Freeman v. Colorado Dept. of Corrections et al

Filing 100

OPINION AND ORDER denying 94 Motion for Summary Judgment by Magistrate Judge N. Reid Neureiter on 3/21/2019. (tsher, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-02181-NRN
BARBARA FREEMAN,
Plaintiff,
v.
COLORADO DEPARTMENT OF CORRECTIONS,
DENVER WOMEN’S CORRECTIONAL FACILITY, a Colorado Department of Corrections
facility,
RICK RAEMISCH, in his official capacity as the Executive Director of the Colorado
Department of Corrections,
MAJ. GILBERT CALEY, in his official capacity as a General at the Denver Women’s
Correctional Facility,
LT. BRENDA BLAND, in her official capacity as a Lieutenant at the Denver Women’s
Correctional Facility,
SGT. TRISHA JESIK, in her official capacity as a Sergeant at the Denver Women’s
Correctional Facility,
SGT. CRYSTAL SESMA, in her official capacity as a Sergeant at the Denver Women’s
Correctional Facility,
LT. JILL GLACIER, in her official capacity as a Lieutenant at the Denver Women’s
Correctional Facility,
C/O BRITTANY HOUTZ, in her official capacity as an Officer of the Denver Women’s
Correctional Facility,
Defendants.

OPINION AND ORDER

N. REID NEUREITER
United States Magistrate Judge
This case is before the Court pursuant the parties’ consent to magistrate judge
jurisdiction. (Dkt. #69.) On September 28, 2018, Defendants Lieutenant Brenda Bland,
Captain Gilbert Caley, the Colorado Department of Corrections (“CDOC”), the Denver
Women’s Correctional Facility (“DWCF”), Lieutenant Jill Glacier, Sergeant Trisha Jesik,
Correctional Officer Brittany Houtz, Rick Raemisch, and Sergeant Crystal Sesma

(collectively “Defendants”) filed a Motion for Summary Judgment. (Dkt. #94.) Plaintiff
Barbara Freeman filed a response on November 12, 2018 (Dkt. #98), and the Court
heard argument on December 18, 2018. (Dkt. #99.) The Court has reviewed the parties’
filings, taken judicial notice of the Court’s entire file in this case, and considered the
applicable Federal Rules of Civil Procedure, statutes, and case law. Now being fully
informed, the Court makes the following order.
I. BACKGROUND
a. Procedural History
Magistrate Judge Michael Watanabe recited the procedural background of this
case in his June 22, 2018 Order (Dkt. #87), which dismissed Mrs. Freeman’s 42 U.S.C.
§ 1983 claim, but allowed her claim for compensatory and punitive damages under Title
II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131–34 (the “ADA”) to go
forward. 1 Upon Magistrate Judge Watanabe’s retirement, this case was reassigned to
me. (Dkt. #90.)
In the relevant portions of her Third Amended Complaint (Dkt. #75), Mrs.
Freeman claims that Defendants failed to make reasonable accommodations for her
disabilities while being housed at the DWCF. Specifically, she alleges that, for a period
of approximately 30 days in 2016, Defendants failed to place her in a handicappedaccessible cell equipped with necessary accommodations for disabled inmates (known
as a “Montez Remedial room”), including services provided by an inmate aide (known
as an Offender Care Aid (“OCA”)) to help perform various tasks, a thicker mattress

1

Mrs. Freeman clarified in her response that she does not request punitive damages.
(Dkt. #90 at 15-16.) Accordingly, the Court will not address Defendants’ arguments as to
this issue.
2

