Brooks v. Colo. Dep't of Corr.

• Decision Date: 08 September 2021
• Docket Number: No. 19-1390,19-1390
• Citation: 12 F.4th 1160
• Parties: Jason BROOKS, Plaintiff - Appellant, v. COLORADO DEPARTMENT OF CORRECTIONS; Julie Russell; Kathy Howell; David Tessier, Defendants - Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

12 F.4th 1160

Jason BROOKS, Plaintiff - Appellant,

v.COLORADO DEPARTMENT OF CORRECTIONS; Julie Russell; Kathy Howell; David Tessier, Defendants - Appellees.

No. 19-1390

United States Court of Appeals, Tenth Circuit.

FILED September 8, 2021

Angela Boettcher^* and Aja Robbins,^** Boulder, Colorado (Matthew Cushing, Matthew Cushing PLLC, Boulder, Colorado, on the briefs), for Plaintiff - Appellant.

Karen Lorenz, Assistant Attorney General (Philip J. Weiser, Colorado Attorney General, with her on the brief), Colorado Department of Law, Ralph L. Carr Judicial Center, Denver, Colorado, for Defendants - Appellees.

Before TYMKOVICH, Chief Judge, BRISCOE, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

At the time this appeal was initiated, Jason Brooks was a Colorado-state inmate serving a lengthy prison sentence for securities fraud. Brooks has an extreme and incurable case of ulcerative colitis. As a result, even when his disease is well treated, Brooks suffers from frequent, unpredictable fecal incontinence.

This case involves the Colorado Department of Corrections's ("CDOC") efforts, or lack thereof, to deal with the impact of Brooks's condition on his ability to access the prison cafeteria. See generally Brooks v. Colo. Dep't of Corr. , 715 F. App'x 814 (10th Cir. 2017) (unpublished disposition) (discussing the basis for Brooks's civil rights suit). In particular, in its current incarnation, this appeal turns on whether the district court erred when it concluded as follows: (1) Brooks's Americans with Disabilities Act ("ADA") claim for damages failed because the CDOC's offer to provide Brooks with adult diapers was a reasonable accommodation of Brooks's disability; and (2) Brooks's Eighth Amendment claim against ADA Inmate Coordinator Julie Russell failed because the decision not to access the cafeteria with the use of adult diapers was Brooks's alone.¹

We conclude the district court erred in its treatment of Brooks's ADA claim for damages. A reasonable juror could conclude the offer of adult diapers was not a reasonable accommodation of Brooks's disability. Thus, at least as to the question of the reasonableness of the proposed accommodation, the district court erred in granting CDOC summary judgment on Brooks's ADA claim for damages. The district court, on the other hand, correctly granted summary judgment in favor of Russell on Brooks's Eighth Amendment claim. In reaching that conclusion, however, this court relies on a ground not addressed by the district court. Carabajal v. City of Cheyenne , 847 F.3d 1203, 1213 (10th Cir. 2017) (recognizing that this court can affirm a district court's judgment "on any ground supported by the record"). We conclude the record is devoid of sufficient evidence for a jury to find Russell acted with a sufficiently culpable state of mind—deliberate indifference to Brooks's ability to access food—when she declined Brooks's request for a movement pass. Accordingly, exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court dismisses in part, reverses in part, affirms in part, and remands to the district court for further proceedings consistent with this opinion. Brooks's motion to proceed in forma pauperis, 28 U.S.C. § 1915, is hereby granted .

II. BACKGROUND

A. Factual Background²

Brooks suffers from ulcerative colitis, a chronic autoimmune disease of the large intestine.³ The disease causes a "significant amount" of abdominal pain as well as multiple "urgent, loose, watery, and often bloody bowel movement[s] per day." The disease can only be managed, not cured. It is uncontested that Brooks's ulcerative colitis qualifies as a disability under Title II of the ADA.

