United States District Court, D. Colorado
BIONCA CHARMAINE ROGERS, CATHY BEGANO, ANDREW ATKINS, and MARK TREVITHICK, Plaintiffs,
v.
COLORADO DEPARTMENT OF CORRECTIONS, RICK RAEMISCH, RYAN LONG, and MIKE ROMERO, Defendants. LEONID RABINKOV, CATHY BEGANO, ANDREW ATKINS, MARC TREVITHICK, on behalf of themselves and others similarly situated, Plaintiffs,
v.
COLORADO DEPARTMENT OF CORRECTIONS, Defendant.
ORDER
Scott
T. Varholak United States Magistrate Judge.
Magistrate
Judge Scott T. Varholak This matter comes before the Court on
three motions: (1) Defendants’ Motion to Dismiss as
Moot (the “Motion to Dismiss”) [#143]; (2)
Plaintiff Marc Trevithick’s Motion for Partial Summary
Judgment (“Motion for PSJ”) [#117]; and (3)
Defendants’ Motion for Summary Judgment (“Motion
for Summary Judgment”) [#133] (collectively, the
“Motions”). The Motions are 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] The Court held oral
argument on the Motions on July 26, 2019 [##151, 157] and has
carefully considered the Motions and related briefing, the
entire case file, and the applicable case law. For the
following reasons, the Motion to Dismiss [#143] is
DENIED, Trevithick’s Motion for PSJ
[#117] is GRANTED, and Defendant’s MSJ
[#133] is GRANTED IN PART and DENIED IN
PART.
I.
BACKGROUND[1]
Plaintiffs
are inmates incarcerated by Defendant Colorado Department of
Corrections (“CDOC”). [#141-1, DSOF1] Plaintiffs
Bionca Charmaine Rogers and Cathy Begano are housed at the
Denver Women’s Correctional Facility
(“DWCF”) and Plaintiffs Leonid Rabinkov, Andrew
Atkins, and Marc Trevithick are housed at the Colorado
Territorial Correctional Facility (“CTCF”).
[Id. at PSOF1-2] Plaintiff Rabinkov also often goes
to the Denver Reception and Diagnostic Center
(“DRDC”) for medical appointments. [Id.
at PSOF3] Plaintiffs Rabinkov, Begano, Atkins, and Trevithick
(the “Deaf Plaintiffs”), are all deaf and use
American Sign Language (“ASL”) as their primary
language and preferred mode of communication. [Id.
at PSOF4-5] The Deaf Plaintiffs are thus individuals with
disabilities as that term is used in the ADA and
Rehabilitation Act. [Id. at PSOF4] Plaintiff Rogers
is able to hear, but her mother is deaf, and Plaintiff
communicates with her mother using ASL. [Id. at
PSOF4-6]
Videophones
are telephones with a high-definition video display, capable
of two-way interactive video and audio, for communication
between individuals in real time over the internet.
[Id. at PSOF7] Videophones enable individuals to
communicate through ASL. [Id. at PSOF8] Global
Tel*Link, the company that supplied videophones for a CDOC
pilot program, provides videophone service to approximately
30 departments of corrections. [Id. at PSOF45, 81]
While Plaintiffs Rogers and Begano were able to use
videophones when they were detained in city and county
facilities, the CDOC has repeatedly denied requests by
Plaintiffs to use videophones to make calls to individuals
outside CDOC facilities. [Id. at PSOF9, 44]
Instead,
until recently, deaf inmates in CDOC facilities, or inmates
who wish to communicate with parties with hearing or speech
disabilities, are afforded access to a teletypewriter
(“TTY”), or comparable equipment, which allows
communication through use of typed text messages.
