Montez, et al v. Romer, et al

Filing 5314

Findings of Fact and Conclusions of Law re Phase I Of Class Action Settlement 441 - Whether Defendants Have Substantially Complied with Montez Remedial Plan. I direct the Clerk of the Court to return this case for all purposes to the judge to whom it was originally assigned, by Judge John L. Kane on 9/11/12. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge John L. Kane
Civil Action No. 92-cv-00870-JLK
JESSE MONTEZ, et al.
Plaintiffs, on behalf of themselves and all others in the Montez Remedial Plan
class,
v.
JOHN HICKENLOOPER, in his official capacity as the governor of the State of
Colorado, et al.,
Defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW re PHASE I
OF CLASS ACTION SETTLEMENT (Doc. 441) - WHETHER
DEFENDANTS HAVE “SUBSTANTIALLY COMPLIED” WITH
MONTEZ REMEDIAL PLAN
Kane, J.
This twenty-year old case began as a civil rights class action alleging institutionwide discrimination against disabled inmates housed in Colorado Department of
Corrections (“DOC”) facilities. After eleven years of proceedings before two judges and
multiple magistrate judges, the parties agreed in 2003 to settle the case by entering into a
Remedial Plan (the “Plan”) for the improvement of facilities and resources for disabled
inmates that would be developed and implemented over a two-year period. See Plan
(Doc. 441). In addition, the Plan prescribed a claims process through which individual
class members would be entitled to seek specific and limited remedies, including small
damage awards, for demonstrated instances of past discrimination.
As approved by former Chief Judge Nottingham on August 28, 2003 (Doc. 528),
the Plan called for the appointment of an ADA Inmate Coordinator to ensure that specific
policies and procedures were developed and implemented to assure nondiscrimination

against disabled inmates and to identify and track disabled inmates throughout DOC to
facilitate their access to DOC programs, services, and benefits. (Plan § II.) Plan Sections
identifying approximately 30 action items or areas of agreement followed, including
requirements for the designation of specific facilities for the placement or housing of
disabled inmates (Plan §§ V-VI, VIII); for structural/physical changes to bring those
facilities into ADA compliance (§ VII); for the provision of reasonable accommodations
and access to programs, services, and benefits comparable to those available to nondisabled inmates (§§ X, XIII, XVII); for the establishment of an ADA grievance
procedure (§ XII); for staff training on ADA and Plan compliance issues (§ XV); the
availability of prescribed health care appliances (wheelchairs, hearing aids, etc.) (§ XVI);
and special accommodations/requirements for the disabled related to safety and order,
such as evacuation plans, notifications and alarms, searches, restraints, transportation,
visits, parole hearings and field operations, and community correction opportunities (§§
XVIII - XXX).
The Plan provided for an initial two-year period for the Department of Corrections
(“DOC”) to come into “Substantial Compliance” with the Plan, followed by a two-year
“Monitoring Period” in which class counsel would monitor continued compliance. (Id. §
XXXI.) The Plan called for the lawsuit to be “administratively closed” through the
duration of the compliance and monitoring periods, after which it would be dismissed,
sua sponte, with prejudice. (§ XXXVI.B.)1 It is the initial “Substantial Compliance”
determination that concerns us at this stage of the proceedings.

1

This case has been administratively closed under § XXXVI.B since September 2003.
2

Under the agreed-upon terms of the Plan, the DOC’s compliance was intended to
be largely self-executing. The DOC would have two years after the August 2003 Plan
execution date to come into “substantial compliance,” with any disputes arising during
the initial compliance or monitoring periods being resolved, “expeditiously and in good
faith,” by the parties themselves. (Plan § XXXI.) If the parties could not reach agreement
on a particular issue, “Judge Kane” was designated in the Plan to assist. Id. Once the
Monitoring Period ran its course, the Plan was to expire by its own terms and “no longer
[be] in effect.” Id.
Suffice it to say that after nine years and countless disputes, noncompliance
findings, Plan amendments, stipulations, conferences, and court hearings – the parties’
2003 asseverations of self-executing compliance within two years’ time evince Caesar’s
adage that “men freely believe that which they desire.”2
Nevertheless, here we are. In light of continued and unresolved disagreements
regarding “substantial compliance,” the parties were called to present their cases so that I
might resolve the issue for them. In June, July and October, 2010, I presided over 32
days of hearing comprised of anecdotes, lay opinion, and workmanlike recitations of
graphs and data. That record – together with reams of post-hearing briefing on proposed
findings of fact and conclusions of law – inform my decision today. Having considered
all of the testimony, evidence, and briefing before me, I conclude the DOC has met its
burden of demonstrating substantial compliance with the terms of the Remedial Plan for
purposes of § XXXVI. I make this determination notwithstanding Plaintiffs’ evidence that
compliance has and continues to fail individual inmates in certain areas on certain

