’s father and mother both have videophone service, and that is the way they communicate telephonically with others.
29. Plaintiff Rogers was arrested in February, 2014, and detained in the El Paso County Jail from that time until her conviction in August, 2015.
30. At the El Paso County Jail, Ms. Rogers was able to communicate with her parents using a videophone.
31. Ms. Rogers was convicted in August, 2015, and sentenced to life without parole. Since that time, she has been housed at the DWCF.
32. CDOC permits prisoners to make phone calls to individuals who are on their phone list. Administrative Regulation (“AR”) 850-12 ¶ IV(B)(1). Calls are limited to 20 minutes each; the number of calls permitted is governed by the policies of each facility. Id. ¶ IV(B)(2).
33. The telephones at DWCF are available at any time from 6:00 a.m. to 12:00 midnight. Id. ¶ IV(C)(2).
34. Hearing prisoners who wish to contact hearing family members are permitted to walk up to the phones at any time they are available and place a call, provided they have paid for the time (or are calling collect) and are calling someone on their phone list.
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35. AR 850-12 provides that “[o]ffenders with hearing and/or speech disabilities, and offenders who wish to communicate with parties who have such disabilities, are afforded access to a [TTY] or comparable equipment.” Id. ¶ IV(A)(4)
36. Almost as soon as she arrived at DWCF, Ms. Rogers began requesting access to a videophone so that she could communicate with her parents and her children.
37. Ms. Rogers has two children, ages seven and two. Ms. Jordan, Ms. Rogers’s mother, has guardianship of Ms. Rogers’s children. Although the children are hearing, it is essential that Ms. Rogers be able to communicate with Ms. Jordan about matters relating to the care and upbringing of her children.
38. On August 28, 2015, Ms. Rogers asked for access to a videophone, “due to sign language being a visual language where I, and my family are able to effectively communicate through expressions, demeanor, and facials as sign language uses such to understand one another. It is equal to a telephone that a hearing family uses because the ability to determine moods etc. is easily heard through vocal language and having a deaf family, I am at a disadvantage because I cannot vocally commune with my parents.”
39. Ms. Rogers first grieved the lack of a videophone on or about September 9, 2015. 40. On or about September 17, 2015, CDOC responded that “[a] videophone pilot plan is being considered for [Colorado Territorial Correctional Facility] where the majority of the DOC’s deaf offenders reside. Eventually this will be available in all of the DOC’s facilities. You have been approved for TTY access.” 41. Neither of Ms. Rogers’s parents has a TTY, so this solution does not permit her to communicate with them.
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42. Nevertheless, at or about this time, Ms. Rogers attempted to use the TTY but was unable to do so because the TTY was broken.
43. On or about September 24, 2015, Ms. Rogers submitted her Step 2 grievance, requesting access to a videophone and again explaining in detail why it was necessary.
44. On or about October 19, 2015, CDOC responded (among other things), “You have been authorized to utilize the TTY and the TTY is an effective alternate means of communication.”
45. On or about October 28, 2015, Ms. Rogers submitted her Step 3 grievance, again explaining in detail why a videophone was necessary and why the TTY was not sufficient.
46. On or about November 16, 2015, CDOC responded, stating that it could not “improve upon the information provided by the Step 1 and Step 2 Responders,” and that Ms. Rogers had “provided no verifiable documentation which requires CDOC to provide you with the use of a videophone. . . . It is your burden to prove your allegations stated in your Step 3 grievance. I have reviewed the facts of this case and determine that you did not meet this burden. There was no corroborating evidence to provide proof of your allegations.”
47. On or about January 2, 2016, Ms. Rogers submitted a kite asking for clarification of the November, 2015, denial and providing contact information for an individual at “Sorenson Video Phone” who would be able to confirm that her parents are deaf and have videophones, and provide confirmation of their videophone numbers.
48. This kite was returned to Ms. Rogers with a note stuck to the front reading, “[s]he needs to have this sent to HQ through proper channels. This does not go through the grievance coordinator.”
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49. On or about February 9, 2016, Ms. Rogers submitted a grievance form asking that the November 16, 2015 letter be explained.
50. In that form, Ms. Rogers again provided contact information for an individual at “Sorenson Video Phone” who would be able to confirm that her parents are deaf and have videophones, and provide confirmation of their videophone numbers.
51. Because “Sorenson Communications provides videophones and software exclusively to deaf individuals who require Video Relay Service (VRS) to place and receive calls,” https://apply.sorensonvrs.com/secured_ntouch_apply_form (last visited 6/11/2017), Ms. Rogers was, in her January 2 and February 9, 2016 communications, substantiating the fact that her parents were deaf and providing information concerning the communications technology they used.
52. On or about February 12, 2016, CDOC responded, “Grievance previously went to Step 3 and denied. Denied.”
53. On or about February 23, 2016, CDOC sent a letter to Ms. Rogers, once again denying her grievance.
54. On or about November 3, 2016, Ms. Rogers filed the present lawsuit pro se. 55. On or about March 24, 2017, Ms. Rogers sent a “kite” stating that she was unable to access the TTY. 56. On or about March 31, 2017, CDOC sent a memo to Ms. Rogers titled “TTY Access Denied,” and stating that the CDOC “require[d] that all people with a TTY must submit in writing proof to headquarters in order to be able to put Colorado relay on their offender’s phone list. This means that your parents must submit in writing that they are deaf and have a
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TTY as well as the model of the TTY. . . . In addition, you are not an ADA offender and you are not deaf so you have been denied access to the TTY. If headquarters approves for you to use the TTY then you will be granted access.”
57. Again, however, neither of Ms. Rogers’s parents has a TTY and she had previously submitted proof that they were deaf.
58. On several occasions prior to April, 2017, Ms. Rogers attempted to reach her mother using “video relay service” or “VRS.”
59. VRS permits a deaf person and a hearing person who does not sign to communicate. Using VRS, a hearing caller uses a conventional telephone to call the deaf person’s VP number. The call is answered by a sign language interpreter, who then connects to the deaf person’s VP. As the hearing caller speaks, the interpreter interprets for the deaf recipient through VP; as the deaf person signs, the interpreter interprets into spoken English.
60. Starting in April, Ms. Rogers has been able to call her mother using VRS. 61. For Ms. Rogers, VRS does not constitute communication that is in any way equivalent to a phone call between a hearing prisoner and her hearing family members, as the entire conversation is mediated by the interpreter. Participants in a VRS call do not speak with each other directly, and still cannot perceive emotion, tone, and other “non-spoken” features of a conversation between family members. Thus although VRS is a convenient solution for conversations between deaf people and non-signing hearing people, it is by definition indirect. As such, it is an inferior way for a deaf and hearing person to communicate when both know ASL.
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62. In investigating this matter prior to entering an appearance, on May 28, 2017, counsel for Ms. Rogers submitted a Colorado Open Records Act request to the CDOC to attempt to learn more about the “videophone pilot plan . . . being considered for [Colorado Territorial Correctional Facility],” as mentioned in the CDOC’s September 17, 2015 grievance response.
63. A representative of CDOC responded, on May 1, 2017, that “[t]here is no pilot program at CTCF. Two years ago, there was an attempt to do so. Unfortunately, the technology available did not work from a security standpoint and the pilot did not start,” and that “[t]here are currently no plans to install sign language specific video phones; we do have tablets for offenders now and we have plans to look into how we can expand their use.”
64. Plaintiffs Begano, Vessey, and Saugause have all made requests to their case managers for videophones on a number of occasions during their time at DWCF.
65. Ms. Begano and Ms. Vessey were both detained at the El Paso County Jail and were able to us the VP there.
66. Plaintiffs Begano, Vessey, and Saugause have each attempted to use a TTY at DWCF on a number of occasions. The people with whom they communicate are largely hearing, rather than deaf. These individuals do not have TTYs. Plaintiffs Begano, Vessey, and Saugause have thus used TTY relay, a system in which they type their half of the conversation into the TTY, while an operator reads the text to the hearing person at the other end. When the hearing person responds, the operator types the response back to the DWCF TTY.
67. Even when it works properly, this process is far more cumbersome and time consuming than a phone call or VP or VRS call.
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68. When Plaintiffs Begano, Vessey, and Saugause use the TTY, it has not worked properly. The TTY often skips words and when there is background noise or interference, the words are garbled. On many occasions when one of them wanted to use the TTY, it was broken and they were asked to wait until it was fixed to place their call. This is in stark contrast to hearing inmates, who are able to use the phone at any time between 6:00 a.m. and midnight.
69. The policy limiting Plaintiffs to communicating through a TTY essentially limits them to writing letters -- some on paper, some on the TTY -- while prisoners with hearing family are permitted two different modes of communication: letters; and the more direct and intimate communication of a phone call.
70. Since each arrived at DWCF, none of the Plaintiffs has been able to communicate effectively telephonically with friends and family. This has caused Plaintiffs emotional and psychological distress, inconvenience, frustration, depression, and heartache.
71. Defendants’ actions in refusing to provide a videophone to Plaintiffs are and have been intentional and/or constituted deliberate indifference to the strong likelihood that pursuit of this policy will likely result in a violation of Plaintiffs’ federally protected rights. Plaintiffs have alerted Defendants to the need for a videophone and that need is obvious. Defendants have knowingly and intentionally refused to provide the requested videophone.
FIRST CLAIM FOR RELIEF: 42 U.S.C. § 1983/VIOLATION OF THE FIRST AMENDMENT TO THE
CONSTITUTION OF THE UNITED STATES (against all Defendants)
72. Plaintiffs incorporate the allegations set forth in the remainder of this Third Amended Complaint as if fully set forth herein.
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73. Defendants have impermissibly deprived, and continue to deprive, Plaintiffs of their First Amendment right to freedom of speech by failing to provide them with telecommunication equipment necessary for them to communicate with their family and friends.
74. Defendants’ refusal to provide Plaintiffs with access to a videophone serves no legitimate or compelling need and is not rationally related or narrowly tailored to any identified penological or rehabilitative need.
75. Provision of appropriate telecommunication equipment to Plaintiffs would have negligible effects, if any, on other prisoners and prison employees at DWCF.
76. Defendants’ failure to comply with the First Amendment of the United States Constitution has resulted and will continue to result in harm to Plaintiffs, as more fully described above.
77. As a direct and proximate result of Defendants’ acts, omissions, and violations alleged above, Plaintiffs have suffered damages, as more fully described above.
78. Plaintiffs have been injured and aggrieved by and will continue to be injured and aggrieved by Defendants’ violation of the First Amendment.
SECOND CLAIM FOR RELIEF: VIOLATION OF TITLE II OF THE AMERICANS WITH DISABILITIES ACT
42 U.S.C. § 12131 et seq. (against Defendant CDOC) 79. Plaintiffs incorporate the allegations set forth in the remainder of this Third Amended Complaint as if fully set forth herein. 80. Title II prohibits public entities such as Defendant CDOC from excluding individuals with disabilities from participation in or denying them the benefits of their services,
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programs or activities, or otherwise subjecting such individuals to discrimination. 42 U.S.C. § 12132.
81. Because they are deaf and are parents of an inmate at DWCF, Ms. Rogers’s parents are qualified individuals with disabilities within the meaning of the Americans with Disabilities Act. 42 U.S.C. § 12102.
82. Defendant CDOC knows that Ms. Rogers’s parents are deaf, and knows that she has a relationship or association with them, as described in 28 C.F.R. § 35.130(g).
83. Because they are deaf and are prisoners at DWCF, Plaintiffs Begano, Vessey, and Saugause are qualified individuals with disabilities within the meaning of the Americans with Disabilities Act. 42 U.S.C. § 12102.
84. Defendant CDOC excluded Plaintiffs and Ms. Rogers’s parents from participation in and/or denied them the benefits of it services, programs, and/or activities and/or subjected them to discrimination on the basis of disability and, in the case of Ms. Rogers, on the basis of her relationship or association with her deaf parents, in violation of Title II and its implementing regulations as more fully described in this Third Amended Complaint.
85. Such discrimination includes but is not limited to: a. denying Plaintiffs and Ms. Rogers’s parents the opportunity to participate in or benefit from an aid, benefit, or service, 28 C.F.R. § 35.130(b)(1)(i); b. affording Plaintiffs and Ms. Rogers’s parents the opportunity to participate in or benefit from an aid, benefit, or service that is not equal to that afforded others, see id. § 35.130(b)(1)(ii);
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c. providing Plaintiffs and Ms. Rogers’s parents with aids, benefits, and services that are 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, see id. § 35.130(b)(1)(iii);
d. using criteria and methods of administration that have the effect of subjecting Plaintiffs and Ms. Rogers’s parents to discrimination on the basis of disability, see id. § 35.130(b)(3)(i);
e. using criteria and methods of administration have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of CDOC’s program with respect to Plaintiffs and Ms. Rogers’s parents, see id. § 35.130(b)(3)(ii);
f. failing to make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination against Plaintiffs and Ms. Rogers’s parents on the basis of disability, see id. § 35.130(b)(7);
g. failing to ensure that communications with Plaintiffs and Ms. Rogers’s parents are as effective as communications with others, see id. § 35.160(a)(1);
h. failing to furnish appropriate auxiliary aids and services where necessary to afford Plaintiffs and Ms. Rogers’s parents an equal opportunity to participate in, and enjoy the benefits of, CDOC’s services, programs, or activities, see id. § 35.160(b)(1); and/or
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i. failing to give primary consideration to the requests of Plaintiffs and Ms. Rogers’s parents concerning the types of auxiliary aids and services necessary, see id. § 35.160(b)(2).
86. Plaintiffs and Ms. Rogers’s parents are qualified to participate in CDOC services, programs, and activities within the meaning of Title II.
87. Defendant CDOC’s actions described in this Third Amended Complaint were intentional and/or were taken with deliberate indifference to the strong likelihood that pursuit of its questioned policies would likely result in a violation of the Title II rights of Plaintiffs and Ms. Rogers’s parents.
88. As a direct and proximate result of Defendant CDOC’s acts, omissions, and violations alleged above, Plaintiffs have suffered damages as more fully described above.
89. Plaintiffs have been injured and aggrieved by and will continue to be injured and aggrieved by Defendant CDOC’s discrimination against Plaintiffs and Ms. Rogers’s parents.
90. Defendant CDOC’s actions that violate Title II also violate the First Amendment to the United States Constitution.
THRID CLAIM FOR RELIEF: VIOLATION OF SECTION 504 OF THE REHABILITATION ACT
49 U.S.C. § 794 (against Defendant CDOC) 91. Plaintiffs incorporate the allegations set forth in the remainder of this Third Amended Complaint as if fully set forth herein. 92. Section 504 prohibits discrimination on the basis of disability by recipients of federal financial assistance. 29 U.S.C. § 794.
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93. Defendant CDOC receives federal financial assistance as that term is used in Section 504.
94. Because they are deaf and are prisoners at DWCF, Plaintiffs Begano, Vessey, and Saugause are qualified individuals with disabilities within the meaning of Section 504. 29 U.S.C. § 705(9) (incorporating by reference 42 U.S.C. § 12102).
95. Because they are deaf and are parents of an inmate at DWCF, Ms. Rogers’s parents are qualified individuals with disabilities within the meaning of Section 504. 29 U.S.C. § 705(9) (incorporating by reference 42 U.S.C. § 12102).
