United States District Court, D. Colorado
BIONCA CHARMAINE ROGERS, CATHY BEGANO, ANDREW ATKINS, and MARC TREVITHICK, Plaintiffs,
v.
COLORADO DEPARTMENT OF CORRECTIONS, RICK RAEMISCH, RYAN LONG, and MIKE ROMERO, Defendants. LEONID RABINKOV, CATHY BEGANO, ANDREW ATKINS, and MARC TREVITHICK, Plaintiffs,
v.
COLORADO DEPARTMENT OF CORRECTIONS, Defendant.
ORDER
Scott
T. Varholak, United States Magistrate Judge
This
matter comes before the Court on Defendant Colorado
Department of Corrections' Motion to Dismiss the Amended
Complaint filed by Plaintiffs in Consolidated Civil Action
No. 18-cv-02926-STV (the “Motion”). [#119] The
Motion is before the Court on the parties' consent to
have a United States magistrate judge conduct all proceedings
in this action and to order the entry of a final judgment.
[##30, 31, 51; see also 18-cv-02926-STV, #17] This
Court has carefully considered the Motion and related
briefing, the case file and the applicable case law, and has
determined that oral argument would not materially assist in
the disposition of the Motion. For the following reasons, I
DENY the Motion.
I.
FACTUAL BACKGROUND[1]
Plaintiffs
are inmates incarcerated by Defendant Colorado Department of
Corrections (“CDOC”). [#115 at ¶¶ 3, 6,
9, 12] Plaintiffs in Consolidated Civil Action No.
18-cv-02926-STV, Leonid Rabinkov, Cathy Begano, Andrew
Atkins, and Marc Trevithick (“Plaintiffs”), are
all deaf and use American Sign Language (“ASL”)
as their primary language. [Id. at ¶¶ 4-5,
8, 10-11, 13-14] Plaintiffs claim that the CDOC is denying
Plaintiffs the ability to communicate with friends and
relatives outside of CDOC. Specifically, Plaintiffs have
requested permission to use a videophone inside CDOC
facilities to communicate with their friends and family.
[Id. at ¶ 50] Because ASL is a visual language
in which communication occurs through the movement of hands
combined with facial expressions and postures of the body
[id. at ¶ 17], Plaintiffs contend that a
videophone will allow them to effectively communicate with
others using ASL [id. at ¶ 47]. CDOC has
refused to provide Plaintiffs with a videophone to
communicate with their friends and family members.
[Id. at ¶¶ 45, 52]
CDOC
permits prisoners to make telephone calls to individuals on
their phone list. [Id. at ¶ 40] Hearing
prisoners who wish to contact hearing family members are
permitted to use the phone at any time phones are available,
provided they have paid for the time and the person being
called is on the inmate's phone list. [Id. at
¶ 41] In contrast, CDOC allows deaf inmates to use a
teletypewriter (“TTY”). [Id. at ¶
42] In a TTY communication, each participant types out his or
her side of the conversation, then waits while the other
person types back. [Id. at ¶ 23] For a TTY
communication to occur, both participants must own TTY
equipment. [Id. at ¶ 22] Plaintiffs allege
that, on multiple occasions, the TTYs at the CDOC facilities
“regularly freeze[] or disconnect[]” and their
“keys are extremely sensitive, causing typographical
errors.” [Id. at ¶ 44] Plaintiffs further
allege that they have scheduled specific times to communicate
with family and friends using the TTY, only to find that it
is broken. [Id.] According to the Amended Complaint,
when a facility's TTY is broken, “it often takes
the CDOC an unreasonable time to fix it.”
[Id.] Plaintiffs allege that their inability to
effectively communicate have caused them to lose contact with
friends and family. [Id. at ¶ 43]
The
Amended Complaint brings two claims. The first claim alleges
that CDOC violated Title II of the Americans with
Disabilities Act (“ADA”). [Id. at
¶¶ 53-61] The second claim alleges that CDOC
violated Section 504 of the Rehabilitation Act. [Id.
at ¶¶ 62-71] Plaintiffs seek injunctive relief and
compensatory damages. [Id. at 12] CDOC has moved to
dismiss both claims. [#119] Plaintiffs have responded to the
Motion [#123] and CDOC filed a reply [#127].
II.
STANDARD OF REVIEW
Under
Federal Rule of Civil Procedure 12(b)(6), a court may dismiss
a complaint for “failure to state a claim upon which
relief can be granted.” In deciding a motion under Rule
12(b)(6), a court must “accept as true all well-pleaded
factual allegations . . . and view these allegations in the
light most favorable to the plaintiff.” Casanova v.
Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010)
(alteration in original) (quoting Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009)).
Nonetheless, a plaintiff may not rely on mere labels or
conclusions, “and a formulaic recitation of the
elements of a cause of action will not do.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“To
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). Plausibility refers
“to the scope of the allegations in a complaint: if
they are so general that they encompass a wide swath of
conduct, much of it innocent, then the plaintiffs ‘have
not nudged their claims across the line from conceivable to
plausible.'” Robbins v. Oklahoma, 519 F.3d
1242, 1247 (10th Cir. 2008) (quoting Twombly, 550
U.S. at 570). “The burden is on the plaintiff to frame
a ‘complaint with enough factual matter (taken as true)
to suggest' that he or she is entitled to relief.”