2

Julius Caesar, Commentarii de Bello Gallico, bk. III.
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occasions, and notwithstanding the fact that Inmate Coordinator Cathie Holst was never,
in my view, given adequate authority or resources to perform her duties under the Plan to
maximal effect.
I note that I make these findings in my capacity as the arbiter of disputes under §
XXXVI of the Plan, rather than as the article III judge overseeing the class action proper,
although those roles became conflated after Judge Nottingham resigned and the case was
reassigned to me.3 This distinction may have implications for an appeal which, in my
view, does not lie for dispute resolutions under § XXXVI of the Plan. I leave
consideration of that issue for another day and a different judge. Nevertheless, I have
attempted to conform my findings to the requirements of Fed. R. Civ. P. Rule 52(a) in
order to permit review by the Tenth Circuit Court of Appeals, should that court have the
opportunity to review my determination and deem it proper to do so. See Joseph A. by
Wolfe v. New Mexico Dept. of Human Servs., 69 F.3d 1081, 1089 (10th Cir. 1995)
(remanding substantial compliance inquiry where district court had “failed to make the
specific and clear findings required” by Rule 52(a)). The two-year Monitoring Period
triggered by a finding of “Substantial Compliance” shall commence on October 1, 2012,
after which the Plan will go gently into its good night and the case dismissed.
For this two-year Monitoring Period, however, I exercise my prerogative as a
Senior Judge and decline further participation. I return the case to Judge Arguello, from
whom I agreed to take the case after it was reassigned to her in the wake of Judge

Again, the Remedial Plan approved by Judge Nottingham eschewed any article III-type
oversight over compliance and monitoring issues, calling for the administrative closure of the case
during the compliance and monitoring periods and for disputes regarding obligations under the Plan
or Plan interpretation to be left to informal resolution between the parties or determination by “Judge
Kane,” or “another person appointed by Judge Nottingham.” See Plan §§ XXXI and XXXVI.
3

