Prison Phone Justice

Case 1:16-cv-02733-STV 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 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.

2

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 3 of 48

I.

BACKGROUND 1
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.
3

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 4 of 48

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

4

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 5 of 48

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]
5

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 6 of 48

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]

6

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 7 of 48

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

7

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 8 of 48

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]

8

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 9 of 48

Plaintiffs collectively 3 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]
9

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 10 of 48

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

10

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 11 of 48

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)).

11

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 12 of 48

“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.
12

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 13 of 48

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

13

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 14 of 48

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,
14

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 15 of 48

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)).
15

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 16 of 48

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

16

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 17 of 48

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

17

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 18 of 48

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.
18

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 19 of 48

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

19

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 20 of 48

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

20

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 21 of 48

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.
21

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 22 of 48

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.

22

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 23 of 48

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)).

23

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 24 of 48

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

24

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 25 of 48

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

25

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 26 of 48

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.

26

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 27 of 48

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.
27

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 28 of 48

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]
28

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 29 of 48

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.

29

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 30 of 48

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

30

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 31 of 48

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

31

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 32 of 48

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

32

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 33 of 48

[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

33

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 34 of 48

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.”)).
34

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 35 of 48

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.

35

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 36 of 48

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

36

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 37 of 48

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]

37

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 38 of 48

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
38

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 39 of 48

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.”
39

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 40 of 48

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

40

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 41 of 48

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).
41

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 42 of 48

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

42

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 43 of 48

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).
43

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 44 of 48

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

44

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 45 of 48

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

45

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 46 of 48

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

46

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 47 of 48

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

47

Case 1:16-cv-02733-STV Document 158 Filed 09/18/19 USDC Colorado Page 48 of 48

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

48