[Id. at DSOF29-30] In a TTY communication, both
parties type and read responses using a teletypewriter
device, and their typed conversation is transmitted back and
forth across the standard telephone network through an
operator. [Id. at DSOF30, PSOF17-18] Because very
few deaf people use TTYs, a three-step process is required
when a deaf CDOC inmate uses TTY to contact another deaf
person outside the facility without a TTY: the deaf inmates
types a message into the TTY; the TTY operator speaks the
message to a video relay service (“VRS”)
operator; and the VRS operator signs the message to the
recipient’s videophone. [Id. at PSOF23] When
the deaf recipient responds, the three-step process is
repeated in reverse. [Id.] Plaintiffs Rogers,
Trevithick, and Atkins have had to use this process, which
has caused misunderstandings and mistranslations.
[Id. at PSOF23-24] And CDOC’s TTYs often
freeze in the middle of calls, or produce garbled text or
nonsense characters.[2] [Id. at PSOF29-30; #124, TSOF24]
Plaintiff Rabinkov has not been able to communicate through
TTY with his friends who use Russian Sign Language. [#141-1,
POSF25] Plaintiff Rogers has had difficulty communicating
effectively with her mother, the guardian for her children,
including discussing sensitive family matters. [Id.
at PSOF37, 42]
In
addition to causing misunderstandings, TTY technology is 60
years old, causes delays because of the necessary relay
through typing and sometimes an operator, and requires deaf
inmates to communicate in English. [Id. at PSOF17,
23, 27] ASL is neither a manual form nor a derivative form of
English, the grammatical and syntactic structure between ASL
and English is fundamentally different, and English is not
the native language of the Deaf Plaintiffs or Plaintiff
Rogers’ mother. [Id. at PSOF 4, 13-14] In
contrast, videophones allow deaf people to communicate using
ASL, use visual indicators such as facial expressions, head
tilts and nods, and eyebrow raises, which encode the grammar
of ASL and also enable the conveying of emotion, mood, tone,
and affect in real time. [Id. at PSOF7, 27, 32-33]
When the Deaf Plaintiffs are able to communicate in ASL, they
can express and understand a full range of meaning and
emotion, and engage in fluent, complete, and meaningful
communication. [Id. at PSOF36]
CDOC
investigated the possibility of offering videophone services
as early as 2007, but ultimately did not. [Id. at
PSOF73] In a December 2013 Project Request Form, Keith
Nordell, who was CDOC’s highest ranking attorney at the
time, stated that “current TTY equipment is becoming
antiquated, requires frequent maintenance from sources that
are not familiar or trained on the use/repair of a TTY and
creates unfair delays for offenders due to the limited number
of TTY machines department wide when equipment is
down.” [Id. at PSOF20] Between 2013 and 2016,
CDOC again evaluated videophone technology and considered
implementing a pilot program to provide videophones to deaf
inmates at CTCF. [Id. at PSOF74] Videophone units
were installed at CTCF in 2015, but Adrienne Jacobson,
Associate Director of Legal Services for the CDOC, had
security concerns and ultimately decided not to move forward
with videophone service. [Id. at PSOF75-76; #143-1
at ¶¶ 5-6] Specifically, Ms. Jacobson was concerned
about the CDOC’s lack of processes to limit the phone
numbers that offenders could call over the videophone,
restrict the duration of videophone calls, or charge
offenders for those calls. [#143-1 at ¶ 6] In July 2016,
the videophone pilot program was approved for CTCF, but
within hours of the launch, the CDOC pulled the plug.
[#141-1, PSOF78-80] The videophone pilot project was put on
hold several times over the course of 2016. [Id. at
POSF80-82] As of May 2017, there were no plans to install
videophones in CDOC facilities. [Id. at PSOF83]
In
January 2018, Janet Smith, an Americans with Disabilities Act
(“ADA”) Inmate Coordinator Designee with CDOC
Legal Services, sent an email stating, “I would like to
get started as soon as possible on the video[]phone project
as CTCF’s deaf population is being contacted by
Attorney Amy Robertson. (The same attorney representing the
deaf women in the pending lawsuit regarding lack of
videophones).” [Id. at PSOF84; see
also #143-2 at ¶ 2] Around the same time, in early
2018, Ms. Jacobson revisited the option of providing
videophone service, and organized a committee of CDOC
officials to address security concerns. [#143-1 at ¶ 10]
A
videophone kiosk was installed at DWCF on December 11, 2018,
and was available for use in one unit by December 22.
