Havens v. Colo. Dep't of Corr. ( 2018 )

FILED
United States Court of Appeals
Tenth Circuit
July 26, 2018
PUBLISH
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT
CHRYSTAL D. HAVENS, personal
representative of the estate of Darrell
L. Havens,
Plaintiff-Appellant,
v. No. 16-1436
COLORADO DEPARTMENT OF
CORRECTIONS; STATE OF
COLORADO; RICK RAEMISCH;
TOM CLEMENTS; ARISTEDES
ZAVARES; DAVID JOHNSON;
ROSA FRAYER; DENVER
RECEPTION & DIAGNOSTIC
CENTER,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:14-CV-03024-MSK-MEH)
Edward J. LaBarre, Sausalito, California, for Plaintiff-Appellant.
Robert C. Huss, Assistant Attorney General, Office of the Attorney General,
Denver, Colorado, for Defendants-Appellees.
Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.
HOLMES, Circuit Judge.
Darrell Havens, a former Colorado state prisoner, appealed from the district
court’s grant of summary judgment against his claims of discrimination on the
basis of his disability. Mr. Havens claimed that certain decisions and policies of
the Colorado Department of Corrections (“CDOC”) caused him to be excluded
from access to the facilities and services available to able-bodied inmates of the
Colorado prison system, in violation of Title II of the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12132, and § 504 of the Rehabilitation Act, 29 U.S.C.
§ 794(a). Following Mr. Havens’s death on April 23, 2017, we granted a motion
to substitute Chrystal Havens, Mr. Havens’s sister and personal representative of
his estate, as plaintiff-appellant. 1
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we now affirm the
district court’s judgment. We first conclude that Mr. Havens’s Title II claim is
barred by Eleventh Amendment sovereign immunity. Mr. Havens forfeited an
argument before the district court that Title II validly abrogates CDOC’s asserted
1
Mr. Havens passed away after he had filed his opening brief and
CDOC had filed its response brief. Though we permitted Chrystal Havens to be
substituted in this appeal as the plaintiff-appellant following Mr. Havens’s death,
the parties’ briefing (including Mr. Havens’s reply brief) refers to Mr. Havens as
the challenger and proponent of arguments for reversal on appeal. For clarity’s
sake and ease of reference, we also attribute arguments of the plaintiff-appellant
to Mr. Havens.
2
Eleventh Amendment sovereign immunity and has effectively waived such an
argument on appeal by not contending that the court’s Eleventh Amendment order
constitutes plain error. Accordingly, Mr. Havens has not overcome CDOC’s
assertion of sovereign immunity, and we accordingly do not reach the merits of
his Title II claim. We also conclude that Mr. Havens has failed to make the
requisite showing of intentional discrimination under § 504 of the Rehabilitation
Act; therefore, this claim fails on the merits. Accordingly, in light of the
foregoing, we uphold the district court’s judgment in full.
I2
Mr. Havens was an “incomplete quadriplegic” in the custody of CDOC
from 2008 until 2015. 3 Aplt.’s Opening Br. at 4. Early in his incarceration, Mr.
Havens was placed at Fort Lyons Correctional Facility (“Fort Lyons”) in Bent
County, Colorado. Fort Lyons was a CDOC facility able to provide skilled
nursing care for offenders like Mr. Havens with significant medical needs.
2
Unless expressly noted, the facts recounted in Part I are essentially
undisputed. “[W]e must view the evidence in the light most favorable to” Mr.
Havens, as the nonmovant. Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1537
(10th Cir. 1995); accord Bird v. W. Valley City, 832 F.3d 1188, 1199 (10th Cir.
2016).
3
CDOC’s Chief Medical Officer used slightly different terminology,
referring to Mr. Havens as “a near-total quadriplegic.” Aplt.’s App. at 111
(Def.’s Ex. H, Aff. of Susan Tiona, M.D., dated Jan. 7, 2016). The parties’
briefing does not suggest that this difference in terminology is material; indeed,
CDOC’s brief also refers to Mr. Havens as an “incomplete quadriplegic.”
Aplee.’s Resp. Br. at 5.
3
Mr. Havens had access to an exercise yard, day room, and dining hall at
Fort Lyons, where he could socialize with the general population of able-bodied
inmates. He also had access to a law library and a recreational library for several
hours each day. Mr. Havens attended a number of educational programs and was
able to obtain a General Educational Development degree (“GED”). Fort Lyons
also offered “jobs that [Mr. Havens] could apply for and do.” Aplt.’s App. at 183
(Aff. of Darrell Havens, dated Feb. 10, 2016). Mr. Havens had access to “the
same benefits as the able-bodied inmates” at Fort Lyons. Aplt.’s Opening Br. at
8.
Fort Lyons closed in 2011, and Mr. Havens was transferred to the Special
Medical Needs Unit (“SMNU”) at the Denver Reception and Diagnostic Center
(“DRDC”). CDOC also considered placing prisoners with special medical needs
at La Vista Correctional Facility, which is able to accommodate inmates in
wheelchairs.
CDOC placed Mr. Havens at DRDC, however, because it was the only
facility able to provide the full-time medical care that Mr. Havens required. Mr.
Havens required twenty-four-hour-per-day assistance because he had an
“indwelling foley catheter,” “was at risk for skin breakdown due to immobility,”
and “required total assistance for dressing and toileting.” Aplt.’s App. at 111–12
(Def.’s Ex. H, Aff. of Susan Tiona, M.D., dated Jan. 7, 2016). The decision to
place Mr. Havens at DRDC was reached by a multidisciplinary team that included
4
wardens, clinical staff, and management staff.
DRDC is primarily a facility “designed for the temporary housing of felons
coming into the CDOC system for diagnosis, evaluation[,] and classification
before being sent to serve their sentences in other correctional facilities.” Aplt.’s
Opening Br. at 9–10. As a generally temporary facility, DRDC lacked some of
the “programs and facilities that were available to inmates in long[-]term
correctional facilities.” Id. at 10.
DRDC has neither a law library nor a recreational library. However,
inmates could access the library at the nearby Denver Women’s Correctional
Facility for part of Mr. Havens’s incarceration, and could access legal resources
online and other materials by request thereafter.
Mr. Havens was restricted from accessing some of the facilities available to
the able-bodied inmates at DRDC on account of his disability. SMNU inmates,
like Mr. Havens, were able to access the facilities used by the general population
only when staff members were available to accompany them through security
barriers, called “sliders,” that set the SMNU apart from the rest of the prison.
Aplt.’s App. at 185–86, 483 (Def.’s Reply Supp. of Summ. J. Mot., dated Mar. 21,
2016). Consequently, SMNU inmates were mostly limited to the use of a separate
day room that contained only a “cabinet with some games in it” and a television.
Id. at 352 (Dep. of Christopher Gray, dated Sept. 24, 2015). Inmates in the
SMNU received their meals in their cells, rather than in the dining hall. The
5
meals often arrived cold but there was a “microwave to reheat the food” available
in the SMNU. Id. at 187. These restrictions limited Mr. Havens’s ability to
socialize with inmates apart from “about a dozen other inmates [in the SMNU]
who [had] severe disabilities.” Aplt.’s Opening Br. at 27–28.
The parties dispute the range of programs and services available to Mr.
Havens and the other SMNU inmates. Mr. Havens claimed he did not have access
to the same number and variety of educational programs at DRDC that he would
have had at other prisons intended for larger and more permanent populations.
Notices and sign-up sheets for the available educational programs at DRDC were
posted later in the SMNU than in other parts of the prison. Mr. Havens contends
that, as a consequence of this late posting, his access to such programs was
restricted; indeed, he contends that, due to the late posting, often the programs
were fully subscribed before he could sign up for them. However, Mr. Havens
was able to complete a number of educational and treatment programs while
incarcerated at DRDC, including cognitive behavioral therapy programs, lead
abatement and prevention classes, parenting classes, Alzheimer’s disease and lift
training classes, and an addiction treatment program.
II
In November 2014, Mr. Havens filed a pro se complaint seeking injunctive
relief and damages against CDOC, the State of Colorado, DRDC, and a number of
individual defendants. Mr. Havens alleged violations of his federal statutory
6
rights, including claims under Title VI of the Civil Rights Act, 42 U.S.C. § 2000d
et seq., Title II of the ADA, and § 504 of the Rehabilitation Act, and also alleged
violations (through the vehicle of 42 U.S.C. § 1983) of his constitutional rights
under the Fourth, Eighth, and Fourteenth Amendments. The court directed Mr.
