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Rogers v. Colorado Dept of Corrections, CO, Ptf Response to Def Motion for Summary Judgment, ADA Compliance, 2019

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Case 1:16-cv-02733-STV Document 140 Filed 05/31/19 USDC Colorado Page 1 of 22

Civil Action No. 16-cv-02733-STV
RICK RAEMISCH, in his official capacity,
RYAN LONG, in his official capacity, and
MIKE ROMERO, in his official capacity,

MARC TREVITHICK, on behalf of themselves and others similarly situated,


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Plaintiffs, four deaf prisoners and a hearing prisoner whose mother is deaf, bring suit
against the Colorado Department of Corrections and several officials (collectively “CDOC”),
alleging that CDOC’s failure to provide videophones violates their rights under Title II of the
Americans with Disabilities Act (“Title II”), 42 U.S.C. § 12131 et seq, Section 504 of the
Rehabilitation Act (“Section 504”), 29 U.S.C. § 794, and the First Amendment to the United
States Constitution. CDOC’s failure to provide videophones to Plaintiffs prevents them from
directly communicating with family members and friends in their native language, American
Sign Language (“ASL”). In contrast, hearing inmates regularly engage in such direct
communications through phone calls.
Rather than granting Plaintiffs’ requests for videophones, CDOC provides only
teletypewriters (“TTYs”) -- an outdated technology largely abandoned by the deaf community
because it requires them to communicate in written English (their second language) instead of
ASL. Providing only TTYs to these Plaintiffs is analogous to providing hearing prisoners with
only fax machines instead of telephones: “the communication is asynchronous, you send your
communication, wait for a response, hope it is not garbled and hope you have not been
misunderstood.” Plaintiffs’ Statement of Additional Material Facts (“PF”) ¶ 19.
CDOC’s Motion for Summary Judgment (“DMSJ”), ECF 133, should be denied because
it cannot satisfy its burden to demonstrate that the TTY is equally effective to the videophone.
CDOC does not contest that Plaintiffs Rogers and Rabinkov exhausted their administrative
remedies, and cannot satisfy its burden to show that Plaintiffs Atkins, Begano, and Trevithick
failed to exhaust. Finally, CDOC cannot satisfy its heavy burden to demonstrate that the claims
of Plaintiffs Rogers and Begano are moot. Among other things, CDOC has repeatedly rolled out


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new technology -- including videophones -- that it has later withdrawn, and use of the single
videophone at the Denver Women’s Correctional Facility (“DWCF”) remains unequal to the
telecommunications provided hearing prisoners. Without an injunction, Plaintiffs cannot be
assured the effective communication to which they are entitled.
For the reasons set forth below and in Plaintiff Trevithick’s Motion for Partial Summary
Judgment, ECF 117,1 Plaintiffs respectfully request that this Court deny CDOC’s motion and
grant Mr. Trevithick’s motion. Cognizant of D.C.COLO.LCivR 7.1(d), prohibiting a motion
from being included in a response, Plaintiffs urge the Court to consider whether CDOC has had
sufficient notice and the undisputed facts are such that it would be appropriate to grant summary
judgment in favor of all Plaintiffs under Title II and Section 504. See Fed. R. Civ. P. 56(f).
In these two consolidated cases over three years, CDOC has propounded no discovery,
taken no depositions, and disclosed no experts. Plaintiffs’ sworn declarations and Plaintiffs’
experts’ opinions are therefore unrebutted. In sum:



Plaintiffs Rabinkov, Begano, Atkins, and Trevithick (the “Deaf Plaintiffs”) and Plaintiff
Rogers’s mother are deaf, are native speakers of ASL, are not fluent in written English,
and find written English to be awkward, time-consuming, and incomplete;


In contrast, in ASL, the Deaf Plaintiffs can express and understand a full range of
meaning and emotion, and engage in fluent, complete, and meaningful communication;


Plaintiffs’ experts have established that videophones are effective communication for
Plaintiffs and TTYs are not;


All of the Plaintiffs have requested that CDOC provide them videophones to
communicate with friends and family outside the facility, thereby shifting the burden to
CDOC to demonstrate that any alternative accommodation is equally effective; and

Plaintiffs incorporate by reference ECF 117 and 117-1 through 117-14.


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The only evidence that CDOC has put forth to support the effectiveness of the TTY -three TTY transcripts -- starkly demonstrates the inadequacy of the TTY and the need for

There are no material facts, disputed or otherwise, supporting Defendants’ Motion.

