CHRYSTAL D. HAVENS, personal representative of the estate of Darrell L. Havens, Plaintiff-Appellant,
COLORADO DEPARTMENT OF CORRECTIONS; STATE OF COLORADO; RICK RAEMISCH; TOM CLEMENTS; ARISTEDES ZAVARES; DAVID JOHNSON; ROSA FRAYER; DENVER RECEPTION & DIAGNOSTIC CENTER, Defendants-Appellees.
from the United States District Court for the District of
Colorado (D.C. No. 1:14-CV-03024-MSK-MEH)
J. LaBarre, Sausalito, California, for Plaintiff-Appellant.
C. Huss, Assistant Attorney General, Office of the Attorney
General, Denver, Colorado, for Defendants-Appellees.
HARTZ, HOLMES, and BACHARACH, Circuit Judges.
HOLMES, Circuit Judge.
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.
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 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.
Havens was an "incomplete quadriplegic" in the
custody of CDOC from 2008 until 2015. 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.
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.
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.
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 wardens, clinical
staff, and management staff.
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.
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.
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 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.
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.
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 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.
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.
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
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; and
that Mr. Havens could not recover damages under Title II and
§ 504 of the Rehabilitation Act because he could not
show discriminatory intent.
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.
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 "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.
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." Id. at 527. And, 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.
disposed of Mr. Havens's claims, the court entered final
judgment for CDOC. This appeal followed.
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. More specifically, he died on April 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.
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 Fed. R. App. 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 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.
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).
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 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
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 ...