Havens to file an amended complaint clarifying “how all named parties violated
his constitutional rights,” Aplt.’s App. at 22 (Order Directing Pl. to File Am.
Compl., filed Nov. 11, 2014), and he did so the following month.
Thereafter, pursuant to 28 U.S.C. § 1915(e)(B)(i), the district court sua
sponte dismissed most of Mr. Havens’s claims against virtually all of the
defendants as legally frivolous. Notably, after the court’s dismissals, the only
claims remaining were Mr. Havens’s claims against CDOC under Title II and
§ 504 of the Rehabilitation Act. CDOC then filed an answer, asserting the
defense of Eleventh Amendment sovereign immunity against Mr. Havens’s Title
II damages claim.
Mr. Havens was granted medical parole on July 1, 2015, and obtained
counsel the following month. His counsel did not seek leave to further amend the
operative (amended) complaint, nor did counsel move the court to reconsider its
dismissal rulings regarding Mr. Havens’s constitutional claims.
CDOC filed a motion for summary judgment in January 2016, arguing that
Mr. Havens’s Title II claim was barred by Eleventh Amendment immunity; that
Mr. Havens’s claims for injunctive relief were mooted by his release on parole;
7
and that Mr. Havens could not recover damages under Title II and § 504 of the
Rehabilitation Act because he could not show discriminatory intent.
In response, Mr. Havens argued that CDOC waived its Eleventh
Amendment immunity with respect to his Title II claims by accepting federal
funds; and that CDOC’s discriminatory conduct was intentional or deliberately
indifferent, and it was thus “liable . . . for compensatory damages.” Aplt.’s App.
at 133 & n.8 (Pl.’s Resp. Def.’s Mot. for Summ. J., dated Feb. 19, 2016).
Significantly, Mr. Havens did not argue that Title II validly abrogated CDOC’s
Eleventh Amendment sovereign immunity as to his claim. CDOC replied,
reiterating its invocation of immunity, but making clear that it asserted immunity
only as to Mr. Havens’s Title II damages claim, and not against his Rehabilitation
Act claim. 4
The district court granted summary judgment for CDOC, finding, first, that
Mr. Havens’s Title II claim was barred by Eleventh Amendment immunity. The
court was puzzled by the parties’ failure to cite to the Supreme Court’s decision
in United States v. Georgia, 546 U.S. 151 (2006), in which the Court held that
Title II validly abrogates sovereign immunity with respect to certain conduct that
is also violative of constitutional rights. In this regard, the court noted Georgia’s
4
Acceptance of federal funds by a state institution waives that
institution’s Eleventh Amendment immunity with respect to Rehabilitation Act
claims. Arbogast v. Kan. Dep’t of Labor, 789 F.3d 1174, 1182–83 (10th Cir.
2015). The parties do not dispute that CDOC has accepted federal funds.
8
“clear relevance to the Eleventh Amendment inquiry and [its] factual similarity to
this case.” Aplt.’s App. at 526 n.3 (Op. & Order, dated Sept. 29, 2016). Though
acknowledging that it had previously dismissed Mr. Havens’s constitutional
claims, the court stated that “the necessary implication of Georgia is that at least
some Title II ADA claims that do not necessarily implicate constitutional
guarantees can nevertheless fall within the category of claims for which Congress
validly abrogated states’ Eleventh Amendment immunity.” Id. at 526–27.
The court noted that the “question of whether Congress abrogated states’
sovereign immunity in a given situation is a highly-detailed inquiry, requiring
extensive review of statutory language and legislative history.” 5 Id. at 527. And,
5
In Georgia, the Supreme Court established a three-part test for
determining whether Title II validly abrogated states’ immunity with respect to
specific claims in individual cases. 546 U.S. at 159. The court must determine,
“on a claim-by-claim basis, (1) which aspects of the State’s alleged conduct
violated Title II.” Id. The court next considers “(2) to what extent such
misconduct also violated the Fourteenth Amendment.” Id. To the extent that the
alleged conduct “actually violates the Fourteenth Amendment,” including rights
incorporated against the states through the Fourteenth Amendment, “Title II
validly abrogates state sovereign immunity.” Id. Finally, “(3) insofar as []
misconduct violated Title II but did not violate the Fourteenth Amendment, [the
court considers] whether Congress’s purported abrogation of sovereign immunity
as to that class of conduct is nevertheless valid” as a congruent and proportional
exercise of its authority under § 5 of the Fourteenth Amendment. Id. In Georgia,
the Supreme Court remanded the prisoner’s claims with instructions that he be
allowed to amend his complaint to clarify which claims were based on alleged
conduct that did “not independently violate the Fourteenth Amendment.” Id.
Thus, the resolution of the question of whether Title II validly abrogates state
sovereign immunity under the Court’s Georgia rubric could require a court to not
only scrutinize the plaintiff’s factual claims, but also legislative findings
(continued...)
9
given that “[t]he parties ha[d] not offered to lead [the district court] through such
a detailed analysis,” the court declined to do so. Id. The court reasoned that the
party with the burden of proof on the abrogation issue must bear the consequences
of the parties’ failure “to adequately develop” it, and the court ruled that Mr.
Havens was that party. Id. Accordingly, the court granted summary judgment in
CDOC’s favor regarding Mr. Havens’s Title II claim based on CDOC’s assertion
of Eleventh Amendment sovereign immunity. The district court next found that
Mr. Havens failed to make the requisite showing of discrimination to support his
§ 504 Rehabilitation Act claim.
Having disposed of Mr. Havens’s claims, the court entered final judgment
for CDOC. This appeal followed.
III
Before the parties’ briefing was completed and oral arguments were
commenced, we learned informally through a media report—and not from the
parties’ counsel—that Mr. Havens had died. 6 More specifically, he died on April
5
(...continued)
regarding relevant history of disability discrimination involving deprivation of the
rights in question. See id.; Guttman v. Khalsa, 669 F.3d 1101, 1117 (10th Cir.
2012) (“[W]e approach . . . the abrogation inquiry with respect to the specific
right and class of violations at issue.”).
6
We regrettably have had occasion to offer the following
admonishment in an earlier case: “The parties’ failure to inform the court of this
significant development is inexplicable and inexcusable. It is the parties, not the
(continued...)
10
23, 2017. We deemed it necessary and appropriate to assess whether it was
proper to go forward and resolve the merits of this appeal under such
circumstances. Though we ultimately have determined that we can indeed reach
the merits, we delineate the path we traveled to reach this conclusion, given that
we found a paucity of legal authority to guide our way. We recognize that the
particular circumstances of each case will be important. We set forth our course
of action as merely one path—within a conceivable range of reasonable ones—for
addressing the circumstances here.
A
After receiving informal notice of Mr. Havens’s death, the court issued an
order directing the parties to show cause why the appeal should not be dismissed,
noting that neither party had filed a suggestion of death nor moved the court
under Federal Rule of Appellate Procedure 43(a)(1) to substitute a personal
representative for Mr. Havens’s estate. See F ED . R. A PP . P. 43(a)(1) (“If a party
dies after a notice of appeal has been filed or while a proceeding is pending in the
court of appeals, the decedent’s personal representative may be substituted as a
party on motion filed with the circuit clerk by the representative or by any
6
(...continued)
court, who are positioned to remain abreast of external factors that may impact
their case . . . .” Jordan v. Sosa, 654 F.3d 1012, 1020 n.11 (10th Cir. 2011).
Suffice it to say, this admonishment fits the circumstances of this case to a tee;
counsel should have informed us of Mr. Havens’s death before we learned of this
fact elsewhere.
11
party.”). We specifically directed the parties to address whether Mr. Havens’s
claims survived his death even if there was a proper substitution of a personal
representative under Rule 43(a)(1), and whether, in light of Mr. Havens’s death,
his counsel had the authority to pursue Mr. Havens’s claims.
Before the time to respond to the show-cause order had expired, Mr.
Havens’s counsel filed a motion for substitution of Chrystal Havens as plaintiff-
appellant, stating that Ms. Havens had the permission of her parents to maintain
her deceased brother’s claim, and attaching a document entitled “Collection of
Personal Property by Affidavit Pursuant to § 15-12-1201, C.R.S.” (“Affidavit”).
Mr. Havens’s counsel claimed that this affidavit conferred upon Ms. Havens “the
right to proceed to attempt to obtain monetary compensation” under Colorado
Revised Statute § 15-12-1201. No. 16-1436, Doc. 10497513, at 1–2 (Mot.