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Nottingham’s resignation.
LEGAL STANDARD
“Substantive compliance” is neither a neologism nor unique to the Montez Plan. It
is a substantive legal standard, a doctrine of contract law that aims to aid courts in
determining if contract-based conduct is in compliance with the contract’s terms. Joseph
A. ex rel. Wolfe v. New Mexico Dep't of Human Servs., 69 F.3d 1081 (10th Cir. 1995)
(citing United States v. ITT Cont'l Baking Co., 420 U.S. 223, 236 (1975)(consent decrees
have “many of the attributes of ordinary contracts [and] ... should be construed basically
as contracts”)). Substantial performance is not a rigid standard and does not require
mathematical precision or perfection. Id. at 1085-86. It is “‘simply a doctrine to assist
the court in determining whether conduct should, in reality, be considered the equivalent
of compliance under the contract.’”Id. at 1086 (quoting Peckham v. Gem State Mut., 964
F.2d 1043, 1052 (10th Cir. 1992)).
If a party has substantially performed, “it follows that any breach he may have
committed is immaterial.” Joseph A. at 1086 (citing John D. Calamari & Joseph M.
Perillo, The Law of Contracts § 11-15, at 454 (3d ed 1987)). Accordingly, anecdotal or
ad hoc evidence that a party deviated or breached specific terms of a consent decree will
not, by itself, preclude a finding of substantial compliance. Quoting Judge Cardozo “in
the seminal substantial compliance case of Jacob & Youngs, Inc. v. Kent,” the Tenth
Circuit in Joseph A. stated that performance fails the substantial compliance test only
where deviations from contract requirements “‘in any real substantial measure ... frustrate
the purpose of the contract.’” 69 F.3d at 1086 (quoting Jacob & Youngs, 230 N.Y. 239,
__, 129 N.E. 889, 891 (1921)). The touchstone of the substantial compliance inquiry,
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then, “is whether Defendants frustrated the purpose of the consent decree – i.e. its
essential requirements.” Id.
Under the Tenth Circuit’s rubric in Joseph A., the substantial compliance analysis
begins with the essential purposes of the consent decree which, in that case, were set forth
in the decree’s preamble. 69 F.3d at 1086. It proceeds with consideration of the specific
steps set forth in the decree by which those purposes were to be satisfied. If a stipulated
criterion was not met, it is for the court to determine whether that failure was “immaterial
to the overall objectives or, on the other hand, whether it had a material adverse impact on
the decree’s overall [purpose].” 69 F.3d at 1086. The overall burden is on the defendant
to demonstrate that a deviation or failure did not frustrate the decree’s overall purpose.
See id. (where consent decree set forth specific criteria to be met in placing children into
permanent homes, “those criteria must be respected unless a deviation can be shown not
to have a material effect upon the [Department’s] overall performance [of that goal]”).
The determination of “substantial compliance” shall be based on specific, non-conclusory
factual findings in accordance with the requirements of Fed. R. Civ. P. 52(a). Id. at 1087.
FINDINGS AND CONCLUSIONS
The Montez Plan’s Essential Purposes.
The Montez Plan’s essential purposes are to provide disabled inmates with access
to programs and services, and to protect them from discrimination on the basis of their
disabilit(ies). This overarching purpose is set forth in § I of the Plan:
I.