(known as a “medical mattress”), and hearing and visual aids in the event of an
emergency evacuation. (Id. ¶¶ 25-27, & 29.) As a result, during those 30 days, Mrs.
Freeman (1) bathed only once, due to her fear of falling while showering unassisted; (2)
missed several meals because she could not walk alone to the cafeteria without falling;
and (3) could not take her medication because she could not walk unassisted to
medication dispensary line (the “med-line”). (Id. ¶¶ 38-40.) Plaintiff informed Defendants
Caley, Bland, Jesik, Sesma, and Glacier that the non-Montez Remedial room was
inadequate to accommodate her needs, but these Defendants did nothing to assist her.
(Id. ¶ 41.)
Defendants now move for summary judgment on Mrs. Freeman’s ADA claim.
They argue that Mrs. Freeman has made no showing that she suffered any
compensable damages or that Defendants intentionally discriminated against her.
b. Factual Background
Mrs. Freeman is a woman in her eighties and is housed in the DWCF. Mrs.
Freeman has mobility impairments, hearing impairments, complete blindness in her
right eye and a visual impairment in her left eye, an inability to stand for longer than two
minutes unassisted, an inability to bend over, severe arthritis in her hands, and asthma.
(Dkt. #98-1 ¶ 3.) Because of her impairments, Mrs. Freeman is entitled to certain
accommodations pursuant to the ADA. The CDOC’s Office of the ADA Inmate
Coordinator (“AIC”), which consists of 2 employees and has AIC coordinators at every
facility, is tasked with evaluating and providing offenders with these accommodations.
Mrs. Freeman requested, and the Office of the AIC provided, the following ADA
accommodations: access to the talking-book library; access to a DWCF elevator
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(although Mrs. Freeman claims that it is often out of order, pointing to a recent incident
in September 2018); additional time to complete activities of daily living; an extra
blanket; authorization to purchase a vibrating watch without sufficient funds; and
assistance with carrying and disposing of meal trays.
The Office of the AIC also provided the following accommodations, even though
Mrs. Freeman did not request them: closed captioning that remains on in the day hall;
additional time for movement within the facility; access to a shower chair;
accommodations when being retrained, searched, and transported; authorization to
wear medical footwear in all areas of DWCF and during transportation; and a
wheelchair pusher.
Mrs. Freeman currently has the following assistive devices and medical
equipment: medical boots/shoes, issued on June 14, 2016; two hearing aids, issued on
September 3, 2014; and medically necessary shoes/shoe inserts, issued on October 23,
2014. Mrs. Freeman also has a wheelchair, but while Defendants claim that it was
issued in October 2016, Mrs. Freeman contends it was only provided in February 2018,
three years after she requested it.
Mrs. Freeman states that, contrary to Defendants’ assertions, DWCF denied
and/or ignored her requests for personal notice of irregular overhead announcements,
for access to staff assistance during evacuations, and for a backpack. (Dkt. #98-1 ¶¶
22, 24, & 28.) She also requested and was denied a place to sit while she was in the
med-line, a toothbrush that accommodates her severe arthritis, and assistance reading
the law library computer.

4

In July 2016, Defendants moved Mrs. Freeman from Unit 1, an “incentive unit,” to
Unit 3. Defendants state that Mrs. Freeman was regressed because she harassed and
bullied a series of cellmates by instituting various rules and regulations about what
could and could not go on in the cell, so DWCF staff determined that placement in a
single cell was the best option. (Dkt. #94-2 at 4-6; #94-3 at 3-4; #94-4; #94-5 at 4-10;
#94-6 at 11-14.) Mrs. Freeman denies that she bullied anyone, but rather only “made
accommodation requests to her cellmates because of her disabilities.” (Dkt. #98-1 ¶ 1213.)
In any event, Mrs. Freeman claims that her Unit 3 cell did not meet her needs.
She states that she lost her “medical mattress” accommodation, access to the ADA
accessible bathroom 2, personal notice announcements, and access to an ADA
compliant trunk or closet. (Id. ¶ 32.) She remained in Unit 3 for approximately 30 days.
The primary focus of Mrs. Freeman’s ADA claim centers around her access to an
OCA III and a “medical mattress.” OCAs assist other inmates with various types of
physical and/or mental limitations. There are three OCA levels. An OCA I essentially
pushes wheelchairs. (Dkt. #98-6.) An OCA II assists “offenders with minimal physical
and/or mental limitations in the performance of activities of daily living” by helping with
hygiene, dining, cleaning and laundry, etc. (Dkt. #98-7.) An OCA III assists offenders
with “significant limitations and/or extensive medical needs” by transferring him/her to
and from the toilet, shower, and bed; turning and repositioning the offender; and
assisting with “toileting and bathing.” (Dkt. #98-5.)

