United States District Court, D. Colorado
OPINION AND ORDER
N.
REID NEUREITER UNITED STATES MAGISTRATE JUDGE.
This
case is before the Court pursuant the parties' consent to
magistrate judge jurisdiction. (Dkt. #69.) On September 28,
2018, Defendants Lieutenant Brenda Bland, Captain Gilbert
Caley, the Colorado Department of Corrections
(“CDOC”), the Denver Women's Correctional
Facility (“DWCF”), Lieutenant Jill Glacier,
Sergeant Trisha Jesik, Correctional Officer Brittany Houtz,
Rick Raemisch, and Sergeant Crystal Sesma (collectively
“Defendants”) filed a Motion for Summary
Judgment. (Dkt. #94.) Plaintiff Barbara Freeman filed a
response on November 12, 2018 (Dkt. #98), and the Court heard
argument on December 18, 2018. (Dkt. #99.) The Court has
reviewed the parties' filings, taken judicial notice of
the Court's entire file in this case, and considered the
applicable Federal Rules of Civil Procedure, statutes, and
case law. Now being fully informed, the Court makes the
following order.
I.
BACKGROUND
a.
Procedural History
Magistrate
Judge Michael Watanabe recited the procedural background of
this case in his June 22, 2018 Order (Dkt. #87), which
dismissed Mrs. Freeman's 42 U.S.C. § 1983 claim, but
allowed her claim for compensatory and punitive damages under
Title II of the Americans with Disabilities Act, 42 U.S.C.
§§ 12131-34 (the “ADA”) to go
forward.[1] Upon Magistrate Judge Watanabe's
retirement, this case was reassigned to me. (Dkt. #90.)
In the
relevant portions of her Third Amended Complaint (Dkt. #75),
Mrs. Freeman claims that Defendants failed to make reasonable
accommodations for her disabilities while being housed at the
DWCF. Specifically, she alleges that, for a period of
approximately 30 days in 2016, Defendants failed to place her
in a handicapped-accessible cell equipped with necessary
accommodations for disabled inmates (known as a “Montez
Remedial room”), including services provided by an
inmate aide (known as an Offender Care Aid
(“OCA”)) to help perform various tasks, a thicker
mattress (known as a “medical mattress”), and
hearing and visual aids in the event of an emergency
evacuation. (Id. ¶¶ 25-27, & 29.) As a
result, during those 30 days, Mrs. Freeman (1) bathed only
once, due to her fear of falling while showering unassisted;
(2) missed several meals because she could not walk alone to
the cafeteria without falling; and (3) could not take her
medication because she could not walk unassisted to
medication dispensary line (the “med-line”).
(Id. ¶¶ 38-40.) Plaintiff informed
Defendants Caley, Bland, Jesik, Sesma, and Glacier that the
non-Montez Remedial room was inadequate to accommodate her
needs, but these Defendants did nothing to assist her.
(Id. ¶ 41.)
Defendants
now move for summary judgment on Mrs. Freeman's ADA
claim. They argue that Mrs. Freeman has made no showing that
she suffered any compensable damages or that Defendants
intentionally discriminated against her.
b.
Factual Background
Mrs.
Freeman is a woman in her eighties and is housed in the DWCF.
Mrs. Freeman has mobility impairments, hearing impairments,
complete blindness in her right eye and a visual impairment
in her left eye, an inability to stand for longer than two
minutes unassisted, an inability to bend over, severe
arthritis in her hands, and asthma. (Dkt. #98-1 ¶ 3.)
Because of her impairments, Mrs. Freeman is entitled to
certain accommodations pursuant to the ADA. The CDOC's
Office of the ADA Inmate Coordinator (“AIC”),
which consists of 2 employees and has AIC coordinators at
every facility, is tasked with evaluating and providing
offenders with these accommodations.
Mrs.
Freeman requested, and the Office of the AIC provided, the
following ADA accommodations: access to the talking-book
library; access to a DWCF elevator (although Mrs. Freeman
claims that it is often out of order, pointing to a recent
incident in September 2018); additional time to complete
activities of daily living; an extra blanket; authorization
to purchase a vibrating watch without sufficient funds; and
assistance with carrying and disposing of meal trays.
The
Office of the AIC also provided the following accommodations,
even though Mrs. Freeman did not request them: closed
captioning that remains on in the day hall; additional time
for movement within the facility; access to a shower chair;
accommodations when being retrained, searched, and
transported; authorization to wear medical footwear in all
areas of DWCF and during transportation; and a wheelchair
pusher.