POLICY

It is the policy of the Colorado Department of Corrections (DOC) to
provide inmates with disabilities, with or without reasonable
accommodation, access to its programs and services consistent with
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legitimate penological interests. No qualified inmate with a disability, as
defined in Title 42 of the United States Cod, Section 12102 shall, because
of that disability, be excluded from participation in or denied the benefits of
services, programs, or activities of the DOC or be subjected to
discrimination. All facilities designated to house inmates with disabilities
will provide comparable programs, services and benefits available
throughout comparable DOC facilities to ensure that inmates with
disabilities are not discriminated against because of their disability.
Montez Remedial Plan, § 1. The provisions that follow in Plan Sections II - XXXVI are
the specific, agreed-upon means to achieve these essential purposes. While each is an
expected criterion for compliance, deviations affect “substantial compliance” only if they
frustrate the Plan’s overarching or essential purposes of providing disabled inmates
“access to programs and services”; protection from “exclusion” or the “denial” of benefits
on the basis of disability; and the provision of comparable programs, services and benefits
throughout comparable DOC facilities. Even if the DOC has deviated from or failed to
perform some of these performance criteria, it may still be found to be in “substantial
compliance” if it demonstrates that none of the deviations or failures, individually or as a
whole, materially adversely affected, or frustrated, the Plan’s essential purposes. While
the burdens are more those of production rather than proof to any legal or evidentiary
standard, out of an abundance of caution I held Defendants to the ultimate burden of
demonstrating compliance, including meeting Plaintiffs’ evidence of noncompliance with
evidence in rebuttal.
Substantial Compliance
The focus of my determination is whether the Colorado Department of Corrections
has performed its obligations under the Montez Remedial Plan in a manner that hews to –
and does not frustrate – the Plan’s overall purposes of providing disabled inmates access
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to DOC services and programs and protections against discrimination on the basis of their
disability.
Certain performance areas are not in dispute. Plaintiffs agree that all architectural
issues contained in the Remedial Plan have been completed and that the monitoring
period for that issue has closed. Plaintiffs also stipulate that DOC has sufficiently met the
requirements of the following sections of the Remedial Plan: VIII(A) Special Placement
Housing; XVII Library Equipment; XXI Count; XXII Restraints; XXIII Searches; XXVII
Removal of Health Care Appliances in ASU/PSU; and XXX Parole Field Operations.
Am. Pretrial Order (Doc. 4841) at p. 7 of 26. Plaintiffs also agree that the DOC has
complied with many of the specific provisions of Stipulations reached in 2006 and 2008
to augment and implement the Montez Plan.4
In 2006 and again in 2008, the parties appeared before me on specific complaints of
noncompliance, resulting in the entry of a series of stipulated agreements to take specific corrective
action (the 2006 and 2008 Stipulations). Plaintiffs agree that the following corrective actions were
taken:
2006 Stipulation
1. Additional funding was provided to DOC to meet Plan requirements.
3. Individual inmates were given one copy of the Plan free of charge.
4. DOC posted notice in all facilities that the Montez compliance period had been extended and
outlining the agreements and remedies set forth in the Stipulation.
5. DOC distributed a letter from class counsel to all inmates in the AIC database outlining the 2006
Stipulation.
6. DOC eliminated “ADA” or “handicapped” jobs that paid less than the regular inmate wage scale.
8. DOC refunded charges assessed inmates for copies made for Plan § XXXII damage claim
hearings.
9. Defendants reimbursed Plaintiffs’ counsel for out-of-pocket costs incurred since August 2005 in
preparation for compliance hearing.
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2008 Stipulation
5. DOC implemented American Sign Language classes as a program.
6. Sign Language Interpreters were provided for non-routine medical visits.
7. ADA grievances denied or denied as moot since July 1, 2006 were re-evaluated by the ADA
Inmate Coordinator.
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Nevertheless, Plaintiffs presented testimony and documentary evidence throughout
the months-long compliance hearing detailing individual accommodation failures and
problems with funding and support of medical and other staff necessary to implement that
Plan. Plaintiffs argue “substantial compliance” with the Montez Remedial Plan continues
to elude Defendants, and attribute this to three principal failures: (1) ADA Inmate
Coordinator Cathie Holst was never given the necessary authority or resources to
implement the Plan; (2) class members were not identified by the end of the compliance
period, and (3) there was a failure to develop the necessary systems to implement,
monitor and track information necessary to determine Plan compliance. In evaluating all
of the evidence presented, I find the anecdotes and incidents collected and catalogued by
Plaintiffs do not support an inference of less than “substantial compliance” with the

10. Wheelchair clinics were conducted.
17. Inmates with hearing impairments at Colorado’s Territorial Correctional Facility were housed
in cells with strobe alarms.
20. Copies of Accommodation Resolutions are provided at no cost to inmates.
22. DOC bears the burden of costs for a medical provider’s or specialist’s recommendations for
testing or assistive devices.
23. DOC implemented the recommendations made in certain expert reports.
27. DOC remedied the problems and/or deficiencies noted in expert report re architectural
compliance.
29. Accountings of requests for co-pay refunds are now maintained and reported to ADA Inmate
Coordinator.
30. Inmates are provided two copies of ADA grievances when filed.
31. DOC no longer takes monies from § XXXII damage claim settlement other than those required
for repayment to victim assistance funds.
32. Notice re further extension of Montez compliance period posted.
33. Montez class counsel letter outlining 2008 Stipulation provisions distributed.
34. Defendants reimbursed class counsel for attorney fees and costs incurred to the date of the
Stipulation.
Am. Pretrial Order (Doc. 4841) at 6-8.

