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Over $3.5 Million Paid to Incontinent Colorado Prisoner Offered Diapers Instead of Dining Priority Pass

by David M. Reutter

On December 16, 2022, a jury in federal court for the District of Colorado awarded $3.5 million to state prisoner Jason Brooks, whose complaint alleged simply that the “offer of adult diapers was not a reasonable accommodation” of his disability by the state Department of Corrections (DOC).

The same district court had earlier dismissed Brooks’ claim under the Americans with Disabilities Act (ADA), 42 U.S.C. ch. 126 § 12101 et seq. But the U.S. Court of Appeals for the Tenth Circuit reversed that decision, reasoning that “having to sit in soiled diapers among other inmates in the dining hall” left Brooks “at risk of assault.” [See: PLN, May 2022, p. 50.]

Brooks, who was sentenced for securities fraud, suffers from ulcerative colitis, a chronic and incurable disease causing frequent bowel movements that are “urgent, loose, watery, and often bloody,” according to his complaint. The condition is incurable. After a transfer to Fremont Correctional Facility (FCF) in February 2012, he was granted a pass to skip to the head of the chow line at mealtimes so that he could better manage his incontinence. But the pass expired after 30 days, and prison officials refused to renew it. Instead they offered Brooks adult diapers to wear to meals.

A year later, Brooks still had no pass, and prison officials were still pointing fingers at one another when asked why. With his weight dropping alarmingly – 50 pounds below normal – Brooks filed the pro se suit that the district court dismissed. After the Tenth Circuit reinstated it, the case proceeded to trial, where Brooks was appointed pro bono counsel from Grand Junction attorney Daniel J. Shaffer. The jury then found DOC violated Title II of the ADA by failing to accommodate Brooks’ disability.

In addition to the $3.5 million award, Brooks won post-judgment interest at the rate of 4.8% and costs of $11,282.80. He has also filed for attorney fees totaling $152,573.50, and PLN will report developments as they are available. In addition to Shaffer, representation for Brooks was provided by attorneys Kevin D. Homiak of Wheeler Trigg O’Donnell LLP in Denver and Athul K. Acharya of Public Accountability in Portland, Oregon. See: Brooks v. Colo. Dep’t of Corr., USDC (D. Col.), Case No. 1:13-cv-02894.