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Jackson v. Los Lunas Center for Persons

United States District Court, D. New Mexico

July 26, 2018

WALTER STEPHEN JACKSON, et al., Plaintiffs,
LOS LUNAS CENTER FOR PERSONS with DEVELOPMENTAL DISABILITIES, et al., Defendants, and ARC of NEW MEXICO, Intervenors, and MARY TERRAZAS, et al., Intervenors pro se.



         In 1990, the Honorable James A. Parker expressly found that "Defendants' failure to accommodate the severely handicapped in existing community programs while serving less severely handicapped peers is unreasonable and discriminatory." Jackson by Jackson v. Fort Stanton Hosp. & Training Sch., 757 F.Supp. 1243, 1299 (D.N.M. 1990), rev'd in part, 964 F.2d 980 (10th Cir. 1992). This finding came in his conclusions of law section regarding statutory discrimination claims brought pursuant to Section 504 of the Rehabilitation Act. Id. at 296-99. Judge Parker further found that "where reasonable accommodations in community programs can be made, defendants' failure to integrate severely handicapped residents into community programs which presently serve less severely handicapped residents violates § 504." Id. at 1299. He additionally concluded that Defendants were violating class members' substantive due process rights. Id. at 1306-07, 1312.

         At his direction, the parties worked in good faith and finally agreed to the entry of a consent decree to correct the deficiencies he had identified. That decree, with numerous additions and modifications to it, has been in existence for almost three decades with continuing oversight by the federal district.

         In June 2016, Judge Parker rejected Defendants' contention that changed circumstances made continuing federal court involvement inequitable such that all remedial orders should be vacated and federal court oversight discontinued. Jackson v. Los Lunas Ctr., 2016 WL 9777237 (D.N.M. June 14, 2016). He disagreed with Defendants' assertion that he had found no ongoing violations of federal law in his 206-page October 12, 2012 decision, Doc. 1930, following a trial on Plaintiffs' Renewed Motion for Further Remedial Relief to Remedy Noncompliance. Rather, he stated that the court "is not in a position to assess, and, therefore, cannot conclude that Defendants are no longer violating constitutional or federal law." Jackson v. Los Lunas Ctr. for Persons with Developmental Disabilities ("Jackson III"), 2012 WL 13076262, at *76 (D.N.M. Oct. 12, 2012). Instead, Judge Parker noted "so many obligations" of the consent decrees were not yet fulfilled and "conclude[d] that Defendants have not demonstrated that a durable remedy is in place sufficient to justify vacatur of all the Court's orders." Id. at *18.

         On appeal of that decision denying Rule 60(b) relief, the Tenth Circuit determined that

the district court's analysis on this point was too narrow, focusing almost entirely on whether defendants had fulfilled the numerous, detailed obligations provided in the consent decrees. But because Defendants move on the ground that continued enforcement of the consent decrees is no longer equitable, the district court should have "ascertained] whether ongoing enforcement of the [decrees] was supported by an ongoing violation of federal law," see Home, 557 U.S. at 454 - here, whether Defendants are violating class members' rights under the substantive due process component of the Fourteenth Amendment and under the Rehabilitation Act.

Jackson v. Los Lunas Cmty. Program, 880 F.3d 1176, 1206 (10th Cir. 2018). The Tenth Circuit therefore remanded the case back to Judge Parker with instructions that "the court should consider the broader question of whether the State is meeting the requirements of the Fourteenth Amendment and the Rehabilitation Act by means other than those stated in the consent decrees." Id. at 1206. In doing so, the court is to "make up-to-date findings" and if no violations of federal or constitutional law are found, "assess the durability of that compliance." Id. at 1207.

         It is against the above backdrop that this Court now addresses the discovery dispute at hand in preparation for the trial on the remanded issues that Judge Parker will hold next Spring. Specifically, Plaintiffs seek production of certain information and data about non-Jackson class members to which Defendants have objected.

         Plaintiffs contend that they require information about non-class members to demonstrate a continuing violation of Section 504 under the theory that the State's policies and practices discriminate against the more severely disabled while accommodating the needs of the less severely disabled. In other words, they put forth a "disparate impact" argument for relevance of the requested data. Defendants counter that a showing of "disparate impact" is not the applicable standard for a Section 504 claim; rather, Defendants argue that "meaningful access" to services forms the proper inquiry for such a claim by class members. Thus, Defendants maintain, information regarding services provided to non-class members is simply irrelevant.

         Defendants posit that the "Supreme Court has specifically held that disparate impact, by itself, does not state a prima facie case under § 504." Walz Letter of July 20, 2018 (Attachment A) (citing Alexander v. Choate, 469 U.S. 287 (1985)). In his 2012 decision, Judge Parker acknowledged that the Alexander case stood for the proposition "that an otherwise qualified handicapped individual must be provided with meaningful access to the benefit that the grantee offers." Jackson III, 2012 WL 13076262, at *76 (D.N.M. Oct. 12, 2012). He further recognized that "the Rehabilitation Act and ADA do not guarantee 'equal results' for disabled individuals." Id. (citing Cohort ex rel. Bass v. New Mexico Dept. of Health, 646 F.3d 717, 729 (10* Cir. 2100). Nevertheless, Judge Parker found that the Supreme Court's decision in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 598 n.10 (1999), "provides a more than adequate ground for concluding that Plaintiffs can sue under the Rehabilitation Act and the ADA for discrimination claims based on severely disabled persons being treated differently than less severely disabled persons." Jackson III, at *77.

         Moreover, Judge Parker indicated that "[u]nlawful differential treatment claims can be brought under two legal theories: disparate treatment or disparate impact" and that a disparate impact claim "does not require proof of an intent to discriminate, but, instead, mandates a showing that a policy caused a disparate effect." Id. Although Judge Parker went on to find that Plaintiffs failed to demonstrate an intent to discriminate on Plaintiffs' Section 503 disparate treatment claims, he did not address any potential Section 503 disparate impact claims, which do not implicate an intent to discriminate.[1] This Court notes that disparate impact claims, usually seen in the context of employment discrimination, require statistical analysis of accumulated data and expert testimony as to the significance of the statistical information.

         Given all these observations, this Court finds that some of the information requested by Plaintiffs as to non-class members is intended to lead to admissible evidence showing that the State's system currently violates Section 504 by providing lesser disabled individual with more meaningful access to services than those more severely disabled. But the Court must question whether non-class member data can be truly said to represent a group lesser disabled than the Jackson class members. Such an inference seems supportable because the Jackson class members were institutionalized based upon the severity of their developmental disabilities. Presumably, only a portion of the non-class members would be at the same end of that spectrum such that the non-class group on average could be considered lesser disabled. Again, the Court questions how the numerous variables will influence the data and the validity of conclusions drawn, but that is the job of the experts at trial - not the undersigned referred magistrate judge.

         As to each of the categories of information sought as to non-class members, the Court will balance the relevance asserted by Plaintiffs (as to alleged disparate impacts in the delivery of services and/or the showing of a durable remedy after court oversight is terminated) against the asserted burdens of production cited by Defendants.

         1.DHI Incident Management Database on Abuse, Neglect, and ...

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