96. Defendant CDOC excluded Plaintiffs and Ms. Rogers’s parents from participation in and/or denied them the benefits of it programs and/or activities and/or subjected them to discrimination on the basis of disability and, in the case of Ms. Rogers, on the basis of her relationship or association with her deaf parents, in violation of Section 504 and its implementing regulations as more fully described in this Third Amended Complaint.
97. Such discrimination includes but is not limited to: a. denying Plaintiffs and Ms. Rogers’s parents the opportunity to participate in CDOC’s programs and activities, see 28 C.F.R. § 42.503(b)(1)(i); b. denying Plaintiffs and Ms. Rogers’s parents an equal opportunity to achieve the same benefits that others achieve in CDOC’s programs and activities, id. § 42.503(b)(1)(ii); c. using criteria or methods of administration that either purposely or in effect discriminate on the basis of disability or defeat or substantially impair
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accomplishment of the objectives of CDOC’s programs or activities with respect Plaintiffs and Ms. Rogers’s parents; id. § 42.503(b)(3); d. failing to provide appropriate auxiliary aids to Plaintiffs and Ms. Rogers’s parents, there by discriminatorily impairing or excluding them from participation in CDOC’s programs and activities, see id. § 42.503(f); and/or e. failing to provide reasonable accommodations to Plaintiffs and Ms. Rogers’s parents as necessary to ensure that they have meaningful access to CDOC’s programs, activities, or benefits, see Alexander v. Choate, 469 U.S. 287, 301 (1985). 98. Plaintiffs and Ms. Rogers’s parents are qualified to participate in CDOC services, programs, and activities within the meaning of Section 504. 99. Defendant CDOC’s actions described in this Third Amended Complaint were intentional and/or were taken with deliberate indifference to the strong likelihood that pursuit of its questioned policies would likely result in a violation of the Section 504 rights of Plaintiffs and Ms. Rogers’s parents. 100. As a direct and proximate result of Defendant CDOC’s acts, omissions, and violations alleged above, Plaintiffs have suffered damages, as more fully described above. 101. Plaintiffs have been injured and aggrieved by and will continue to be injured and aggrieved by Defendant CDOC’s discrimination against Plaintiffs and Ms. Rogers’s parents. 102. Defendant CDOC’s actions that violate Section 504 also violate the First Amendment to the United States Constitution.
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WHEREFORE, Plaintiff respectfully requests: 1. That this Court assume jurisdiction; 2. That this Court declare the actions of all Defendants described in this Third
Amended Complaint to be in violation of the First Amendment to the United States Constitution (and therefore 42 U.S.C. § 1983), and the actions of Defendant CDOC to be in violation of Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act;
3. That this Court enter an injunction ordering Defendants to cease violating Plaintiffs’ rights under the First Amendment, Title II, and Section 504, and to cease discriminating against them and against Ms. Rogers’s parents on the basis of disability;
4. That this Court award Plaintiffs compensatory damages pursuant to Title II, and Section 504;
5. That this Court award Plaintiffs and/or their attorneys their reasonable attorneys’ fees and costs; and
6. That this Court award such additional or alternative relief as may be just, proper, and equitable.
Respectfully submitted, s/ Amy F. Robertson Amy F. Robertson Civil Rights Education and Enforcement Center 104 Broadway, Suite 400 Denver, CO 80203 303.757.7901 arobertson@creeclaw.org Attorney for Plaintiffs Dated: June 15, 2017
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CERTIFICATE OF SERVICE I hereby certify that on June 15, 2017 I electronically filed the foregoing document with the Clerk of Court using the CM/ECF system, which will provide electronic service to the following: Chris Alber Chris.Alber@coag.gov Counsel for Defendant
/s/ Jean Peterson Jean Peterson, Paralegal Civil Rights Education and Enforcement Center
20

 
 Case 1:16-cv-02733-STV-NRN Document 115 Filed 01/17/19 USDC Colorado Page 1 of 14
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Consolidated Civil Action No. 16-cv-02733-STV BIONCA CHARMAINE ROGERS, CATHY BEGANO, ANDREW ATKINS, and MARC TREVITHICK,
Plaintiffs, v. COLORADO DEPARTMENT OF CORRECTIONS, RICK RAEMISCH, in his official capacity, RYAN LONG, in his official capacity, and MIKE ROMERO, in his official capacity,
Defendants.
Consolidated Civil Action No. 18-cv-02926-STV LEONID RABINKOV, CATHY BEGANO, ANDREW ATKINS, and MARC TREVITHICK, on behalf of themselves and others similarly situated,
Plaintiffs, v. COLORADO DEPARTMENT OF CORRECTIONS,
Defendant.
AMENDED COMPLAINT IN CASE NO. 18-cv-02926-STV
Plaintiffs Leonid Rabinkov, Cathy Begano, Andrew Atkins, and Marc Trevithick, on behalf of themselves and others similarly situated, bring this Amended Complaint against the Colorado Department of Corrections (“CDOC”) for violations of Title II of the Americans with

Case 1:16-cv-02733-STV-NRN Document 115 Filed 01/17/19 USDC Colorado Page 2 of 14
Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq., and Section 504 of the Rehabilitation Act (“Section 504”), 29 U.S.C. § 794, for failure to provide videophones in CDOC facilities.
JURISDICTION AND VENUE 1. This action arises under the laws of the United States. Jurisdiction is conferred upon this court pursuant to 28 U.S.C. §§ 1331 and 1343. 2. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b)(2), as all of the events giving rise to the claims occurred in the District of Colorado.
PARTIES 3. Plaintiff Leonid Rabinkov is a prisoner in the custody of CDOC housed at the Colorado Territorial Correctional Facility (“CTCF”) in Cañon City, Colorado. 4. Mr. Rabinkov is deaf, and as such is a qualified individual with a disability as that term is used in Title II and Section 504. 5. Mr. Rabinkov was born deaf and ASL is his primary language. 6. Plaintiff Begano is a prisoner in the custody of CDOC housed at the Denver Women’s Correctional Facility (“DWCF”) in Denver, Colorado. 7. Ms. Begano is deaf, and as such is a qualified individual with a disability as that term is used in Title II and Section 504. 8. Ms. Begano has been deaf since she was a young child and ASL is her primary language. 9. Plaintiff Andrew Atkins is a prisoner in the custody of CDOC housed at CTCF. 10. Mr. Atkins is deaf, and as such is a qualified individual with a disability as that term is used in Title II and Section 504.
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11. Mr. Atkins was born deaf and ASL is his primary language. 12. Plaintiff Marc Trevithick is a prisoner in the custody of CDOC housed at CTCF. 13. Mr. Trevithick is deaf, and as such is a qualified individual with a disability as that term is used in Title II and Section 504. 14. Mr. Trevithick has been deaf since he was a young child and ASL is his primary language. 15. Defendant Colorado Department of Corrections (“CDOC”) is a department of the State of Colorado. CDOC has custody of Plaintiffs. 16. CDOC receives federal financial assistance as that term is used in Section 504.
FACTS 17. ASL is a visual language. It is “a complete, complex language that employs signs made by moving the hands combined with facial expressions and postures of the body.” For example, “English speakers ask a question by raising the pitch of their voice; ASL users ask a question by raising their eyebrows, widening their eyes, and tilting their bodies forward.” https://www.nidcd.nih.gov/health/american-sign-language 18. ASL is not just English in gestures. It has grammar and syntax that are completely different from English. When deaf people are raised using ASL as their first or primary language, written English is a foreign language, which is often acquired incompletely and imperfectly. 19. English is not the native language of any of the Plaintiffs; communicating in written English is awkward, time-consuming, and incomplete for them. They are not able to fully express themselves in written English or converse about the range of subjects they can in ASL.
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20. Because deaf people cannot use a conventional telephone, technology has developed to permit them to communicate at a distance.
21. The earliest such technology, the teletypewriter or TTY, was invented in approximately 1964. It involved placing a standard telephone handset into an “acoustic coupler” connected to a teleprinter machine. Over time, the device evolved into a single piece of equipment that included a QWERTY keyboard and was connected to a phone jack.
22. A TTY requires that individuals at both ends of the communication have specific TTY equipment.
23. In a TTY communication, each participant types out his or her side of the conversation, then waits while the other person types back.
24. As such, it is a more cumbersome form of communication than a telephone conversation between hearing people.
25. For the same reason, it is a more cumbersome form of communication than a videophone conversation between deaf people or a deaf person and a hearing person who knows ASL.
26. Current TTY equipment is becoming antiquated, requires frequent maintenance from sources that are not familiar or trained on the use/repair of a TTY and creates unfair delays for offenders due to the limited number of TTY machines department wide when equipment is down. CDOC/Rogers 002132.
27. The average literacy level of the American deaf Community is at the fourth-grade reading level.
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28. It is fairly common for people who are born deaf to be less than fluent in written English. Deposition of Janet Smith 35:6-10.
29. It is more and more common for deaf people to use videophones rather than TTYs.
30. Facial expressions, head tilts and nods, and eyebrow raises are important elements that encode the grammar of ASL. These linguistic elements are not found in English nor can they be conveyed in written notes or in a TTY text conversation.
31. As the name suggests, a videophone has a camera and a screen and transmits a video signal, permitting deaf people to see each other and communicate directly with one another in ASL.
32. Videophones let an inmate for whom ASL is their native language speak in their native language with people who have videophones or who are hearing. Deposition of Adrienne Jacobson 18:1-11.
33. When a deaf person uses a TTY to communicate with a hearing person, they use TTY relay.
34. With TTY relay, the deaf person types into the TTY, and a relay operator reads the text to the hearing person. When the hearing person speaks, the relay operator types their words back to the deaf person.
35. When a deaf person uses a videophone to communicate with a hearing person, they use video relay service (“VRS”).
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36. With VRS, the deaf person signs into the videophone, and a VRS operator interprets the message to the hearing person. When the hearing person speaks, the VRS operator signs the message back to the deaf person.
37. If deaf prisoners want to contact another deaf person outside the facility, it is most likely these days that the called party will have a videophone, not a TTY.
38. When a deaf prisoner uses a TTY to call a deaf person who has a videophone, it goes through a three-step process. The deaf prisoner types the message into the TTY, a TTY relay operator speaks it to a VRS operator; and the VRS operator signs it in ASL to the called party. When the deaf called party signs his or her response, this process is reversed: they sign their response to the VRS operator, who speaks it to the TTY relay operator, who types it to the deaf prisoner.
39. This process thus adds two intermediaries to a conversation between two people and can cause additional delays and miscommunication.
40. CDOC permits prisoners to make phone calls to individuals who are on their phone list. Administrative Regulation (“AR”) 850-12 ¶ IV(B)(1).
41. Hearing prisoners who wish to contact hearing family members are permitted to walk up to the phones at any time they are available and place a call, provided they have paid for the time (or are calling collect) and are calling someone on their phone list.
42. AR 850-12 provides that “[o]ffenders with hearing and/or speech disabilities, and offenders who wish to communicate with parties who have such disabilities, are afforded access to a [TTY] or comparable equipment.” Id. ¶ IV(A)(4).
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43. Plaintiffs have attempted to use TTYs in CDOC facilities on a number of occasions. The people with whom they communicate include both hearing and deaf individuals. Since they have been in the custody of CDOC, Plaintiffs have not been able to communicate effectively telephonically with friends and family. They have has lost contact with friends and family members due to the lack of effective communication.
44. When Plaintiffs use the TTY, it regularly freezes or disconnects and its keys are extremely sensitive, causing typographical errors. When the TTY is broken, it often takes the CDOC an unreasonable time to fix it. Occasionally, Plaintiffs have specific dates or times that they have scheduled to call their family and friends, but when they get to the TTY, it is broken. This has led to strained relationships between friends and family.
45. The policy limiting Plaintiffs to communicating through a TTY essentially limits them to writing letters -- some on paper, some on the TTY -- while prisoners with hearing family are permitted two different modes of communication: letters; and the more direct and intimate communication of a phone call.
46. Plaintiffs are not able to communicate effectively telephonically with friends and family. This has caused and continues to cause Plaintiffs emotional and psychological distress, inconvenience, frustration, depression, and heartache.
47. Provision of videophones is necessary to provide equivalent and effective telephonic services to deaf inmates who are able to communicate in ASL, regardless of level of intelligible speech or level of literacy.
48. The only way for Plaintiffs to have an equal opportunity to participate in and enjoy the benefits of CDOC’s telecommunications services and programs is to use a videophone.
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49. Using a TTY is not as effective as the conventional telephone is for hearing prisoners.
50. All of the Plaintiffs have repeatedly requested that they be provided access to videophone service to make calls to individuals outside their respective facilities.
51. Many facilities around the country, including the El Paso County and the Denver County Jail, provide videophones for deaf and hard of hearing inmates.
52. Defendant’s actions in refusing to provide a videophone to Plaintiffs are and have been intentional and/or constituted deliberate indifference to the strong likelihood that pursuit of this policy will likely result in a violation of Plaintiffs’ federally protected rights. Plaintiffs have alerted Defendants to the need for a videophone and that need is obvious. Defendants have knowingly and intentionally refused to provide the requested videophone.
FIRST CLAIM FOR RELIEF: VIOLATION OF TITLE II OF THE AMERICANS WITH DISABILITIES ACT
42 U.S.C. § 12131 et seq. 53. Plaintiffs incorporate the allegations set forth in the remainder of this Amended Complaint as if fully set forth herein. 54. Title II prohibits public entities such as Defendant CDOC from excluding individuals with disabilities from participation in or denying them the benefits of their services, programs or activities, or otherwise subjecting such individuals to discrimination. 42 U.S.C. § 12132. 55. Because they are deaf and are prisoners in the custody of the CDOC, Plaintiffs are qualified individuals with disabilities within the meaning of the Americans with Disabilities Act. 42 U.S.C. § 12102.
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56. Defendant CDOC excluded Plaintiffs from participation in and/or denied them the benefits of it services, programs, and/or activities and/or subjected them to discrimination on the basis of disability, in violation of Title II and its implementing regulations as more fully described in this Amended Complaint.
57. Such discrimination includes but is not limited to: a. denying Plaintiffs the opportunity to participate in or benefit from an aid, benefit, or service, 28 C.F.R. § 35.130(b)(1)(i); b. affording Plaintiffs the opportunity to participate in or benefit from an aid, benefit, or service that is not equal to that afforded others, see id. § 35.130(b)(1)(ii); c. providing Plaintiffs with aids, benefits, and services that are 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, see id. § 35.130(b)(1)(iii); d. using criteria and methods of administration that have the effect of subjecting Plaintiffs to discrimination on the basis of disability, see id. § 35.130(b)(3)(i); e. using criteria and methods of administration have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of CDOC’s program with respect to Plaintiffs, see id. § 35.130(b)(3)(ii); f. failing to make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination against Plaintiffs on the basis of disability, see id. § 35.130(b)(7);
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g. failing to ensure that communications with Plaintiffs are as effective as communications with others, see id. § 35.160(a)(1);
h. failing to furnish appropriate auxiliary aids and services where necessary to afford Plaintiffs an equal opportunity to participate in, and enjoy the benefits of, CDOC’s services, programs, or activities, see id. § 35.160(b)(1); and/or
i. failing to give primary consideration to the requests of Plaintiffs concerning the types of auxiliary aids and services necessary, see id. § 35.160(b)(2).