CDOC Is Not Entitled to Summary Judgment under Title II and Section 504.
CDOC is not entitled to summary judgment on Plaintiffs’ Title II and Section 5042
claims; to the contrary, Plaintiffs are entitled to summary judgment because there is no genuine
dispute that videophones are necessary to provide them meaningful access to the inmate phone
program and communication as effective as that provided hearing inmates; that Plaintiffs have
requested videophone service and CDOC has refused those requests; and that CDOC cannot
satisfy its burden to show that its proposed alternative, the TTY, is equally effective.
Title II requires CDOC to ensure that communications with people with disabilities “are
as effective as communications with others,” 28 C.F.R. § 35.160(a)(1),3 and to provide auxiliary
aids and services as necessary to “afford individuals with disabilities ... an equal opportunity to
participate in, and enjoy the benefits of, a service, program, or activity,” id. § 35.160(b)(1). “In
determining what types of auxiliary aids and services are necessary,” CDOC is required to “give
primary consideration to the requests of individuals with disabilities,” id. § 35.160(b)(2), which
means it must “honor the choice [of the disabled person] unless it can demonstrate that another
effective means of communication exists,” “Guidance to Revisions to ADA Regulation on


The parties agree that the standards for the two statutes are the same. See DMSJ at 12 and n.1.
The Title II regulations “have the force of law.” Marcus v. Kansas Dep’t of Revenue, 170 F.3d
1305, 1306 n.1 (10th Cir. 1999) (internal citations omitted).



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Nondiscrimination on the Basis of Disability in State and Local Government Services,”
(“Guidance”) 28 C.F.R. pt 35, app. A at 665 (2018); see also U.S. Dep’t of Justice, “The
Americans with Disabilities Act Title II Technical Assistance Manual,” § II-7.1100 (“TAM-II”)
(same). CDOC may reject Plaintiffs’ request if it would result in a fundamental alteration or
undue burden. Id. CDOC did not raise either defense. See generally DMSJ; PF ¶ 47.
Plaintiffs have demonstrated through unrebutted expert and lay testimony that
videophones are necessary for them to communicate as effectively as hearing prisoners and that
they have requested that CDOC provide videophones. PF ¶¶ 7-43. This shifts the burden to
CDOC to demonstrate that their proffered alternative, the TTY, is equally effective. Guidance at
665; TAM-II § II-7.1100; see also Taylor v. City of Mason, 970 F. Supp. 2d 776, 783 (S.D. Ohio
2013) (same); Paulone v. City of Frederick, 787 F. Supp. 2d 360, 396–97 (D. Md. 2011) (same);
Pierce v. City of Salem, No. CIV. 06-1715-ST, 2008 WL 4415407, at *19 (D. Or. Sept. 19, 2008)
(same); Hayden v. Redwoods Cmty. Coll. Dist., No. C-05-01785 NJV, 2007 WL 61886, at *9
(N.D. Cal. Jan. 8, 2007) (same). CDOC’s then top lawyer conclusively nullified this defense
when he stated, in 2013, 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.” PF ¶ 20. CDOC cannot now argue that TTYs are an “equally effective
means of communication.”
The only evidence CDOC cites in support of its motion as to Title II and Section 504
rebuts rather than supports CDOC’s reliance on the TTY. CDOC cites the transcripts of three
TTY calls placed by Plaintiff Rogers, who is hearing, to her mother, who is deaf. DSMJ at 15


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(citing Ex. A-5, ECF 133-5). The third transcript is a conversation concerning a very sensitive
family matter relating to Ms. Rogers’s past trauma and her efforts to ensure that her children do
not experience the same trauma; it illustrates much of what is wrong with the TTY and how it
falls far short of videophone communication. This call went through two relay operators so Ms.
Rogers was unable to perceive her mother’s tone and emotion during this excruciating call, and
as the exhibit shows, it contains strings of nonsense characters that obscure parts of the
conversation. PF ¶¶ 39-43. A hearing prisoner having a similarly sensitive conversation with her
mother -- the proper comparator in light of the requirement for communication “as effective as”
that provided others and an “equal opportunity to participate in, and enjoy the benefits of”
CDOC’s programs -- would have been able to speak with her directly, without intermediaries or
garbled text, hearing and being able to respond to the difficult emotions this call invoked.
Ms. Rogers’s experience is typical. When Plaintiffs contact deaf friends or family using
the TTY, they type out their message, which is read aloud by a TTY relay operator to a video
relay operator, who signs it to the called party. When the deaf called party signs their response,
this process is reversed: the video relay operator interprets it into spoken English to the TTY
relay operator, who types it to the prisoner. PF ¶¶ 23-24. This process is especially difficult for
Plaintiff Rabinkov to use with his friends who communicate in Russian Sign Language; as a
result, he cannot contact these individuals by phone. PF ¶ 25. The diagram below illustrates the
contrast between the way hearing prisoners can communicate directly with hearing friends and
family, and the way Plaintiffs are forced to communicate with deaf friends and family. The
bottom example shows how Plaintiffs would be able to communicate using videophones -- the
only method that is equivalent to the telephone service provided to hearing prisoners.