[Id. at ¶ 12; see also #141-1, DSOF36,
PSOF86-87] This marked the first time that CDOC provided deaf
inmates with access to videophones. [#141-1, PSOF85] The unit
has been used by inmates at DWCF ever since, including
Plaintiffs Begano and Rogers, there have been no significant
problems with the videophone unit, and DWCF staff have
developed processes and procedures for inmates to use the
unit. [Id. at DSOF37; #143-1 at ¶ 12]
Videophone
units were later installed at CTCF, and on June 4, 2019, Ms.
Smith visited that facility to observe videophone use.
[#143-2 at ¶ 7; see also #143-1 at ¶ 13]
The installation of two of the three videophones had been
completed, those videophones were operational, and Ms. Smith
assisted and observed inmates making calls. [#143-2 at
¶¶ 7-8] Plaintiffs Rabinkov, Atkins, and Trevithick
are all housed in units where videophones are available.
[Id. at ¶ 8] Offenders housed in units where
the videophones have not been installed are permitted to use
a videophone from a different unit. [Id.] The CDOC
additionally plans to install one or more videophone units at
the DRDC, and at other correctional facilities on an
as-needed basis. [#143-1 at ¶ 13]
Ms.
Jacobson indicates that it is CDOC’s intent to maintain
the videophone units permanently, and that the CDOC has no
intention of terminating the units or discontinuing the
accessibility of the units for offender use. [Id.]
While Ms. Smith states that CTCF is in the process of
amending its implementation adjustments to incorporate use of
videophones into the facility’s policy [#143-2 at
¶ 9], there are currently no administrative regulations
or implementation adjustments that address videophones, and
there is no CDOC videophone policy or draft policy [#141-1,
PSOF100-01]. CDOC does not have a contract with the current
vendor of its videophone services, and has not made any
expenditures to install videophones. [Id. at
PSOF102-04] CDOC canceled the previous videophone pilot
program based on security concerns, and Ms. Jacobson
continues to have similar concerns about the current system,
including that it does not restrict the phone numbers
prisoners can call. [Id. at PSOF105-06] Ms. Jacobson
does not believe the ADA requires the CDOC to provide
videophones to deaf and hard of hearing inmates, and the CDOC
maintains that TTY is an effective form of communication for
those individuals, sufficient to meet the CDOC’s
obligations under the ADA and the Rehabilitation Act.
[Id. at PSOF107-08] The parties dispute whether TTY
units remain available for meaningful use in CDOC facilities.
[Id. at PSOF113; #143-1 at ¶ 13]
Plaintiffs
collectively[3] claim that Defendants have violated their
rights under Title II of the ADA, Section 504 of the
Rehabilitation Act, and the First Amendment.[4] [#66 at 13-19;
#115 at 8-12] Plaintiffs seek injunctive and declaratory
relief, and compensatory damages. [#66 at 20; #115 at 12]
Specifically, Plaintiffs seek an injunction ordering
Defendants to cease violating their rights under the First
Amendment, the ADA, and the Rehabilitation Act, and to stop
discriminating against them on the basis of disability.
[Id.] In Civil Action No. 18-cv-02926-STV
(“Rabinkov”), Plaintiffs explicitly ask
that the CDOC be ordered to provide videophone services to
deaf prisoners and to implement policies to ensure access to
videophones. [#115 at 12]
In the
Motion to Dismiss, Defendants argue that Plaintiffs’
claims are now moot because videophone technology has been
made available to Plaintiffs. [#143] Plaintiffs have filed a
response in opposition to the Motion to Dismiss [#147],
Defendants have replied [#148], and both parties have filed
supplemental briefs regarding the Motion to Dismiss and the
other pending Motions [##152, 155].
