Freeman v. Colorado Department of Corrections

          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 ...