Substitution of Chrystal Havens as Pl. Aplt., dated Sept. 13, 2017).
Shortly thereafter, the parties responded to the court’s order to show cause.
Mr. Havens’s counsel asserted that Mr. Havens’s claims “should survive his
death” and that Chrystal Havens had expressed her “desire to be substituted for
her brother . . . as the Plaintiff” and had asked counsel to “represent her in the
continued prosecution of the case.” No. 16-1436, Doc. 10498397, at 1, 7–8
(Aplt.’s Resp. Order to Show Cause Why Appeal Should Not Be Dismissed, dated
Sept. 15, 2017). For its part, CDOC did not dispute that Mr. Havens’s claims
survived his death but contended that “the action will not survive in the absence
12
of a personal representative.” Id., Doc. 10498398, at 9 (Def.’s-Aplee.’s Resp.
Ct.’s Order to Show Cause, dated Sept. 15, 2017). In this regard, CDOC noted
that “[u]nder Colorado state law applying the Colorado survivor statute, a claim
must be dismissed for lack of jurisdiction in the absence of a personal
representative . . . .” Id. With this proposition in mind, CDOC reasoned here
that, “[i]n the absence of a personal representative, the appeal will be dismissed
for lack of jurisdiction.” Id. at 10. CDOC’s contention that we would lack
jurisdiction due to such an absence appeared to be based on the idea that there
would be no plaintiff in the action “with standing to sue.” Id. at 13; see id.
(noting that Chrystal Havens has not demonstrated that she has “standing to bring
a claim on behalf of the Plaintiff or his estate”).
The court issued a second order, directing Mr. Havens’s counsel to
specifically respond to CDOC’s argument that this court lacked subject-matter
jurisdiction over the appeal due to the absence of a personal representative for
Mr. Havens’s estate. The court posed three specific questions to Mr. Havens’s
counsel:
1) whether [CDOC] is correct that we currently have no
jurisdiction over this action because there is no personal
representative here;
2) if so, is the appointment of a personal representative under
Colorado law permissible at this time; and
3)[] if so, under what time frame could an appointment be made?
13
Id., Doc. 10498430 (Order, dated Sept. 18, 2017). Mr. Havens’s counsel
responded, arguing that the court maintained jurisdiction; that Colorado Revised
Statute § 15-12-108 permitted appointment of a personal representative within
three years of the death of the decedent; and that substitution would be
permissible under Rule 43(a)(1). Mr. Havens’s counsel again argued that Ms.
Havens’s Affidavit empowered her to serve in the capacity of a personal
representative for the purpose of maintaining this appeal.
B
Thereafter, the court heard oral arguments on both the merits of the appeal
and the issues arising from Mr. Havens’s death. Mr. Havens’s counsel
represented to the court that Chrystal Havens could be formally appointed as
personal representative of Mr. Havens’s estate under Colorado law. This would
obviate the need for the court to definitively opine regarding the effect—if
any—of Ms. Havens’s Affidavit in this proceeding. Both parties represented to
the court that the appointment of Ms. Havens as personal representative would not
cause undue hardship to CDOC. Thereafter, in an exercise of discretion, we
elected to abate the appeal to allow for the formal appointment of a personal
representative under Colorado law for Mr. Havens’s estate, and to allow for the
filing of a motion to substitute that personal representative as plaintiff-appellant
pursuant to Rule 43(a)(1).
A little less than two months later, Chrystal Havens filed a renewed motion
14
for substitution under Rule 43(a)(1), attaching letters of administration
demonstrating that she had been appointed as the personal representative of her
brother’s estate. We granted her motion. Consequently, the sole predicate for
CDOC’s challenge to our subject-matter jurisdiction—that is, the absence of a
personal representative—evaporated. Therefore, even if CDOC was correct that
the absence of a personal representative implicated our subject-matter
jurisdiction, this potential jurisdictional malady has been cured. Furthermore, we
discern no other ground to question sua sponte the propriety of our subject-matter
jurisdiction. See, e.g., Citizens Concerned for Separation of Church & State v.
City & Cty. of Denver, 628 F.2d 1289, 1301 (10th Cir. 1980) (“A federal court
must in every case, and at every stage of the proceeding, satisfy itself as to its
own jurisdiction, and the court is not bound by the acts or pleadings of the
parties. . . . This obligation and duty to be watchful of the question of
jurisdiction extends full measure to the federal appellate court which must satisfy
itself of its own jurisdiction and that of the district court.” (citations omitted)).
Accordingly, we proceed to the merits.
IV
A
“We review the district court’s grant of summary judgment . . . de novo,
applying the same legal standard as the district court.” Shero v. City of Grove,
510 F.3d 1196, 1200 (10th Cir. 2007); accord Barber ex rel. Barber v. Colo.
15
Dep’t of Revenue, 562 F.3d 1222, 1227 (10th Cir. 2009). Summary judgment is
appropriate where “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” F ED . R. C IV . P. 56(a); accord
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In considering a
motion for summary judgment, we “examine the record and all reasonable
inferences that might be drawn from it in the light most favorable to the
non-moving party.” Barber, 562 F.3d at 1228 (quoting T-Mobile Cent., LLC v.
Unified Gov’t of Wyandotte Cty., 546 F.3d 1299, 1306 (10th Cir. 2008)).
Mr. Havens argues on appeal that Title II of the ADA validly abrogates
sovereign immunity with respect to his claim in light of the Supreme Court’s
decision in Geogia. Mr. Havens further argues that the district court erred in
deciding that Mr. Havens failed to make the requisite showing of discrimination
under § 504 of the Rehabilitation Act.
We conclude that Mr. Havens has forfeited the argument that Title II
validly abrogates sovereign immunity as to his claim by failing to raise this
argument before the district court, and he has effectively waived the argument on
appeal by not arguing under the rubric of plain error. We further hold that the
district court did not err in ruling against Mr. Havens with respect to his § 504
claim. Consequently, we uphold the district court’s judgment in full.
B
The district court granted summary judgment in favor of CDOC on Mr.
16
Havens’s Title II ADA claim, finding that sovereign immunity barred money
damages, and that Mr. Havens’s claim for injunctive relief was mooted by his
release from prison. Mr. Havens attacks this judgment on appeal solely on the
ground that, because Title II validly abrogates sovereign immunity as to his claim
under the Supreme Court’s decision in Georgia, he may pursue that claim for
damages against CDOC. However, Mr. Havens has not preserved this argument
for review, and we decline to reach its merits.
More specifically, while Mr. Havens argued that CDOC affirmatively
waived immunity by accepting federal funds, it is beyond peradventure that Mr.
Havens failed to raise an argument for abrogation under the Georgia framework
before the district court. We ordinarily deem arguments that litigants fail to
present before the district court but then subsequently urge on appeal to be
forfeited. See, e.g., Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir.
2011) (noting that “if the theory simply wasn’t raised before the district court, we
usually hold it forfeited”); United States v. Jarvis, 499 F.3d 1196, 1201 (10th Cir.
2007) (noting that “a litigant’s failure to raise an argument before the district
court generally results in forfeiture on appeal”); Ian S. Speir & Nima H. Mohebbi,
Preservation Rules in the Federal Court of Appeals, 16 J. A PP . P RAC . & P ROCESS
281, 284 (2015) (“[Forfeiture] happens not by a deliberate act, but by neglecting
to present an argument to the district court.”). Typically, such arguments “may
form a basis for reversal only if the appellant can satisfy the elements of the plain
17
error standard of review.” Richison, 634 F.3d at 1130; see FDIC v. Kans.
Bankers Sur. Co., 840 F.3d 1167, 1171 (10th Cir. 2016) (“Generally, a forfeited
argument will serve as the basis for reversal in a civil matter only if the district
court’s judgment was plainly erroneous.”); see also Ave. Capital Mgmt. II, L.P.
v. Schaden, 843 F.3d 876, 885 (10th Cir. 2016) (“We may consider forfeited
arguments under the plain-error standard.”).
Consequently, a litigant’s “failure to argue for plain error [review] and its
application on appeal—surely marks the end of the road for an argument for
reversal not first presented to the district court”—viz., ordinarily, we will not
review the argument at all. Richison, 634 F.3d at 1131; accord Bishop v. Smith,
760 F.3d 1070, 1095 (10th Cir. 2014); see Fish v. Kobach, 840 F.3d 710, 729–30
(10th Cir. 2016) (noting that litigant failed to “make an argument for plain error
review on appeal” and, as a consequence, his “argument has come to the end of
the road and is effectively waived”); Speir & Mohebbi, supra, at 301 (noting that
“[t]he court will not, on its own, craft a plain-error argument for the appellant”).