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Hea ring

Friend or

Video Relay
TTY Relay




w it h


Deaf Friend or
Fami ly
M ember






CDOC provides no other evidence besides Ms. Rogers’s twice-interpreted TTY
transcripts, did not retain experts, and does not cite to either the applicable regulations requiring
effective communication and equal opportunity, 28 C.F.R. § 35.160(a)(1) and (b), or the DOJ
guidance placing the burden on CDOC to justify the TTY, Guidance at 665; TAM-II § II-7.1100.
Instead, CDOC argues that Plaintiffs are not entitled to their preferred accommodation.
DMSJ at 13-14. This is incorrect: CDOC is required to give “primary consideration” to
Plaintiffs’ request, and to “honor [that] choice” unless it can show the TTY is “equally
effective.” 28 C.F.R. § 35.160(b)(2); TAM-II § II-7.1100; see also supra at 4 (string cite). The
defendants in McBride v. Michigan Department of Corrections made the same argument: that
while videophones offer better communications, TTYs still provide meaningful access. 294 F.
Supp. 3d 695, 709-10 (E.D. Mich. 2018). Relying on the same experts Plaintiffs designated in
this case, the McBride court held that “[b]oth aspects of this argument are flawed.” Id. at 710.
First, the McBride court held, the experts were not simply saying that videophones were
“better;” rather, they had opined -- as they did here, see, e.g., PF ¶ 34 -- that videophones were


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“necessary to enable deaf and hard of hearing prisoners to communicate effectively with persons
outside of prison.” McBride, 294 F. Supp. 3d at 710 (emphasis in original). Second, the court
held, these experts “clearly refute that TTYs provide ‘meaningful access’; indeed, the very gist
of their lengthy, detailed expert reports is that TTYs “fail[ ] to provide [deaf and hard of hearing
prisoners] with the means to effectively communicate with ... individuals outside the correctional
center.’” Id. (quoting report of Richard Ray). Mr. Ray offered the same opinion in this case. PF
¶ 31. Ultimately, as here, the McBride defendants’ attempt to show that TTYs functioned and
were available did not show that “mere functionality ... equate[d] with ‘meaningful access.’”
McBride, 294 F. Supp. 3d at 710.
CDOC’s cases are not to the contrary. Four of them address communications for deaf
prisoners. In two, the plaintiff did not request a videophone. Douglas v. Gusman, 567 F. Supp.
2d 877 (E.D. La. 2008); Spurlock v. Simmons, 88 F. Supp. 2d 1189, 1196 (D. Kan. 2000). In
Arce v. Louisiana, 226 F. Supp. 3d 643, 651 (E.D. La. 2016), as this Court noted in its Order
Denying Defendants’ Motion to Dismiss, ECF 130, “the complaint did not allege that the TTY
machine failed to function or that the plaintiff could not effectively communicate using the TTY
machine.” Id. at 7. This is in stark contrast to the undisputed evidence in this case. PF ¶¶ 14, 1735, 113. In Rosenthal v. Missouri Department of Corrections, neither plaintiff complained of
deficiencies in the TTY. No. 2:13-cv-04150, 2016 WL 705219, at *2-6, *10 (W.D. Mo. Feb. 19,
2016). None of these cases addresses the applicable regulation, 28 C.F.R. § 35.160.
Two other cases cited by CDOC arose in the correctional context; neither is relevant here.
In Wells v. Thaler, a blind prisoner sought accessible legal resources and screen reading software
to read his correspondence. The requested resources were not available and the requested


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software could not read handwriting. 460 F. App’x 303, 306, 312-15 (5th Cir. 2012). In Stafford
v. King, a prisoner with muscular dystrophy requested a typewriter to prepare court documents;
however, he admitted he was never prevented from filing court documents, and continued to file
handwritten documents after he was provided a typewriter. No. 2:11cv242–KS–MTP, 2013 WL
4833863, at *1, *6 n.2 (S.D. Miss. Sept. 11, 2013). Gevarzes v. City of Port Orange, Florida,
No. 6:12-cv-1126-Orl-37DAB, 2013 WL 6231269, at *2 (M.D. Fla. Dec. 2, 2013) and
Valanzuolo v. City of New Haven, 972 F. Supp. 2d 263, 274 (D. Conn. 2013), addressed effective
communication in the context of arrests, that is, a single, short interaction where police may face
exigent circumstances. Finally, Dean v. University at Buffalo School of Medicine and Biomedical
Sciences, 804 F.3d 178, 187 (2d Cir. 2015), addressed accommodations for a student with mental
illness, so the “primary consideration” provision, 28 C.F.R. § 35.160, was not at issue.
None of these cases addresses the obligation of a prison to provide deaf prisoners
communication that is “as effective as” that provided others. 28 C.F.R. § 35.160(a)(1). That issue
is addressed -- and resolved in the plaintiffs’ favor -- in McBride, a case squarely on point with
the present one. As the McBride court concluded, “Plaintiffs’ desire for equally effective means
of communication is not just an aspiration -- it is the law.” 294 F. Supp. 3d at 706. Plaintiffs
respectfully request this Court follow the persuasive reasoning of the McBride court, deny the
DMSJ, and grant summary judgment in Plaintiffs’ favor on their ADA and Section 504 claims.