Id. (quoting Twombly, 550 U.S. at 556). The
ultimate duty of the court is to “determine whether the
complaint sufficiently alleges facts supporting all the
elements necessary to establish an entitlement to relief
under the legal theory proposed.” Forest Guardians
v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
III.
ANALYSIS
CDOC
argues that Plaintiffs' claims must be dismissed for
failure to state a claim under the ADA or the Rehabilitation
Act. [#119 at 5-8] “Analysis of a claim under Title II
of the ADA is identical to an analysis under the
Rehabilitation Act.” Kimble v. Douglas Cty. Sch.
Dist. RE-1, 925 F.Supp.2d 1176, 1182 (D. Colo. 2013)
(citing Nielsen v. Moroni Feed Co., 162 F.3d 604,
608 n.7 (10th Cir. 1998); Kimber v. Thiokol Corp.,
196 F.3d 1092, 1102 (10th Cir. 1998)); see also Anderson
v. Colo. Dep't of Corr., 848 F.Supp.2d 1291, 1300
n.2 (D. Colo. 2012) (“The Rehabilitation Act is
materially identical to and the model for the ADA[-]the
elements are the same except the Rehabilitation Act requires
that defendant receive federal funds.” (quotations
omitted)). Accordingly, and as requested by the parties, the
Court will apply the same analysis to Plaintiffs' ADA and
Rehabilitation Act claims.
Title
II of the ADA states, in pertinent part, that “no
qualified individual with a disability shall, by reason of
such disability, be excluded from participation in or be
denied the benefits of the services, programs, or activities
of a public entity, or be subjected to discrimination by any
such entity.” 42 U.S.C. § 12132. This provision
applies to prisoners. See Pa. Dep't of Corr. v.
Yeskey, 524 U.S. 206, 210 (1998). “To state a
claim under Title II, the plaintiff must allege that (1) he
is a qualified individual with a disability, (2) who was
excluded from participation in or denied the benefits of a
public entity's services, programs, or activities, and
(3) such exclusion, denial of benefits, or discrimination was
by reason of a disability.” Robertson v. Las Animas
Cty. Sheriff's Dep't, 500 F.3d 1185, 1193 (10th
Cir. 2007).
CDOC
challenges whether Plaintiffs have sufficiently alleged that
they were excluded from the benefits of CDOC's services,
programs, or activities.[2] [#119 at 5-8] As the Tenth Circuit has
instructed, the ADA “requires more than physical access
to public entities: it requires public entities to provide
meaningful access to their programs and
services.” Robertson, 550 F.3d at 1193
(quotations omitted). To effectuate Title II's mandate,
Department of Justice “regulations require public
entities to ‘make reasonable modifications in policies,
practices, or procedures when the modifications are necessary
to avoid discrimination on the basis of
disability.'” Id. (quoting 28 C.F.R.
§ 35.130(b)(7)). CDOC argues that it is only required to
make reasonable accommodations for Plaintiffs, not the best
possible accommodations, and that it has satisfied this
obligation by providing TTY equipment. [#119 at 6 (citing
Arce v. Louisiana, 226 F.Supp.3d 643, 651 (E.D. La.
2016) (finding that ADA did not require prison to provide
deaf inmate with videophone as a reasonable accommodation))]
Ultimately,
for purposes of deciding the instant Motion to Dismiss, the
Court need not decide whether CDOC must provide Plaintiffs
with a videophone in order to provide a reasonable
accommodation, because Plaintiffs have plausibly alleged that
they have often been denied any meaningful access to
forms of communication with friends and family. As indicated
above, Plaintiffs allege that, on multiple occasions, the
TTYs at the CDOC facilities “regularly freeze[] or
disconnect[]” and their “keys are extremely
sensitive, causing typographical errors.” [#115 at
¶ 44] Plaintiffs further allege that broken TTYs have
interfered with specific times they have scheduled to
communicate with family and friends. [Id.] According
to the Amended Complaint, when a facility's TTY is
broken, “it often takes the CDOC an unreasonable time
to fix it.” [Id.] Plaintiffs further contend
that the current TTY equipment is becoming antiquated,
requires frequent maintenance from sources untrained on the
use and repair of TTYs, thus “creat[ing] unfair delays
for offenders due to the limited number of TTY machines
department wide when equipment is down.” [Id.
at ¶ 26] Plaintiffs allege that their inability to
effectively communicate has caused them to lose contact with
friends and family. [Id. at ¶ 43] While the
Court agrees with CDOC that the Amended Complaint could have
been more specific about the frequency of the breakdowns, the
Court ultimately concludes that the allegations are
sufficient to plausibly plead both an ADA and a
Rehabilitation Act claim. See Tanney v. Boles, 400
F.Supp.2d 1027, 1041-42 (E.D. Mich. 2005) (denying summary
judgment for institution where inmate offered evidence that
he was denied reasonable access to TTY machine);
Zemedagegehu v. Arthur, No. 1:15cv57 (JCC/MSN), 2015
WL 1930539, at *13 (E.D. Va. April 28, 2015) (denying motion
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