This is the cold reality facing Mr. Havens: he has not argued for plain-error
review on appeal, and, therefore, we may decline any review of his abrogation
argument.
To be sure, Mr. Havens’s argument relates to Eleventh Amendment
sovereign immunity and, therefore, implicates our jurisdiction. See, e.g.,
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 119–20 (1984) (noting
18
that the Eleventh Amendment “deprives a federal court of power to decide certain
claims against States that otherwise would be within the scope of Art. III’s grant
of jurisdiction”); see also U.S. ex rel. Burlbaw v. Orenduff, 548 F.3d 931, 941
(10th Cir. 2008) (noting that the “Eleventh Amendment immunity doctrine”
“contain[s] traits more akin to subject-matter jurisdiction”); Sutton v. Utah State
Sch. for the Deaf & Blind, 173 F.3d 1226, 1231 (10th Cir. 1999) (noting that “the
Eleventh Amendment defense has jurisdictional attributes”). And, federal courts
unquestionably “have an independent obligation to determine whether
subject-matter jurisdiction exists, even in the absence of a challenge from any
party.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006); accord 1mage
Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d 1044, 1048 (10th Cir. 2006);
Devon Energy Prod. Co., L.P. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195,
1208 n.10 (10th Cir. 2012).
However, as the district court recognized, the onus is on Mr. Havens to
demonstrate that CDOC’s assertion of Eleventh Amendment sovereign immunity
does not bar his Title II claim. See Sydnes v. United States, 523 F.3d 1179, 1183
(10th Cir. 2008) (cautioning that we must “bear[] in mind that the party asserting
jurisdiction bears the burden of proving that sovereign immunity has been
waived”); accord Muscogee (Creek) Nation v. Okla. Tax Comm’n, 611 F.3d 1222,
1227–28 (10th Cir. 2010); see also Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 104 (1998) (noting that “the party invoking federal jurisdiction bears the
19
burden of establishing its existence”); Devon, 693 F.3d at 1201 (“We ‘presume[ ]
that a cause lies outside this limited [federal-court] jurisdiction, and the burden of
establishing the contrary rests upon the party asserting jurisdiction.’” (first
alteration in original) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511
U.S. 375, 377 (1994))). Consistent with this burden allocation, we have made the
following observation in the sovereign-immunity context: “Although sovereign
immunity and hence subject matter jurisdiction are at issue in this case, our
responsibility to ensure even sua sponte that we have subject matter jurisdiction
before considering a case differs from our discretion to eschew untimely raised
legal theories which may support that jurisdiction.” Daigle v. Shell Oil Co., 972
F.2d 1527, 1539 (10th Cir. 1992) (emphasis added); see also McKenzie v. U.S.
Citizenship & Immigration Servs., Dist. Dir., 761 F.3d 1149, 1155 (10th Cir.
2014) (“To be sure, arguments that the court lacks jurisdiction can be raised at
any time. But that is because a court without jurisdiction has no authority to
decide an issue on the merits. In contrast, when a party presents an unpreserved
argument against dismissal for lack of jurisdiction, we do not exceed our power
by declining to consider the argument.”); Hill v. Kan. Gas Serv. Co., 323 F.3d
858, 866 n.7 (10th Cir. 2003) (“Plaintiffs do not here argue that jurisdiction is
absent, but rather that jurisdiction exists. Obviously, the concern which justifies
the rule exempting such challenges from analysis under the waiver doctrine—that
a federal court not decide cases over which it has no jurisdiction under Article III
20
of the Constitution—is lacking where a waiver would not increase the risk of a
court proceeding without jurisdiction. We believe that application of the waiver
doctrine is therefore appropriate.”).
Therefore, we may deem forfeited Mr. Havens’s late-blooming argument
under Georgia—viz., his argument that CDOC’s sovereign immunity as to his
Title II claim is abrogated—even though his argument implicates our subject-
matter jurisdiction. See, e.g., Somerlott v. Cherokee Nation Distribs., Inc., 686
F.3d 1144, 1151–52 (10th Cir. 2012) (finding lack of preservation of argument
challenging tribal sovereign immunity); Iowa Tribe of Kan. & Neb. v. Salazar,
607 F.3d 1225, 1231 (10th Cir. 2010) (declining to address forfeited argument
against federal government sovereign immunity). And, because Mr. Havens has
not argued for plain-error review, we may further treat his abrogation argument
under Georgia’s framework as “effectively waived” and, thus, decline to review it
at all. Fish, 840 F.3d at 730; see Richison, 634 F.3d at 1131. Consequently, we
uphold the district court’s judgment against Mr. Havens’s Title II claim on
Eleventh Amendment sovereign-immunity grounds and do not reach the merits of
his Title II claim.
C
Turning to the merits of Mr. Havens’s claim under § 504 of the
Rehabilitation Act, we affirm the district court’s grant of summary judgment for
CDOC, though on somewhat different grounds.
21
In addressing his § 504 claim, the district court first rejected Mr. Havens’s
allegation of discrimination based upon his individual placement in the SMNU at
DRDC, rather than in a prison facility with a greater “breadth of programs and
amenities.” Aplt.’s App. at 529. The district court found that Mr. Havens had
failed to demonstrate a genuine dispute of material fact “as to whether [his]
medical needs compelled his placement in the SMNU at DRDC.” Id. at 531.
Second, responding to its “impression that, to some extent, Mr. Havens wishes to
challenge CDOC’s decision to place the SMNU within DRDC after the closure of
Fort Lyons,” rather than within a facility with “the amenities and programs
typically found at prisons where inmates are housed” on a non-temporary basis,
the court noted that it was:
disincline[d] to take up this strand of argument for numerous
reasons, most significantly because the decision of where to
locate a given prison unit [] is a textbook example of the type of
prison administration decision that Turner [7] emphasizes must be
7
In Turner v. Safley, 482 U.S. 78, 81 (1987), the Supreme Court
reviewed regulations promulgated by the Missouri Division of Corrections
governing inmate marriages and inmate-to-inmate correspondence. Recognizing
that “courts are ill equipped to deal with the increasingly urgent problems of
prison administration and reform,” the Court held that, “when a prison regulation
impinges on inmates’ constitutional rights, the regulation is valid if it is
reasonably related to legitimate penological interests.” Id. at 84, 89 (quoting
Procunier v. Martinez, 416 U.S. 396, 405 (1974), overruled on other grounds by
Thornburgh v. Abbott, 490 U.S. 401 (1989)). The Court noted prudential,
institutional, and federalism concerns implicated by judicial review of prison
regulations:
(continued...)
22
left to the expertise of CDOC, not usurped by the Court.
Id. at 532 n.6. The court further observed, however, that “Mr. Havens’ casual
suggestions that DRDC was the wrong place to establish the SMNU is far from
the type of expert evidence that would be necessary to warrant the Court
embarking on such an intrusive examination of CDOC’s decisionmaking in this
regard.” Id. Third, and lastly, the court found that Mr. Havens’s access to the
programs and services at DRDC was “still meaningful,” even though “many” of
those “activities were constrained, to one degree or another, by restrictions
7
(...continued)
“[T]he problems of prisons in America are complex and
intractable, and, more to the point, they are not readily
susceptible of resolution by decree.” Running a prison is an
inordinately difficult undertaking that requires expertise,
planning, and the commitment of resources, all of which are
peculiarly within the province of the legislative and executive
branches of government. Prison administration is, moreover, a
task that has been committed to the responsibility of those
branches, and separation of powers concerns counsel a policy of
judicial restraint. Where a state penal system is involved, federal
courts have, as we indicated in [Procunier v. Martinez],
additional reason to accord deference to the appropriate prison
authorities.
Id. at 84–85 (citation omitted) (quoting Procunier v. Martinez, 416 U.S. at404–05). Further, “[w]here ‘other avenues’ remain available for the exercise of
the asserted right, courts should be particularly conscious of the ‘measure of
judicial deference owed to corrections officials.’” Id. at 90 (citations omitted)
(first quoting Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 131
(1977), then quoting Pell v. Procunier, 417 U.S. 817, 827 (1974)). The Court
later reaffirmed in Thornburgh the principle that prisoners’ “rights must be
exercised with due regard for the ‘inordinately difficult undertaking’ that is
modern prison administration.” 490 U.S. at 407 (quoting Turner, 482 U.S. at 85).