Mrs.
Freeman currently has the following assistive devices and
medical equipment: medical boots/shoes, issued on June 14,
2016; two hearing aids, issued on September 3, 2014; and
medically necessary shoes/shoe inserts, issued on October 23,
2014. Mrs. Freeman also has a wheelchair, but while
Defendants claim that it was issued in October 2016, Mrs.
Freeman contends it was only provided in February 2018, three
years after she requested it.
Mrs.
Freeman states that, contrary to Defendants' assertions,
DWCF denied and/or ignored her requests for personal notice
of irregular overhead announcements, for access to staff
assistance during evacuations, and for a backpack. (Dkt.
#98-1 ¶¶ 22, 24, & 28.) She also requested and
was denied a place to sit while she was in the med-line, a
toothbrush that accommodates her severe arthritis, and
assistance reading the law library computer.
In July
2016, Defendants moved Mrs. Freeman from Unit 1, an
“incentive unit, ” to Unit 3. Defendants state
that Mrs. Freeman was regressed because she harassed and
bullied a series of cellmates by instituting various rules
and regulations about what could and could not go on in the
cell, so DWCF staff determined that placement in a single
cell was the best option. (Dkt. #94-2 at 4-6; #94-3 at 3-4;
#94-4; #94-5 at 4-10; #94-6 at 11-14.) Mrs. Freeman denies
that she bullied anyone, but rather only “made
accommodation requests to her cellmates because of her
disabilities.” (Dkt. #98-1 ¶ 12-13.)
In any
event, Mrs. Freeman claims that her Unit 3 cell did not meet
her needs. She states that she lost her “medical
mattress” accommodation, access to the ADA accessible
bathroom[2], personal notice announcements, and access
to an ADA compliant trunk or closet. (Id. ¶
32.) She remained in Unit 3 for approximately 30 days.
The
primary focus of Mrs. Freeman's ADA claim centers around
her access to an OCA III and a “medical
mattress.” OCAs assist other inmates with various types
of physical and/or mental limitations. There are three OCA
levels. An OCA I essentially pushes wheelchairs. (Dkt.
#98-6.) An OCA II assists “offenders with minimal
physical and/or mental limitations in the performance of
activities of daily living” by helping with hygiene,
dining, cleaning and laundry, etc. (Dkt. #98-7.) An OCA III
assists offenders with “significant limitations and/or
extensive medical needs” by transferring him/her to and
from the toilet, shower, and bed; turning and repositioning
the offender; and assisting with “toileting and
bathing.” (Dkt. #98-5.)
Mrs.
Freeman contends that she required an OCA III to accompany
her while walking in DWCF to prevent her from falling and
injuring herself, and that without one, she cannot go to
meals, the med-line, or shower. (Dkt. #98-1 ¶¶ 8
& 10.) She states that she was assigned an OCA III in
2015 by Dr. Rishi Ariola-Tirella. (Dkt. #98-8.) On September
14, 2016, Deb Reilly, PA-C wrote in an email that she had
talked with prison staff that day and “it was decided
Mrs. Barbara Freeman will also be allowed to have a OCA 3,
since that is what is required to help her walk from place to
place.” (Dkt. 98-9.) In June 2017, Dr. Ariola-Tirella
stated in an email that he “thought we had approved
[Mrs. Freeman] an OCA 3 to hold on to her when she is walking
and has episodes of vertigo.” (Dkt. #98-10.) When she
was denied an OCA II or III while living in Unit 3, Mrs.
Freeman claims that she missed seven meals and missed her
“medications many times.” (Dkt. #98-1 ¶ 9.)
Defendants
argue that Mrs. Freeman was given the appropriate OCA
accommodations. In October 2016, Ms. Reilly asked Dr. Susan
Tiona, the CDOC's Chief Medical Officer, to “put in
for an OCA III.” (Dkt. #94-8 at 2.) Dr. Tiona responded
that Mrs. Freeman needed a wheelchair, not an OCA III,
because even with an OCA III, she was liable to fall while
walking longer distances. (Id. at 1.) Defendants
point out that Mrs. Freeman had an OCA when she was in Unit
3, but she was often dissatisfied with their work. Defendants
claim that Mrs. Freeman's complaints about her OCAs were
often racially motivated, which Mrs. Freeman ...