Summary Judgment Is Not Appropriate on Plaintiffs’ First Amendment Claims.
CDOC’s First Amendment argument relies on a district court case that was reversed on
appeal as to the proposition for which CDOC cites it and restates arguments rejected by this
Court in its order denying CDOC’s motion to dismiss in Rogers. CDOC does not point to any


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evidence that denying access to videophones is related to any legitimate penological interest.
Deaf prisoners have a First Amendment right to communicate by videophone even when
the prison makes a TTY available; the TTY is not a reasonable alternative. Heyer v. United
States Bureau of Prisons, 849 F.3d 202, 214 (4th Cir. 2017). CDOC’s argument on Plaintiffs’
First Amendment claims relies on the district court decision that was reversed by the Fourth
Circuit in Heyer. DSMJ at 11 (citing Heyer v. U.S. Bureau of Prisons, No. 5:11-CT-3118-D,
2015 WL 1470877, at *13 (E.D.N.C. Mar. 31, 2015)); compare Heyer, 849 F.3d at 213-14, 221
(vacating and remanding the district court’s decision as to, among others, the plaintiff’s
“videophone- and TTY-related First Amendment claims”). The only other case on which CDOC
relies is Arsberry v. Illinois in which the Seventh Circuit’s refusal to recognize a prisoner’s First
Amendment right to the telephone arose in a challenge to the rates charged for prison phone
calls, not a complete denial of effective communication. 244 F.3d 558, 564 (7th Cir. 2001).
CDOC also argues that Plaintiffs have not asserted facts showing the “choice between
TTY, [video relay], or the use of TTY Relay over videophones is not related to legitimate
penological interests.” DSMJ at 12. This Court has previously rejected this argument based on
the allegations that “Plaintiffs Rogers [and] Begano ... have all previously been detained at other
Colorado jails where they were able to use videophones. This allegation suggests that
videophones can be used in prisons without impacting security concerns.” Order, ECF 52, at 12
(citing Third Amended Complaint ¶¶ 30, 65 and Heyer, 849 F.3d at 212-18). These allegations
are now undisputed facts. PF ¶ 44; see also id. ¶¶ 45-46.
This Court concluded that the proposition that videophones can be used without
impacting security “is especially true here, where Defendants have not identified the security


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concerns underlying the videophone ban.” Order, ECF 52, at 13. Over eighteen months later,
CDOC still has not identified any such security concerns. See generally DMSJ. CDOC is not
entitled to summary judgment on Plaintiffs’ First Amendment claims.

CDOC’s Refusal to Provide Videophones Is Intentional.
Under Section 504, compensatory damages are available for intentional discrimination,

which “can be inferred from a defendant’s deliberate indifference to the strong likelihood that
pursuit of its questioned policies will likely result in a violation of federally protected rights.”
Havens v. Colorado Dep’t of Corr., 897 F.3d 1250, 1264 (10th Cir. 2018) (internal citations
omitted). There is a two-pronged test for this standard: knowledge that a harm to a federally
protected right is substantially likely; and a failure to act upon that likelihood. Id. CDOC’s
conduct meets both prongs.
CDOC has long had sufficient knowledge. It has been aware since at least December
2013 that TTYs are antiquated and that videophones are necessary to, among other things,
“lessen [prisoner] complaints and criticism from outside stake holders.” PF ¶¶ 20-21. In addition,
each of the Plaintiffs has repeatedly requested videophones. See, e.g., id. ¶¶ 9-10. Ms. Rogers,
for example, explained in detail in her 2015 grievances that sign language is a visual language
and that it is necessary to see facial expressions and hand gestures to express meaning. Id. ¶ 11.
“When the plaintiff has alerted the public entity to his need for accommodation (or where the
need for accommodation is obvious, or required by statute or regulation), the public entity is on
notice that an accommodation is required, and the plaintiff has satisfied the first element of the
deliberate indifference test.” Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001); see
also Havens, 897 F.3d at 1266 (“[A] factfinder may conclude that a prison official knew of a


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substantial risk from the very fact that the risk was obvious.” (internal citations omitted)).
It is also undisputed that CDOC “failed to act” in response to that risk: it refused, for
years, to provide videophones. And CDOC cannot avoid liability for intentional conduct by
pointing to the TTYs. “Under the second element, ‘a public entity does not “act” by proffering
just any accommodation.” Barber v. Colo. Dep’t of Revenue, 562 F.3d 1222, 12297 (10th Cir.
2009) (internal citations omitted). CDOC’s argument that it is not liable for intentional
discrimination because it provides TTYs fails.