58. Plaintiffs are qualified to participate in CDOC services, programs, and activities within the meaning of Title II.
59. Defendant CDOC’s actions described in this Amended Complaint were intentional and/or were taken with deliberate indifference to the strong likelihood that pursuit of its questioned policies would likely result in a violation of Plaintiffs’ rights under Title II.
60. As a direct and proximate result of Defendant CDOC’s acts, omissions, and violations alleged above, Plaintiffs have suffered damages as more fully described above.
61. Plaintiffs have been injured and aggrieved by and will continue to be injured and aggrieved by Defendant CDOC’s discrimination against them.
SECOND CLAIM FOR RELIEF: VIOLATION OF SECTION 504 OF THE REHABILITATION ACT
49 U.S.C. § 794 62. Plaintiffs incorporate the allegations set forth in the remainder of this Amended Complaint as if fully set forth herein. 63. Section 504 prohibits discrimination on the basis of disability by recipients of federal financial assistance. 29 U.S.C. § 794.
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64. Defendant CDOC receives federal financial assistance as that term is used in Section 504.
65. Because they are deaf and are prisoners in the custody of the CDOC, Plaintiffs are qualified individuals with disabilities within the meaning of Section 504. 29 U.S.C. § 705(9) (incorporating by reference 42 U.S.C. § 12102).
66. Defendant CDOC excluded Plaintiffs from participation in and/or denied them the benefits of it programs and/or activities and/or subjected them to discrimination on the basis of disability in violation of Section 504 and its implementing regulations as more fully described in this Amended Complaint.
67. Such discrimination includes but is not limited to: a. denying Plaintiffs the opportunity to participate in CDOC’s programs and activities, see 28 C.F.R. § 42.503(b)(1)(i); b. denying Plaintiffs an equal opportunity to achieve the same benefits that others achieve in CDOC’s programs and activities, id. § 42.503(b)(1)(ii); c. using criteria or methods of administration that either purposely or in effect discriminate on the basis of disability or defeat or substantially impair accomplishment of the objectives of CDOC’s programs or activities with respect Plaintiffs; id. § 42.503(b)(3); d. failing to provide appropriate auxiliary aids to Plaintiffs, thereby discriminatorily impairing or excluding them from participation in CDOC’s programs and activities, see id. § 42.503(f); and/or
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e. failing to provide reasonable accommodations to Plaintiffs as necessary to ensure that they have meaningful access to CDOC’s programs, activities, or benefits, see Alexander v. Choate, 469 U.S. 287, 301 (1985).
68. Plaintiffs are qualified to participate in CDOC services, programs, and activities within the meaning of Section 504.
69. Defendant CDOC’s actions described in this Amended Complaint were intentional and/or were taken with deliberate indifference to the strong likelihood that pursuit of its questioned policies would likely result in a violation of Plaintiffs’ rights under Section 504.
70. As a direct and proximate result of Defendant CDOC’s acts, omissions, and violations alleged above, Plaintiffs have suffered damages, as more fully described above.
71. Plaintiffs have been injured and aggrieved by and will continue to be injured and aggrieved by Defendant CDOC’s discrimination against them. WHEREFORE, Plaintiff respectfully requests:
1. That this Court assume jurisdiction; 2. That this Court declare Defendant’s actions described herein to be in violation of Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act; 3. That this Court enter an injunction ordering Defendant to cease violating the rights of Plaintiffs under Title II and Section 504, and to cease discriminating against them by, among other things, providing videophone service to deaf prisoners and implementing policies to ensure access to such videophones; 4. That this Court award Plaintiffs compensatory damages pursuant to Section 504;
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5. That this Court award Plaintiffs and/or their attorneys their reasonable attorneys’ fees and costs; and
6. That this Court award such additional or alternative relief as may be just, proper, and equitable. Respectfully submitted, s/ Amy F. Robertson Amy F. Robertson Timothy P. Fox Civil Rights Education and Enforcement Center 104 Broadway, Suite 400 Denver, CO 80203 303.757.7901 arobertson@creeclaw.org Attorneys for Plaintiffs Dated: January 17, 2019
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CERTIFICATE OF SERVICE
I hereby certify that on January 17, 2018 I electronically filed the foregoing document and its attachments with the Clerk of Court using the CM/ECF system, which will provide electronic service to the following:

Chris Alber Chris.Alber@coag.gov
Kathleen Spalding Kit.Spalding@coag.gov
Counsel for Defendants

/s/Jean Peterson Jean Peterson, Paralegal

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 Case 1:16-cv-02733-STV-NRN Document 158 Filed 09/18/19 USDC Colorado Page 1 of 48
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Consolidated Civil Action No. 16-cv-02733-STV
BIONCA CHARMAINE ROGERS, CATHY BEGANO, ANDREW ATKINS, and MARK TREVITHICK,
Plaintiffs,
v.
COLORADO DEPARTMENT OF CORRECTIONS, RICK RAEMISCH, RYAN LONG, and MIKE ROMERO,
Defendants. ______________________________________________________________________ Consolidated Civil Action No. 1:18-cv-02926-STV
LEONID RABINKOV, CATHY BEGANO, ANDREW ATKINS, MARC TREVITHICK, on behalf of themselves and others similarly situated,
Plaintiffs, v.
COLORADO DEPARTMENT OF CORRECTIONS,
Defendant. ______________________________________________________________________
ORDER ______________________________________________________________________
Magistrate Judge Scott T. Varholak
This matter comes before the Court on three motions: (1) Defendants’ Motion to
Dismiss as Moot (the “Motion to Dismiss”) [#143]; (2) Plaintiff Marc Trevithick’s Motion for

Case 1:16-cv-02733-STV-NRN Document 158 Filed 09/18/19 USDC Colorado Page 2 of 48 Partial Summary Judgment (“Motion for PSJ”) [#117]; and (3) Defendants’ Motion for Summary Judgment (“Motion for Summary Judgment”) [#133] (collectively, the “Motions”). The Motions are before the Court on the parties’ consent to have a United States magistrate judge conduct all proceedings in this action and to order the entry of a final judgment. [##30, 31, 51] The Court held oral argument on the Motions on July 26, 2019 [##151, 157] and has carefully considered the Motions and related briefing, the entire case file, and the applicable case law. For the following reasons, the Motion to Dismiss [#143] is DENIED, Trevithick’s Motion for PSJ [#117] is GRANTED, and Defendant’s MSJ [#133] is GRANTED IN PART and DENIED IN PART.
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I. BACKGROUND1
Plaintiffs are inmates incarcerated by Defendant Colorado Department of
Corrections (“CDOC”). [#141-1, DSOF1] Plaintiffs Bionca Charmaine Rogers and Cathy
Begano are housed at the Denver Women’s Correctional Facility (“DWCF”) and Plaintiffs
Leonid Rabinkov, Andrew Atkins, and Marc Trevithick are housed at the Colorado
Territorial Correctional Facility (“CTCF”). [Id. at PSOF1-2] Plaintiff Rabinkov also often
1 For simplicity, and because the pending Motions are interrelated, in this section the Court refers to both its findings of jurisdictional fact for the purposes of the Motion to Dismiss, as well as the undisputed facts from the Motions for Summary Judgment. See, e.g., Sauceda v. Dailey, No. 97-2278-JWL, 1998 WL 422811, at *2 n.2 (D. Kan. June 12, 1998).
When the moving party challenges the facts providing the basis for the Court’s subject matter jurisdiction, the Court may not presume the truthfulness of the complaint’s allegations. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). As a result, the Court must make its own findings of fact. Id. Plaintiffs have the burden of establishing subject matter jurisdiction because they are asserting jurisdiction. Port City Props. v. Union Pac. R.R. Co., 518 F.3d 1186, 1189 (10th Cir. 2008). In order to make findings addressing disputed jurisdictional facts, the Court “has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing.” Holt, 46 F.3d at 1003. But relying on evidence outside the pleadings does not convert a motion to dismiss pursuant to Rule 12(b)(1) into a motion for summary judgment. Id. Regardless, because the Motion to Dismiss overlaps in part with issues raised in Defendants’ Motion for Summary Judgment, and because the parties have had ample opportunity to address the materials submitted in support of all the pending motions, whether or not the Court converts the Motion to Dismiss to a motion for summary judgment would not impact the analysis. See, e.g., Elm Ridge Expl. Co., LLC v. Engle, 721 F.3d 1199, 1212 n.6 (10th Cir. 2013).
The undisputed facts are drawn from the Separate Statement of Facts filed with Defendants’ Motion for Summary Judgment (“Defendants’ Statement of Facts”) [#141-1 at 1-8], and Plaintiffs’ Statement of Additional Material Facts (“Plaintiffs’ Statement of Facts”) [id. at 9-34], attached to and submitted in response to Defendants’ Statement of Facts. The Court refers to the sequentially numbered facts set forth in Defendants’ Statement of Facts as “DSOF#,” and the facts set forth in Plaintiffs’ Statement of Facts as “PSOF#.” Because Plaintiffs’ Statement of Facts is largely identical to the Separate Statement of Facts filed with Trevithick’s Motion for PSJ (“Trevithick’s Statement of Facts”) [#124 at 12-30], the Court only refers to Trevithick’s Statement of Facts (“TSOF”) to the extent that Plaintiff Trevithick presents facts unique to him and to his Motion for PSJ. The Court occasionally cites directly to the exhibits or other filings cited by the parties to provide additional context.
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goes to the Denver Reception and Diagnostic Center (“DRDC”) for medical appointments. [Id. at PSOF3] Plaintiffs Rabinkov, Begano, Atkins, and Trevithick (the “Deaf Plaintiffs”), are all deaf and use American Sign Language (“ASL”) as their primary language and preferred mode of communication. [Id. at PSOF4-5] The Deaf Plaintiffs are thus individuals with disabilities as that term is used in the ADA and Rehabilitation Act. [Id. at PSOF4] Plaintiff Rogers is able to hear, but her mother is deaf, and Plaintiff communicates with her mother using ASL. [Id. at PSOF4-6]
Videophones are telephones with a high-definition video display, capable of twoway interactive video and audio, for communication between individuals in real time over the internet. [Id. at PSOF7] Videophones enable individuals to communicate through ASL. [Id. at PSOF8] Global Tel*Link, the company that supplied videophones for a CDOC pilot program, provides videophone service to approximately 30 departments of corrections. [Id. at PSOF45, 81] While Plaintiffs Rogers and Begano were able to use videophones when they were detained in city and county facilities, the CDOC has repeatedly denied requests by Plaintiffs to use videophones to make calls to individuals outside CDOC facilities. [Id. at PSOF9, 44]
Instead, until recently, deaf inmates in CDOC facilities, or inmates who wish to communicate with parties with hearing or speech disabilities, are afforded access to a teletypewriter (“TTY”), or comparable equipment, which allows communication through use of typed text messages. [Id. at DSOF29-30] In a TTY communication, both parties type and read responses using a teletypewriter device, and their typed conversation is transmitted back and forth across the standard telephone network through an operator. [Id. at DSOF30, PSOF17-18] Because very few deaf people use TTYs, a three-step
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process is required when a deaf CDOC inmate uses TTY to contact another deaf person outside the facility without a TTY: the deaf inmates types a message into the TTY; the TTY operator speaks the message to a video relay service (“VRS”) operator; and the VRS operator signs the message to the recipient’s videophone. [Id. at PSOF23] When the deaf recipient responds, the three-step process is repeated in reverse. [Id.] Plaintiffs Rogers, Trevithick, and Atkins have had to use this process, which has caused misunderstandings and mistranslations. [Id. at PSOF23-24] And CDOC’s TTYs often freeze in the middle of calls, or produce garbled text or nonsense characters.2 [Id. at PSOF29-30; #124, TSOF24] Plaintiff Rabinkov has not been able to communicate through TTY with his friends who use Russian Sign Language. [#141-1, POSF25] Plaintiff Rogers has had difficulty communicating effectively with her mother, the guardian for her children, including discussing sensitive family matters. [Id. at PSOF37, 42]
In addition to causing misunderstandings, TTY technology is 60 years old, causes delays because of the necessary relay through typing and sometimes an operator, and requires deaf inmates to communicate in English. [Id. at PSOF17, 23, 27] ASL is neither a manual form nor a derivative form of English, the grammatical and syntactic structure between ASL and English is fundamentally different, and English is not the native language of the Deaf Plaintiffs or Plaintiff Rogers’ mother. [Id. at PSOF 4, 13-14] In contrast, videophones allow deaf people to communicate using ASL, use visual indicators such as facial expressions, head tilts and nods, and eyebrow raises, which encode the grammar of ASL and also enable the conveying of emotion, mood, tone, and affect in real
2 While Defendants’ deny this factual assertion, the exhibits cited by Defendants lend support to Plaintiffs’ statement of fact. [See, e.g., #133-5]
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time. [Id. at PSOF7, 27, 32-33] When the Deaf Plaintiffs are able to communicate in ASL, they can express and understand a full range of meaning and emotion, and engage in fluent, complete, and meaningful communication. [Id. at PSOF36]
CDOC investigated the possibility of offering videophone services as early as 2007, but ultimately did not. [Id. at PSOF73] In a December 2013 Project Request Form, Keith Nordell, who was CDOC’s highest ranking attorney at the time, stated that “current TTY equipment is becoming antiquated, requires frequent maintenance from sources that are not familiar or trained on the use/repair of a TTY and creates unfair delays for offenders due to the limited number of TTY machines department wide when equipment is down.” [Id. at PSOF20] Between 2013 and 2016, CDOC again evaluated videophone technology and considered implementing a pilot program to provide videophones to deaf inmates at CTCF. [Id. at PSOF74] Videophone units were installed at CTCF in 2015, but Adrienne Jacobson, Associate Director of Legal Services for the CDOC, had security concerns and ultimately decided not to move forward with videophone service. [Id. at PSOF75-76; #143-1 at ¶¶ 5-6] Specifically, Ms. Jacobson was concerned about the CDOC’s lack of processes to limit the phone numbers that offenders could call over the videophone, restrict the duration of videophone calls, or charge offenders for those calls. [#143-1 at ¶ 6] In July 2016, the videophone pilot program was approved for CTCF, but within hours of the launch, the CDOC pulled the plug. [#141-1, PSOF78-80] The videophone pilot project was put on hold several times over the course of 2016. [Id. at POSF80-82] As of May 2017, there were no plans to install videophones in CDOC facilities. [Id. at PSOF83]
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In January 2018, Janet Smith, an Americans with Disabilities Act (“ADA”) Inmate Coordinator Designee with CDOC Legal Services, sent an email stating, “I would like to get started as soon as possible on the video[]phone project as CTCF’s deaf population is being contacted by Attorney Amy Robertson. (The same attorney representing the deaf women in the pending lawsuit regarding lack of videophones).” [Id. at PSOF84; see also #143-2 at ¶ 2] Around the same time, in early 2018, Ms. Jacobson revisited the option of providing videophone service, and organized a committee of CDOC officials to address security concerns. [#143-1 at ¶ 10]
A videophone kiosk was installed at DWCF on December 11, 2018, and was available for use in one unit by December 22. [Id. at ¶ 12; see also #141-1, DSOF36, PSOF86-87] This marked the first time that CDOC provided deaf inmates with access to videophones. [#141-1, PSOF85] The unit has been used by inmates at DWCF ever since, including Plaintiffs Begano and Rogers, there have been no significant problems with the videophone unit, and DWCF staff have developed processes and procedures for inmates to use the unit. [Id. at DSOF37; #143-1 at ¶ 12]
Videophone units were later installed at CTCF, and on June 4, 2019, Ms. Smith visited that facility to observe videophone use. [#143-2 at ¶ 7; see also #143-1 at ¶ 13] The installation of two of the three videophones had been completed, those videophones were operational, and Ms. Smith assisted and observed inmates making calls. [#143-2 at ¶¶ 7-8] Plaintiffs Rabinkov, Atkins, and Trevithick are all housed in units where videophones are available. [Id. at ¶ 8] Offenders housed in units where the videophones have not been installed are permitted to use a videophone from a different unit. [Id.] The
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CDOC additionally plans to install one or more videophone units at the DRDC, and at other correctional facilities on an as-needed basis. [#143-1 at ¶ 13]
Ms. Jacobson indicates that it is CDOC’s intent to maintain the videophone units permanently, and that the CDOC has no intention of terminating the units or discontinuing the accessibility of the units for offender use. [Id.] While Ms. Smith states that CTCF is in the process of amending its implementation adjustments to incorporate use of videophones into the facility’s policy [#143-2 at ¶ 9], there are currently no administrative regulations or implementation adjustments that address videophones, and there is no CDOC videophone policy or draft policy [#141-1, PSOF100-01]. CDOC does not have a contract with the current vendor of its videophone services, and has not made any expenditures to install videophones. [Id. at PSOF102-04] CDOC canceled the previous videophone pilot program based on security concerns, and Ms. Jacobson continues to have similar concerns about the current system, including that it does not restrict the phone numbers prisoners can call. [Id. at PSOF105-06] Ms. Jacobson does not believe the ADA requires the CDOC to provide videophones to deaf and hard of hearing inmates, and the CDOC maintains that TTY is an effective form of communication for those individuals, sufficient to meet the CDOC’s obligations under the ADA and the Rehabilitation Act. [Id. at PSOF107-08] The parties dispute whether TTY units remain available for meaningful use in CDOC facilities. [Id. at PSOF113; #143-1 at ¶ 13]
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Plaintiffs collectively3 claim that Defendants have violated their rights under Title II of the ADA, Section 504 of the Rehabilitation Act, and the First Amendment.4 [#66 at 1319; #115 at 8-12] Plaintiffs seek injunctive and declaratory relief, and compensatory damages. [#66 at 20; #115 at 12] Specifically, Plaintiffs seek an injunction ordering Defendants to cease violating their rights under the First Amendment, the ADA, and the Rehabilitation Act, and to stop discriminating against them on the basis of disability. [Id.] In Civil Action No. 18-cv-02926-STV (“Rabinkov”), Plaintiffs explicitly ask that the CDOC be ordered to provide videophone services to deaf prisoners and to implement policies to ensure access to videophones. [#115 at 12]
In the Motion to Dismiss, Defendants argue that Plaintiffs’ claims are now moot because videophone technology has been made available to Plaintiffs. [#143] Plaintiffs have filed a response in opposition to the Motion to Dismiss [#147], Defendants have replied [#148], and both parties have filed supplemental briefs regarding the Motion to Dismiss and the other pending Motions [##152, 155].