23
imposed for security, medical, administrative, or logistical reasons.” Id. at 534.
1
“To establish a prima facie claim under § 504, a plaintiff must demonstrate
that ‘(1) plaintiff is handicapped under the Act; (2) [he] is “otherwise qualified”
to participate in the program; (3) the program receives federal financial
assistance; and (4) the program discriminates against plaintiff’” based upon a
disability. Barber, 562 F.3d at 1228 (quoting Hollonbeck v. U.S. Olympic Comm.,
513 F.3d 1191, 1194 (10th Cir. 2008)); accord Wagoner v. Lemmon, 778 F.3d
586, 592 (7th Cir. 2015); Gorman v. Bartch, 152 F.3d 907, 911 (8th Cir. 1998);
Duffy v. Riveland, 98 F.3d 447, 454 (9th Cir. 1996).
“The Supreme Court has recognized that § 504 is intended to ensure that
‘an otherwise qualified handicapped individual [is] provided with meaningful
access to the benefit that the grantee offers . . . . [T]o assure meaningful access,
reasonable accommodations in the grantee’s program or benefit may have to be
made.’” Barber, 562 F.3d at 1229 (alterations in original) (emphasis added)
(quoting Alexander v. Choate, 469 U.S. 287, 301 (1985)); accord Mark H. v.
Lemahieu, 513 F.3d 922, 937 (9th Cir. 2008). “Section 504 seeks to assure
evenhanded treatment and the opportunity for handicapped individuals to
participate in and benefit from programs receiving federal assistance. The Act
does not, however, guarantee the handicapped equal results” from participation in
such programs and services. Alexander, 469 U.S. at 304 (citation omitted); cf.
24
Nunes v. Mass. Dep’t of Corr., 766 F.3d 136, 146 (1st Cir. 2014) (holding, in the
context of a prisoner’s claim against a prison system, that § 504 “entitle[s] [a
disabled individual] to reasonable accommodations, not to optimal ones finely
tuned to his preferences”). The plaintiff bears the burden of establishing that the
defendant “discriminated against the handicapped” in the offered program or
service by failing to provide meaningful access to the program and service, “such
that the need for a remedial interactive process aimed at finding a reasonable
accommodation was triggered.” Barber, 562 F.3d at 1233 (Gorsuch, J.,
concurring).
In construing the scope of liability under § 504 of the Rehabilitation Act,
we may not only reference cases decided under that statute, but also cases decided
under Title II of the ADA. “The ADA enlarges the scope of the Rehabilitation
Act to cover private employers, but the legislative history of the ADA indicates
that Congress intended judicial interpretation of the Rehabilitation Act to be
incorporated by reference when interpreting the ADA.” Nielsen v. Moroni Feed
Co., 162 F.3d 604, 608 n.7 (10th Cir. 1998); accord Mauerhan v. Wagner Corp.,
649 F.3d 1180, 1186 n.6 (10th Cir. 2011); see also 42 U.S.C. § 12201 (“Except as
otherwise provided in this chapter, nothing in this chapter shall be construed to
apply a lesser standard than the standards applied under title V of the
Rehabilitation Act of 1973 (29 U.S.C. 790 et seq.) . . . .”).
25
Mr. Havens seeks only damages on appeal based on his § 504 claim, 8 and
“[t]o recover compensatory damages under § 504, a plaintiff must establish that
the agency’s discrimination was intentional.” Barber, 562 F.3d at 1228; see
Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1153 (10th Cir. 1999) (“We
agree with the course charted by our sister circuits and hold that entitlement to
compensatory damages under section 504 of the Rehabilitation Act requires proof
the defendant has intentionally discriminated against the plaintiff.”); accord Liese
v. Indian River Cty. Hosp. Dist., 701 F.3d 334, 342 (11th Cir. 2012); Loeffler v.
Staten Island Univ. Hosp., 582 F.3d 268, 275 (2d Cir. 2009); Delano-Pyle v.
Victoria Cty., 302 F.3d 567, 574 (5th Cir. 2002); Duvall v. Cty. of Kitsap, 260
F.3d 1124, 1138 (9th Cir. 2001); see also Meagley v. City of Little Rock, 639 F.3d
384, 390 (8th Cir. 2011) (noting that “[e]very circuit court to address the issue
. . . has reaffirmed that intentional discrimination must be shown to recover
compensatory damages” under the Rehabilitation Act).
Deliberate indifference is sufficient to satisfy the intentional-discrimination
requirement for compensatory damages under § 504: “[I]ntentional
8
Actually, in his appellate briefing, Mr. Havens argues that he is
entitled to compensatory damages under both Title II and § 504. See Aplt.’s
Opening Br. at 38. Here, we address only whether Mr. Havens has satisfied the
requisite showing as to his claim under § 504 because we have previously
determined in Part IV.B, supra, that Mr. Havens effectively waived his only
argument challenging CDOC’s assertion of Eleventh Amendment sovereign
immunity and, therefore, we cannot reach the merits of his Title II claim.
26
discrimination 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.” Powers, 184 F.3d at 1153; accord
Barber, 562 F.3d at 1228–29; see also J.V. v. Albuquerque Pub. Schs., 813 F.3d
1289, 1298 & n.6 (10th Cir. 2016) (citing Barber and applying “the same standard
to ADA intentional discrimination cases because, ‘[t]o the extent feasible, we
look to decisions construing the Rehabilitation Act to assist us in interpreting
analogous provisions of the ADA’” (alteration in original) (quoting Cohon ex rel.
Bass v. N.M. Dep’t of Health, 646 F.3d 717, 725 (10th Cir. 2011))); S.H. ex rel.
Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 263 (3d Cir. 2013) (following
“in the footsteps of a majority of our sister courts and hold[ing] that a showing of
deliberate indifference may satisfy a claim for compensatory damages under
§ 504”); Liese, 701 F.3d at 348 (adopting a deliberate-indifference standard
based, in part, upon “the overwhelming body of circuit case law, and [a] review
of the pertinent [statutory] analogs”); Meagley, 639 F.3d at 389 (citing Barber
and adopting a deliberate-indifference standard).
This deliberate-indifference standard is consistent with the purposes
animating the Rehabilitation Act. In this regard, “the Supreme Court has
instructed the Rehabilitation Act was adopted not only to curb ‘conduct fueled by
discriminatory animus,’ but also to right ‘the result of apathetic attitudes rather
than affirmative animus.’” Powers, 184 F.3d at 1152 (quoting Alexander, 469
27
U.S. at 295 (“Discrimination against the handicapped was perceived by Congress
to be most often the product, not of invidious animus, but rather of
thoughtlessness and indifference—of benign neglect.”)). The deliberate-
indifference standard “does not require a showing of personal ill will or animosity
toward the disabled person.” Barber, 562 F.3d at 1228; Meagley, 639 F.3d at 389(quoting Barber, 562 F.3d at 1228). The plaintiff must show, however, “(1) [that
the defendant had] ‘knowledge that a harm to a federally protected right [was]
substantially likely,’ and (2) ‘a failure to act upon that . . . likelihood.’” Barber,
562 F.3d at 1229 (omission in original) (quoting Duvall, 260 F.3d at 1139);
accord J.V., 813 F.3d at 1298; S.H., 729 F.3d at 265.
As to the second prong, “failure to act [is] a result of conduct that is more
than negligent, and involves an element of deliberateness.” Barber, 562 F.3d at
1229 (alteration in original) (quoting Lovell v. Chandler, 303 F.3d 1039, 1056
(9th Cir. 2002)); accord J.V., 813 F.3d at 1298; see Duvall, 260 F.3d at 1139(observing that “bureaucratic slippage” does not amount to deliberate
indifference, nor does “deliberate indifference . . . occur when a duty to act may
simply have been overlooked”); Ferguson v. City of Phoenix, 157 F.3d 668, 675
(9th Cir. 1998) (holding that “not uncommon bureaucratic inertia” in updating a
city’s 9-1-1 system to make it accessible to the hearing-disabled, coupled with
“some lack of knowledge and understanding” about regulatory requirements, did
not amount to deliberate indifference); cf. McCulley v. Univ. of Kan. Sch. of Med.,
28
591 F. App’x 648, 651 (10th Cir. 2014) (unpublished) (holding that summary
judgment for the defendant was appropriate where a university “engaged in an
iterative process with [the plaintiff] and allowed her ample opportunity to request
accommodations and demonstrate their feasibility,” showing that it “was hardly
indifferent to [the plaintiff’s] need for accommodations”).