Plaintiffs Exhausted Their Administrative Remedies.
The Prison Litigation Reform Act (“PLRA”) requires Plaintiffs to exhaust “such
administrative remedies as are available.” 42 U.S.C. § 1997e(a). CDOC has the burden of proof
to demonstrate that Plaintiffs failed to exhaust administrative remedies. Roberts v. Barreras, 484
F.3d 1236, 1241 (10th Cir. 2007).
CDOC does not contest that Plaintiffs Rabinkov, Rogers, and Trevithick exhausted their
administrative remedies. Based on the dates in CDOC’s submissions and the uncontested date of
filing in Rabinkov v. Colorado Department of Corrections, 18-cv-02926 (filed Nov. 14, 2018), it
is undisputed that all Plaintiffs received their Step 3 grievance letters before that case was filed.
Despite the fact that it has the burden of proof, CDOC cannot establish that Ms. Begano’s Step 2
grievance was untimely or that Mr. Atkins’s 2018 grievance was duplicative of a 2015 grievance.
A. Cathy Begano Exhausted Her Administrative Remedies.
1. CDOC Has Not Satisfied Its Burden to Show that Ms. Begano’s Step 2
Grievance was Untimely.
CDOC admits that Ms. Begano submitted her Step 1, 2, and 3 grievances, and that her


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Step 3 grievance was timely following receipt of the Step 2 response. Defs.’ Separate Statement
of Material Facts in Supp. of Mot. for Summ. J. (“DF”), ECF 137-1, ¶¶ 13-18. She received her
Step 3 response before filing her claims in Rabinkov. PF ¶ 61.
CDOC argues that Ms. Begano’s Step 2 grievance was untimely based on its assertion
that she received the response to her Step 1 grievance on July 13, 2017 and filed her Step 2
grievance on July 21, 2017, that is, three days past the five-day deadline in AR 850-04. DF
¶¶ 15-16. However, CDOC presents no evidence that Ms. Begano received the response to her
Step 1 grievance on July 13, 2017 or at any other time that would have rendered her Step 2
untimely. PF ¶¶ 51-60. The only document CDOC offers to support this assertion -- the Step 1
response -- does not contain a date in the field provided for the date the response was received.
PF ¶ 54. Tony DeCesaro’s affidavit, ECF 133-1, does not satisfy CDOC’s burden as, based on
his Rule 30(b)(6) testimony concerning the CDOC grievance procedure, he could not have had
personal knowledge of the date on which the Step 1 grievance response was served on Ms.
Begano. PF ¶¶ 55-58. CDOC has not satisfied its burden of proof to show that Ms. Begano failed
to exhaust her administrative remedies.
2. CDOC Waived Any Timeliness Objections to Ms. Begano’s Grievances.
CDOC accepted Ms. Begano’s Step 2 grievance and responded to it on the merits. PF
¶ 52. That made “the filing proper for purposes of state law and avoids exhaustion, default, and
timeliness hurdles in federal court.” Savage v. Troutt, No. CIV-15-0670-HE, 2018 WL 1404401,
at *2 (W.D. Okla. Mar. 20, 2018). In Savage, the Oklahoma Department of Corrections accepted
an intermediate-level grievance and responded on the merits, while, at the final stage, asserting
that the intermediate grievance had been untimely. The court held that this was improper and


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that, ultimately, exhaustion was excused. Id. at *2-3. For the same reason, CDOC has waived its
timeliness objection to Ms. Begano’s Step 2 grievance by responding to it on the merits.
B. Andrew Atkins Exhausted His Administrative Remedies.
CDOC admits that Mr. Atkins submitted his Step 1, 2, and 3 grievances concerning the
issues in this case and that all three steps were timely. DF ¶¶ 21-22. CDOC responded on the
merits to his Step 1 and 2 grievances. PF ¶ 64. CDOC’s response to Mr. Atkins’s Step 3
grievance was that it duplicated a grievance he filed in 2015; CDOC relies on this to argue that
Mr. Atkins did not exhaust. DMSJ at 9.
As an initial matter, CDOC waived their procedural objections to Mr. Atkins’s 2018
grievance by responding to Steps 1 and 2 on the merits. See Savage, 2018 WL 1404401, at *2.
In addition, the 2015 grievance response shows that the 2018 grievance is not duplicative.
Mr. Atkins’s 2015 grievance complained that the TTY was often broken and requested that
CDOC install videophones instead. PF ¶ 66. CDOC’s response to that grievance stated, “We are
getting ready to launch a PILOT program for video relay phones at CTCF.” Id. ¶ 69. Mr. Atkins
did not file a Step 2 grievance for the simple reason that his Step 1 was not denied; rather, CDOC
committed to launch a videophone pilot program at CTCF. Id. ¶ 66-70.
CDOC considered the pilot program for three years before abandoning it in 2016. PF
¶¶ 74-82. There is no evidence, however, that CDOC ever informed Mr. Atkins that it had
abandoned this program. “An inmate has no obligation to appeal from a grant of relief, or a
partial grant that satisfies him, in order to exhaust his administrative remedies. Nor is it the
prisoner’s responsibility to ensure that prison officials actually provide the relief that they have
promised.” Harvey v. Jordan, 605 F.3d 681, 685 (9th Cir. 2010).


