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Havens v. Colorado Department of Corrections

United States Court of Appeals, Tenth Circuit

July 26, 2018

CHRYSTAL D. HAVENS, personal representative of the estate of Darrell L. Havens, Plaintiff-Appellant,

          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 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.


         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.

         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 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 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.


         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 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; 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 "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, 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.


         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 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.


         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 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.

         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 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 ...

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