Plaintiff Trevithick filed the Motion for PSJ on January 17, 2019, seeking summary judgment on his claims under Title II of the ADA and Section 504 of the Rehabilitation Act and arguing that it is undisputed that the CDOC does not provide videophone service to him, and the service that it does offer is ineffective and obsolete. [#117] The Motion for PSJ is fully briefed. [##120, 124] Finally, in Defendants’ Motion for Summary Judgment,
3 On December 20, 2018, this Court granted Plaintiffs’ Motion to Consolidate, consolidating Civil Action No. 18-cv-02926-STV (“Rabinkov”) with Civil Action No. 16-cv02733 (“Rogers”). [#103] 4 The First Amendment claim is asserted against Defendants CDOC, Rick Raemisch, Ryan Long, and Mike Romero in Rogers. [#66 at 13-14] Plaintiffs in both Rogers and Rabinkov allege that the CDOC has violated their rights under Title II of the ADA and Section 504 of the Rehabilitation Act. [Id. at 14-19; #115 at 8-12]
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Defendants contend that they are entitled to summary judgment on all of Plaintiffs’ claims. [#133 at 7-19] Plaintiffs have filed a response [#140] and Defendants have replied [#141]. The Court first addresses the Motion to Dismiss because the Court must first determine whether it has subject matter jurisdiction to adjudicate this matter. The Court then discusses the Motion for PSJ and the Motion for Summary Judgment (collectively, the “Motions for Summary Judgment”). II. MOTION TO DISMISS
The Court first considers whether the CDOC’s post-litigation efforts to provide videophone technology for deaf inmates moot Plaintiffs’ claims. In the Motion to Dismiss, Defendants argue that because the instant litigation is premised on Defendants’ failure to provide videophone access to Plaintiffs, the CDOC’s implementation of videophone technology moots Plaintiffs’ claims. [#143] More specifically, Defendants claim that as of December 22, 2018, a videophone unit has been available for use by offenders at the DWCF, which Plaintiffs Begano and Rogers have used. [Id. at 4-5] Defendants further note that Plaintiffs Rabinkov, Atkins, and Trevithick now have access to videophones in their units at CTCF. [Id. at 5] CDOC states that it intends to maintain videophone units permanently for use by deaf offenders [id. at 6] and argues that this Court accordingly lacks subject matter jurisdiction because the installation of videophones moots Plaintiffs’ claims [see generally #143].
A. Standard of Review Federal Rule of Civil Procedure 12(b)(1) empowers a court to dismiss a complaint for “lack of subject-matter jurisdiction.” Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff’s case, but only a determination that the court lacks authority
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to adjudicate the matter. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). A court lacking jurisdiction “must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).
The United States Constitution limits the jurisdiction of the federal courts to actual cases or controversies. U.S. Const. art. III, § 2, cl. 1. Mootness thus “is a threshold issue because the existence of a live case or controversy is a constitutional prerequisite to federal court jurisdiction.” McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996).
B. Mootness “A ‘suit becomes moot when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome.’” Brown v. Buhman, 822 F.3d 1151, 1165 (10th Cir. 2016) (quoting Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013)). “[T]he case is moot if the dispute is no longer embedded in any actual controversy about the plaintiffs’ particular legal rights.” Id. (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013)). “The crucial question is whether granting a present determination of the issues offered will have some effect in the real world.” Id. at 1165-66 (quoting Wyoming v. U.S. Dep’t of Agric., 414 F.3d 1207, 1212 (10th Cir. 2005)). “Put another way, a case becomes moot when a plaintiff no longer suffers actual injury that can be redressed by a favorable judicial decision.” Id. at 1166 (quoting Ind v. Colo. Dep’t of Corr., 801 F.3d 1209, 1213 (10th Cir. 2015)).
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“When prospective equitable relief is requested, the requesting party must show an ongoing, personal stake in the outcome of the controversy, a likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law.” Rezaq v. Nalley, 677 F.3d 1001, 1008 (10th Cir. 2012). “Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief.” Id. (quoting O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974)). In a declaratory relief action, “a plaintiff must be seeking more than a retrospective opinion that he was wrongly harmed by the defendant.” Id. (quoting Jordan v. Sosa, 654 F.3d 1012, 1025 (10th Cir. 2011)).
Courts recognize two “exceptions” to the mootness doctrine. See Brown, 822 F.3d at 1166. Of relevance to the instant litigation is the exception for “voluntary cessation” of the defendant’s conduct. See id.5 “Under this exception, ‘voluntary cessation of challenged conduct does not ordinarily render a case moot because a dismissal for mootness would permit a resumption of the challenged conduct as soon as the case is dismissed.’” Id. (quoting Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 307 (2012)). Courts “view voluntary cessation ‘with a critical eye,’ lest defendants manipulate jurisdiction to ‘insulate’ their conduct from judicial review.” Id. (quoting Knox, 567 U.S. at 307).
While viewed with a critical eye, voluntary cessation may moot a case “if the defendant carries ‘the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.’” Id. (quoting Already, 568 U.S. at 91). Voluntary actions will moot litigation if two conditions are satisfied: “(1) it can
5 The other exception involves disputes that are “capable of repetition, yet evading review.” Id.
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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 eradicated the effects of the alleged violation.” Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1115 (10th Cir. 2010) (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). “The party asserting mootness bears the heavy burden of persua[ding] the court that the challenged conduct cannot reasonably be expected to start up again.” Id. at 1116 (quotations omitted).
In practice, however, this “heavy burden frequently has not prevented governmental officials from discontinuing challenged practices and mooting a case.” Id. “[T]he withdrawal or alteration of administrative policies can moot an attack on those policies.” Id. at 1117 (quotations omitted). Indeed, “the ‘mere possibility’ that an agency might rescind amendments to its actions or regulations does not enliven a moot controversy.” Id. (quoting Ala. Hosp. Ass’n v. Beasley, 702 F.2d 955, 961 (11th Cir. 1983)). Rather, “[a] case cease[s] to be a live controversy if the possibility of recurrence of the challenged conduct is only a speculative contingency.” Id. (quotations omitted).
C. Analysis The Court concludes that this litigation is not moot. Defendants have not met their heavy burden of demonstrating that there is no reasonable expectation that the alleged violations will recur, for three reasons: (1) there is no CDOC policy ensuring access to videophones; (2) Defendants provided videophones at least partially in response to the
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instant litigation; and (3) Defendants continue to contend that videophones are not required by the ADA.6
In general, courts have held that if there is no barrier to defendants reverting to previous actions causing the alleged violations, including no official or binding policy in place, then a case is not moot. See, e.g., Hill v. Williams, No. 16-cv-02627-CMA, 2016 WL 8667798, at *7 (D. Colo. Nov. 4, 2016) (finding case challenging enforcement of state statute was not moot where prosecutors had indicated intent not to prosecute, “but there was no evidence that they ha[d] adopted a formal policy to that effect”); see also Freedom From Religion Found., Inc. v. Concord Cmty. Sch., 885 F.3d 1038, 1051 (7th Cir. 2018) (noting former holding that a “school failed to establish mootness because it did not adopt a policy formally prohibiting the use of churches for graduation”); McCormack v. Herzog, 788 F.3d 1017, 1025 (9th Cir. 2015) (“[W]hile a statutory change is usually enough to render a case moot, an executive action that is not governed by any clear or codified procedures cannot moot a claim.” (quotation omitted)); Ybanez v. Raemisch, No. 14-cv02704-PAB-MLC, 2018 WL 2994416, at *3 (D. Colo. June 14, 2018) (finding challenge to CDOC policy was not moot where “Defendants ha[d] not pointed to any legal or practical barrier to their reinstatement of the previous versions of the policy” (quotation omitted)).7
6 While the Court focuses on Plaintiffs’ requests for injunctive and declaratory relief, Defendants’ provision of videophones also does not moot Plaintiffs’ damages requests, as Defendants acknowledged at oral argument [#157 at 7:4-11]. See e.g., Brown v. Bhuman, 822 F.3d 1151, 1169 (10th Cir. 2016) (“Voluntary cessation cannot moot an action seeking damages because damages compensate a party for past conduct, not ongoing or future conduct.”). 7 Some courts have held that even implemented policy changes do not necessarily moot a case. See, e.g., Akers v. McGinnis, 352 F.3d 1030, 1035 (6th Cir. 2003) (“[A]s the promulgation of work rules appears to be solely within the discretion of the [Department of Corrections (“DOC”)], there is no guarantee that [the DOC] will not change back to its older, stricter Rule as soon as this action terminates.”); Sefick v. Gardner, 164 F.3d 370,
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On the other hand, in the ADA context, there is generally no reasonable expectation that a violation will occur when there are “changes that are permanent in nature and that foreclose a reasonable change of recurrence of the challenged conduct,” Tandy v. City of Wichita, 380 F.3d 1277, 1291 (10th Cir. 2004), including, for example, when the defendant has expended time and money to come into compliance with the ADA, Kelley v. Sparrer, No. 2:17-cv-00688, 2018 WL 2768660, at *3 (D. Utah June 8, 2018). See also White v. Lee, 227 F.3d 1214, 1242-43 (9th Cir. 2000) (finding a new policy mooted plaintiffs’ claims, where the policy was “entrenched” and “permanent,” because it was circulated by memorandum, announced by press release, incorporated into a federal agency field book, had been renewed on an annual basis, and directly addressed violations alleged by plaintiffs).
The Tenth Circuit recently found that a suit challenging the enforcement of a bigamy statute was mooted when the County Attorney’s office promulgated an official policy indicating that bigamy crimes would only be prosecuted if the person violating the statute was also engaged in some form of abuse, violence, or fraud. Brown v. Bhuman, 822 F.3d 1151, 1159 (10th Cir. 2016). The County Attorney himself indicated in a sworn affidavit that his office had concluded its investigations of plaintiffs, found that they were not engaged in any other prosecutable crimes related to bigamy, and that the case was closed and no charges would be filed, unless new evidence was discovered in line with
372 (7th Cir. 1998) (“[T]he current . . . policy, adopted after the commencement of this suit, is not implemented by statute or regulation and could be changed again, so this voluntary cessation of the challenged conduct does not eliminate the controversy.”); McBride v. Mich. Dep’t of Corr., 294 F. Supp. 3d 695, 720 (E.D. Mich. 2018) (“[I]n the context of prison litigation, courts are particularly suspicious of non-binding policy changes by correctional institutions party to the litigation.” (citing cases)).
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the new policy. Id. Therefore, the only way plaintiffs could have faced the prosecution they sought to enjoin would be for the County Attorney to reverse an official written policy in contravention of his sworn statement.
Here, in contrast, there is no CDOC policy, or even draft policy, addressing videophones, nor any administrative regulations or implementation adjustments that address or require videophones. [#141-1, PSOF100-01] The CDOC’s cancellation of the 2013-2016 videophone pilot program underscores this point. [Id. at PSOF74-76; #143-1 at ¶¶ 5-6] In short, there is no practical barrier to Defendants removing videophones from CDOC facilities. Nor is there any policy addressing solutions in the event of a videophone unit breaking or malfunctioning, or how promptly videophone service would be restored. The Court acknowledges Ms. Jacobson’s sworn statement that the CDOC intends to maintain the videophone units permanently. [#143-1 at ¶ 13] But that statement does not carry the same weight as the clearly definitive statement in Brown, because it is not backed by any policy, and because the removal of the videophones would not directly contradict Ms. Jacobson’s statement, as the CDOC’s intent could simply change. Cf. Brown, 822 F.3d at 1171, 1178 (weighing County Attorney’s statement in light of the policy change, the history of prior prosecutions, which indicated that the County Attorney’s position was not mere posturing, and the fact that acting in contravention to that statement would expose the county attorney to prosecution for perjury or contempt). Moreover, CDOC has not made the type of resources expenditures that would suggest that it would not remove the videophones. CDOC does not have a contract with the current vendor of its videophone services, has not made any expenditure to install videophones, and it
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costs nothing for the CDOC to provide videophone service at DWCF. [#141-1, PSOF10204]
Second, there is undisputed evidence that Defendants installed the videophones at the CDOC facilities at least in partial response to the instant litigation. In general, selfcorrection by a government entity “provides a secure foundation for mootness so long as it seems genuine.” Brown, 822 F.3d at 1167-68 (quotation omitted). But courts “are more likely to find that cessation moots a case when cessation is motivated by a defendant’s genuine change of heart rather than his desire to avoid liability.” Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1186 (11th Cir. 2007) (collecting cases); see also Heyer v. United States Bureau of Prisons, 849 F.3d 202, 220 (4th Cir. 2017) (holding sworn declaration of prison chaplain that accommodations for deaf prisoners would be provided could not “be viewed as a statement of current policy, but must instead be understood as a mid-litigation change of course”); McCormack, 788 F.3d at 1025 (“A presumption of good faith . . . cannot overcome a court’s wariness of applying mootness under ‘protestations of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is probability of resumption.’” (quoting United States v. W.T. Grant Co., 345 U.S. 629, 632 n.5 (1953))); McBride v. Mich. Dep’t of Corr., 294 F. Supp. 3d 695, 720 (E.D. Mich. 2018) (noting “greater skepticism is warranted where such remedial action ‘only appears to have occurred in response to the present litigation, which shows a greater likelihood that it could be resumed’” (quoting Northland Family Planning Clinic, Inc. v. Cox, 487 F.3d 323, 342-43 (6th Cir. 2007))).