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C. Plaintiffs Begano, Atkins, and Trevithick Timely Exhausted.
CDOC concedes that Plaintiff Trevithick exhausted his administrative remedies, DF ¶ 27,
and that Plaintiffs Begano and Atkins completed all three steps of the grievance process, id.
¶¶ 14-17, 21-22. These Plaintiffs all completed the grievance process before filing their claims in
Rabinkov. PF ¶¶ 50, 61, 63. CDOC argues that these Plaintiffs did not exhaust before joining the
Rogers case. DSMJ at 10. However, even if they exhausted after filing in Rogers, it would mean,
at most, that their claims should be dismissed without prejudice. Gallagher v. Shelton, 587 F.3d
1063, 1068 (10th Cir. 2009). The filing of Plaintiffs’ claims in Rabinkov after full exhaustion has
cured this issue. Mitchell v. Figueroa, 489 F. App’x 258, 260 (10th Cir. 2012) (holding that
prisoner could refile following dismissal without prejudice for failure to exhaust).
D. Plaintiffs Were Not Required to Exhaust Administrative Remedies Because the
Requested Remedy Was a Dead End.
The PLRA requires prisoners to exhaust “such administrative remedies as are available.”
42 U.S.C. § 1997e(a); see also Tuckel v. Grover, 660 F.3d 1249, 1252 (10th Cir. 2011) (“[I]f an
administrative remedy is not available, then an inmate cannot be required to exhaust it.”). “[T]he
ordinary meaning of the word ‘available’ is ‘“capable of use for the accomplishment of a
purpose,” and that which ‘“is accessible or may be obtained.”’” Ross v. Blake, 136 S. Ct. 1850,
1858 (2016) (internal citations omitted). Videophones were not an available remedy -- they were
not something that could be obtained -- when Plaintiffs filed their grievances. CDOC has not
satisfied its burden to prove that “administrative remedies were, in fact, available.” See Purkey v.
CCA Det. Ctr., 263 F. App’x 723, 726 (10th Cir. 2008).
In Ross, the Supreme Court delineated three ways in which a remedy might be
unavailable; the first of these was where


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(despite what regulations or guidance materials may promise) it operates as a
simple dead end -- with officers unable or consistently unwilling to provide any
relief to aggrieved inmates. ... So too if administrative officials have apparent
authority, but decline ever to exercise it. Once again: “[T]he modifier ‘available’
requires the possibility of some relief.” When the facts on the ground demonstrate
that no such potential exists, the inmate has no obligation to exhaust the remedy.
Ross, 136 S. Ct. at 1859 (internal citations omitted). This is the situation that confronted
Plaintiffs when they grieved CDOC’s refusal to provide videophones. From 2013 to 2016, the
Department had considered a pilot program to provide videophone service, but by 2017 -- when
Ms. Begano filed her grievances -- it had definitively decided not to proceed. PF ¶¶ 74-83. This
was still the case in 2018 when Mr. Trevithick and Mr. Atkins filed their grievances, a fact that
was underscored by the identical response to their Step 2 grievances (and Mr. Rabinkov’s as
well): “Video phones are not currently approved for use in the DOC.” PF ¶ 71. Ms. Begano and
Ms. Saugause, another deaf inmate in DWCF, also received identical responses, denying access
to videophones. Id. ¶ 72.
Since a Department-wide policy decision had been made not to provide videophone
service to any inmate at any facility, any individual grievance requesting such service would be
the definition of a “dead end.” See, e.g., Taylor v. Gilbert, No. 2:15-cv-00348-JMS-MJD, 2017
WL 3839390 at *4 (S.D. Ind. Aug. 31, 2017) (holding that the case “exemplifie[d] the ‘dead end’
scenario” when there was an unwritten policy by grievance staff not to consider certain types of
grievances); cf. Jarboe v. Maryland Dep’t of Pub. Safety & Corr. Servs., No. 12-cv-572-ELH,
2013 WL 1010357, at *15 (D. Md. Mar. 13, 2013) (holding, in case by deaf prisoners
challenging effective communication in prison, that the “grievance procedure simply is not
equipped to address programmatic complaints such as those advanced here by plaintiffs.”).