Plaintiff
Trevithick filed the Motion for PSJ on January 17, 2019,
seeking summary judgment on his claims under Title II of the
ADA and Section 504 of the Rehabilitation Act and arguing
that it is undisputed that the CDOC does not provide
videophone service to him, and the service that it does offer
is ineffective and obsolete. [#117] The Motion for PSJ is
fully briefed. [##120, 124] Finally, in Defendants’
Motion for Summary Judgment, Defendants contend that they are
entitled to summary judgment on all of Plaintiffs’
claims. [#133 at 7-19] Plaintiffs have filed a response
[#140] and Defendants have replied [#141]. The Court first
addresses the Motion to Dismiss because the Court must first
determine whether it has subject matter jurisdiction to
adjudicate this matter. The Court then discusses the Motion
for PSJ and the Motion for Summary Judgment (collectively,
the “Motions for Summary Judgment”).
II.
MOTION TO DISMISS
The
Court first considers whether the CDOC’s
post-litigation efforts to provide videophone technology for
deaf inmates moot Plaintiffs’ claims. In the Motion to
Dismiss, Defendants argue that because the instant litigation
is premised on Defendants’ failure to provide
videophone access to Plaintiffs, the CDOC’s
implementation of videophone technology moots
Plaintiffs’ claims. [#143] More specifically,
Defendants claim that as of December 22, 2018, a videophone
unit has been available for use by offenders at the DWCF,
which Plaintiffs Begano and Rogers have used. [Id.
at 4-5] Defendants further note that Plaintiffs Rabinkov,
Atkins, and Trevithick now have access to videophones in
their units at CTCF. [Id. at 5] CDOC states that it
intends to maintain videophone units permanently for use by
deaf offenders [id. at 6] and argues that this Court
accordingly lacks subject matter jurisdiction because the
installation of videophones moots Plaintiffs’ claims
[see generally #143].
A.
Standard of Review
Federal
Rule of Civil Procedure 12(b)(1) empowers a court to dismiss
a complaint for “lack of subject-matter
jurisdiction.” Dismissal under Rule 12(b)(1) is not a
judgment on the merits of a plaintiff’s case, but only
a determination that the court lacks authority to adjudicate
the matter. See Castaneda v. INS, 23 F.3d 1576, 1580
(10th Cir. 1994) (recognizing federal courts are courts of
limited jurisdiction and may only exercise jurisdiction when
specifically authorized to do so). A court lacking
jurisdiction “must dismiss the cause at any stage of
the proceeding in which it becomes apparent that jurisdiction
is lacking.” Basso v. Utah Power & Light
Co., 495 F.2d 906, 909 (10th Cir. 1974).
The
United States Constitution limits the jurisdiction of the
federal courts to actual cases or controversies. U.S. Const.
art. III, § 2, cl. 1. Mootness thus “is a
threshold issue because the existence of a live case or
controversy is a constitutional prerequisite to federal court
jurisdiction.” McClendon v. City of
Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996).
B.
Mootness
“A
‘suit becomes moot when the issues presented are no
longer “live” or the parties lack a legally
cognizable interest in the outcome.’” Brown
v. Buhman, 822 F.3d 1151, 1165 (10th Cir. 2016) (quoting
Chafin v. Chafin, 133 S.Ct. 1017, 1023 (2013)).
“[T]he case is moot if the dispute is no longer
embedded in any actual controversy about the
plaintiffs’ particular legal rights.”
Id. (quoting Already, LLC v. Nike, Inc.,
568 U.S. 85, 91 (2013)). “The crucial question is
whether granting a present determination of the issues
offered will have some effect in the real world.”
Id. at 1165-66 (quoting Wyoming v. U.S.
Dep’t of Agric., 414 F.3d 1207, 1212 (10th Cir.
2005)). “Put another way, a case becomes moot when a
plaintiff no longer suffers actual injury that can be
redressed by a favorable judicial decision.”
