In 1992, Colorado state prisoner Jesse Montez filed a pro se 42 U.S.C. §1983 complaint challenging the conditions of confinement for disabled prisoners. Subsequent amended complaints filed by counsel claimed the CDOC conditions violated the Americans with Disabilities Act (ADA; 42 U.S.C.§§ 1210112213), the Rehabilitation Act (RA; 29 U.S.C.§ 794), the Eighth Amendment and the Fourteenth Amendment, by denying access to programs, the full use of facilities afforded prisoners without disabilities, and medical care.
The impetus behind the litigation was Colorado?s infamous Ramos consent decree which all but shut down the Colorado prison system in the late 1970s. See: Ramos v. Lamm, 485 F.Supp.122 (D.Colo.1979), aff?d in part, rev?d in part 639 F.2d 559 (10th Cir. 1980), on remand 520 F.Supp. 1059 (D. Colo. 1981). Throughout the 1980s Ramos? years, the CDOC failed to fully comply with or later back-slid in several critical areas including housing not accommodating the disabled, lack of disability access to infirmaries, law libraries, visitation areas, yard and recreational facilities, dining halls, and medical clinics, religious facilities, vocational rehabilitation services, and bathing and restroom facilities. By the early 1990s, the CDOC was no longer under the Federal court?s Ramos supervision. Massive doublebunking of cells prohibited by Ramos was quickly underway, along with other negative changes. Meanwhile, the disabled prisoners were ignored. Pathways were inaccessible (e.g., stairs & ramps). There were a lack of handrails, grab bars, and other assistive devices. Signs did not accommodate disabled prisoners nor did fire alarms and emergency evacuation systems. It was time to return to court.
In 1996, class certification was granted to include four subclasses with separate representation (mobility impairment, hearing impairment, sight impairment, and prisoners with diabetes). Protracted litigation replete with CDOC subterfuge and misdirection followed.
The CDOC?s dishonorable acts were uncovered by the capable hands of the prisoner?s lead counsel Paula Griesen who exposed the CDOC?s attempts to hide a 537page architectural report detailing ADA violations and how to fix them. Also withheld were documents exposing a $2.3 million funding request to upgrade the facilities for ADA compliance while the state simultaneously denied the prisoners? allegations of noncompliance. The money was secretly put on hold until the suit was closer to resolution. These actions were characterized as attempts to avoid liability.
At a 2001 hearing, the state claimed these disclosure failures were accidental. An angry federal judge, Edward Nottingham, found that ?unfathomable.? He found ?the non-disclosure of these materials ... to have been part of a deliberate strategy.? When the state countered with alleged non-disclosures by Greisen, the judge snapped, ?Don?t try it. Don?t even go there. I can?t believe your position on this stuff.... I just think it?s absurd.? He ordered the state to turn over other hidden information quickly without Griesen ?having to drag it from you, kicking and screaming.?
Despite secret actions amounting to an admission of liability, the state filed a motion to dismiss in 1996 based on exemptions from the ADA and RA as well as qualified immunity. In a 1999 published opinion, the court found the ADA and RA apply to the prisons based on the 1998 Supreme Court decision in Pennsylvania Dept. of Corrections v. Yeskey, 118 S.Ct. 1952 (1998). Based on the language of these acts, however, individual capacity claims were dismissed. Interestingly, official capacity claims against individuals, essentially claims against the state, were held barred by Eleventh Amendment immunity ?insofar as Plaintiff?s seek compensatory monetary damages and prospective injunctive relief which would have an impact on the state treasury.? The Court then found that ?regardless of the immunity afforded the individual defendants in their official capacities, the state of Colorado has no Eleventh Amendment immunity in this action.?
The Court held that the ADA is broadly worded to include ?any state or local government [and] any department, agency ... or other instrumentality of a state or states or local government,? that the RA applies to ?any program or activity receiving Federal financial assistance,? including those in the CDOC and offered a similarly broad definition of program or activity. Qualified immunity was granted to individual capacity claims because the applicability of the ADA and RA to prisons was not clearly established law at the time of the CDOC conduct. See: Montez v. Romer, 32 F.Supp.2d 1235 (D.Colo. 1999).