Our Barber decision is particularly illustrative with regard to this second
prong’s application. In Barber, this court addressed claims by a mother and
daughter challenging a Colorado statute that required drivers under the age of
sixteen to practice only “under the supervision of [a licensed] parent, stepparent,
or guardian”; the plaintiffs claimed that the statute discriminated against them
under § 504 on account of the mother’s blindness, which prevented her from
holding a driver’s license. 562 F.3d at 1225 (quoting C OLO . R EV . S TAT .
§ 42–2–106(1)(b)). We held that the “evidence, even in the light most favorable
to [the plaintiffs], simply would not support a finding that the [Colorado
Department of Motor Vehicles (“DMV”)] failed to act in response” to the
plaintiffs’ complaint, where “the DMV took adequate steps to ameliorate the
situation by engaging in discussion about [a limited form of] guardianship [that
would allow the daughter to drive under the supervision of her grandfather] and
pursu[ed] legislative amendment.” Id. at 1229–30, 1233. “The mere fact that the
[defendant] did not accept [the mother’s] suggested [accommodation] d[id] not
establish a deliberate indifference to her situation or her rights.” Id. at 1232.
29
2
The district court’s summary-judgment analysis seemed to primarily turn on
the question of whether CDOC discriminated against Mr. Havens at all (i.e., quite
apart from whether it did so intentionally) by placing him in the SMNU at DRDC
and implementing specific security and access policies limiting his access to some
of the programs and facilities available to able-bodied inmates at DRDC. The
court answered this question in the negative. In light of the services and
programs that seriously disabled inmates like Mr. Havens did have access
to—evidenced in part by the fact that Mr. Havens completed a number of
educational programs—the district court found that Mr. Havens had “meaningful
access.” Aplt.’s App. at 534.
Notably, the parties’ arguments primarily focus not on the discrimination
vel non question but rather on whether any allegedly discriminatory conduct by
CDOC was the product of deliberate indifference (i.e., intentional) and, thus, a
predicate for compensatory damages under § 504. In light of the parties’ defining
of the ground of contention, we are content to focus our analysis on the issue of
discriminatory intent, as the record is adequate to support our review. See
Bennett v. Spear, 520 U.S. 154, 166 (1997) (“A respondent is entitled . . . to
defend the judgment on any ground supported by the record.”); Elkins v. Comfort,
392 F.3d 1159, 1162 (10th Cir. 2004) (“We have discretion to affirm on any
ground adequately supported by the record.”). In doing so, however, we
30
acknowledge that the antecedent question of discrimination vel non—whether Mr.
Havens was denied meaningful access to the programs and activities of
DRDC—significantly helps to define the contours of our reasoning with respect to
the question of deliberate indifference (i.e., discriminatory intent).
Mr. Havens claims on appeal that CDOC demonstrated deliberate
indifference in: (1) its decision to place and operate a SMNU in DRDC, a
generally temporary facility with less accessible infrastructure for disabled
persons and fewer programs for long-term prisoners; and (2) its establishment or
implementation of specific security and access policies of the SMNU that further
restricted Mr. Havens’s access to the facilities used by the general, able-bodied
population at DRDC. 9
More specifically, as for the decision to locate and operate a SMNU at
DRDC, Mr. Havens argues that “[w]hen the CDOC made the policy decision to
establish [a SMNU] at DRDC . . . it should have been apparent to CDOC policy
makers that the pursuit of that policy decision would lead to deprivations of the
9
Mr. Havens unsuccessfully argued before the district court that the
decision to place him personally in the SMNU at DRDC, rather than another
facility with a greater range of programs and amenities, was discriminatory. See
Aplt.’s App. at 160–61. He does not pursue this argument on appeal; accordingly,
we deem it abandoned and waived. See Coleman v. B-G Maint. Mgmt. of Colo.,
Inc., 108 F.3d 1199, 1205 (10th Cir. 1997) (“Issues not raised in the opening brief
are deemed abandoned or waived.”). Reflecting his abandonment of this
argument, Mr. Havens has not attempted to rebut CDOC’s claim that “[Mr.]
Havens’[s] medical needs and care levels were the overriding factor in
determining [his] placement” in the SMNU. Aplee.’s Resp. Br. at 28.
31
Plaintiff’s rights under the Rehab Act . . . .” Aplt.’s Opening Br. at 39–40. Mr.
Havens points out the absence of a law library and recreational library at DRDC,
along with “architectural, transportation[,] and communication barriers[;] . . .
minimal facilities[;] . . . [and] limited activities, benefits, jobs and other
opportunities.” Id. at 39. Mr. Havens argues that CDOC’s decision to place and
operate a SMNU at DRDC, despite knowledge of these limitations, amounted to
deliberate indifference to a substantial likelihood that Mr. Havens would be
denied his statutory right of non-discriminatory, meaningful access to state
benefits.
As for the SMNU’s specific security and access policies, Mr. Havens
contends that he “suffered segregation and discrimination that was simply the
result [of] CDOC policies that were unreasonable,” including policies that limited
his computer access, required him to eat his meals in his cell, and “prohibit[ed
Mr. Havens] from interacting or associating with the able-bodied inmates at
DRDC.” Id. at 19. Mr. Havens argues that CDOC “must have known that its
policies to segregate the inmates in the SMNU from the other inmates at DRDC”
would violate his rights under the Rehabilitation Act. Id. at 40.
3
The fundamental weakness of both of Mr. Havens’s claims is that neither
(1) the choice to place and operate a SMNU at DRDC, or (2) the specific security
and access policies governing the SMNU demonstrates deliberate indifference on
32
the part of CDOC, see Barber, 562 F.3d at 1229, because Mr. Havens has not
shown that CDOC had knowledge that either course of conduct would result in a
substantial likelihood of harm to his federally protected rights (i.e., § 504 rights).
“Whether a prison official had the requisite knowledge of a substantial risk
is a question of fact subject to demonstration in the usual ways, including
inference from circumstantial evidence . . . .” McCullum v. Orlando Reg’l
Healthcare Sys., Inc, 768 F.3d 1135, 1147 (11th Cir. 2014) (articulating the
deliberate indifference standard with respect to the plaintiff’s ADA and
Rehabilitation Act claims) (quoting Farmer v. Brennan, 511 U.S. 825, 842
(1994)). “[A] factfinder may conclude that a prison official knew of a substantial
risk from the very fact that the risk was ‘obvious.’” Id. (quoting Farmer, 511
U.S. at 842); see also Robertson v. Las Animas Cty. Sheriff’s Dep’t, 500 F.3d
1185, 1197 (10th Cir. 2007) (“That is, the entity will know of the individual’s
need for an accommodation because it is ‘obvious.’”).
There is no significant or meaningful direct evidence of such knowledge in
this case. Nor is there a reasonable probability that such knowledge on CDOC’s
part can be inferred from the circumstances. With the SMNU located and
operating at DRDC, disabled inmates, like Mr. Havens, actually did have
considerable access to programs and activities available to the general population
of able-bodied inmates. In light of the evidence before us, we cannot say that risk
of harm to Mr. Havens was “obvious.” McCullum, 768 F.3d at 1147.
33
In other words, we would be hard-pressed to circumstantially discern a
triable inference that CDOC had knowledge of a substantial likelihood of harm to
the federal rights of Mr. Havens, as well as other disabled inmates, in the
placement and operation of the SMNU and in the fashioning of its specific
security and access policies, when the actual operations of the SMNU evinced no
such harms or objective indications that such harms were substantially likely to
occur. That is, the SMNU’s actual operations at DRDC demonstrate that,
contrary to Mr. Havens’s contention, it would not have been obvious to the prison
officials in placing and operating the SMNU at DRDC or in fashioning SMNU’s
specific security and access policies that doing so would be substantially likely to
infringe the federal rights of disabled inmates like Mr. Havens. See Meagley, 639
F.3d at 389 (concluding that there was “no evidence that the zoo knew [its]
bridges . . . did not comply with ADA guidelines” where there had been no prior
incidents involving the bridges, and an internal evaluation failed to note any
compliance issue); cf. Farmer, 511 U.S. at 844 (noting under an Eighth
Amendment deliberate-indifference standard that “a trier of fact may infer
knowledge from the obvious” but that “does not mean that it must do so”).
