Montez, et al v. Romer, et al

Filing 5363

ORDER of Special Master as to Ben Padilla, #03-038 by Special Master Richard M. Borchers on 2/20/13. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 92-CV-870-CMA
JESSE (JESUS) MONTEZ, et al.,
Plaintiffs,
-vs.JOHN HICKENLOOPER, et al.,
Defendants.
______________________________________________________________________________
Claim Number: 03-038
Category III
Claimant: Ben Padilla, #82114
Address of Claimant: LCF, 49030 State Highway 71, Limon, CO 80826
______________________________________________________________________________
ORDER OF SPECIAL MASTER
______________________________________________________________________________
THIS MATTER comes before the Special Master on the letter written on Claimant’s behalf
and received on December 7, 2012. The letter raised concerns about actions taken against Claimant.
The letter was treated as a motion, and Defendants were directed to file a response. The response was
received on January 29, 2013. Claimant was granted up to and including February 19, 2013 in which
to file a reply. That reply has been received and reviewed.
Claimant came into DOC custody in 1993. Claimant is blind as the result of a gunshot
accident in 1980. Claimant filed a claim pursuant to Article XXXII of the Remedial Plan. He alleged
that he was disabled due to vision and hearing impairments. Hearings were held on this claim in
2005, 2007, and 2008. On March 17, 2008, the Special Master issued a final order finding that
Claimant was vision impaired and the victim of discrimination prohibited by the ADA. The Special
Master found that “the claim of Ben Padilla is granted to the extent noted, and Claimant is to receive
instruction in Braille and damages in the amount of $1,500.” Final Order, p.11.
Claimant acknowledges that he received the $1,500 that was awarded to him. Defendants
allege that Claimant did not want Braille instruction. Claimant disputes this, saying, in part:
Claimant was “offered” Braille instruction by a non-Braille inmate, and DOC
placed so many restrictions on claimant’s instruction that it was nearly impossible to
do any Braille drills.

Claimant argues that other, more pressing problems have arisen since he was transferred to the
Limon Correctional Facility (LCF).
Claimant’s initial letter and response raise numerous issues about treatment provided to
Claimant at LCF. Those issues go beyond the money and Braille instruction provided to Claimant.
In his order of January 19, 2011, Judge Kane ruled, in part, as follows:
1. I begin by reiterating the gist of the March 23, 2010, which is that the time
for receiving and considering new, amended, or otherwise revised pro se claims for
relief under § XXXII of the Montez Remedial Plan is over. Class members alleging
new instances of disability discrimination or deliberate indifference to serious
medical needs must proceed, as any other inmate whose disability-related claims
arose after August 2003, in a separate and independent pro se action in accordance
with McNeil v. Guthrie, 945 F.2d 1163 (10th Cir 1991).
Judge Kane went on to say:
2. However, given that category of individual Montez Class claims that the
Special Master identifies as having been the subject of Final Orders favorable to an
inmate but with which the inmate contends Defendants have not fully complied, I
clarify/modify the March 23, 2010 Order to affirm that the Special Master retains
jurisdiction to receive and consider motions seeking the enforcement of those Final
Orders. This jurisdiction is extremely limited. It exists solely to the extent necessary
for the Special Master, on his own motion, to recommend that Defendants be ordered
to comply in some specific way with an existing Final Order of the Special Master
or to recommend the imposition of sanctions for failure to comply. (Emphasis in
original).
The Special Master has jurisdiction only to determine if Defendants have complied with the Final
Order.
In this case, the Special Master ordered Defendants to pay Claimant money damages and to
provide Braille instruction. Defendants paid Claimant the sum of $1,500, and that issue is no longer
before the Court. There is a question raised in Claimant’s reply concerning the adequacy of the
Braille instruction provided. That issue will be held in abeyance pending resolution of Defendants’
jurisdictional challenges.
The Special Master has no jurisdiction over accommodation requests. Claimant will have to
pursue the new issues through the grievance procedure and then file a new lawsuit. The only issue
the Special Master has any potential jurisdiction over is the Braille instruction.

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Defendants in their response to the initial letter argued that all jurisdiction over claims filed
pursuant to Article XXXII of the Remedial Plan has ended. This is predicated on the finding by
Judge Kane on September 11, 2012 of “substantial compliance” by Defendants with the Remedial
Plan. If Judge Arguello agrees with Defendants, then all claims are at an end.
Claimant’s letter will be treated as a motion for relief. That motion will be denied as to all
issues except the question of the appropriateness of the Braille instruction. The Braille issue will be
held in abeyance pending resolution of Defendant’s jurisdictional arguments.
IT IS HEREBY ORDERED that Claimant’s letter, being treated as a motion, is denied as to
all claims, except that dealing with Braille instruction which is held in abeyance; and
IT IS FURTHER ORDERED that Claimant, Defendants and class counsel are advised that
they may file an objection to this Order pursuant to Federal Rule of Civil Procedure 53(g)(2), but
said objection must be filed with the Clerk of the United States District Court, 901 19th Street,
Denver, CO 80294 on or before March 25, 2013.
SIGNED this 20th day of February, 2013.
BY THE COURT:
/s/Richard M. Borchers
________________________________________
Richard M. Borchers
Special Master

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