2

While Mrs. Freeman concedes that she technically had access to the ADA bathroom,
she claims that non-disabled inmates often use the facilities, which limited her ability to
use them.
5

Mrs. Freeman contends that she required an OCA III to accompany her while
walking in DWCF to prevent her from falling and injuring herself, and that without one,
she cannot go to meals, the med-line, or shower. (Dkt. #98-1 ¶¶ 8 & 10.) She states that
she was assigned an OCA III in 2015 by Dr. Rishi Ariola-Tirella. (Dkt. #98-8.) On
September 14, 2016, Deb Reilly, PA-C wrote in an email that she had talked with prison
staff that day and “it was decided Mrs. Barbara Freeman will also be allowed to have a
OCA 3, since that is what is required to help her walk from place to place.” (Dkt. 98-9.)
In June 2017, Dr. Ariola-Tirella stated in an email that he “thought we had approved
[Mrs. Freeman] an OCA 3 to hold on to her when she is walking and has episodes of
vertigo.” (Dkt. #98-10.) When she was denied an OCA II or III while living in Unit 3, Mrs.
Freeman claims that she missed seven meals and missed her “medications many
times.” (Dkt. #98-1 ¶ 9.)
Defendants argue that Mrs. Freeman was given the appropriate OCA
accommodations. In October 2016, Ms. Reilly asked Dr. Susan Tiona, the CDOC’s
Chief Medical Officer, to “put in for an OCA III.” (Dkt. #94-8 at 2.) Dr. Tiona responded
that Mrs. Freeman needed a wheelchair, not an OCA III, because even with an OCA III,
she was liable to fall while walking longer distances. (Id. at 1.) Defendants point out that
Mrs. Freeman had an OCA when she was in Unit 3, but she was often dissatisfied with
their work. Defendants claim that Mrs. Freeman’s complaints about her OCAs were
often racially motivated, which Mrs. Freeman denies. Defendants argue there is no
pattern of missed meals or trips to the med-line, and note that Mrs. Freeman maintained
a steady weight throughout this period. (Dkt. #94-10.)

6

Mrs. Freeman also alleges that Defendants denied her a “medical mattress.” It
appears that in October 2013, DWCF’s medical staff ordered Mrs. Freeman a “medical
mattress and an extra pillow to help her breathing.” (Dkt. #98-11.) However, Defendants
claim that there is no accommodation for a medical mattress; instead, offenders housed
in an incentive unit, like Unit 1, get different mattresses from general population units.
(Dkt. #94-6 at 7-8.)
II. LEGAL STANDARD
A motion for summary judgment serves the purpose of testing whether a trial is
required. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1185 (10th Cir. 2003). A court
shall grant summary judgment if the pleadings, depositions, answers to interrogatories,
admissions, or affidavits show there is no genuine issue of material fact, and the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A fact is material if
it might affect the outcome of the suit under the governing substantive law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The moving party bears the initial responsibility of providing to the court the
factual basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “The
moving party may carry its initial burden either by producing affirmative evidence
negating an essential element of the nonmoving party’s claim, or by showing that the
nonmoving party does not have enough evidence to carry its burden of persuasion at
trial.” Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002). Only
admissible evidence may be considered when ruling on a motion for summary
judgment. World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir.
1985).
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If the movant properly supports a motion for summary judgment, the non-moving
party has the burden of showing there are issues of material fact to be determined.
Celotex, 477 U.S. at 322. That is, the opposing party may not rest on the allegations
contained in his complaint, but must respond with specific facts showing a genuine
factual issue for trial. Fed. R. Civ. P. 56(e); Scott v. Harris, 550 U.S. 372, 380 (2007)
(“The mere existence of some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.”). See also Hysten v. Burlington N. & Santa
Fe Ry., 296 F.3d 1177, 1180 (10th Cir. 2002). These specific facts may be shown “‘by
any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings
themselves.’” Pietrowski v. Town of Dibble, 134 F.3d 1006, 1008 (10th Cir. 1998)
(quoting Celotex, 477 U.S. at 324). “[T]he content of summary judgment evidence must
be generally admissible and . . . if that evidence is presented in the form of an affidavit,
the Rules of Civil Procedure specifically require a certain type of admissibility, i.e., the
evidence must be based on personal knowledge.” Bryant v. Farmers Ins. Exch., 432
F.3d 1114, 1122 (10th Cir. 2005). “The court views the record and draws all inferences
in the light most favorable to the non-moving party.” Pepsi-Cola Bottling Co. of
Pittsburg, Inc. v. Pepsico, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005).
III. ANALYSIS
Defendants argue that the Court should enter summary judgement on Mrs.
Freeman’s ADA claim because Mrs. Freeman has made no showing that Defendants
intentionally violated Title II, and therefore they are entitled to immunity under the
Eleventh Amendment.
8