Here, Janet Smith, an ADA Inmate Coordinator Designee with CDOC Legal Services, sent an email stating that she would like to implement the videophone project
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as soon as possible “as CTCF’s deaf population is being contacted by Attorney Amy Robertson. (The same attorney representing the deaf women in the pending lawsuit regarding lack of videophones).” [#141-1, PSOF84] Ms. Smith sent that email in January 2018 [see id.], approximately eight months after Attorney Robertson had entered her appearance on behalf of Plaintiff Rogers in Civil Action No. 16-cv-02733-STV (“Rogers”) [#29], and two months after Ms. Robertson had filed a complaint on behalf of Plaintiffs in Rabinkov [Civil Action No. 18-cv-02926-STV, #1]. Around the same time of the January 2018 email, Ms. Jacobson revisited the option of providing videophone services in CDOC facilities in early 2018. [#143-1 at ¶ 10] Accordingly, the Court has some reason to doubt that Defendants’ installation of videophones was entirely genuine, and finds that the change was motivated at least in part by the instant litigation.8 See Sheely, 505 F.3d at 1186 (finding case was not moot, in part because the timing of defendant’s new policy “came almost nine months into th[e] lawsuit, . . . and appears to have coincided with a change in counsel”).
Third, when a defendant continues to assert the validity of its actions, “a controversy between the parties over the legality of those actions remains.” Sheely, 505 F.3d at 1187; see also W.T. Grant, 345 U.S. at 632 (noting that the “public interest in having the legality of the practices settled[] militates against a mootness conclusion”); Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 43 (1944) (holding controversy remained where defendant “ha[d] consistently urged the validity of the [practice] and
8 The Court recognizes that the CDOC has considered implementing various types of technology to accommodate deaf inmates in the past [see, e.g., #143-1 at ¶¶ 5-10], but nevertheless, no programs have been actually or successfully implemented, and no videophones made available, until after the initiation of the instant litigation.
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would presumably be free to resume [it] were not some effective restraint made”); United States v. Gov’t of the Virgin Islands, 363 F.3d 276, 286 (3d Cir. 2004) (finding defendant’s continued defense of its position “does not bespeak of a genuine belief that the [allegedly unlawful behavior] was of a type that would not be contemplated again”). But see Brown, 822 F.3d at 1176 (declining to adopt holding that a prosecutor’s promise not to bring charges is credible only if he believes enforcement would be unconstitutional). The Tenth Circuit has explained that “the failure of a governmental agency to acknowledge the impropriety of its former, challenged course of conduct” is a relevant, though nondispositive, factor in the voluntary cessation analysis. Rio Grande Silvery Minnow, 601 F.3d at 1118 n.17. For example, this District held that claims the CDOC had violated the First Amendment by censoring inmate mail were not moot, in part because even though a new regulation had been implemented addressing the censorship, the CDOC “did not concede that the earlier regulation violated the plaintiffs’ First Amendment privileges,” and in light of “that position, there [wa]s nothing to assure that the officials responsible for the mail policy recognize[d] the need to consider” the inmates’ First Amendment rights. Young v. Raemisch, No. 13-cv-01744-RPM, 2015 WL 4607679, at *1 (D. Colo. Aug. 3, 2015); see also Hill, 2016 WL 8667798, at *7 (noting indicia of reluctant cessation counsel against a decision to moot a suit, and “interpret[ing] the Defendants’ steadfast commitment to the constitutionality of the underlying statute, in spite of their averments disclaiming prosecution, as evidence of reluctant cessation”).
Similarly here, Ms. Jacobson does not believe the ADA requires the CDOC to provide videophones to deaf and hard of hearing inmates, and the CDOC maintains that TTY is an effective form of communication, sufficient to meet the CDOC’s obligations
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under the ADA and the Rehabilitation Act. [#141-1, PSOF107-08] And, unlike Young and as discussed above, the CDOC does not even have a videophone policy in place. Moreover, the CDOC canceled the previous videophone pilot program based on perceived security risks, and Ms. Jacobson continues to have similar concerns about the current system, though the CDOC has determined how to work with those concerns. [Id. at PSOF105-06] See, e.g., Fulbright v. Jones, Nos. CIV-03-99-W, CIV-03-125-W, CIV03-1465-W, 2006 WL 222807, at *1 n.1 (W.D. Okla. Jan. 26, 2006) (finding case was not moot, despite change in DOC policy that required providing kosher diets to Orthodox Jewish inmates, and statement of DOC director that he intended to follow that policy, in light of the former infringing policy and the DOC’s history of resisting providing kosher diets). Cf. Brown, 822 F.3d at 1176 (noting the court’s finding that the case was moot was bolstered by the fact that the new prosecution policy was consistent with the County Attorney’s history and “longstanding de facto policy of non-prosecution”).
In light of the CDOC’s lack of any policy requiring videophones, the fact that the installation of the videophones corresponded with the instant litigation, the CDOC’s representations that it does not believe videophones are required by the ADA or the Rehabilitation Act, and its history of canceling videophone implementation based on security concerns that persist today, Defendants have not satisfied their heavy burden of showing that it is absolutely clear that their allegedly wrongful behavior could not reasonably be expected to recur. Because Defendants have not satisfied the first prong of the analysis, the Court need not determine whether “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Rio Grande
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Silvery Minnow, 601 F.3d at 1115. For the foregoing reasons, Defendants’ Motion to Dismiss as Moot [#143] is DENIED.
In their Motion for Summary Judgment [#133], Defendants also argue that they are entitled to summary judgment on Plaintiffs Rogers and Begano’s claims for injunctive relief because those claims are moot. [Id. at 18-19] As in their Motion to Dismiss, Defendants contend that because Plaintiffs Rogers and Begano were provided with videophones, any determination the Court could make as to whether TTY technology alone provides them with a reasonable means of communication would be without effect. For the same reasons the Court denies Defendants’ Motion to Dismiss, Defendants’ Motion for Summary Judgment [#133] is also DENIED to the extent it seeks summary judgment on the grounds that Plaintiffs Rogers and Begano’s claims for injunctive relief are moot.9 III. MOTIONS FOR SUMMARY JUDGMENT
The Court next turns to Defendants’ Motion for Summary Judgment [#133] and Plaintiff Trevithick’s Motion for PSJ [#117]. In the Motion for Summary Judgment, Defendants contend that they are entitled to summary judgment on all of Plaintiffs’ claims. [#133 at 7-19] Specifically, Defendants contend that Plaintiffs Begano, Atkins, and Trevithick failed to exhaust their administrative remedies [id. at 7-10], that summary judgment should be entered in favor of Defendants as to Plaintiffs’ claims asserted under the ADA and the Rehabilitation Act [id. at 12-16] and under the First Amendment [id. at 10-12], and that Plaintiffs are not entitled to compensatory damages [id. at 16-17]. In the
9 As discussed below, Plaintiff Begano’s claims nevertheless must be dismissed for the separate reason that Plaintiff Begano did not properly exhaust her administrative remedies.
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Motion for PSJ, Plaintiff Trevithick moves for summary judgment on his ADA and Rehabilitation Act claims, arguing that it is undisputed that the CDOC does not provide him with meaningful access to its inmate phone program. [See generally #117]
A. Standard of Review Summary judgment is appropriate only if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter–Chem Coal Co., 41 F.3d 567, 569 (10th Cir. 1994). Where, as here, the Court is presented with cross-motions for summary judgment, the Court “must view each motion separately, in the light most favorable to the non-moving party, and draw all reasonable inferences in that party’s favor.” United States v. Supreme Court of New Mexico, 839 F.3d 888, 907 (10th Cir. 2016) (internal quotations omitted). When the moving party bears the burden of persuasion at trial, “the moving party must establish, as a matter of law, all essential elements of the [claim on which summary judgment is sought] before the nonmoving party can be obligated to bring forward any specific facts alleged to rebut the movant’s case.” Pelt v. Utah, 539 F.3d 1271, 1280 (10th Cir. 2008). In other words, the moving party “must support its motion with credible evidence showing that, if uncontroverted, the moving party would be entitled to a directed verdict.” Rodell v. Objective Interface Sys., Inc., No. 14-CV-01667-MSK-MJW, 2015 WL 5728770, at *3 (D. Colo. Sept. 30, 2015) (citing Celotex Corp., 477 U.S. at 331). “The burden then shifts to the non-moving party to produce evidence demonstrating the existence of a genuine factual issue for trial.” Id.
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When the moving party does not bear the burden of persuasion at trial, the movant may satisfy its initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact “simply by pointing out to the court a lack of evidence . . . on an essential element of the nonmovant’s claim.” Adler v. Wal–Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir.1998). If the movant carries this initial burden, the burden then shifts to the nonmovant “to go beyond the pleadings and set forth specific facts that would be admissible in evidence in the event of trial.” Id. at 671 (quotation omitted).
“[A] ‘judge’s function’ at summary judgment is not ‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.’” Tolan v. Cotton, 572 U.S. 650, 656 (2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury. See Anderson, 477 U.S. at 248–49; Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000); Carey v. U.S. Postal Serv., 812 F.2d 621, 623 (10th Cir. 1987). A fact is “material” if it pertains to an element of a claim or defense; a factual dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a reasonable party could return a verdict for either party. Anderson, 477 U.S. at 248. “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
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B. Analysis First, the Court addresses the exhaustion argument raised in Defendants’ Motion for Summary Judgment, and also discussed in the briefing on Plaintiff Trevithick’s Motion for PSJ. [See #133 at 7-10; see also #120 at 3-6; #124 at 2-4] Second, the Court discusses whether Defendants or Plaintiff Trevithick are entitled to summary judgment on Plaintiffs’ ADA and Rehabilitation Act claims. [See #133 at 12-16; see generally #117] Third, the Court determines whether Defendants are entitled to summary judgment on Plaintiffs’ requests for compensatory damages. [See #133 at 16-17] Finally, the Court considers whether Defendants are entitled to summary judgment on Plaintiffs’ First Amendment claim. [See id. at 10-12] Where the motions for summary judgment overlap, the Court addresses the legal arguments together. See Azzun v. Kan. Dep’t of Health & Env’t, No. 09-4144-SAC, 2010 WL 4975557, at *1 (D. Kan. Dec. 2, 2010).
i. Exhaustion The Prison Litigation Reform Act of 1995 (“PLRA”) directs that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The exhaustion requirement is mandatory, see Ross v. Blake, 136 S. Ct. 1850, 1856 (2016), and applies to each plaintiff separately, McGoldrick v. Werholtz, 185 F. App’x 741, 744 (10th Cir. 2006). The PLRA’s mandatory exhaustion requirement, however, requires only the exhaustion of “available” remedies. See Ross, 136 S. Ct. at 1858-60; Little v. Jones, 607 F.3d 1245, 1250 (10th Cir. 2010). An administrative procedure is unavailable when “it operates as a simple dead end—with officers unable or consistently unwilling to
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provide any relief to aggrieved inmates.” Ross, 136 S. Ct. at 1859. Similarly, “an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use.” Id. Finally, an administrative remedy might be unavailable “when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1860.
Because exhaustion is an affirmative defense, Defendants “bear the burden of asserting and proving that the plaintiff did not utilize administrative remedies.” Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011). “Once a defendant proves that a plaintiff failed to exhaust, however, the onus falls on the plaintiff to show that remedies were unavailable to him.” Id.
In order to properly exhaust available administrative remedies, inmates must follow the grievance procedure set forth by the regulations of the facility in which they are housed. Jones v. Bock, 549 U.S. 199, 218 (2007). Under the CDOC’s procedures for administrative remedies, there is first an informal opportunity to engage in constructive dialogue. [#141-1, DSOF2-3] Thereafter, inmates must follow a formalized three-step grievance process set forth by Administrative Regulation (“AR”) 850-04. [Id. at DSOF4] AR 850-04 requires inmates to file a document known as a Step 1 grievance within 30 days of discovering the complaint, which must affect the offender personally. [Id. at DSOF5-6] A CDOC official then responds to the Step 1 grievance in writing. [Id. at DSOF5] Within five days of receiving that response, if the inmate is unsatisfied, the inmate must then file a Step 2 grievance. [Id. at DSOF7] If the inmate is still unsatisfied with the response to the Step 2 grievance, he or she then must proceed to file a Step 3 grievance within 5 days of receiving the written response to the Step 2 grievance. [Id. at
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DSOF8] The Step 3 grievance is the final step in the CDOC grievance process. [Id. at DSOF9]
Here, Defendants argue that because Plaintiffs Trevithick, Begano, and Atkins did not initiate or complete the administrative grievance process prior to the filing of Rogers, these Plaintiffs have failed to properly exhaust their claims and Defendants are thus entitled to summary judgment. [#133 at 10] While the Court agrees that the plain language of the PLRA requires exhaustion prior to the filing of a § 1983 action, 42 U.S.C. § 1997e(a), failure to properly exhaust requires dismissal without prejudice. See Gallagher v. Shelton, 587 F.3d 1063, 1068 (10th Cir. 2009). For that reason, dismissal of Plaintiffs’ claims in Rogers for failure to exhaust would have had no practical effect here. The Court concludes that dismissing Plaintiffs’ claims in Rogers without prejudice for failure to exhaust, only to allow Plaintiffs to proceed in Rabinkov, as they have already done, would be a waste of time and resources for both the parties and the Court at this juncture, and would serve little purpose other than the sake of formality. See Georgacarakos v. Wiley, No. 07-cv-01712-MSK-MEH, 2010 WL 1291833, at *23-*24 (D. Colo. Mar. 30, 2010) (finding that dismissing the suit and requiring plaintiff to refile would be inefficient, where plaintiff’s final appeal in the grievance process had not yet been denied, but plaintiff had otherwise completed the grievance process).
While the precise factual scenario before the Court appears to be largely unchartered territory, the Court notes that at least one federal district court has taken a similar approach. In Mitchell v. Dodrill, the plaintiff filed the original action before he had exhausted his administrative remedies, but later filed a separate complaint in a new action, at which point he had properly exhausted. 696 F. Supp. 2d 454, 465 (M.D. Pa.