Id. at 1166 (quoting Ind v. Colo. Dep’t of
Corr., 801 F.3d 1209, 1213 (10th Cir. 2015)).
“When
prospective equitable relief is requested, the requesting
party must show an ongoing, personal stake in the outcome of
the controversy, a likelihood of substantial and immediate
irreparable injury, and the inadequacy of remedies at
law.” Rezaq v. Nalley, 677 F.3d 1001, 1008
(10th Cir. 2012). “Past exposure to illegal conduct
does not in itself show a present case or controversy
regarding injunctive relief.” Id. (quoting
O’Shea v. Littleton, 414 U.S. 488, 495-96
(1974)). In a declaratory relief action, “a plaintiff
must be seeking more than a retrospective opinion that he was
wrongly harmed by the defendant.” Id. (quoting
Jordan v. Sosa, 654 F.3d 1012, 1025 (10th Cir.
2011)).
Courts
recognize two “exceptions” to the mootness
doctrine. See Brown, 822 F.3d at 1166. Of relevance
to the instant litigation is the exception for
“voluntary cessation” of the defendant’s
conduct. See id.[5] “Under this exception,
‘voluntary cessation of challenged conduct does not
ordinarily render a case moot because a dismissal for
mootness would permit a resumption of the challenged conduct
as soon as the case is dismissed.’” Id.
(quoting Knox v. Serv. Emps. Int’l Union, Local
1000, 567 U.S. 298, 307 (2012)). Courts “view
voluntary cessation ‘with a critical eye,’ lest
defendants manipulate jurisdiction to ‘insulate’
their conduct from judicial review.” Id.
(quoting Knox, 567 U.S. at 307).
While
viewed with a critical eye, voluntary cessation may moot a
case “if the defendant carries ‘the formidable
burden of showing that it is absolutely clear the allegedly
wrongful behavior could not reasonably be expected to
recur.’” Id. (quoting Already,
568 U.S. at 91). Voluntary actions will moot litigation if
two conditions are satisfied: “(1) it can be said with
assurance that there is no reasonable expectation that the
alleged violation will recur, and (2) interim relief or
events have completely and irrevocably eradicated the effects
of the alleged violation.” Rio Grande Silvery
Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1115
(10th Cir. 2010) (quoting County of Los Angeles v.
Davis, 440 U.S. 625, 631 (1979)). “The party
asserting mootness bears the heavy burden of persua[ding] the
court that the challenged conduct cannot reasonably be
expected to start up again.” Id. at 1116
(quotations omitted).
In
practice, however, this “heavy burden frequently has
not prevented governmental officials from discontinuing
challenged practices and mooting a case.” Id.
“[T]he withdrawal or alteration of administrative
policies can moot an attack on those policies.”
Id. at 1117 (quotations omitted). Indeed, “the
‘mere possibility’ that an agency might rescind
amendments to its actions or regulations does not enliven a
moot controversy.” Id. (quoting Ala. Hosp.
Ass’n v. Beasley, 702 F.2d 955, 961 (11th Cir.
1983)). Rather, “[a] case cease[s] to be a live
controversy if the possibility of recurrence of the
challenged conduct is only a speculative contingency.”
Id. (quotations omitted).
C.
Analysis
The
Court concludes that this litigation is not moot. Defendants
have not met their heavy burden of demonstrating that there
is no reasonable expectation that the alleged violations will
recur, for three reasons: (1) there is no CDOC policy
ensuring access to videophones; (2) Defendants provided
videophones at least partially in response to the instant
litigation; and (3) Defendants continue to contend that
videophones are not required by the ADA.[6]
In
general, courts have held that if there is no barrier to
defendants reverting to previous actions causing the alleged
violations, including no official or binding policy in place,
then a case is not moot. See, e.g., Hill v.
