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Rogers v. Colorado Dept of Corrections, CO, Ptf Response to Def Motion to Dismiss, 2019

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Case 1:16-cv-02733-STV Document 147 Filed 06/27/19 USDC Colorado Page 1 of 8

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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The assertion of Defendants Colorado Department of Corrections and officials
(collectively “CDOC”) that they intend to continue their current videophone program for deaf
prisoners cannot satisfy their heavy burden to demonstrate that they will not, in the future, cancel
this program. Among other things, this assertion was made in the middle of contested litigation,
in an affidavit containing a significant misrepresentation on which CDOC also relies in its
mootness argument. This unreliable assertion cannot outweigh the undisputed evidence of an
earlier, canceled, videophone program, of CDOC’s history of providing prisoners with
technology and then taking it back, of CDOC’s continued legal arguments that videophones are
not required, and of the ease with which CDOC could withdraw the videophones in light of the
fact that it has not entered a contract for the service.
Plaintiffs respectfully request that this Court reject CDOC’s arguments for mootness,
deny its motions to dismiss and for summary judgment on this and other grounds, and grant
summary judgment in Plaintiffs’ favor on their claims under Title II of the Americans with
Disabilities Act (“Title II”), 42 U.S.C. § 12131 et seq., and Section 504 of the Rehabilitation Act
(“Section 504”), 29 U.S.C. § 794. See ECF 117, 140.
Procedural Posture
Earlier this year, CDOC moved for summary judgment based in part on its argument that
Plaintiffs’ claims requesting videophones at the Denver Women’s Correctional Facility
(“DWCF”) were moot. Mot. for Summ. J. (“MSJ”), ECF 133, at 18-19. That motion is fully
briefed. See ECF 140, 141. Six weeks later, CDOC moved to dismiss as moot claims relating to
DWCF and the Colorado Territorial Correctional Facility (“CTCF”). Mot. to Dismiss as Moot
(“MTD”), ECF 143. This brief opposes the MTD. Plaintiffs incorporate by reference Section V


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of their Response to Defendants’ Motion for Summary Judgment, ECF 140 at 16-20, and the
facts on which that argument was based, Pls.’ Separate Statement of Facts in Opp’n to Defs.’
Mot. for Summ. J. (“Plaintiffs’ Facts”), ECF 140-1 at 27-33, ¶¶ 73-113, and write further to
address new information and arguments in the MTD.
Plaintiffs’ Claims Are Not Moot
In response to CDOC’s MSJ, Plaintiffs demonstrated that this latest chapter in CDOC’s
six-year on-again-off-again history of videophone projects was a classic example of the
voluntary cessation exception to mootness:1 based on this history and other examples of CDOC
providing prisoners with technological solutions and then later taking them away, Plaintiffs need
the protection of an injunction to ensure provision of videophone service to deaf prisoners on an
equal basis with the phone service provided hearing prisoners.
In their reply in support of the MSJ, CDOC admitted most of the facts supporting
Plaintiffs’ voluntary cessation argument. Crucially, in their response to Plaintiffs’ Facts, CDOC
admitted all of the facts cited in the following bullet points:

CDOC has a history of starting and stopping its videophone program, including
cancelling the previous program the day it was supposed to go live, ECF 141-1,
¶¶ 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, id. ¶ 84;


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


See, e.g., Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189
(2000) (“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.”) (internal
citations omitted).


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


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


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

The strongest evidence that the voluntary cessation exception applies here -- and that the
case is not moot -- is that CDOC previously spent two and a half years studying, preparing for,
and installing videophones only to call off the program at the last minute. Plaintiffs’ Facts ¶¶ 7482. CDOC admits each of these facts, ECF 141-1, ¶¶ 74-82, but attempts to explain away the
2013-2016 pilot program by asserting that “Executive CDOC staff were unaware of” it. MTD at
3, 9 (citing Aff. of Adrienne Jacobson, ECF 143-1, ¶ 5).
CDOC’s statement that its executive staff were unaware of the videophone pilot program
is false. Keith Nordell, the Director of Legal Services at CDOC from October 2009 to June 2015,
proposed the pilot program in December, 2013. Decl. of Keith Nordell ¶¶ 2-3 & Ex. 1. He had
regular meetings with the Executive Director of the CDOC and other executive staff members to
brief them on ADA issues; during some of those meetings, he briefed them on the videophone
pilot program. Id. ¶¶ 5-6 & Exs. 2-3.2
CDOC also relies on Ms. Jacobson’s assertion that CDOC intends to maintain
videophone units for use by deaf prisoners. See MTD at 11 (citing Jacobson Aff. ¶ 13). This


Exhibits 2 and 3 to Mr. Nordell’s declaration are CDOC meeting agendas showing discussion
of videophones among Mr. Nordell, Rick Raemisch, then CDOC Executive Director, and Kellie
Wasko, then and now CDOC Deputy Executive Director. These documents are responsive to
discovery served by Plaintiffs on CDOC on November 1, 2017, but were never produced by
CDOC. Rather, the undersigned received them from Mr. Nordell on June 25, 2019. Robertson
Decl. in Opp’n to Mot. to Dismiss ¶¶ 5-6.


