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Rogers v. Colorado Department of Corrections

United States District Court, D. Colorado

September 18, 2019

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 ...


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