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Ms. Rogers’s and Ms. Begano’s Claims Are Not Moot.
CDOC argues that its installation of a single videophone in a single unit at DWCF moots
the claims of Plaintiffs Rogers and Begano. “It is well settled that a defendant’s voluntary
cessation of a challenged practice does not deprive a federal court of its power to determine the
legality of the practice. [I]f it did, the courts would be compelled to leave ‘[t]he defendant ... free
to return to his old ways.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528
U.S. 167, 189 (2000) (internal citations and quotation marks omitted). A case is moot only “if
subsequent events made it absolutely clear that the allegedly wrongful behavior could not
reasonably be expected to recur.” Id. CDOC has the “heavy burden of persua[ding]” this Court
“that the challenged conduct cannot reasonably be expected to start up again.” Id.
CDOC cannot satisfy its “heavy burden” to make it “absolutely clear” that their failure to
provide a videophone at DWCF cannot be “reasonably expected to recur” because:

CDOC has a history of starting and stopping its videophone program, including
cancelling the previous program the day it was supposed to go live, PF ¶¶ 73-82;


CDOC started this latest videophone project at least in part because the undersigned
was contacting deaf prisoners relating to the pending Rogers litigation, PF ¶ 84;


CDOC paid nothing to install the current videophone and has no contract with the
provider, PF ¶¶ 102-104;


CDOC cancelled the previous videophone program based on purported security
concerns, many of which remain with respect to the current program, PF ¶ 105;


There is no policy ensuring access to videophones for Plaintiffs, PF ¶ 100;


CDOC has previously rolled out other technology programs to prisoners and later
cancelled them, PF ¶¶ 109-112;


Videophone service at DWCF remains unequal to phone service for hearing
prisoners; PF ¶¶ 88-95; and


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CDOC continues to maintain that Title II and Section 504 do not require it to provide
videophones to Plaintiffs, PF ¶¶ 107-108.

Were this Court to dismiss Plaintiffs’ claims, CDOC would be “free to return to [its] old ways,”
Friends of the Earth, 528 U.S. at 189, something it has done repeatedly in the past.
The Eleventh Circuit considered three factors in addressing the question of voluntary
cessation in the ADA context: “(1) whether the challenged conduct was isolated or unintentional,
as opposed to a continuing and deliberate practice; (2) whether the defendant’s cessation of the
offending conduct was motivated by a genuine change of heart or timed to anticipate suit; and
(3) whether, in ceasing the conduct, the defendant has acknowledged liability.” Sheely v. MRI
Radiology Network, P.A., 505 F.3d 1173, 1184 (11th Cir. 2007). Based on all three factors -- and
others -- Ms. Begano’s and Ms. Rogers’s claims are not moot.
CDOC’s practice of denying access to videophones is longstanding and official. See, e.g.,
PF ¶¶ 48, 71-72. It is more reasonable to expect “recurrence when the challenged behavior
constituted a ‘continuing practice’ or was otherwise deliberate.” Sheely, 505 F.3d at 1184-85.
CDOC’s provision of videophones at DWCF was timed to avoid the present litigation.
PF ¶ 84. “It is the duty of the courts to beware of efforts to defeat injunctive relief by
protestations of repentance and reform, especially when abandonment seems timed to anticipate
suit, and there is probability of resumption.” United States v. Oregon State Med. Soc’y, 343 U.S.
326, 333 (1952); Sheely, 505 F.3d at 1188-89 (holding claim not moot where the change in
policy occurred in the middle of the litigation); Heyer, 849 F.3d at 220 (holding that provision of
accommodations to deaf prisoner did not moot the case as a “mid-litigation change of course ...
does not support [a] decision to dismiss [the] claims as moot”). The McBride court rejected a
similar argument, holding “greater skepticism is warranted where such remedial action ‘only