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overall purposes of the Montez Plan.
Defendants’ evidence clearly established that the DOC took its obligations under
the Plan seriously and engaged in a global, good faith effort to institute and implement the
changes to which they had agreed. These efforts included actions taken straight from the
top, including the appointment of Cathie Holst as the Plan’s ADA Inmate Coordinator.
Holst reported to Gary Golder, the Director of Prisons, who in turn reported directly to
Aristedes Zavaras, DOC’s then-Executive Director. Ms. Holst’s testimony (tr. pp. 1082
ff.) was particularly compelling, as she described meeting immediately with all of those
who would be involved in implementation and her development of processes to identify
and track disabled offenders throughout the DOC prison system. During her tenure as
Inmate Coordinator under the Plan Ms. Holst requested and received $2,000,000 in
supplemental funding from the Colorado General Assembly. She hired additional staff to
work exclusively on ADA issues, grievances, and requests for accommodation. She
wrote the Administrative Regulations concerning disabled offenders, which became
mandatory policies of the DOC once signed by the Executive Director.
I found Ms. Holst impressive and an entirely credible witness. She testified she
and her staff worked hard to respond to the needs of disabled inmates while
simultaneously developing new procedures and means for achieving the essential goals of
the Remedial Plan. She and her staff oversaw an Academy that developed and trained
correctional officers and case managers on the requirements of the Remedial Plan. They
audited individual facilities for compliance. The evidence established Ms. Holst’s orders
and recommendations carried weight at DOC, and yielded results. See Tr. at 4323 (Dr.
Frantz testifying that when the AIC office (Ms. Holst) and medical staff disagree with
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regard to a disability determination, “the AIC prevails”). The ADA grievance procedure
required under the Plan was established. Major changes in DOC operations were
achieved under her leadership.
That is not to say Ms. Holst was satisfied or that the AIC office’s performance was
not hampered at times by inadequate support, funding shortfalls, and stubborn resistance
from some DOC employees. There were instances where Ms. Holst’s recommendations
were not heeded and where she was not given the authority she needed to accomplish all
of her tasks. In the aggregate, however, I find Defendants adequately refuted Plaintiffs’
suggestion that these obstacles frustrated the enterprise. For example, evidence presented
to demonstrate that Ms. Holst’s office was too understaffed to track disabled inmates or to
incorporate disability determinations made by the Special Masters under Plan § XXXII
was refuted by testimony, ultimately uncontradicted, that as time went on Special Master
disability determinations were successfully incorporated into the AIC system. See Tr. at
1677-80 (Holst test.).
Individual examples of instances in which Special Master orders for damages or
other remedies under Plan § XXXII were not enforced by the Inmate Coordinator’s office
were also refuted and do not support a conclusion that problems in the AIC office were so
rampant that the overall purposes of the Plan or even Plan § XXXII were thwarted. Ms.
Holst’s office handled myriad individual claims and Plan § XXXII orders from the
Special Masters. After the 2008 Stipulation in particular, the coordination of information
between the Special Master’s office and Ms. Holst’s office improved. The evidence as a
whole supports a finding that Ms. Holst’s office implemented Special Master orders and
functioned well, if imperfectly. No more is required under the “substantial compliance”
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rubric of Joseph A.
The second and third categories of material noncompliance alleged by Plaintiffs
relate to the Plan’s requirement that disabled inmates be identified and tracked throughout
the DOC system. Without proper identification and tracking, Plaintiffs argue DOC
cannot be in compliance with the Remedial Plan’s overarching purposes of ensuring
access and protecting against discrimination on the basis of disability. The evidence
presented at the compliance hearing supports a finding that DOC has done an enormous
amount of work to develop a system of screening and identifying inmates for disabilities.
Before the consent decree, there was no system at all. Evidence presented during the
compliance hearing established that in the Denver area alone well over 10,000 inmates
per year come through a diagnostic/intake reception center for screening. When an
inmate is identified as disabled, a staffing occurs regarding how to manage the offender
and a supervisor reviews the accommodations. Accommodations are communicated to
housing staff, and the offender is provided with information about his or her rights as a
disabled person. Tr. at 3287-90 (testimony of Jim Falk, former administrative services
manager at Denver Diagnostic Reception and Diagnostic Center (DRCD)).
Plaintiffs’ evidence clearly established incidents where disabled offenders slipped
through the cracks and were not identified. Plaintiffs also established that AIC’s failure
to keep a formal or comprehensive list of diabetic inmates created communication and
tracking problems for those inmates. Neither of these showings amounted to a
