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Tenth Circuit Says Disabled Colorado Prisoner Offered Diapers Rather Than Bathroom Pass May Deserve Damages Under ADA

by David M. Reutter

In an opinion issued on September 8, 2021, the U.S. Court of Appeals for the Tenth Circuit ruled the federal district court in Colorado erred in dismissing a state prisoner’s claim filed under the Americans with Disabilities Act (ADA), 42 U.S.C. ch. 126 §12101 et seq., since a “reasonable juror could conclude the offer of adult diapers was not a reasonable accommodation” of his disability.

The prisoner, Jason Brooks, is serving a lengthy sentence for securities fraud. He suffers a bad case of ulcerative colitis, a chronic intestinal disease that causes “significant” abdominal pain and bowel movements that are “urgent, loose, watery, and often bloody,” according to his complaint. The condition is incurable.

During the time he has been held by the state Department of Corrections (DOC), Brooks has been housed at several prisons, but it was after a transfer to Fremont Correctional Facility (FCF) in February 2012 that he “missed hundreds of meals per year,” the Court noted, because the disease “flare-ups were unpredictable, unmanageable, and frequently occurred during his assigned ‘chow pull.’”

Using the restroom up to 30 times per day, Brooks’ weight sometimes dropped 50 pounds below his 190-pound ideal. He applied for and received a pass from Clinical Services that allowed him to attend meals first, with diabetics. Without the unpredictability of waiting in a line, he was able to predict his mealtime and use the restroom before he ate, thereby managing his incontinence.

But the pass expired after three months. Clinical Services refused to renew it, shifting responsibility to the ADA Coordinator, Julie Russell, who said it was up to Clinical Services. For over a year, Brooks tried unsuccessfully through the grievance process and Russell to receive a pass to accommodate his disability. Instead, he was offered adult diapers.

That’s when he filed suit pro se. But the district court dismissed his claims against DOC, granting summary judgment on his ADA and civil right claims to Russell and other defendants. Brooks appealed to the Tenth Circuit, which reinstated his ADA claims and those against DOC, as well as his Eighth Amendment claim against Russell, saying he “‘plausibly’ alleged diapers ‘were an insufficient accommodation’ for his disability,” the Court noted. See: Brooks v. Colo. Dep’t of Corrs., 715 F. App’x 814 (10th Cir. 2017).

On remand, the district court dismissed Brooks’ claim for injunctive relief as moot because he had been transferred to another prison, where he was issued another movement pass. It also dismissed his ADA claims, saying diapers were a reasonable accommodation of his disability, meaning his Eighth Amendment claim against Russell failed, too.

Once more Brooks appealed. The Tenth Circuit, noting his claim that “having to sit in soiled diapers among other inmates in the dining hall would have placed him at risk of assault,” said the district court had erred: A jury could find this “completely unreasonable” in the prison environment. Moreover, since Brooks had developed an effective strategy for managing his incontinence, a jury could also conclude that a movement pass is a much superior accommodation and that diapers do not provide truly meaningful access to the cafeteria.

Thus the Court reversed the judgment in favor of Defendants on the ADA damages claim, though it affirmed the dismissal of Brooks’ injunctive relief and Eighth Amendment claims, agreeing that the former is moot and, regarding the latter, saying that there was insufficient evidence Russell knew she had authority to issue a movement pass, so the claim against her died on the subjective prong of the liability test laid out in Farmer v. Brennan, 511 U.S. 825 (1994). See: Brooks v. Colo. Dep’t of Corrs., 12 F.4th 1160 (10th Cir. 2021).

The case has returned to the district court, which appointed Brooks pro bono counsel on December 13, 2021, in preparation for trial on his ADA claim, where he will be represented by Denver attorney Kevin D. Homiak, with assistance from Daniel R. Shaffer of Grand Junction and Athul K. Acharya of Public Accountability in Portland, Oregon. See: Brooks v. Colorado Department of Corrections, USDC (D. Colo.), Case No. 1:13-cv-02894. 

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