Williams, No. 16-cv-02627-CMA, 2016 WL 8667798, at *7
(D. Colo. Nov. 4, 2016) (finding case challenging enforcement
of state statute was not moot where prosecutors had indicated
intent not to prosecute, “but there was no evidence
that they ha[d] adopted a formal policy to that
effect”); see also Freedom From Religion Found.,
Inc. v. Concord Cmty. Sch., 885 F.3d 1038, 1051 (7th
Cir. 2018) (noting former holding that a “school failed
to establish mootness because it did not adopt a policy
formally prohibiting the use of churches for
graduation”); McCormack v. Herzog, 788 F.3d
1017, 1025 (9th Cir. 2015) (“[W]hile a statutory change
is usually enough to render a case moot, an executive action
that is not governed by any clear or codified procedures
cannot moot a claim.” (quotation omitted)); Ybanez
v. Raemisch, No. 14-cv-02704-PAB-MLC, 2018 WL 2994416,
at *3 (D. Colo. June 14, 2018) (finding challenge to CDOC
policy was not moot where “Defendants ha[d] not pointed
to any legal or practical barrier to their reinstatement of
the previous versions of the policy” (quotation
omitted)).[7] On the other hand, in the ADA context,
there is generally no reasonable expectation that a violation
will occur when there are “changes that are permanent
in nature and that foreclose a reasonable change of
recurrence of the challenged conduct,” Tandy v.
City of Wichita, 380 F.3d 1277, 1291 (10th Cir. 2004),
including, for example, when the defendant has expended time
and money to come into compliance with the ADA, Kelley v.
Sparrer, No. 2:17-cv-00688, 2018 WL 2768660, at *3 (D.
Utah June 8, 2018). See also White v. Lee, 227 F.3d
1214, 1242-43 (9th Cir. 2000) (finding a new policy mooted
plaintiffs’ claims, where the policy was
“entrenched” and “permanent,” because
it was circulated by memorandum, announced by press release,
incorporated into a federal agency field book, had been
renewed on an annual basis, and directly addressed violations
alleged by plaintiffs).
The
Tenth Circuit recently found that a suit challenging the
enforcement of a bigamy statute was mooted when the County
Attorney’s office promulgated an official policy
indicating that bigamy crimes would only be prosecuted if the
person violating the statute was also engaged in some form of
abuse, violence, or fraud. Brown v. Bhuman, 822 F.3d
1151, 1159 (10th Cir. 2016). The County Attorney himself
indicated in a sworn affidavit that his office had concluded
its investigations of plaintiffs, found that they were not
engaged in any other prosecutable crimes related to bigamy,
and that the case was closed and no charges would be filed,
unless new evidence was discovered in line with 372 (7th Cir.
1998) (“[T]he current . . . policy, adopted after the
commencement of this suit, is not implemented by statute or
regulation and could be changed again, so this voluntary
cessation of the challenged conduct does not eliminate the
controversy.”); McBride v. Mich. Dep’t of
Corr., 294 F.Supp. 3d 695');">294 F.Supp. 3d 695, 720 (E.D. Mich. 2018)
(“[I]n the context of prison litigation, courts are
particularly suspicious of non-binding policy changes by
correctional institutions party to the litigation.”
(citing cases)). the new policy. Id. Therefore, the
only way plaintiffs could have faced the prosecution they
sought to enjoin would be for the County Attorney to reverse
an official written policy in contravention of his sworn
statement.
Here,
in contrast, there is no CDOC policy, or even draft policy,
addressing videophones, nor any administrative regulations or
implementation adjustments that address or require
videophones. [#141-1, PSOF100-01] The CDOC’s
cancellation of the 2013-2016 videophone pilot program
underscores this point. [Id. at PSOF74-76; #143-1 at
¶¶ 5-6] In short, there is no practical barrier to
Defendants removing videophones from CDOC facilities. Nor is
there any policy addressing solutions in the event of a
videophone unit breaking or malfunctioning, or how promptly
videophone service would be restored. The Court acknowledges
Ms. Jacobson’s sworn statement that the CDOC intends to
maintain the videophone units permanently. [#143-1 at ¶
13] But that statement does not carry the same weight as the
clearly definitive statement in Brown, because it is
not backed by any policy, and because the removal of the
videophones would not directly contradict Ms.