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appears to have occurred in response to the present litigation, which shows a greater likelihood
that it could be resumed.’” 294 F. Supp. 3d at 720 (internal citations omitted).
CDOC does not acknowledge liability. PF ¶¶ 107-108. “[A] defendant’s failure to
acknowledge wrongdoing ... suggests that cessation is motivated merely by a desire to avoid
liability, and furthermore ensures that a live dispute between the parties remains.” Sheely, 505
F.3d at 1187. In Ybanez v. Raemisch, the court rejected mootness in part because CDOC refused
to “concede[] that the challenged versions of the policy violated the First Amendment.” No. 14CV-02704-PAB-MLC, 2018 WL 2994416, at *3 (D. Colo. June 14, 2018); cf. United States v.
Laerdal Mfg. Corp., 73 F.3d 852, 856 (9th Cir. 1995) (defendant’s “intransigent insistence on its
own blamelessness” and “repeated self-justification” showed “a likelihood of future violation”).
It would be easy for CDOC to resume the challenged practice. A number of courts have
considered the ease with which the defendants could undo its promised solution as mitigating
against mootness. For example, in Feldman v. Pro Football, Inc., deaf football fans challenged a
stadium’s refusal to provide open captioning. The defendant started providing captioning midlitigation and urged mootness. The Fourth Circuit held, “[g]iven the ease with which defendants
could stop providing captioning, ‘we simply cannot say that they have made an affirmative
showing that the continuation of their alleged ADA violations is nearly impossible.’” 419 F.
App’x. 381, 387-88 (4th Cir. 2011) (internal citations omitted); see also Ybanez, 2018 WL
2994416, at *3 (CDOC “ha[s] not pointed to any legal or practical barrier to their reinstatement
of the previous versions of the policy”); Goldman v. Brooklyn Ctr. for Psychotherapy, Inc., No.
15-CV-2572-PKC-PK, 2018 WL 1747038, at *2 (E.D.N.Y. Apr. 11, 2018) (holding that
defendant that contracted with an interpreting agency in response to the plaintiff’s lawsuit could


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“choose to end its relationship with [the agency] at any time, thereby resurrecting the set of
circumstances that prompted this litigation”). It is also telling -- and suggestive of relapse -- that
CDOC has not adopted any policies relating to videophones or in any way ensuring that
Plaintiffs will have consistent access to that service, PF ¶ 100. See Goldman, 2018 WL 1747038,
at *3 (relevant to rejection of mootness that the defendant had not “adopted proper policies to
ensure that its intake procedures will no longer violate the ADA”).
This Court can grant effective relief. “‘[A] case becomes moot only when it is impossible
for a court to grant any effectual relief whatever to the prevailing party.’” Chafin v. Chafin, 568
U.S. 165, 172 (2013) (internal citations omitted). Here, based on CDOC’s history of starting and
stopping the videophone program; rolling out and then withdrawing technology; failing to
maintain existing TTY technology; failing to issue a policy ensuring access to videophones for
eligible prisoners; and failing to secure a contract to provide videophone service, there is no
question that this Court can grant effective relief, not only for Plaintiffs housed at CTCF or
receiving medical care at DRDC -- who do not yet have videophones -- but also for those at
DWCF, who cannot be assured of consistent, equal access to the videophone at that facility. For
these reasons, CDOC has not “eliminat[ed] the issues upon which this case is based.” Wyo. v.
U.S. Dep’t of Agr., 414 F.3d 1207, 1212 (10th Cir. 2005), cited in DMSJ at 18.
Ultimately, “‘[b]ald assertions of a defendant … that it will not resume a challenged
policy fail to satisfy any burden of showing that a claim is moot.’” McBride, 294 F. Supp. 3d at
720 (quoting Heyer, 849 F.3d at 219). “It is no small matter to deprive a litigant of the rewards of
its efforts ... . Such action on grounds of mootness would be justified only if it were absolutely
clear that the litigant no longer had any need of the judicial protection that is sought.” Adarand


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Constructors, Inc. v. Slater, 528 U.S. 216, 224 (2000). Based on CDOC’s history, Plaintiffs need
the judicial protection of an injunction requiring CDOC to provide them videophone service on a
basis equal to that on which hearing inmates received phone services, and to implement policies
ensuring continued access to such service.
For the reasons set forth above and in ECF 117, Plaintiffs respectfully request that this
Court deny Defendants’ motion and grant summary judgment in favor of Plaintiffs under Title II
and Section 504.
Respectfully submitted,
/s/ Amy F. Robertson
Amy F. Robertson
Civil Rights Education and Enforcement Center
104 Broadway, Suite 400
Denver, CO 80203
Martha M. Lafferty
Civil Rights Education and Enforcement Center
525 Royal Parkway, #293063
Nashville, TN 37229
Attorneys for Plaintiffs
Dated: May 31, 2019


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I hereby certify that on May 31, 2019 I electronically filed the foregoing document,
Plaintiffs’ Separate Statement of Facts in Opposition to Defendants’ Motion for Summary
Judgment, and the Declarations of Amy Robertson, Bionca Charmaine Rogers, Cathy Begano,
Leonid Rabinkov, Marc Trevithick, Andrew Atkins, Jennifer Saugause, and Teresa Jordan with
the Clerk of Court using the CM/ECF system, which will provide electronic service to the
Chris Alber
Kathleen Spalding
Counsel for Defendants
/s/Amy F. Robertson
Amy F. Robertson