In his June 22, 2018 Order, Judge Watanabe explained Eleventh Amendment
immunity in the context of an ADA suit:
The doctrine of Eleventh Amendment immunity protects states and their
agents from suit when acting in their official capacities. Fent v. Okla.
Water Res. Bd., 235 F.3d 553, 558–559 (10th Cir. 2000). To the extent
that Plaintiff sues Defendants in their official capacities, “[s]uits against
state officials in their official capacit[ies] should be treated as suits against
the state.” Hafer v. Melo, 502 U.S. 21, 25 (1991) (citing Kentucky v.
Graham, 473 U.S. 159, 166 (1985)). Thus, pursuant to the Eleventh
Amendment, the Court lacks subject matter jurisdiction to adjudicate an
action brought by a citizen of a state against the state itself, its agencies,
or its officials in their official capacities for monetary relief. See Johns v.
Stewart, 57 F.3d 1544, 1552 (10th Cir.1995).
However, the Supreme Court has held that “Congress may abrogate the
State’s Eleventh Amendment immunity.” Tennessee v. Lane, 541 U.S.
509, 517 (2004). When analyzing whether Congress has effectively
abrogated sovereign immunity, the Court “must resolve two predicate
questions: first, whether Congress unequivocally expressed its intent to
abrogate that immunity; and second, if it did, whether Congress acted
pursuant to a valid grant of constitutional authority.” Kimel v. Fla. Bd. of
Regents, 528 U.S. 62, 73 (2000). Congress unequivocally expressed its
intent to abrogate Eleventh Amendment immunity for ADA claims by
enacting the following language: “A State shall not be immune under the
eleventh amendment to the Constitution of the United States from an
action in Federal or State court of competent jurisdiction for a violation of
this chapter.” 42 U.S.C. § 12202; see also Lane, 541 U.S. at 518. To
resolve “whether Congress acted pursuant to a valid grant of constitutional
authority” when it expressed this intent, the Court applies the three-step
analysis set forth in United States v. Georgia, 546 U.S. 151 (2006). The
Court must determine,
on a claim-by-claim basis, (1) which aspects of the State’s
alleged conduct violated Title II; (2) to what extent such
misconduct also violated the Fourteenth Amendment; and
(3) insofar as such misconduct violated Title II but did not
violate the Fourteenth Amendment, whether Congress’s
purported abrogation of sovereign immunity as to that class
of conduct is nevertheless valid.
546 U.S. at 159.
(Dkt. #87 at 12-13.)
9

Mrs. Freeman argues that Judge Watanabe has already determined that the
Eleventh Amendment does not bar her ADA claim, and without new legal theories, the
law of the case doctrine forecloses this argument. However, Judge Watanabe
performed his Eleventh Amendment immunity analysis through the lens of a Rule
12(b)(6) motion. Here, Defendants move for summary judgment, arguing that the
undisputed facts demonstrate that Mrs. Freeman’s disabilities were appropriately
accommodated, and therefore there was no violation of Title II of the ADA. To resolve
this issue under the Rule 56 standard, the Court must now discuss the United States v.
Georgia elements in light of the evidence presented by the parties.
a. Step One: The ADA
Title II of the ADA states, in relevant part, that “no qualified individual with a
disability shall, by reason of such disability, be excluded from participation in or be
denied the benefits of the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.” 42 U.S.C. § 12132. ADA regulations
require public entities to “make reasonable modifications in policies, practices, or
procedures when the modifications are necessary to avoid discrimination on the basis of
disability.” 28 C.F.R. § 35.130(b)(7). A public entity must provide a reasonable
accommodation under the ADA when it knows that the individual is disabled and
“requires an accommodation of some kind to participate in or receive the benefits of its
services.” Robertson v. Las Animas Cty. Sheriff’s Dep’t, 500 F.3d 1185, 1197 (10th Cir.
2007). “[A] public entity is on notice that an individual needs an accommodation when it
knows that an individual requires one, either because that need is obvious or because
the individual requests an accommodation.” Id. at 1197–98.
10