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2010). The United States District Court for the Middle District of Pennsylvania consolidated the two actions and directed the plaintiff to file a single, “all-inclusive amended complaint,” and then used the date the amended complaint was filed as the operative date for exhaustion under the PLRA. Id. The court concluded that plaintiff had properly exhausted prior to the filing of the amended complaint. Id.; see also Jackson v. Fong, 870 F.3d 928, 937-38 (9th Cir. 2017) (McCalla, J., concurring) (citing Mitchell, 696 F. Supp. 2d at 465). Cf. Gambino v. Warden, FCI-Schuylkill, Nos. 3:18-2241, 19-0249, 2019 WL 2005627, at *2 (M.D. Pa. May 7, 2019) (finding dismissal warranted where plaintiff did not exhaust administrative remedies prior to filing either action, which he sought to be consolidated).
Accordingly, the Court looks to the date that Rabinkov was filed for the purposes of the exhaustion analysis, and concludes that whether Plaintiffs properly exhausted prior to filing the Rogers action has no impact on whether exhaustion was proper prior to Rabinkov.10 The Court thus turns to the separate question of whether Plaintiffs Trevithick, Begano, and Atkins each properly exhausted their administrative remedies prior to the filing of the Rabinkov action.
a. Plaintiff Trevithick Defendants admit that Plaintiff Trevithick properly exhausted his claims through the grievance process prior to filing in the Rabinkov matter. [#124 at 28; #133 at 10] Because the Court concludes that the operative date for exhaustion was the filing of Rabinkov in November 2018, Plaintiff Trevithick has properly exhausted his claims and
10 Regardless, for the reasons discussed below, the Court finds that Plaintiff Atkins properly exhausted his administrative remedies in 2015, long before both the Rogers and Rabinkov matters were filed.
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Defendants’ Motion for Summary Judgment [#133] is DENIED to the extent Defendants seek summary judgment on Plaintiff Trevithick’s claims.
b. Plaintiff Begano As to Plaintiff Begano, it is undisputed that she did not file a timely Step 2 grievance, and as a result, her Step 3 grievance was denied as untimely.11 [#141-1, DSOF15-16, 18, PSOF52; see also #141-2] Nevertheless, Plaintiffs argue that by responding to Plaintiff Begano’s Step 2 grievance substantively, Defendants waived any timeliness arguments at Step 3, and thus Plaintiff Begano properly exhausted her administrative remedies. [#140 at 13-14] The Tenth Circuit has held that “[i]f a prison accepts a belated filing, and considers it on the merits, that step makes the filing proper for purposes of state law and avoids exhaustion, default, and timeliness hurdles in federal court.” Ross v. Cty. of Bernalillo, 365 F.3d 1181, 1186 (10th Cir. 2004), abrogated on other grounds by Jones, 549 U.S. 199. But courts in this District have interpreted that holding to apply only where defendants never raised a timeliness defense at any point of the grievance process. See, e.g., Eller v. Tonche, No. 15-cv-02693-REB-MEH, 2018 WL 1316978, at *7 (D. Colo. Mar. 14, 2018) (finding timeliness objection waived where defendants never stated that the grievances were untimely at any step of the three-step grievance process); Jewkes v.
11 Although Plaintiffs dispute when Plaintiff Begano was provided with a response to her Step 1 grievance, and thus dispute the deadline for filing her Step 2 grievance, Defendants have presented evidence in the form of a sworn statement by CDOC Step 3 Officer Anthony DeCesaro, and records from the Offender Portal, that Plaintiff Begano was provided with a response to the Step 1 grievance on July 13, 2017. [#133-1 at 3; #141-2 at 1] Plaintiff Begano has not rebutted this evidence. According to CDOC procedures, Plaintiff Begano’s Step 2 grievance had to be filed five days after receipt of the Step 1 response—by July 18, 2017. Plaintiff Begano did not file her Step 2 grievance until July 21, 2017. [#141-1, DSOF16]
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Shackleton, No. 11-cv-00112-REB-RNB, 2012 WL 3028054, at *3 (D. Colo. July 23, 2012) (noting that the CDOC had waived any timeliness objections to one inmate’s grievance by “respond[ing] fully and substantively to [the] grievance without raising the timeliness issue at any stage,” but finding defense preserved as to a second inmate where the CDOC, “although initially addressing [her] case substantively, chose to raise the timeliness issue and reject her grievance”); see also Wilkerson v. Eldridge, No. 2:14-CV586 DAK, 2017 WL 1136951, at *4 (D. Utah Mar. 27, 2017) (distinguishing cases from this District, where courts held that timeliness had been waived because “the institutions did not raise timeliness at any stage of the grievance process”) (collecting cases)), appeal dismissed, No. 17-4053, 2017 WL 4621190 (10th Cir. July 25, 2017); Gonzalez v. Joey, No. 12-834 RB/GBW, 2014 WL 12788055, at *4 (D.N.M. Sept. 5, 2014) (“Generally, if a prison considers an inmate’s grievances on the merits throughout all steps of the grievance process, the inmate has exhausted his administrative remedies.” (emphasis added)), report and recommendation adopted in part, held in abeyance on other grounds, 2014 WL 12787952 (D.N.M. Sept. 25, 2014). In contrast here, Plaintiff Begano’s grievance was rejected as untimely at Step 3, while the grievance process was still under way. Accordingly, Plaintiff Begano did not properly exhaust her administrative remedies prior to the filing of Rabinkov.
Alternatively, Plaintiffs argue that videophones were not an available remedy, and thus the CDOC has not satisfied its burden to prove that “administrative remedies were, in fact, available.” [#140 at 15 (quoting Purkey v. CCA Det. Ctr., 263 F. App’x 723, 726 (10th Cir. 2008))] The Court disagrees. “[A]n administrative procedure is not unavailable because it fails to provide the specific relief that an inmate demands.” Burnett v. Okla.
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Dep’t of Corr., 737 F. App’x 368, 372 (10th Cir. 2018). “Rather, . . . ‘an inmate must exhaust irrespective of the forms of relief sought and offered through administrative avenues.’” Id. (quoting Booth v. Churner, 532 U.S. 731, 741 n.6 (2001)). On the other hand, “prisoners need not engage in entirely fruitless exercises when no form of relief is available at all”—there must be at least the possibility of some kind of relief. Ross, 365 F.3d at 1187 (citing Booth, 532 U.S. at 736 n.4, 738).
Here, Plaintiffs do not argue that the CDOC administration was unable to implement videophones, but rather that at the time of Plaintiff Begano’s grievances, the CDOC was unwilling to do so. But the inability to prevail on an administrative challenge is not equivalent to the unavailability of the remedy sought. See United States v. Contreras-Cabrera, 766 F. App’x 674, 676 n.2 (10th Cir. 2019); see also Beaudry v. Corr. Corp. of Am., 331 F.3d 1164, 1167 (10th Cir. 2003) (finding “Plaintiffs’ demands for weapons training for corrections officers, medical care, and decontamination [we]re all matters which the prison administration could affect,” and even though some of the matters were “‘non-grievable’ under prison policy, the fact that prison authorities did have the power to render some of the relief requested” made administrative remedies available). CDOC officials have authority to install videophones, as evidenced by the CDOC’s response to Plaintiff Atkins and Trevithick’s grievances that it had explored the adoption of videophones, and the CDOC’s subsequent installation of videophones in 2018, and thus there was at least some possibility of relief when Plaintiff Begano filed her grievances. [#141-1, DSOF36, PSOF71, 86-87]
Accordingly, Defendants’ Motion for Summary Judgment is GRANTED to the extent it seeks summary judgment on Plaintiff Begano’s claims for failure to properly
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exhaust administrative remedies and Plaintiff Begano’s claims are DISMISSED WITHOUT PREJUDICE. See Gallagher, 587 F.3d at 1068.
c. Plaintiff Atkins Plaintiff Atkins originally filed a Step 1 grievance in October 2015, regarding hearing issues and complaints about TTY machines. [#141-1, DSOF19] Specifically, Plaintiff Atkins noted that the TTY was often broken, and he requested that the CDOC install videophones instead. [Id. at PSOF66] In response to his Step 1 grievance, Plaintiff Atkins was told that the CDOC was preparing to launch a pilot program for video relay phones at CTCF, that the program would run for approximately six months, and then the CDOC would determine what technology would be installed and used. [Id. at PSOF69] The CDOC did not deny the grievance at Step 1 [id. at PSOF70], and Plaintiff Atkins therefore did not proceed beyond Step 1 regarding these complaints [id. at DSOF20]. When the CDOC never implemented the pilot project, Plaintiff Atkins filed a new grievance in 2018 about the TTY machines and requested use of videophones. [Id. at DSOF21] That request was denied at Step 3 as duplicative of Plaintiff Atkins’ original grievance in 2015. [Id. at DSOF23, PSOF65] Defendants argue that Plaintiff Akins thus failed to properly and timely exhaust. [#133 at 10] In order to exhaust administrative remedies, the inmate must “go beyond the first step [and seek] intermediate or final administrative review after the prison authority denie[s] relief.” Booth, 532 U.S. at 735 (emphasis added). But “[a]n inmate has no obligation to appeal from a grant of relief, or a partial grant that satisfies him, in order to exhaust his administrative remedies.” Harvey v. Jordan, 605 F.3d 681, 685 (9th Cir. 2010). For example, in Malone v. Franklin, the Tenth Circuit held that the plaintiff had
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exhausted his administrative remedies when he requested to be classified as an indigent inmate, and that relief was granted. 113 F. App’x 364, 366 (10th Cir. 2004). Afterward, the plaintiff was denied certain items by a prison official because he was not in fact on the indigent list. Id. at 365. The plaintiff then appealed the grievance, but did not properly complete the appeal process. Id. at 366. The Tenth Circuit found that plaintiff was not “required to appeal or to institute a new grievance to obtain the same relief.” Id.; see also Ross, 365 F.3d at 1187 (finding after plaintiff’s success in the first stage of the process, he was not obligated to proceed to the second stage, “and nothing in the record suggest[e]d that there was any further relief whatsoever available”); Allen v. Reynolds, No. 09-cv-02605-WJM-MJW, 2011 WL 2174427, at *6-*7 (D. Colo. Apr. 28, 2011) (finding plaintiff properly exhausted his administrative remedies where plaintiff’s grievance was granted in part at Step 1, and he did not have an obligation to proceed, though plaintiff went through the grievance process a second time after not receiving a response from defendants), report and recommendation adopted, 2011 WL 2174424 (D. Colo. June 3, 2011). “Nor is it the prisoner’s responsibility to ensure that prison officials actually provide the relief that they have promised.” Harvey, 605 F.3d at 685 (citing Abney v. McGinnis, 380 F.3d 663, 669 (2d Cir. 2004) (“A prisoner who has not received promised relief is not required to file a new grievance where doing so may result in a never-ending cycle of exhaustion.”)).
Applied here, Plaintiff Atkins was not required to proceed to Step 2 in his 2015 grievance because he had requested that videophones be installed, and the CDOC responded that it was preparing to install videophones at his facility as part of a pilot program. [#141-1, PSOF69] Because the CDOC did not deny the grievance at Step 1
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[id. at PSOF70], Plaintiff Atkins had no obligation to proceed to Step 2, and thus properly exhausted his administrative remedies in 2015. He was not required to repeat the process in 2018. Accordingly, Defendants’ Motion for Summary Judgment [#133] is DENIED to the extent it seeks summary judgment on Plaintiff Atkins’ claims for failure to properly exhaust administrative remedies.
In summary, Defendants’ Motion for Summary Judgment [#133] is DENIED to the extent it seeks summary judgment on Plaintiffs Trevithick and Atkins’ claims for failure to properly exhaust, but GRANTED to the extent it seeks summary judgment on Plaintiff Begano’s claims. Plaintiff Begano’s claims are DISMISSED WITHOUT PREJUDICE.
ii. ADA and Rehabilitation Act Claims The Court next addresses the parties’ arguments in the Motions for Summary Judgment with respect to Plaintiffs’ ADA and Rehabilitation Act claims. “Analysis of a claim under Title II of the ADA is identical to an analysis under the Rehabilitation Act.” Kimble v. Douglas Cty. Sch. Dist. RE-1, 925 F. Supp. 2d 1176, 1182 (D. Colo. 2013) (citing Nielsen v. Moroni Feed Co., 162 F.3d 604, 608 n.7 (10th Cir. 1998); Kimber v. Thiokol Corp., 196 F.3d 1092, 1102 (10th Cir. 1998)); see also Anderson v. Colo. Dep’t of Corr., 848 F. Supp. 2d 1291, 1300 n.2 (D. Colo. 2012) (“The Rehabilitation Act is materially identical to and the model for the ADA[—]the elements are the same except the Rehabilitation Act requires that defendant receive federal funds.” (quotations omitted)). Accordingly, and as requested by the parties, the Court will apply the same analysis to Plaintiffs’ ADA and Rehabilitation Act claims. Title II of the ADA states, in pertinent part, that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied
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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. This provision applies to prisoners. See Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998). To state a claim under Title II, the plaintiff must allege that (1) he is a qualified individual with a disability, (2) who was excluded from participation in or denied the benefits of a public entity’s services, programs, or activities, and (3) such exclusion, denial of benefits, or discrimination was by reason of a disability.”12 Robertson v. Las Animas Cty. Sheriff’s Dep’t, 500 F.3d 1185, 1193 (10th Cir. 2007).
At the heart of the instant Motions for Summary Judgment is the parties’ disagreement with respect to the reasonableness of the accommodations already in place at CDOC facilities under the second prong. Specifically, whether TTY technology satisfies the CDOC’s burden under the ADA to provide deaf inmates with the ability to communicate with individuals outside CDOC facilities. [See #117 at 14-16; #133 at 1216; #140 at 4-9] As the Tenth Circuit has instructed, 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 (emphasis in original) (quotations omitted). To effectuate Title II’s mandate, Department of Justice “regulations require
12 When a non-disabled plaintiff, like Plaintiff Rogers, is asserting an ADA claim on the basis of her relationship to a disabled individual, the plaintiff must allege: “(1) a logical and significant association with an individual with disabilities; (2) that a public entity knew of that association; (3) that the public entity discriminated against them because of that association; and (4) they suffered a direct injury as a result of the discrimination.” Schneider v. County of Will, 190 F. Supp. 2d 1082, 1091 (N.D. Ill. 2002) (citing 28 C.F.R. § 35.130(g) (“A public entity shall not exclude or otherwise deny equal services, programs, or activities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association.”)).
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public entities to ‘make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability.’” Id. (quoting 28 C.F.R. § 35.130(b)(7)). As to hearing disabilities specifically, public entities must “take appropriate steps to ensure that communications with . . . participants . . . with disabilities are as effective as communications with others,” 28 C.F.R. § 35.160(a)(1) (emphasis added), and to “furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities . . . an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity,” id. § 35.160(b)(1). In order to be “effective,” “auxiliary aids and services must be provided in accessible formats [and] in a timely manner.” Id. § 35.160(b)(2). “In determining what types of auxiliary aids and services are necessary,” the public entity must “give primary consideration to the requests of individuals with disabilities.” Id.
Here, Plaintiffs have factually established that they cannot communicate effectively without videophones. First, Plaintiffs have established that TTY technology does not ensure that they are able to communicate as effectively as inmates with access to conventional telephones. Plaintiffs have demonstrated that TTY is 60 years old and becoming obsolete. [#141-1, PSOF 17, 27] Plaintiffs’ expert Jean Andrews opined that requiring deaf prisoners to communicate by TTY is analogous to requiring hearing prisoners to communicate by fax machine. [Id. at PSOF19] Dr. Andrews specifically stated that “[t]he communication is asynchronous, you send your communication, wait for a response, hope it is not garbled and hope you have not been misunderstood. [Id.] Though Defendants deny these facts, Defendants have presented no expert evidence to rebut Dr. Andrews’ opinions, or any of the factual assertions on which those opinions rest.