Jacobson’s statement, as the CDOC’s intent could
simply change. Cf. Brown, 822 F.3d at 1171, 1178
(weighing County Attorney’s statement in light of the
policy change, the history of prior prosecutions, which
indicated that the County Attorney’s position was not
mere posturing, and the fact that acting in contravention to
that statement would expose the county attorney to
prosecution for perjury or contempt). Moreover, CDOC has not
made the type of resources expenditures that would suggest
that it would not remove the videophones. CDOC does not have
a contract with the current vendor of its videophone
services, has not made any expenditure to install
videophones, and it costs nothing for the CDOC to provide
videophone service at DWCF. [#141-1, PSOF102-04]
Second,
there is undisputed evidence that Defendants installed the
videophones at the CDOC facilities at least in partial
response to the instant litigation. In general,
self-correction by a government entity “provides a
secure foundation for mootness so long as it seems
genuine.” Brown, 822 F.3d at 1167-68
(quotation omitted). But courts “are more likely to
find that cessation moots a case when cessation is motivated
by a defendant’s genuine change of heart rather than
his desire to avoid liability.” Sheely v. MRI
Radiology Network, P.A., 505 F.3d 1173, 1186 (11th Cir.
2007) (collecting cases); see also Heyer v. United States
Bureau of Prisons, 849 F.3d 202, 220 (4th Cir. 2017)
(holding sworn declaration of prison chaplain that
accommodations for deaf prisoners would be provided could not
“be viewed as a statement of current policy, but must
instead be understood as a mid-litigation change of
course”); McCormack, 788 F.3d at 1025
(“A presumption of good faith . . . cannot overcome a
court’s wariness of applying mootness under
‘protestations of repentance and reform, especially
when abandonment seems timed to anticipate suit, and there is
probability of resumption.’” (quoting United
States v. W.T. Grant Co., 345 U.S. 629, 632 n.5
(1953))); McBride v. Mich. Dep’t of Corr., 294
F.Supp. 3d 695, 720 (E.D. Mich. 2018) (noting “greater
skepticism is warranted where such remedial action
‘only appears to have occurred in response to the
present litigation, which shows a greater likelihood that it
could be resumed’” (quoting Northland Family
Planning Clinic, Inc. v. Cox, 487 F.3d 323, 342-43 (6th
Cir. 2007))).
Here,
Janet Smith, an ADA Inmate Coordinator Designee with CDOC
Legal Services, sent an email stating that she would like to
implement the videophone project as soon as possible
“as CTCF’s deaf population is being contacted by
Attorney Amy Robertson. (The same attorney representing the
deaf women in the pending lawsuit regarding lack of
videophones).” [#141-1, PSOF84] Ms. Smith sent that
email in January 2018 [see id.], approximately eight
months after Attorney Robertson had entered her appearance on
behalf of Plaintiff Rogers in Civil Action No.
16-cv-02733-STV (“Rogers”) [#29], and
two months after Ms. Robertson had filed a complaint on
behalf of Plaintiffs in Rabinkov [Civil Action No.
18-cv-02926-STV, #1]. Around the same time of the January
2018 email, Ms. Jacobson revisited the option of providing
videophone services in CDOC facilities in early 2018. [#143-1
at ¶ 10] Accordingly, the Court has some reason to doubt
that Defendants’ installation of videophones was
entirely genuine, and finds that the change was motivated at
least in part by the instant litigation.[8] See
Sheely, 505 F.3d at 1186 (finding case was not moot, in
part because the timing of defendant’s new policy
“came almost nine months into th[e] lawsuit, . . . and
appears to have coincided with a change in counsel”).