To state a claim under Title II, a plaintiff must allege that “(1) [s]he is a qualified
individual with a disability, (2) who was excluded from participation in or denied the
benefits of a public entity’s services, programs, or activities, and (3) such exclusion,
denial of benefits, or discrimination was by reason of a disability.” Id. at 1193. The Tenth
Circuit requires a showing of intentional discrimination before a plaintiff may recover
compensatory damages for mental or emotional injury. Tyler v. City of Manhattan, 118
F.3d 1400, 1403–4 (10th Cir. 1997); Powers v. MJB Acquisition Corp., 184 F.3d 1147,
1152 (10th Cir. 1999). 3
Given her limitations, it is undisputed that Mrs. Freeman is “disabled” as defined
by the ADA. Defendants instead focus on whether there is any evidence of intentional
discrimination. If such evidence does not exist, then she has suffered no compensable
damages and her claim cannot go forward.
“Intentional discrimination does not require a showing of personal ill will or
animosity toward the disabled person; rather, ‘intentional discrimination can be inferred
from a defendant’s deliberate indifference to the strong likelihood that pursuit of its
questioned policies will likely result in a violation of federally protected rights.’” Barber
ex rel. Barber v. Colo. Dep’t of Revenue, 562 F.3d 1222, 1229 (10th Cir. 2009) (quoting
Powers., 184 F.3d at 1153). “The test for deliberate indifference in the context of

3

Although the Powers case, and others cited herein, involve the Rehabilitation Act,
rather than the ADA, the Court applies the same standard because “[t]o the extent
feasible, we look to decisions construing the Rehabilitation Act to assist us in
interpreting analogous provisions of the ADA.” J.V. v. Albuquerque Pub. Sch., 813 F.3d
1289, 1298 n.6 (10th Cir. 2016) (quotations omitted). See also Duvall v. Cty. of Kitsap,
260 F.3d 1124, 1138 (9th Cir. 2001) (“To recover monetary damages under Title II of
the ADA or the Rehabilitation Act,11 a plaintiff must prove intentional discrimination on
the part of the defendant.”).
11

intentional discrimination comprises two prongs: (1) ‘knowledge that a harm to a
federally protected right is substantially likely,’ and (2) ‘a failure to act upon that
likelihood.’” Id. (quoting Duvall, 260 F.3d at 1139) (alteration omitted).
Here, while the Court agrees with Defendants that there is no evidence that Mrs.
Freeman’s transfer to Unit 3 was based on her disability, as opposed to her behavior,
Defendants were still required to make reasonable accommodations for her disabilities.
Mrs. Freeman argues that Defendants’ intent to discriminate against her can be inferred
from their deliberate failure to make these accommodations. In light of the numerous
disputed material facts regarding which accommodations were necessary and which
were provided, the Court determines that summary judgment is not appropriate.
First, the parties dispute what level of OCA Mrs. Freeman was entitled to.
Although Defendants argue that Mrs. Freeman was never entitled to an OCA III, it
appears that DWCF staff members themselves were confused about what
accommodations were put in place. For example, in September 2015, Dr. Ariola-Tirella
determined that an OCA III was appropriate for “activities of daily living.” (Dkt. #98-8.) It
was left unstated precisely what these activities included. Mrs. Freeman claims that the
OCA III assisted her in “showering, using the restroom, handling my food tray, ensuring
that I do not fall while walking, cleaning my cell, and accessing items that I cannot
reach.” (Dkt. #98-1 ¶ 5.) However, in June 2017, Dr. Ariola-Tirella opined that it would
be inappropriate for Mrs. Freeman to have an OCA III “that lives with her 24/7,” and
instead “thought we had approved her an OCA 3 to hold on to her when she is walking
and has episodes of vertigo.” (Dkt. #98-10.) It remains a question of fact what events, if
any, occurred in the intervening period that affected the OCA determination.
12