The Settlement Agreement
Settlement negotiations were conducted throughout the pendency of this class action. On July 18, 2003, a Notice of Proposed Class Action Settlement was entered into by the parties. In large part, the settlement Agreement was a result of the prisoner?s counsel uncovering non-disclosed documentation.
The Settlement Agreement required the CDOC to spend more than $3 million to provide disabled prisoners accessibility to handicapped cells, sign language interpreters, Braille and largeprint documents, and prisoner aides to assist such prisoners with daily activities. On August 28, 2003, a hearing was held before the Court where the Settlement Agreement was approved with modifications. In addition, a procedure was established for disabled prisoners to file claims for damages only for impairments for mobility, hearing, vision, and/or diabetes. The claims were designated form Category I (general inconvenience or nominal damages), increasing in severity up to Category V (damages due to death). The defendants subsequently attempted to thwart such claims process by claiming Eleventh Amendment immunity, even after the Court approved the claims process.
The CDOC submitted a Remedial Plan as part of the Settlement Agreement to bring it into compliance with the ADA and RA. The Special Master awarded $48,500 to 21 CDOC prisoners, ranging from $1,500 to $3,000 each. Montez ?s estate, as lead plaintiff, was awarded $5,000 because he died during the litigation.
PostSettlement Attempts By Defendants to Thwart the Claims Process
In late June of 2004, the defendants argued that they waived no defenses by entering into the Settlement agreement. They alleged that no claims could be pursued under the ADA due to the state?s sovereign immunity based on the Eleventh Amendment. The defendants further alleged that the only valid prisoner claims were those under the RA and the Eighth Amendment, that such claims required proof of intentional action by the state, and the Eighth Amendment claims were only valid against the defendants named in the class action. The special masters stayed further claims proceedings.
On November 23, 2004, the Court entered an order that individual damage claims would be evaluated based upon the following: (1) whether the claimant is disabled and a class member; (2) whether the claimant was otherwise qualified to participate in programs/receive benefits or services offered by the CDOC; (3) whether the claimant was discriminated against because of his or her disability (where accommodations were requested and denied, based upon a disability); and (4) whether denial of accommodations harmed the claimant and if a remedy has been proposed. The Court ruled that claims were limited to the RA, claimants need not prove intentional discrimination, and that no immunity defenses would be allowed. Further, the Court disallowed claims involving Eighth Amendment medical malpractice and that future damages and/or injunctive relief might be considered in individual cases. Claimants were also allowed up to ten pages of documents relevant to their claims copied from CDOC files free of charge.
Cathie Holst, known in Colorado for destroying the facility law library system, was appointed ADA Inmate Coordinator (AIC). Her first act was to post a required notice throughout all facilities that initial claim forms are available and must be filed within 90 days of receiving the forms. Even special logs were developed for tracking claims within the CDOC. The Court, however, had ordered none of this; instead, a filing deadline of April 1, 2004, was established for all claims. Holst?s actions were directly responsible for an untold number of claims rejected as late.
When the Court discovered her personal crusade to thwart claims for relief, a new deadline of April 14, 2005, was established but only for claims occurring before August 27, 2003.
The state also claims they are overburdened by the workload of this action. After many extensions in the claim review process, they offered $50 per category II claimant (damages not resulting in physical injury). Most claimants found this an insult.
CDOC Harassment and attempts to subvert accommodations
There has been widespread abuse by the CDOC in providing accommodations to Colorado prisoners with verifiable claims. In particular, several prisoners at the Fremont Correctional Facility (FCF) in Canon City, Colorado, have been denied accommodations for their Category III claims (damages due to actual nonsevere physical injuries or nonnominal emotional injuries?such as the fear of death).