Far from establishing such knowledge, the circumstances here would
suggest that any concerns by CDOC regarding harms to the § 504 rights of
disabled inmates, like Mr. Havens, in the placing and operating of the SMNU at
the DRDC or in fashioning SMNU’s specific security and access policies at the
34
DRDC would have been purely speculative and conjectural. Even assuming,
arguendo, one could colorably argue that CDOC was negligent in not discerning
such a substantial likelihood under these circumstances, that would not be good
enough. See S.H., 729 F.3d at 266 n.26 (“Deliberate indifference requires actual
knowledge; allegations that one would have or ‘should have known’ will not
satisfy the knowledge prong of deliberate indifference” (quoting Bistrian v. Levi,
696 F.3d 352, 367 (3d Cir. 2012))).
We turn now to examine the circumstances of the actual operations of the
SMNU. Mr. Havens recognizes—and the record before the district court
reflected—multiple accommodations the CDOC implemented to ensure that Mr.
Havens and his fellow disabled inmates in the SMNU would retain meaningful
access to programs and services while incarcerated at DRDC.
In particular, CDOC provided full-time aides and designed a prison job that
Mr. Havens was able to perform. Mr. Havens was given computer access, albeit
for limited periods of time when a computer was available, and had access to
online legal resources as well as recreational books and media by request. CDOC
provided a separate day room inside the SMNU. And Mr. Havens could access
other parts of the facility with the assistance of staff members, when staff were
available. The provision of these accommodations disinclines us to hold that
CDOC had “actual knowledge” of the risk of harm to Mr. Havens, id. (emphasis
omitted); it in fact suggests the opposite. See, e.g., McCullum, 768 F.3d at
35
1148–49 (affirming summary judgment on deliberate indifference grounds
because the defendant hospital had “provided several accommodations,” and
because the plaintiff could not demonstrate that the hospital “knew it was
substantially likely that the accommodations that were provided were
ineffective”).
In addition, the fact that Mr. Havens completed a number of educational
and training programs while incarcerated at DRDC also suggests that the district
court correctly found he was not denied meaningful access to such programs.
And, more to the point, his ability to complete a meaningful selection of such
programs is evidence that CDOC would not have been aware of a substantial
likelihood that Mr. Havens, as well as other disabled SMNU inmates, would
suffer violations of his federal rights by CDOC’s decision to place and operate the
SMNU in DRDC and its decision to fashion and implement the specific security
and access policies for the SMNU at issue. In other words, Mr. Havens’s
successful participation in DRDC’s educational and training programs forcefully
militates against any reasonable inference that the risk that his § 504 rights would
be (or were being) violated was “obvious.” Robertson, 500 F.3d at 1197.
In sum, in light of these accommodating measures and evidence that
inmates of the SMNU at DRDC retained meaningful access to prison programs
and services, CDOC cannot be charged with “knowledge that a harm to a
federally protected right [was] substantially likely” to result from the decision to
36
place and operate the SMNU at DRDC, let alone with “a failure to act upon that
. . . likelihood.” Barber, 562 F.3d at 1229 (alteration in original) (quoting
Duvall, 260 F.3d at 1139). Furthermore, a panel of this court has cogently held,
“it is not necessary for [a prison system] to duplicate programs [available in each
facility] in all other facilities.” Whitington v. Moschetti, 423 F. App’x 767, 771
(10th Cir. 2011) (unpublished). Mr. Havens has not shown that CDOC was aware
of a substantial likelihood that the above measures were insufficient to ensure
meaningful access to the programs and activities at DRDC. And, under the
reasoning of Whitington, the fact that those programs and activities were more
modest than those available at other penal facilities in the CDOC is not
determinative of whether Mr. Havens’s § 504 rights were violated. See also
Alexander, 469 U.S. at 304 (Section 504 “does not . . . guarantee the handicapped
equal results”); cf. Pierce v. Cty. of Orange, 526 F.3d 1190, 1221, 1222 & n.38
(9th Cir. 2008) (noting that “[t]he ADA does not require perfect parity among
programs offered by various facilities that are operated by the same umbrella
institution,” although “concerns associated with inequalities between different
facilities” required the county to implement some kind of accessibility plan to
remedy excessive inequalities between offerings, viewed “as a whole”).
Further, based upon substantially the same undisputed facts, Mr. Havens
has not shown that CDOC actually had knowledge of a substantial likelihood that
the specific security and access policies of DRDC at issue here—which governed
37
the movement and activities of SMNU inmates—would deprive them, and in
particular Mr. Havens, of meaningful access to programs and services. CDOC
addressed inmates’ limited mobility outside of the SMNU by, among other things,
providing online access to legal resources, books and media by request, and a day
room within the SMNU.
And the district court persuasively reasoned that CDOC’s security and
access policies at DRDC did not deprive Mr. Havens, and other SMNU disabled
inmates, of meaningful participation in DRDC’s services and programs. 10 The
court noted that Mr. Havens could socialize freely within the SMNU and travel to
other parts of DRDC with the assistance of prison staff. The court further
emphasized from the undisputed facts that Mr. Havens had worked prison jobs;
had taken classes; had access to books and media; and “had some degree of law
library access, enough that he was able to pursue multiple lawsuits.” Aplt.’s App.
10
Even if meaningful participation were not provided, it would not be
conclusive as to the question of whether CDOC possessed the requisite knowledge
to establish deliberate indifference. See S.H., 729 F.3d at 266, 267 & n.26
(“[L]iability in this case is not dependent merely on whether the School District’s
psychologists erred in their determinations. The relevant inquiry is knowledge,
and evidence that the School District may have been wrong about S.H.’s
diagnosis is not evidence that the School District had knowledge that it was a
wrong diagnosis.”); McCullum, 768 F.3d at 1148 (“[T]here is no evidence
suggesting that the staff’s written notes were ineffective as auxiliary aids or,
assuming that they were, that the nurses and doctors at Parrish knew that fact.”
(emphases added)); see also Robertson, 500 F.3d at 1197 (“[T]he entity will know
of the individual’s need for an accommodation because it is ‘obvious.’”). The
district court’s reasoning, however, serves to significantly solidify the bases of
our conclusion that Mr. Havens cannot prevail on his § 504 claim.
38
at 532–33.
The district court’s sound reasoning is congruent with our view that
meaningful access and the question of whether accommodations are reasonable
must be assessed through the prism of the prison setting. 11 See Turner, 482 U.S.
11To be clear, at issue here is not whether Turner’s analytical
framework relating to legitimate penological interests applies full force to claims
based on statutory rights, like those embodied in § 504, as well as to
constitutional rights. There appears to be some debate among our sister circuits
about this. Compare Onishea v. Hopper, 171 F.3d 1289, 1300 (11th Cir. 1999)
(en banc) (noting that “Turner does not, by its terms, apply to statutory rights”),
and Yeskey v. Pa. Dep’t of Corr., 118 F.3d 168, 174 (3d Cir. 1997) (noting that
the question of whether Turner applies to statutory rights is “controversial and
difficult”), aff’d, 524 U.S. 206 (1998), with Torcasio v. Murray, 57 F.3d 1340,
1355 (4th Cir. 1995) (“Given the leeway prison officials are accorded where their
actions threaten constitutional rights of inmates, it follows a fortiori that prison
officials enjoy similar flexibility with respect to inmates’ statutory rights . . . .”),
and Gates v. Rowland, 39 F.3d 1439, 1447 (9th Cir. 1994) (finding Turner
“equally applicable to the statutory rights created by the [ADA]” in the prison
context). And we apparently have not directly ruled on the subject. Rather, our
point here is a limited one: viz., Turner recognized that administrators face unique
circumstances and challenges in the prison setting and, just as that Court took
them into account in fashioning its analytical rubric, we believe that—at the very
least—it is appropriate and prudent to take these variables into account in
attempting to discern under § 504 whether a prisoner’s access to prison services
and programs was meaningful and whether the prison reasonably accommodated
the prisoner’s disability. And there is certainly support in the cases of our sister
circuits for at least this limited reference to the concerns underlying Turner’s
rubric. See Onishea, 171 F.3d at 1300 (“[E]ven if the district court’s importation
of Turner’s standards into the Rehabilitation Act was not precisely correct as a
matter of legal theory, determining whether penological concerns impose
requirements for program participation is not error.”); Torcasio, 57 F.3d at 1355;
Gates, 39 F.3d at 1447.
These variables would include “security and cost,” see Onishea, 171 F.3d at
1300, and “maintaining . . . order[,] and operating an institution in a manageable
fashion,” Castle v. Eurofresh, Inc., 731 F.3d 901, 911 (9th Cir. 2013) (quoting
(continued...)