Similarly, in September 2016, Ms. Reilly spoke with DWCF staff and decided that
Mrs. Freeman would be allowed to have an OCA III “because that is what is required to
walk from place to place” (Dkt. #98-9), only to be overruled a month later by Dr. Tiona,
who determined that Mrs. Freeman did not qualify for an OCA III. (Dkt. #94-8.) Dr.
Tiona’s opinion therefore conflicts with that of Ms. Reilly and Dr. Ariola-Tirella.
Defendants rightly point out that a difference of opinion among medical providers
does not necessarily amount to deliberate indifference. Moreover, it appears that many
of the duties performed by an OCA II, which Mrs. Freeman was often (although not
always) provided, would be sufficient to meet the “activities of daily living” identified by
Mrs. Freeman. However, the fact remains that Mrs. Freeman has presented evidence
indicating that, at least at one point in time, Mrs. Freeman was deemed to require an
OCA III rather than an OCA II.
Dr. Tiona’s email is also important for a separate, though related, reason: it
indicates that it was medically necessary for Mrs. Freeman to have a wheelchair.
Although Defendants claim that Mrs. Freeman was issued a wheelchair in October
2016, 4 Mrs. Freeman contends that she requested one in 2015 but did not actually get
a wheelchair until 2018. (Dkt. #98-1 ¶ 31.) Mrs. Freeman states that she cannot stand in
place for more than a few minutes or walk unassisted, which affects her ability to get her
medication and food. (Id. ¶ 9.) It appears that Dr. Tiona agreed, opining in 2016 that
Mrs. Freeman “needs to be in a wheelchair for distances—simple as that.” (Dkt. #94-8.)

4

Adrienne Jacobson, the CDOC’s AIC and Associate Director of Legal Services for the
Colorado Department of Corrections, submitted an Affidavit indicating that a wheelchair
was issued in October 2016. (Dkt. #94-1 ¶ 7.) She cites as an exhibit a list of Inmate
Property, which apparently supports this assertion. However, no such list is attached as
an exhibit to Ms. Jacobson’s Affidavit or the summary judgment motion.
13

Given Mrs. Freeman’s allegation that a wheelchair was not provided for at least 14
months after Dr. Tiona’s email, issues of material facts exist as to whether Defendants’
failure to provide this reasonable accommodation was intentional.
The alleged failure to provide a wheelchair is also relevant because the primary
duty of an OCA I is to push wheelchairs. It is undisputed that on certain occasions, Mrs.
Freeman was only assigned an OCA I. On these days, it is possible that Mrs.
Freeman’s ability to get her meals and medication would be affected because an OCA I
would not be able to assist her with walking, waiting in lines, and retrieving food trays.
There is also a factual dispute as to whether Mrs. Freeman received personal
notice of announcements, which she requires due to her hearing impairments. (Dkt.
#98-1 ¶ 22.) As to the “medical mattress,” Defendants claim that it is not actually
referred to as a medical mattress, but is instead just a mattress given to offenders in the
incentive unit as a kind of reward. (Dkt. #94-6 at 7.) Defendants’ position is undermined
by Dr. Joan Martin’s October 2013 note asking DWCF nurses to “please get medical
mattress and extra pillow for breathing.” (Dkt. #98-11.) This suggests (1) that CDOC
medical personnel may, under some circumstances, consider mattresses to have a
medical component; and (2) that Mrs. Freeman was entitled to this accommodation, at
least in 2013. Whether circumstances changed in 2016 such that Mrs. Freeman no
longer required such a mattress is not currently before the Court and is better
addressed at trial.
In short, it is undisputed that Mrs. Freeman had limitations such that she was and
is considered disabled pursuant to the ADA. It is also undisputed that Defendants were
aware of her disabilities. Further, there are disputed material facts as to whether
14