demonstration that the essential purposes of the Plan were frustrated. The number of
inmates falling through the cracks was minimal compared to the number identified and
served. More often than not, the falling is more aptly described as a delay, because
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ultimately the particular inmate was properly identified. Evidence also established that
inmates have additional opportunity once in the system to ask for screenings, and case
managers are trained to know how to contact the AIC office if they suspect a particular
inmate is or has become disabled.
Plaintiffs also spent considerable time at the compliance hearing pointing out
examples where information reflected in the DOC inmate database is inconsistent with
information in the AIC database. As long as an inmate is identified as disabled in the
AIC database, he or she will be flagged and tracked for accommodation. The problem
would be if a significant number of inmates who are actually disabled are not included on
either list. Plaintiffs did not present evidence of this sort of omission.
As for diabetic inmates, Ms. Holst explained why the AIC office does not
routinely receive a list of diabetic offenders. Many inmates do not want to be identified
as diabetics and do not self-report or present as disabled in the ADA diagnostic
screenings. Diabetic inmates, like others with chronic medical conditions like asthma, are
treated by medical personnel and may not need or request accommodation of any kind.
Plaintiffs’ remaining laundry list of specific noncompliance issues includes
individual problems with placing disabled inmates in designated facilities,
accommodating requests and enforcing orders related to healthcare appliances, and
accommodations for diabetic inmates. These individualized problems were most often
raised by inmates themselves in claims filed with the Special Masters under Plan §
XXXII. I am familiar with these claims by virtue of my role as the reviewing officer for
appeals of final awards and enforcement orders of the Special Masters. While there have
been problems with specifically-ordered accommodations – such as payment of
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remuneration, the provision of soft-soled shoes, prosthetics, or batteries for hearing aids –
being forthcoming, these problems were almost always resolved. My overall view based
on the record in this case and the evidence presented at the hearing is that the DOC
strived to comply with the Special Masters’ orders, and nothing presented by Plaintiffs
during the compliance hearing compels a contrary conclusion. More to the point of a
substantial compliance determination, however, is that Plaintiffs’ lists and examples were
accompanied by no expert or other opinion ascribing any generalizable statistical
significance to them. They were but lists.
With regard to stipulated or ordered accommodations for diabetic inmates, Richard
Weems testified compellingly as to efforts by facilities management to get intercom
systems or call buttons installed, and to secure individualized pendants for use in medical
emergencies. Tr. 3259-66. There were delays due to delivery and in testing, but
ultimately, the items were provided. Strobe alarms and horns were installed at the DOC
facility housing hearing disabled inmates. Id. at 3266. Also installed were TTY kiosks
permitting hearing disabled inmates access to telephones. All of this occurred as a result
of the consent decree.
In sum, tremendous good has come of Plaintiffs’ perseverance on behalf of
disabled Colorado prison inmates and the DOC’s work to honor its commitments under
the Remedial Plan. Performance has not been perfect, and my findings should permit no
lessening of effort on the part of the State to maintain and improve the ADA compliance
systems that have been put into place as a result of the Remedial Plan.
Finally, and while not amounting to a failure to achieve substantial compliance, the
fault in the consent decree itself (to which the parties agreed) is that the ADA Inmate
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Coordinator was not given enforcement authority equal to or independent of the Director
of Prisons. The consequence of this is that corrections officials such as wardens were not
obligated – or did not perceive themselves to be obligated in all instances – to comply
with the Inmate Coordinator’s directives. While most directives were heeded, there were
instances in which some were ignored or rejected. It would have been better, in my view,
if the Inmate Coordinator were to have reported directly to the DOC Executive Director
and placed on a level of authority at least equal to that of the Director of Prisons so that
the critical phrase in Plan § 1 “ . . . consistent with legitimate penological interests” could
have been more objectively addressed by the person having ultimate responsibility for the
Department. Such, however, is a matter of contract for the parties and not a principle of
juristic application.
I conclude Defendants have established substantial compliance in accordance with
the Remedial Plan and that the two-year “Monitoring Period” should now unfold.
However, I decline to participate further in this case – either as the presiding judge or as
the reviewing entity under Plan § XXXI. I direct the Clerk of the Court to return this case
for all purposes to the judge to whom it was originally assigned.
Dated September 11, 2012.
s/John L. Kane
SENIOR U.S. DISTRICT JUDGE

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