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See McBride, 294 F. Supp. 3d at 709. Defendants also admit that Keith Nordell, formerly the highest ranking attorney for the CDOC, stated nearly six years ago that the “current TTY equipment is becoming antiquated, requires frequent maintenance from sources that are not familiar or trained on the use/repair of a TTY and creates unfair delays for offenders due to the limited number of TTY machines department wide when equipment is down.” [#141-1, PSOF20]
The parties agree that as TTY technology has become obsolete, deaf people have replaced TTYs with videophones. [Id. at PSOF23, 27] As a result, a deaf inmate in a CDOC facility using TTY must use a three-step communication process to contact another deaf person outside the facility who uses a videophone. [Id. at PSOF23] The deaf inmate types a message into the TTY, the TTY operator speaks the message to a VRS operator, and the VRS operator signs the message to the recipient’s videophone. [Id.] When the recipient responds, the three-step process is repeated in reverse. [Id.] Defendants admit that the three-step process “causes many opportunities for misunderstanding and mistranslation.” [Id. at PSOF24] Plaintiffs also demonstrate that CDOC’s TTYs often produce garbled text or nonsense characters. [Id. at PSOF29-30] Although Defendants deny this factual assertion, the exhibits cited by Defendants support this fact. [See, e.g., #133-5] Defendants also admit that the TTY process is even more difficult for Plaintiff Rabinkov when he communicates in Russian Sign Language, and he has not been able to communicate by phone with friends speaking Russian Sign Language. [#141-1, PSOF25]
Defendants also do not dispute that TTY requires deaf inmates to communicate in written English. [Id. at PSOF17, 27] English is not the native language of the Deaf
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Plaintiffs or Plaintiff Rogers’ mother, and ASL is neither a manual nor derivative form of English. [Id. at PSOF13-14] As Plaintiffs’ expert explained, the grammatical and syntactic structure between ASL and English is fundamentally different, and using a TTY results in briefer messages, and curtails the ability to express thoughts and feelings in the same manner as hearing inmates using a telephone. [Id.; #140-4 at 7] In sum, unlike hearing inmates using conventional telephones, inmates using TTYs cannot communicate in real time, must rely on an operator, which is cumbersome and time-consuming, are forced to decipher garbled text and messages, and are required to communicate outside of their native language, with major barriers to expressing tone and emotion. Plaintiffs have thus “presented ample evidence that TTYs are not a practical or effective communication tool for deaf and hard of hearing persons.” McBride, 294 F. Supp. 3d at 707.
In contrast, Plaintiffs’ expert opined that “[s]igned videophone conversations are analogous to spoken telephone conversations.” [#141-1, PSOF27] Defendants deny this assertion but have not set forth any facts or evidence to the contrary, and Defendants admit that like conventional telephones, videophones enable two-way communication in real time. [Id. at PSOF7] Videophones also allow deaf individuals to communicate through their native ASL, unencumbered by delays in typing, and to use visual indicators such as facial expression, head tilts and nods, and eyebrow raises, which encode the grammar of ASL and convey emotion, mood, tone, and affect. [Id. at PSOF27, 32-33] Defendants admit that emotion, mood, tone, and affect cannot be conveyed or perceived using TTY, and further do not dispute that when Plaintiffs are able to communicate in ASL, they can express and understand a full range of meaning and emotion, and engage in fluent, complete, and meaningful communication. [Id. at PSOF33, 36]
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Like the defendants in McBride, an analogous case where the Eastern District of Michigan granted summary judgment to deaf inmates seeking access to videophones instead of TTY technology, the CDOC here presents no expert evidence to rebut Plaintiffs’ expert opinions, or any of the factual assertions on which those opinions rest. 294 F. Supp. 3d at 709. Instead, the CDOC simply argues that “Plaintiffs claim that it would be better for them and more effective and efficient for them to communicate with family and friends using videophones.” [#133 at 14; #120 at 11] The CDOC contends that despite any issues with TTYs, those devices still provide Plaintiffs with meaningful access to communication with family and friends. [#133 at 15] But, as in McBride, Plaintiffs’ expert has not simply opined that videophones are “better” than TTYs, but rather that videophones are necessary to enable deaf prisoners to communicate effectively with individuals outside of CDOC facilities. [#141-1, PSOF34] While Defendants continue to disagree with that conclusion, they nevertheless admit that videophones allow deaf inmates to communicate in their native language, in real time, and to express and understand a full range of meaning and emotion by using visual indicators to indicate grammar, emotion, mood, tone and affect—just as hearing inmates are able to do in a spoken conversation over a conventional telephone. And again as in McBride, the fact that TTYs retain some functionality does not equate to meaningful access, especially given the undisputed evidence of the many issues with TTYs. 294 F. Supp. 3d at 710.
Finally, the Court is not persuaded by the authority cited by Defendants.13 The only case cited from this Circuit held that TTY access was meaningful where plaintiff was
13 Nor do Defendants assert a fundamental alteration/undue burden defense to the ADA and Rehabilitation Act violations. Pursuant to 28 C.F.R. § 35.164, a public entity is not required “to take any action that it can demonstrate would result in a fundamental
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allowed two 30-minute calls per week, but sought unlimited access. Spurlock v. Simmons, 88 F. Supp. 2d 1189, 1196 (D. Kan. 2000). Videophones were not at issue. See id.; see also Douglas v. Gusman, 567 F. Supp. 2d 877, 889-90 (E.D. La. 2008) (finding TTYs provided meaningful access where plaintif was not seeking videophone use, but rather unlimited TTY and television access). The other cases cited by Defendants are similarly distinguishable. See Arce v. Louisiana, 226 F. Supp. 3d 643, 651 (E.D. La. 2016) (granting motion to dismiss where the complaint did not allege that the TTY machine failed to function or that the plaintiff could not effectively communicate using the TTY machine); Rosenthal v. Mo. Dep't of Corr., No. 2:13-cv-04150, 2016 WL 705219, at *10 (W.D. Mo. Feb. 19, 2016) (noting previous decisions finding that TTYs provided “meaningful access” under the ADA and Rehabilitation Act, but not addressing any evidence on TTY versus videophone technology, other than intervenor’s arguments that video technology had been offered in other facilities).
For these reasons, Plaintiffs have demonstrated that “TTYs do not enable them to communicate effectively with persons outside of prison, much less provide them with telecommunications access equal to that provided to hearing prisoners,” and that videophones are necessary for deaf inmates to have meaningful access to CDOC telephone services. McBride, 294 F. Supp. 3d at 713. Accordingly, Defendants’ Motion for Summary Judgment [#133] is DENIED to the extent it seeks summary judgment on Plaintiffs’ ADA and Rehabilitation Act claims, and Plaintiff Trevithick’s Motion for Partial
alteration in the nature of a service, program, or activity or in undue financial and administrative burdens.”
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Summary Judgment [#117] is GRANTED to the extent it seeks summary judgment on his ADA and Rehabilitation Act claims.
Although the remaining Plaintiffs did not specifically move for summary judgment on those claims, in response to Defendants’ Motion for Summary Judgment, Plaintiffs contend that there are no disputed issues of fact that would allow Defendants to succeed on these claims. [#140 at 4] The record has been fully developed in the context of Defendants’ Motion for Summary Judgment and Plaintiff Trevithick’s Motion for Partial Summary Judgment, to which Defendants fully responded, and the Court agrees that there is no dispute of material fact on Plaintiffs’ ADA and Rehabilitation Act claims. Thus, because the CDOC has had an adequate opportunity to develop facts necessary to oppose summary judgment, the Court also sua sponte enters summary judgment on the ADA and Rehabilitation Act claims in favor of Plaintiffs Rogers, Atkins, and Rabinkov. See Holmes v. Utah Dep’t of Workforce Servs., 483 F.3d 1057, 1067 (10th Cir. 2007) (“[A] district court has the power to enter summary judgment sua sponte, provided that the losing party was on notice that she had to come forward with all of her evidence.”); David v. City & Cty. of Denver, 101 F.3d 1344, 1359 (10th Cir. 1996) (finding a court may sua sponte enter summary judgment on a claim when: “(1) there is no dispute of material fact; (2) the losing party has had an adequate opportunity to address the issues involved, including an adequate time to develop any facts necessary to oppose summary judgment”).
iii. Compensatory Damages Defendants next contend that the evidence does not support a finding of deliberate indifference or intentional discrimination, and thus Defendants claim they are entitled to
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summary judgment to the extent Plaintiffs seek compensatory damages under the ADA or the Rehabilitation Act. [#133 at 16-17] “[T]o recover compensatory damages under § 504, a plaintiff must establish that the agency’s discrimination was intentional.”14 Havens v. Colo. Dep’t of Corr., 897 F.3d 1250, 1263 (10th Cir. 2018) (quotation omitted). “[I]ntentional discrimination can be inferred from a defendant’s deliberate indifference to the strong likelihood that pursuit of its questioned policies will likely result in a violation of federally protected rights.” Id. at 1264 (quotation omitted). Specifically, a plaintiff must make two showings: (1) that the defendant knew that harm to a federally protected right was substantially likely, and (2) that the defendant failed to act upon that likelihood. Id.
For example, in McCullum v. Orlando Regional Healthcare System, Inc., the Eleventh Circuit held that the defendant hospital did not have the requisite knowledge of plaintiff’s need for a sign language interpreter, where hospital staff believed they were effectively communicating because plaintiff nodded and verbalized his understanding, and where there was no evidence that plaintiff or his family members ever requested an interpreter, or told staff that they were struggling to translate questions and statements from doctors and nurses. 768 F.3d 1135, 1148 (11th Cir. 2014). Cf. Sunderland v. Bethesda Hosp., Inc., 686 F. App’x 807, 817 (11th Cir. 2017) (finding defendant had requisite knowledge that plaintiff needed additional interpretive aids, where plaintiff had requested an in-person interpreter but instead was provided with a video remote interpreting device, which defendant knew was ineffective because it was blurry and frequently froze). As to the second prong, this District held that issues of fact remained
14 The Tenth Circuit has applied the same analysis in determining whether a plaintiff may recover compensatory damages under Title II of the ADA. See Hans v. Bd. of Shawnee Cty. Comm’rs, 775 F. App’x 953, 956 (10th Cir. 2019).
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as to whether the City and County of Denver failed to accommodate deaf inmates, where there appeared to be “gaps in deputies’ knowledge of how best to communicate with deaf inmates as well as how and under what circumstances to obtain an interpreter.” Ulibarri v. City & Cty. of Denver, 742 F. Supp. 2d 1192, 1217 (D. Colo. 2010). Assistive devices were available, but “they [we]re of questionable value if inmates ha[d] no way to learn of them or if they [we]re inoperable.” Id.; see also Barber v. Colo. Dep’t of Revenue, 562 F.3d 1222, 1229 (10th Cir. 2009) (noting under the second prong, “a public entity does not ‘act’ by proffering just any accommodation: it must consider the particular individual’s need when conducting its investigation into what accommodations are reasonable” (quotation omitted)). Cf. Ferguson v. City of Phoenix, 157 F.3d 668, 675-76 (9th Cir. 1998) (finding city did not fail to act in response to complaints by hearing impaired users of its telecommunication device because the city conducted investigations in response to the complaints, “followed by diligent effort . . . to upgrade” its telecommunication service).
Here, Plaintiffs have presented sufficient evidence from which a reasonable factfinder could conclude that Defendants’ discrimination was intentional. As to knowledge that harm to a protected right was substantially likely, Defendants were clearly on notice of the shortcomings of TTY technology and the need for videophones from Plaintiffs’ repeated grievances. Plaintiff Atkins first complained about problems with TTYs and requested installation of videophones in October 2015. [#141-1, DSOF19, PSOF66] Plaintiff Trevithick also filed a grievance related to issues with the relay system in the chapel in February 2012. [Id. at DSOF24; see also #133-1 at 29] Moreover, in a December 2013 Project Request Form, Keith Nordell, who was CDOC’s highest ranking attorney at the time, stated that “current TTY equipment is becoming antiquated, requires
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frequent maintenance from sources that are not familiar or trained on the use/repair of a TTY and creates unfair delays for offenders due to the limited number of TTY machines department wide when equipment is down.” [#141-1, PSOF20]
As to the second prong, issues of fact remain as to Defendants’ failure to act. Between 2013 and 2016, the CDOC considered implementing a videophone pilot program, but that plan never came to fruition, and by May 2017, the CDOC had no plans to install videophones. [Id. at PSOF74-76, 80-83] A factfinder could determine that Defendants intentionally discriminated against Plaintiffs by recognizing that TTY technology was ineffective, but refusing to provide any other assistive devices.15 See, e.g., Sunderland, 686 F. App’x at 816-18; Ulibarri, 742 F. Supp. 2d at 1217. For these reasons, Defendants’ Motion for Summary Judgment [#133] is DENIED to the extent it seeks summary judgment on Plaintiffs’ requests for compensatory damages.
iv. First Amendment Claim In their Motion for Summary Judgment, Defendants further argue that they are entitled to summary judgment on Plaintiffs’ First Amendment claim because “Plaintiffs have not asserted any facts tending to show that the choice between TTY” and related technology “over videophones [is] not related to legitimate penological interests.” [#133 at 12] Defendants also contend that Plaintiffs have alternative means of communication through TTY and written correspondence. [Id.]
15 Alternatively, a factfinder could decide that efforts to install videophones were legitimate attempts to implement videophone technology that did not constitute a failure to act. But “[w]here 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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In the First Amendment context, the Supreme Court has acknowledged that “federal courts must take cognizance of the valid constitutional claims of prison inmates. Prison walls do not form a barrier separating prison inmates from the protections of the Constitution.” Turner v. Safley, 482 U.S. 78, 84 (1987) (citation omitted). The Supreme Court has also recognized, however, that “courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform.” Id. (quoting Procunier v. Martinez, 416 U.S. 396, 405 (1974)). As a result, prison officials may restrict prisoners’ First Amendment rights in ways that “would raise grave First Amendment concerns outside the prison context.” Thornburgh v. Abbott, 490 U.S. 401, 407 (1989). Accordingly, “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89.
In making this determination, the Supreme Court has directed lower courts to consider the following factors: (1) whether a “valid, rational connection [exists] between the prison regulation and the legitimate governmental interest put forward to justify it”; (2) whether “alternative means of exercising the right [exist] that remain open to prison inmates”; (3) what “impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally”; and (4) whether there was an “absence of ready alternatives” to the regulation in question. Id. at 89-90 (quotation omitted). For example, in Heyer v. United States Bureau of Prisons, the Fourth Circuit reversed the lower court’s granting of summary judgment in favor of the defendant where questions of fact remained as to the reasonableness of a videophone ban by the Bureau of Prisons (“BOP”). 849 F.3d at 214-19. The Fourth Circuit determined
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that plaintiff’s limited proficiency in written English would allow a factfinder to conclude that no other effective means of communication were available to him other than a videophone, the evidence demonstrated that videophones could be installed at a minimal expense and with little change in staffing needs, and there was nothing in the record to “suggest[] that the security risks posed by videophones [we]re so qualitatively different that they c[ould] only be managed by banning videophones.” Id. at 215-17.
