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
This
matter comes before the Court on Defendants' Partial
Motion to Reconsider Court's Order regarding
Defendants' Motion to Dismiss as Moot and Plaintiffs'
Partial Motion for Summary Judgment (the “Motion for
Reconsideration”). [#171] 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] For
the following reasons, the Motion for Reconsideration is
DENIED.[1]
I.
BACKGROUND
Plaintiffs
are inmates incarcerated by Defendant Colorado Department of
Corrections (“CDOC”). [#141-1,
DSOF1][2] 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
Rogers communicates with her mother using ASL. [Id.
at PSOF4-6] Plaintiffs initiated this lawsuit alleging that
Defendants violated their rights under Title II of the
Americans with Disabilities Act (“ADA”), Section
504 of the Rehabilitation Act, and the First Amendment by
refusing to provide videophone technology to enable effective
communication by and to deaf individuals. [#66 at 13-19; #115
at 8-12]
Plaintiff
Trevithick filed a motion for partial summary judgment 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] Defendants also filed a Motion for Summary Judgment,
contending that they were entitled to summary judgment on all
of Plaintiffs' claims. [#133 at 7-19] In June 2019,
Defendants filed a motion to dismiss, arguing that
Plaintiffs' claims were mooted because videophone
technology had been made available to Plaintiffs. [#143]
The
Court issued a detailed and lengthy order on those three
motions on September 18, 2019. [#158] The Court denied
Defendants' Motion to Dismiss, holding Plaintiffs'
claims were not mooted by Defendants' efforts to provide
videophone technology in CDOC facilities. [Id. at
9-21] The Court denied Defendants' Motion for Summary
Judgment in its entirety, except to the extent Defendants
sought dismissal of Plaintiff Begano's claims for failure
to exhaust her administrative remedies. [Id. at
21-48] The Court granted Plaintiff Trevithick's Motion
for Partial Summary Judgment on the ADA and Rehabilitation
Act claims, and entered summary judgment in favor of
Plaintiffs Trevithick, Rogers, Atkins, and Rabinkov, and
against the CDOC, on those claims. [Id. at 33-40]
The Court ordered the CDOC to make videophones available to
all deaf and hard of hearing inmates, and to all inmates
communicating with deaf and hard of hearing friends, family
members, or other individuals, and to adopt effective and
comprehensive policies and procedures regarding the use and
implementation of videophones. [Id. at 48]
Defendants filed the instant Motion for Reconsideration on
October 16, 2019. [#171]
II.
LEGAL STANDARDS
The
Federal Rules of Civil Procedure do not specifically provide
for motions for reconsideration. Hatfield v. Bd. of Cty.
Comm'rs for Converse Cty., 52 F.3d 858, 861 (10th
Cir. 1995). “A motion for reconsideration is an extreme
remedy to be granted in rare circumstances.” Stoney
v. Cingular Wireless L.L.C., No. 06-cv-02003-WYD-KLM,
2009 WL 1394260, at *1 (D. Colo. May 19, 2009) (quoting
Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 944
(10th Cir. 1995)). “Grounds warranting a motion to
reconsider include (1) an intervening change in the
controlling law, (2) new evidence previously unavailable, and
(3) the need to correct clear error or prevent manifest
injustice.” Servants of Paraclete v. Does, 204
F.3d 1005, 1012 (10th Cir. 2000). “A motion to
reconsider . . . should be denied unless it clearly
demonstrates manifest error of law or fact or presents newly
discovered evidence.” Nat'l Bus. Brokers, Ltd.
v. Jim Williamson Products, Inc., 115 F.Supp.2d 1250,
1256 (D. Colo. 2000) (quotation omitted).
“The
Tenth Circuit has made it abundantly clear that a motion for
reconsideration is not a vehicle for a losing party to
revisit issues already addressed.” Seabron v. Am.
Family Mut. Ins. Co., No. 11-cv-01096-WJM-KMT, 2012 WL
3028224, at *1 (D. Colo. July 24, 2012) (citing
Does, 204 F.3d at 1012). Accordingly,
“[a]bsent extraordinary circumstances, arguments that
could have been raised in the original briefing on the
dispute in question may not be made in a motion for
reconsideration.” Id. (citing Does,
204 F.3d at 1012).
III.
ANALYSIS
In the
instant Motion for Reconsideration, Defendants present two
arguments. [#171] First, Defendants argue that
Plaintiffs' claims are moot in light of Defendants'
implementation of videophones and that the doctrine of
voluntary cessation does not apply. [Id. at 4-10]
Second, Defendants assert that the Court's order that the
CDOC make videophone technology available, and implement
videophone policies, runs counter to the Prison Litigation
Reform Act (“PLRA”). [Id. at 10-12]
Defendants'
Motion for Reconsideration provides no new evidence and does
not cite to any new case law. Defendants also point to no
clear error in the Court's analysis, nor can the Court
find any. Instead, the bulk of Defendants' Motion to
Reconsider is an attempt to rehash arguments already
addressed at length in extensive briefing and hearings before
the Court, or to raise new arguments that could have been
addressed in the original briefing. [See, e.g.,
##120, 133, 141, 143, 148, 155, 157] Again, a motion for
reconsideration “is not a vehicle for a losing
party” to reiterate prior arguments, or to raise new
theories that should have been raised previously.
Seabron, 2012 WL 3028224, at *1. By the same token,
to the extent Defendants have not previously addressed how
this Court should style injunctive relief under the PLRA, and
seek to do so now, Defendants do not present any intervening
changes in the law, new evidence, or clear error on that
issue. Moreover, the relief ordered by the Court was modeled
in part on the relief ordered by the United States District
Court for the Eastern District of Michigan in McBride v.
Michigan Department of Corrections, 294 F.Supp.3d 695
(E.D. Mich. 2018), an analogous case where the court granted
summary judgment to deaf inmates seeking access to
videophones. That case was cited numerous times by Plaintiffs
in this matter [#117 at 2, 14-16; #124 at 9-10; #140 at 7-9;
#147 at 5; #152 at 6], and also cited by Defendants [#133 at
17 n.3].
For the
foregoing reasons, Defendants have failed to demonstrate the
extraordinary circumstances warranting a motion for
reconsideration and ...