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single assertion -- made in the context of litigation -- cannot satisfy CDOC’s “heavy burden” to
show that “the challenged conduct cannot reasonably be expected to start up again.” Friends of
the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000). A “‘mid-litigation
change of course’ in accommodating deaf and hard of hearing prisoners does not moot ADA and
Rehabilitation Act claims because ‘[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 v.
Michigan Dep’t of Corr., 294 F. Supp. 3d 695, 720 (E.D. Mich. 2018) (quoting Heyer v. United
States Bureau of Prisons, 849 F.3d 202, 219 (4th Cir. 2017)) (emphasis added). Ms. Jacobson’s
bald assertion3 -- in support of dispositive motions -- that CDOC will continue to provide
videophones this time around cannot outweigh the undisputed evidence, see supra at 2-3,
including most importantly that CDOC has repeatedly canceled technology programs for
prisoners, including a previous videophone program.
It is also undisputed that the current videophone program at CDOC was motivated at least
in part by the present litigation. Ms. Jacobson asserts that she decided to “re-visit the option of
videophone service” in early 2018. CDOC admits that its Rule 30(b)(6) witness concerning past,
present, or future plans for use of videophones at CDOC sent an email in January, 2018, 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.)” ECF 141-1 at 30, ¶ 84.


Plaintiffs respectfully submit that this Court should view this assertion with appropriate
skepticism in light of Ms. Jacobson’s assertion -- in the same affidavit -- that CDOC executive
staff were unaware of the videophone pilot program, which is demonstrably untrue based on
documents in CDOC’s possession, called for by pending discovery, but withheld from Plaintiffs.


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Finally, the current videophone program still does not provide phone access equal to that
provided hearing prisoners. CDOC admits that deaf prisoners are required to sign up in advance
to use the videophone, while hearing prisoners are not required to do this to use the conventional
phone, and that deaf prisoners must rely on staff members to dial the phone for them. ECF 141-1
at 31, ¶¶ 90-92. As a result of the latter, the ability of deaf prisoners to use the VP “often depends
on the mood or whim of the guards;” for example, one guard “told deaf prisoners that [they]
cannot use the VP even when no one was using it,” something that occurred repeatedly over a
three-day period earlier this month. Atkins Decl. in Opp’n to Mot. to Dismiss, ¶ 6. The
videophones were installed in a public area, so other prisoners are able to see the people deaf
prisoners are calling. Rabinkov Decl. in Opp’n to Mot. to Dismiss ¶ 5; Trevithick Decl. in Opp’n
to Mot. to Dismiss ¶ 6. Naturally, other prisoners are not able to listen in on hearing prisoners’
conventional phone calls, much less see the friends and family members they are speaking with.
CDOC appears to believe that Plaintiffs have the burden to show that the current
videophone program is “gamesmanship” or “a ploy to deprive the court of jurisdiction.” MTD at
7, 8. While there is, in fact, evidence that this is the case, see ECF 141-1 at 30, ¶ 84, this is not
the standard. Rather, it is CDOC that has the burden -- the “heavy burden” -- to show that the
challenged conduct will not recur. In light of the undisputed facts that CDOC has offered and
withdrawn videophones, tablets, and video visitation, that it still asserts that videophones are not
required, and that it would be easy for CDOC to withdraw this round of videophones, CDOC has
not satisfied and cannot satisfy its burden. Because it is very far from “absolutely clear that the
allegedly wrongful behavior could not reasonably be expected to recur,” Friends of the Earth,
528 U.S. at 189, Plaintiffs’ claims are not moot.


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For the reasons set forth above and in Section V of Plaintiffs’ Response to Defendants’
Motion for Summary Judgment, Plaintiffs respectfully request that this Court hold that Plaintiffs’
claims are not moot.
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: June 27, 2019


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I hereby certify that on June 27, 2019 I electronically filed the foregoing document, and
the Declarations of Amy Robertson, Leonid Rabinkov, Marc Trevithick, Andrew Atkins, and
Keith Nordell with the Clerk of Court using the CM/ECF system, which will provide electronic
service to the following:
Chris Alber
Kathleen Spalding
Counsel for Defendants
/s/Amy F. Robertson
Amy F. Robertson