Here, Plaintiffs have set forth evidence from which a reasonable factfinder could conclude that the CDOC’s regulations, which only afford deaf inmates access to TTYs [see #141-1, DSOF29], impinge on Plaintiffs’ First Amendment rights. As discussed at length above, Plaintiffs have demonstrated that when they use TTYs, they cannot communicate in real time, they often rely on an operator, which is cumbersome, timeconsuming, and can result in mistranslations, they must decipher distorted messages, and they are required to communicate outside of their native language, with major barriers to expressing tone and emotion. [Id. at PSOF13-14, 19, 23-24, 29-30, 33] Because the evidence establishes that Plaintiffs cannot communicate effectively through the TTY device, and because CDOC policy only provides for that technology, a rational jury could find that the CDOC policy impinges on Plaintiffs’ First Amendment rights to communicate with individuals outside CDOC facilities. See Heyer, 849 F.3d at 214.
Under the Turner analysis, questions of material fact remain as to whether the CDOC’s policy to only provide TTYs to deaf inmates is reasonably related to a legitimate penological interest. As to the first factor, whether there is a valid connection between the regulation and a legitimate government interest, it is undisputed that previous videophone pilot programs were canceled based on security concerns, including the
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inability to limit the phone numbers that prisoners could call, or to charge prisoners for the calls. [#141-1, PSOF105] While prison security is a legitimate government interest, Defendants admit that they have worked through their videophone security concerns. [Id. at PSOF106] And prisoners at DWCF must rely on CDOC staff to dial phone numbers for them, so presumably staff members could limit phone numbers called through this process. [Id. at PSOF92] Moreover, it is undisputed that videophones are available at other correctional facilities, including the El Paso County Jail, and that Global Tel*Link, a videophone service provider, has installed videophone services for approximately 30 departments of correction. [Id. at PSOF44-45] Accordingly, while Defendants may have legitimate security concerns, questions remain as to the connection between those concerns and the policy of only providing TTYs.
Under the second factor, as discussed above, Plaintiffs have set forth substantial evidence that they cannot communicate as effectively through TTY technology as with videophones, and thus a factfinder could find that Plaintiffs do not have alternative means of exercising their First Amendment rights. See Heyer, 849 F.3d at 216. With respect to the third factor—the impact on guards, other inmates, and the allocation of prison resources—it is undisputed that the “CDOC has not made any expenditure to install videophones and it does not cost them anything to provide the service at DWCF.” [#1411, PSOF104] And at least at CTCF, the videophones have been installed in a public area, which could support a finding that the videophones are located where there is already guard staffing. [#147-3 at ¶ 5; #147-4 at ¶ 6] Otherwise, there is no evidence with respect to the impact a videophone policy would have on staffing needs or other inmates and therefore questions of fact remain regarding whether a videophone policy would create
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staffing and security problems. See Tanney v. Boles, 400 F. Supp. 2d 1027, 1044 (E.D. Mich. 2005) (denying summary judgment where there was conflicting evidence of the staffing needed to monitor calls). For the same reasons, a reasonable factfinder could conclude that the refusal to implement a videophone policy is an exaggerated response to perceived security concerns, where Plaintiffs have presented evidence that the videophones cost nothing, and where Defendants admit that security concerns have already been addressed. See Heyer, 849 F.3d at 218; see also Turner, 482 U.S. at 91 (“[I]f an inmate claimant can point to an alternative that fully accommodates the prisoner’s rights at de minimis cost to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard.”).
Because questions of fact remain as to whether the CDOC’s policy, limited to providing TTYs, impinges on Plaintiffs’ First Amendment rights, and whether that policy is reasonably related to a legitimate penological interest, Defendants’ Motion for Summary Judgment [#133] is DENIED on Plaintiffs’ First Amendment claim. IV. CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss as Moot [#143] is DENIED, Plaintiff Trevithick’s Motion for Partial Summary Judgment [#117] is GRANTED, and Defendants’ Motion for Summary Judgment (“MSJ”) [#133] is GRANTED in part and DENIED in part. More specifically, the Court holds as follows:
(1) Defendants’ MSJ is DENIED to the extent it seeks summary judgment on Plaintiffs Rogers and Begano’s claims for injunctive relief as moot.
(2) Defendants’ MSJ is DENIED to the extent it seeks summary judgment on Plaintiffs Trevithick and Atkins’ claims for failure to exhaust, but GRANTED to the extent
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it seeks dismissal of Plaintiff Begano’s claims for failure to exhaust. Plaintiff Begano’s claims are DISMISSED WITHOUT PREJUDICE.
(3) Defendants’ MSJ is DENIED to the extent the CDOC seeks summary judgment on Plaintiffs’ ADA and Rehabilitation Act claims, and Plaintiff Trevithick’s Motion for PSJ [#117] is GRANTED to the extent it seeks summary judgment on those claims. Summary judgment is entered in favor of Plaintiffs Trevithick, Rogers, Atkins, and Rabinkov, and against CDOC, on the ADA and Rehabilitation Act claims.
(4) Defendants’ MSJ is DENIED to the extent it seeks summary judgment on Plaintiffs’ requests for compensatory damages.
(5) Defendants’ MSJ is DENIED to the extent it seeks summary judgment on Plaintiffs’ First Amendment claims. IT IS FURTHER ORDERED that the CDOC SHALL:
(1) Make videophones available to all deaf and hard of hearing inmates; (2) Make videophones available to all inmates communicating with deaf and
hard of hearing friends, family members, or other individuals. (3) Adopt effective and comprehensive polices and procedures regarding the
use and implementation of videophones, including for appropriate compliance monitoring and videophone maintenance and repair.

DATED: September 18, 2019

BY THE COURT:
s/Scott T. Varholak United States Magistrate Judge

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Consolidated Civil Action No. 16-cv-02733-STV BIONCA CHARMAINE ROGERS, CATHY BEGANO, ANDREW ATKINS, and MARC TREVITHICK,
Plaintiffs, v. COLORADO DEPARTMENT OF CORRECTIONS, RICK RAEMISCH, RYAN LONG, and MIKE ROMERO,
Defendants. ______________________________________________________________________ Consolidated Civil Action No. 18-cv-02926-STV LEONID RABINKOV, CATHY BEGANO, ANDREW ATKINS, and MARC TREVITHICK,
Plaintiffs, v. COLORADO DEPARTMENT OF CORRECTIONS,
Defendant. ______________________________________________________________________
ORDER ______________________________________________________________________
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Magistrate Judge Scott T. Varholak This matter comes before the Court on Defendant Colorado Department of
Corrections’ Motion to Dismiss the Amended Complaint filed by Plaintiffs in Consolidated Civil Action No. 18-cv-02926-STV (the “Motion”). [#119] The Motion is before the Court on the parties’ consent to have a United States magistrate judge conduct all proceedings in this action and to order the entry of a final judgment. [##30, 31, 51; see also 18-cv02926-STV, #17] This Court has carefully considered the Motion and related briefing, the case file and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motion. For the following reasons, I DENY the Motion.
I. FACTUAL BACKGROUND1 Plaintiffs are inmates incarcerated by Defendant Colorado Department of
Corrections (“CDOC”). [#115 at ¶¶ 3, 6, 9, 12] Plaintiffs in Consolidated Civil Action No. 18-cv-02926-STV, Leonid Rabinkov, Cathy Begano, Andrew Atkins, and Marc Trevithick (“Plaintiffs”), are all deaf and use American Sign Language (“ASL”) as their primary language. [Id. at ¶¶ 4-5, 8, 10-11, 13-14] Plaintiffs claim that the CDOC is denying Plaintiffs the ability to communicate with friends and relatives outside of CDOC. Specifically, Plaintiffs have requested permission to use a videophone inside CDOC facilities to communicate with their friends and family. [Id. at ¶ 50] Because ASL is a visual language in which communication occurs through the movement of hands
1 The facts are drawn from the allegations in Plaintiffs’ Amended Complaint (the “Amended Complaint”) [#115], which must be taken as true when considering a motion to dismiss. See Wilson v. Montano, 715 F.3d 847, 850 n.1 (10th Cir. 2013) (citing Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011)).
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combined with facial expressions and postures of the body [id. at ¶ 17], Plaintiffs contend that a videophone will allow them to effectively communicate with others using ASL [id. at ¶ 47]. CDOC has refused to provide Plaintiffs with a videophone to communicate with their friends and family members. [Id. at ¶¶ 45, 52]
CDOC permits prisoners to make telephone calls to individuals on their phone list. [Id. at ¶ 40] Hearing prisoners who wish to contact hearing family members are permitted to use the phone at any time phones are available, provided they have paid for the time and the person being called is on the inmate’s phone list. [Id. at ¶ 41] In contrast, CDOC allows deaf inmates to use a teletypewriter (“TTY”). [Id. at ¶ 42] In a TTY communication, each participant types out his or her side of the conversation, then waits while the other person types back. [Id. at ¶ 23] For a TTY communication to occur, both participants must own TTY equipment. [Id. at ¶ 22] Plaintiffs allege that, on multiple occasions, the TTYs at the CDOC facilities “regularly freeze[] or disconnect[]” and their “keys are extremely sensitive, causing typographical errors.” [Id. at ¶ 44] Plaintiffs further allege that they have scheduled specific times to communicate with family and friends using the TTY, only to find that it is broken. [Id.] According to the Amended Complaint, when a facility’s TTY is broken, “it often takes the CDOC an unreasonable time to fix it.” [Id.] Plaintiffs allege that their inability to effectively communicate have caused them to lose contact with friends and family. [Id. at ¶ 43]
The Amended Complaint brings two claims. The first claim alleges that CDOC violated Title II of the Americans with Disabilities Act (“ADA”). [Id. at ¶¶ 53-61] The second claim alleges that CDOC violated Section 504 of the Rehabilitation Act. [Id. at ¶¶ 62-71] Plaintiffs seek injunctive relief and compensatory damages. [Id. at 12] CDOC
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has moved to dismiss both claims. [#119] Plaintiffs have responded to the Motion [#123] and CDOC filed a reply [#127]. II. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” In deciding a motion under Rule 12(b)(6), a court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (alteration in original) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.’” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest’ that he or she is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
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III. ANALYSIS CDOC argues that Plaintiffs’ claims must be dismissed for failure to state a claim
under the ADA or the Rehabilitation Act. [#119 at 5-8] “Analysis of a claim under Title II of the ADA is identical to an analysis under the Rehabilitation Act.” Kimble v. Douglas Cty. Sch. Dist. RE-1, 925 F. Supp. 2d 1176, 1182 (D. Colo. 2013) (citing Nielsen v. Moroni Feed Co., 162 F.3d 604, 608 n.7 (10th Cir. 1998); Kimber v. Thiokol Corp., 196 F.3d 1092, 1102 (10th Cir. 1998)); see also Anderson v. Colo. Dep’t of Corr., 848 F. Supp. 2d 1291, 1300 n.2 (D. Colo. 2012) (“The Rehabilitation Act is materially identical to and the model for the ADA[—]the elements are the same except the Rehabilitation Act requires that defendant receive federal funds.” (quotations omitted)). Accordingly, and as requested by the parties, the Court will apply the same analysis to Plaintiffs’ ADA and Rehabilitation Act claims.
Title II of the ADA states, in pertinent part, 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. This provision applies to prisoners. See Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998). “To state a claim under Title II, the plaintiff must allege that (1) he is a qualified individual with a disability, (2) who was excluded from participation in or denied the benefits of a public entity’s services, programs, or activities, and (3) such exclusion, denial of benefits, or discrimination was by reason of a disability.” Robertson v. Las Animas Cty. Sheriff’s Dep’t, 500 F.3d 1185, 1193 (10th Cir. 2007).
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CDOC challenges whether Plaintiffs have sufficiently alleged that they were excluded from the benefits of CDOC’s services, programs, or activities.2 [#119 at 5-8] As the Tenth Circuit has instructed, the ADA “requires more than physical access to public entities: it requires public entities to provide meaningful access to their programs and services.” Robertson, 550 F.3d at 1193 (quotations omitted). To effectuate Title II’s mandate, Department of Justice “regulations require public entities to ‘make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability.’” Id. (quoting 28 C.F.R. § 35.130(b)(7)). CDOC argues that it is only required to make reasonable accommodations for Plaintiffs, not the best possible accommodations, and that it has satisfied this obligation by providing TTY equipment. [#119 at 6 (citing Arce v. Louisiana, 226 F. Supp. 3d 643, 651 (E.D. La. 2016) (finding that ADA did not require prison to provide deaf inmate with videophone as a reasonable accommodation))]
Ultimately, for purposes of deciding the instant Motion to Dismiss, the Court need not decide whether CDOC must provide Plaintiffs with a videophone in order to provide a reasonable accommodation, because Plaintiffs have plausibly alleged that they have often been denied any meaningful access to forms of communication with friends and family. As indicated above, Plaintiffs allege that, on multiple occasions, the TTYs at the CDOC facilities “regularly freeze[] or disconnect[]” and their “keys are extremely sensitive, causing typographical errors.” [#115 at ¶ 44] Plaintiffs further allege that broken TTYs
2 CDOC states that Plaintiffs have failed to plead facts to support either the second or third elements of an ADA or Rehabilitation Act claim [#119 at 5], but the Motion focuses solely on the second element and whether CDOC’s use of TTY equipment provided meaningful access to programs and services [id. at 5-8].
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have interfered with specific times they have scheduled to communicate with family and friends. [Id.] According to the Amended Complaint, when a facility’s TTY is broken, “it often takes the CDOC an unreasonable time to fix it.” [Id.] Plaintiffs further contend that the current TTY equipment is becoming antiquated, requires frequent maintenance from sources untrained on the use and repair of TTYs, thus “creat[ing] unfair delays for offenders due to the limited number of TTY machines department wide when equipment is down.” [Id. at ¶ 26] Plaintiffs allege that their inability to effectively communicate has caused them to lose contact with friends and family. [Id. at ¶ 43] While the Court agrees with CDOC that the Amended Complaint could have been more specific about the frequency of the breakdowns, the Court ultimately concludes that the allegations are sufficient to plausibly plead both an ADA and a Rehabilitation Act claim. See Tanney v. Boles, 400 F. Supp. 2d 1027, 1041-42 (E.D. Mich. 2005) (denying summary judgment for institution where inmate offered evidence that he was denied reasonable access to TTY machine); Zemedagegehu v. Arthur, No. 1:15cv57 (JCC/MSN), 2015 WL 1930539, at *13 (E.D. Va. April 28, 2015) (denying motion to dismiss filed by institution where plaintiff was provided access to TTY services but plaintiff’s inability to read or write English made such access meaningless); cf. Arce, 226 F. Supp. 3d at 651 (granting motion to dismiss where the complaint did not allege that the TTY machine failed to function or that the plaintiff could not effectively communicate using the TTY machine). Accordingly, Plaintiffs have plausibly pleaded ADA and Rehabilitation Act claims and CDOC’s Motion is DENIED.
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IV. CONCLUSION For the foregoing reasons, the Court DENIES Defendant’s Motion to Dismiss the
Amended Complaint [#119].

DATED: April 9, 2019

BY THE COURT:
s/Scott T. Varholak United States Magistrate Judge

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