Defendants failed to provide Mrs. Freeman with reasonable accommodations in the
form of an appropriate OCA, a wheelchair, personal notice of announcements, and a
medical mattress. A reasonable juror could infer that, given Defendants’ knowledge of
Mrs. Freeman’s limitations, coupled with their alleged failure to provide necessary
accommodations, Defendants acted with a deliberate indifference to a strong likelihood
that pursuit of its policies would likely result in a violation Mrs. Freeman’s rights under
the ADA. Accordingly, summary judgment is not appropriate. See Georgia, 546 U.S. at
157 (“[I]t is quite plausible that the alleged deliberate refusal of prison officials to
accommodate Goodman’s disability-related needs in such fundamentals as mobility,
hygiene, medical care, and virtually all other prison programs constituted ‘exclu[sion]
from participation in or . . . deni[al of] the benefits of’ the prison’s ‘services, programs, or
activities.’”) (quoting 42 U.S.C. § 12132).
b. Step Two: The Fourteenth Amendment
As Judge Watanabe explained:
The Due Process Clause of the Fourteenth Amendment incorporates the
Eighth Amendment’s guarantee against cruel and unusual punishment.
Georgia, 546 U.S. at 157 (citation omitted). “The Eighth Amendment’s
prohibition of cruel and unusual punishment imposes a duty on prison
officials to provide humane conditions of confinement, including adequate
food, clothing, shelter, sanitation, medical care, and reasonable safety
from bodily harm.” Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008).
“[A] prison official violates the Eighth Amendment only when two
requirements are met. First, the deprivation alleged must be, objectively,
sufficiently serious; a prison official’s act or omission must result in the
denial of the minimal civilized measure of life’s necessities.” Farmer v.
Brennan, 511 U.S. 825, 834 (1994). Second, the prison official “must have
a sufficiently culpable state of mind,” which means that the official may not
be “found liable under the Eighth Amendment . . . unless the official knows
of and disregards an excessive risk to inmate health or safety.” Id. at 834,
837 (quotation omitted). The requirement that a prison official “know[ ] of
and disregard[ ] an excessive risk to inmate health or safety” logically
dictates that a “deprivation of [necessities] without any corresponding
15

injury would not state an Eighth Amendment violation.” Whittington v.
Ortiz, 472 F.3d 804, 808 (10th Cir. 2007).
(Dkt. #87 at 15-16.)
The Court finds that, viewing the record as a whole and drawing all inferences in
the light most favorable to Mrs. Freeman, there are disputed material facts as to
whether Defendants’ failure to provide her with a medical mattress, and their denial of
access to a wheelchair or an OCA III, constitutes a cognizable conditions of
confinement claim under the Eighth Amendment. On occasions when Defendants failed
to provide Mrs. Freeman with a wheelchair or an appropriate OCA, they essentially
presented her with the dilemma of choosing between standing and walking unassisted,
which she says involves significant pain and the risk of falling, and missing meals and
medication, which is untenable given her age and condition. 5 See, e.g., Estelle v.
Gamble, 429 U.S. 97, 103 (1976) (“An inmate must rely on prison authorities to treat his
medical needs; if the authorities fail to do so, those needs will not be met.”). Thus, Mrs.
Freeman has satisfied the second factor.
c. Step Three: Sovereign Immunity Analysis
Because the Court has determined that Mrs. Freeman has presented sufficient
evidence that Defendants’ conduct violated the ADA and the Fourteenth Amendment,
the Court does not have to address the final factor. See Georgia, 546 U.S. at 159.

5

There appears to be a factual dispute as to how many meals and med-line visits Mrs.
Freeman missed in the 30-day period. The Court does not find this to be dispositive.
The fact that there exists disputed issues of material facts whether Mrs. Freeman was
faced with the choice of forgoing meals and medicine or enduring pain and risking injury
due to the lack of reasonable accommodations is sufficient to proceed.
16

After considering the factors set forth in United States v. Georgia, the Court
concludes that the Eleventh Amendment does not bar Mrs. Freeman’s ADA claim.
IV. ORDER
It is hereby ORDERED that Defendants’ Motion for Summary Judgment (Dkt.
#94) is DENIED.

Dated: March 21, 2019
Denver, Colorado

N. Reid Neureiter
United States Magistrate Judge

17