FCF prisoner Robert Neely, a 56yearold diagnosed with terminal liver disease, failing heart , kidney and pancreas, progressive cataracts in both eyes, and untreated diabetes, was classified with a Category III claim, although he has consistently argued that his disabilities should be Category IV (damages due to severe physical injuries). Neely filed his claim in 2003, but has received no accommodations for his severe disabilities. Neely said ?it?s a farce, with the Court?s blessing! A multimillion dollar settlement, and the Court is handing out $50 gift certificates, while prisoners die!?
Don Martin, in his 60s, was inexplicably transferred to a private prison in Southern Colorado, run by the Corrections Corporation of America (CCA) which is not one of the facilities designated for claimants in the Settlement Agreement. Martin has a severe hearing disability, the result of his service as an artillery man during the Vietnam War, and a mobility disability, the result of a ?slip and fall? accident while working in the FCF kitchen. Martin had been consistently denied hearing aids as an accommodation for his hearing disability, despite documentation of auditory tests from specialists contracted by the CDOC which show acute hearing loss, with recommendations that hearing aids for both ears be provided. Martin states ?he has been run around in circles by the DOC.
They claim I?m not hearing impaired, even though they have hearing tests that show I have severe hearing loss. I lost my hearing serving my country and I?m treated like garbage by the CDOC.?
There has also been widespread harassment by the CDOC directed towards Montez claimants, including threats, retaliation, and contrived disciplinary infractions. For example, Neely, and Martin have had their legal documentation related to their claims confiscated by CDOC personnel. Neely has been placed in segregation for contrived disciplinary violations four times in a threemonth period. Neely was verbally threatened by CDOC guards with physical assault if he did not stop pursuing his claim, especially seeking facility accommodations for his disabilities. Many others came forward with similar harassment but fear further retaliation if identified.
Award of Fees and Costs to Class Counsel
On December 29, 2005, Magistrate Barr recommended that class counsel, Paula Griesen, should be awarded $203,800 as follows: (1) $114,900 for general compliance monitoring; (2) $76,600 for damage claims; (3) $12,300 in costs, including $2,100 for attorney Edwin Kahn (expert for attorney fees). The Court held that class counsel was entitled to compensation for individual claims, particularly related to briefing discovery issues and liability defenses.
Current Case Status
On August 29, 2006, the Court approved an Amended Stipulation and Order regarding the status of compliance by the CDOC with the Remedial Plan. The original 2003 Remedial Plan provided that the defendants had a twoyear period to achieve substantial compliance. Beginning in April of 2006, compliance hearings were held resulting in an admission by the CDOC that they were not in substantial compliance with the Plan by August 27, 2005 (except the architecturalphysical plant provisions).
The Amended Stipulation extended substantial compliance to July 27, 2007. The CDOC agreed to remedy their failures by agreeing to: (1) waive all medical copays for treatment related to diabetic care for all diabetic prisoners from July 26, 2006, until the judge decides whether the CDOC may legally charge for them; (2) reimburse claimants if they were charged for a medical visit related to diabetes from July 26, 2006, until August 9, 2006. Beginning on August 9, 2006, diabetics are no longer charged for medical visits related to diabetic care other than chronic care visits ($10 per year); (3)provide one free copy of the Remedial Plan; (4) post a notice in all facilities explaining the Amended Stipulation and sanctions imposed for failing to comply with the original Remedial Plan; (5) eliminate any ?ADA? or ?handicapped?jobs that pay less than the regular prisoner wage scale, and if such was the case, the prisoner will be paid the difference retroactive from August 27, 2003; and (6) rescreen claimants who were screened under incorrect standards due to disputes regarding criteria that the CDOC used to categorize claimants.
The Montez action is another example of states wasting millions in protracted litigation to avoid (a) complying with the law and (b) voluntarily doing what they?ll eventually by forced to do, a pennywise and poundfoolish strategy to save thousands early while spending millions in the long run. See: Montez v. Owens, USDC, D CO, Case No. 92CV870EWNOES. The court order and settlement agreement are posted on PLN?s website.
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Related legal case
Montez v. Owens
|Cite||USDC, D CO, Case No. 92CV870EWNOES|