39
at 84–85; Wright v. N.Y. State Dep’t of Corr., 831 F.3d 64, 78 (2d Cir. 2016)
(“[P]risons are unique environments where ‘deference to the expert views’ of
prison administrators is the norm.” (quoting Pierce, 526 F.3d at 1217)). Prison
officials have the obligation to consider security and other factors unique to the
prison environment in their decision-making, and courts have accorded them
considerable discretion to do so. See Onishea v. Hopper, 171 F.3d 1289, 1300
(11th Cir. 1999) (en banc); Torcasio v. Murray, 57 F.3d 1340, 1355 (4th Cir.
11
(...continued)
Pierce, 526 F.3d at 1217)). And these particular variables have played a
significant role in resolving the question of meaningful access or accommodations
in favor of prison administrators. See Wagoner, 778 F.3d at 592–93 (holding
prisoner was not “deni[ed] [] services within the meaning of [§ 504]” on account
of “longer waits and humiliation” caused by transportation in a van unable to
accommodate his wheelchair); Nunes, 766 F.3d at 146 (holding prisoner was not
denied “meaningful access” to medication by requirement that he wait in line to
receive it, and summary judgment for the defendant was appropriate, despite his
“back pain, chronic diarrhea, and other illnesses” that made waiting in line
difficult, where prison offered the use of a rolling walker and ability to sit or
leave the line to use the bathroom as accommodations); Lue v. Moore, 43 F.3d
1203, 1206 (8th Cir. 1994) (holding that “[the plaintiff’s] argument that the
defendants should have sent him off prison grounds for training fails because
[§ 504] does not require the defendants to give handicapped inmates preferential
treatment”); Journey v. Vitek, 685 F.2d 239, 241–42 (8th Cir. 1982) (affirming
judgment for the defendant after bench trial because the record supported the
court’s factual finding that the plaintiff had not been denied meaningful access to
“educational, rehabilitative, [and] recreational . . . programs” by assignment to a
prison infirmary on the second floor, where he depended upon help from
unreliable “inmate friends” to “transport him up and down the . . . stairs to inmate
recreational activities”); see also Hollis v. Howard, No. 16-5115, 2016 WL
9804159, at *2 (6th Cir. Dec. 21, 2016) (unpublished) (holding prisoner was not
denied meaningful access, and failed to state a claim under § 504, where he had
been able to attend programs and services with the assistance of other inmates,
despite prison’s failure to assign him an inmate aide).
40
1995). As the Fourth Circuit held, in Torcasio:
In view of [the] consensus that any rights prisoners
enjoy—including the right of disabled inmates to some degree of
accommodation—must be assessed in light of the requirements
of prison administration, [the defendants] could certainly have
reasonably concluded that their actions were consistent with “[the
plaintiff’s] right to the modification of specific [prison] services
and facilities.”
....
This portfolio of accommodations of course did not satisfy all of
[the plaintiff’s] requests, but certainly could have been viewed by
a reasonable prison administrator as a satisfactory
accommodation of whatever right [the plaintiff] had to
modification of prison facilities [and policies] . . . .
57 F.3d at 1356 (fourth alteration in original). 12
12
To be sure, the late posting of sign-up sheets for vocational and
educational programs gives us some pause with regard to Mr. Havens’s claim of
deliberate indifference, as the accommodation requested by Mr. Havens—i.e.,
timely posting of such information in the SMNU—seemingly could have been
accomplished by CDOC with little burden. Cf. Onishea, 171 F.3d at 1301 (noting
that Turner deference to prison policies may be overcome where the plaintiff
shows “‘easy alternatives’ that come at a de minimis cost to valid penological
interests” (quoting Turner, 482 U.S. at 91)). However, as discussed above, Mr.
Havens was apparently able to complete a number of educational and training
programs, and he failed to identify any specific programs from which he had been
excluded by late posting of notices in the SMNU. Therefore, we cannot conclude
that a reasonable inference could be made that CDOC had knowledge that there
was a substantial likelihood that any “bureaucratic slippage,” Duvall, 260 F.3d at
1139, in the timely posting of program notices would infringe Mr. Havens’s
federally protected rights (as well as those of similarly situated SMNU inmates),
see McCullum, 768 F.3d at 1147 (noting that “the very fact that the risk was
‘obvious’” would permit a jury to “conclude that a prison official knew of a
substantial risk” (quoting Farmer, 511 U.S. at 842)); Meagley, 639 F.3d at 389(concluding that there was “no evidence that the zoo knew [its] bridges . . . did
not comply with ADA guidelines” where there had been no prior incidents
involving the bridges, and an internal evaluation failed to note any compliance
(continued...)
41
In light of the foregoing, Mr. Havens has not carried his burden of showing
that CDOC had “knowledge that a harm to a federally protected right [was]
substantially likely.” Barber, 562 F.3d at 1229 (quoting Duvall, 260 F.3d at
1139). Accordingly, Mr. Havens cannot establish the deliberate indifference (i.e.,
intentional discrimination) necessary to recover damages under § 504. And,
because that is the only remedy Mr. Havens seeks, his § 504 claim undisputedly
must fail.
4
Mr. Havens argues, without citing controlling authority, that “the issue of
intent is not appropriate for summary judgment.” Aplt.’s Opening Br. at 20. It is
true that courts are cautious about resolving questions of intent in summary-
judgment proceedings. See Randle v. City of Aurora, 69 F.3d 441, 453 (10th Cir.
1995) (“Judgments about intent are best left for trial . . . .”); Romero v. Union
Pac. R.R., 615 F.2d 1303, 1309 (10th Cir. 1980) (debatable issues of motive and
intent are “particularly inappropriate for summary judgment disposition”).
However, on many occasions, we have affirmed summary judgment for a
defendant based upon the absence of any genuine dispute of material fact
regarding discriminatory intent.
12
(...continued)
issue); cf. Farmer, 511 U.S. at 844 (noting under an Eighth Amendment
deliberate-indifference standard that “a trier of fact may infer knowledge from the
obvious” but that “does not mean that it must do so”).
42
Notably, we affirmed summary judgment for the defendants in Barber
against a § 504 damages claim upon a finding that the plaintiffs failed to raise a
triable issue of fact regarding discriminatory intent. 562 F.3d at 1229, 1233.
Furthermore, our caselaw in analogous contexts amply demonstrates that such
issues of intent may be resolved in summary judgment. See, e.g., Bennett v.
Windstream Commc’ns, Inc., 792 F.3d 1261, 1268 (10th Cir. 2015) (affirming
summary judgment for the defendant against Civil Rights Act Title VII and
ADEA claims); Pinkerton v. Colo. Dep’t of Transp., 563 F.3d 1052, 1066 (10th
Cir. 2009) (affirming summary judgment for the defendant against a Civil Rights
Act Title VII claim); Bryant v. Indep. Sch. Dist. No. I-38 of Garvin Cty., 334 F.3d
928, 930 (10th Cir. 2003) (affirming summary judgment, in part, for the defendant
against a Civil Rights Act Title VI claim); Morgan v. Hilti, Inc., 108 F.3d 1319,
1324 (10th Cir. 1997) (affirming summary judgment for the defendant against an
ADA Title I claim).
Indeed, in two of these cases, the court acknowledged the need to treat
issues of discriminatory intent cautiously at the summary judgment stage, but
nevertheless held that the plaintiff had failed to offer a showing sufficient to raise
a genuine dispute of material fact for trial. See, e.g., Pinkerton, 563 F.3d at 1066(“Certainly, ‘[i]t is not the purpose of a motion for summary judgment to force
the judge to conduct a “mini-trial” to determine the defendant’s true state of
mind.’ . . . However, Ms. Pinkerton did not present . . . evidence [upon which a
43
jury could infer discriminatory motive], and therefore has not established a
genuine issue for trial on the retaliation claim.” (alteration in original) (citation
omitted) (quoting Randle, 69 F.3d at 453)); Morgan, 108 F.3d at 1324 (“Even
though all doubts concerning pretext must be resolved in plaintiff’s favor, a
plaintiff’s allegations alone will not defeat summary judgment.”). Accordingly,
we reject Mr. Havens’s assertion that the issue of intent is categorically
inappropriate for resolution on summary judgment. This assertion stands as no
obstacle to our conclusion that, as to his § 504 claim, Mr. Havens has failed to
make a sufficient showing to raise a genuine dispute of material fact regarding
discriminatory intent under the deliberate-indifference standard. Accordingly, for
the reasons explicated supra, that claim fails on the merits.
V
For the reasons discussed above, we AFFIRM the judgment of the district
court.
44