Third,
when a defendant continues to assert the validity of its
actions, “a controversy between the parties over the
legality of those actions remains.” Sheely,
505 F.3d at 1187; see also W.T. Grant, 345 U.S. at
632 (noting that the “public interest in having the
legality of the practices settled[] militates against a
mootness conclusion”); Walling v. Helmerich &
Payne, Inc., 323 U.S. 37, 43 (1944) (holding controversy
remained where defendant “ha[d] consistently urged the
validity of the [practice] and would presumably be free to
resume [it] were not some effective restraint made”);
United States v. Gov’t of the Virgin Islands,
363 F.3d 276, 286 (3d Cir. 2004) (finding defendant’s
continued defense of its position “does not bespeak of
a genuine belief that the [allegedly unlawful behavior] was
of a type that would not be contemplated again”).
But see Brown, 822 F.3d at 1176 (declining to adopt
holding that a prosecutor’s promise not to bring
charges is credible only if he believes enforcement would be
unconstitutional). The Tenth Circuit has explained that
“the failure of a governmental agency to acknowledge
the impropriety of its former, challenged course of
conduct” is a relevant, though non-dispositive, factor
in the voluntary cessation analysis. Rio Grande Silvery
Minnow, 601 F.3d at 1118 n.17. For example, this
District held that claims the CDOC had violated the First
Amendment by censoring inmate mail were not moot, in part
because even though a new regulation had been implemented
addressing the censorship, the CDOC “did not concede
that the earlier regulation violated the plaintiffs’
First Amendment privileges,” and in light of
“that position, there [wa]s nothing to assure that the
officials responsible for the mail policy recognize[d] the
need to consider” the inmates’ First Amendment
rights. Young v. Raemisch, No. 13-cv-01744-RPM, 2015
WL 4607679, at *1 (D. Colo. Aug. 3, 2015); see also
Hill, 2016 WL 8667798, at *7 (noting indicia of
reluctant cessation counsel against a decision to moot a
suit, and “interpret[ing] the Defendants’
steadfast commitment to the constitutionality of the
underlying statute, in spite of their averments disclaiming
prosecution, as evidence of reluctant cessation”).
Similarly
here, Ms. Jacobson does not believe the ADA requires the CDOC
to provide videophones to deaf and hard of hearing inmates,
and the CDOC maintains that TTY is an effective form of
communication, sufficient to meet the CDOC’s
obligations under the ADA and the Rehabilitation Act.
[#141-1, PSOF107-08] And, unlike Young and as
discussed above, the CDOC does not even have a videophone
policy in place. Moreover, the CDOC canceled the previous
videophone pilot program based on perceived security risks,
and Ms. Jacobson continues to have similar concerns about the
current system, though the CDOC has determined how to work
with those concerns. [Id. at PSOF105-06] See,
e.g., Fulbright v. Jones, Nos. CIV-03-99-W,
CIV-03-125-W, CIV-03-1465-W, 2006 WL 222807, at *1 n.1 (W.D.
Okla. Jan. 26, 2006) (finding case was not moot, despite
change in DOC policy that required providing kosher diets to
Orthodox Jewish inmates, and statement of DOC director that
he intended to follow that policy, in light of the former
infringing policy and the DOC’s history of resisting
providing kosher diets). Cf. Brown, 822 F.3d at 1176
(noting the court’s finding that the case was moot was
bolstered by the fact that the new prosecution policy was
consistent with the County Attorney’s history and
“longstanding de facto policy of
non-prosecution”).
In
light of the CDOC’s lack of any policy requiring
videophones, the fact that the installation of the
videophones corresponded with the instant litigation, the
CDOC’s representations that it does not believe
videophones are required by the ADA or the Rehabilitation
Act, and its history of canceling videophone implementation
based on security concerns that persist today, Defendants
have not satisfied their heavy burden of showing that it is
absolutely clear that their allegedly wrongful behavior could
not reasonably be expected to recur. Because Defendants have
not satisfied the first prong of the analysis, the Court need
not determine whether “interim relief or events have
completely and irrevocably ...