During the relevant time period, management of Brooks's ulcerative colitis was complicated by his status as a CDOC inmate. During his incarceration, Brooks was transferred between numerous Colorado correctional facilities, including Brent County Correctional Facility ("Brent County"), Fremont Correctional Facility ("Fremont"), and Sterling Correctional Facility ("Sterling"). After his transfer to Fremont from Brent County in February of 2012, Brooks missed hundreds of meals per year due to his disability.⁴ At this time, Brooks's ulcerative colitis caused him to use the restroom nearly thirty times per day. His flare-ups were unpredictable, unmanageable, and frequently occurred during his assigned "chow pull."⁵ The frequency of these flare-ups, which were attended by debilitating gastrointestinal pain and the risk of soiling himself, forced Brooks to miss most of his meals. Often, it was necessary for Brooks to stay by the toilet rather than attend a chow pull. The record reveals that Brooks's ideal weight is 190 pounds with a nineteen pound variance (i.e., a healthy weight for Brooks was anywhere between 171 and 209 pounds). When Brooks arrived at Fremont, he weighed 150 pounds; by the next month, however, his weight had decreased to between 144 and 136 pounds.

After Brooks was transferred to Fremont, clinical services officials placed him on a treatment plan to address his stomach pain and bleeding. Over time, this treatment lessened Brooks's gastrointestinal pain. Unfortunately, however, the absence of triggering pain made it more difficult for Brooks to recognize when he needed to use the restroom. Thus, according to Brooks, he faced the following "impossible choice": he could either attempt to attend meals, endure the symptoms of his disability, and sit in his feces among the other inmates, or go without food. Even when he attempted to attend meals, Brooks's symptoms and flare-ups often forced him to leave the cafeteria before he could eat.⁶

The CDOC has a system in place to accommodate inmates with disabilities. ADA Inmate Coordinators like Russell are responsible for providing accommodations to ensure inmates with disabilities can gain meaningful access to programs and services. Diabetic inmates, for example, receive a pass that allows them to access meals before other inmates, accommodating their need to eat shortly after taking their medicine. Brooks requested a similar pass to accommodate his often unpredictable need to use the restroom around mealtimes. Shortly after he was transferred to Fremont, Brooks received such a pass from clinical services. See generally, e.g. , Colo. Dep't of Corr. Admin. Reg. 300–55 (Offender Movement Schedule). That pass allowed him to attend meals with the diabetic inmates. According to Brooks, this pass allowed him to reasonably manage his disability by permitting him to (1) adjust his schedule to use the restroom before going to the dining hall, thus alleviating some of his pain and risk of incontinence while eating, and (2) enter the dining hall before a line formed, thus allowing him to eat quickly and return back to his cell to use the restroom if necessary.

After three months, Brooks's movement pass expired.⁷ Clinical services refused to renew the pass, alleging it was the ADA Inmate Coordinator's responsibility to do so. Without the pass, Brooks continued to miss an exceedingly high percentage of his meals. After nearly a year of unsuccessfully seeking other accommodations for his disability, Brooks filed a request with Russell, the ADA Inmate Coordinator, seeking the renewal of his pass. Russell denied the request "for first pulls to eat meals," claiming (1) it was a medical issue to be dealt with by clinical services and (2) it was "unreasonable due to the unintended security concerns it would create." When Brooks returned to Clinical Services to again request the pass, he was told that "these passes are no longer issued by clinical services" but were the responsibility of the ADA Inmate Coordinator.

For more than a year, Brooks filed ADA requests through the office of the ADA Inmate Coordinator, filed numerous grievances through CDOC's grievance process, and attempted to secure accommodations through clinical services. These requests were repeatedly denied. In particular, Russell specifically refused Brooks's requested accommodations for his disability. In his first letter to the office of the ADA Inmate Coordinator in 2012, Brooks described the difficulties he faced while attempting to obtain treatment and accommodation for his disability. The office denied the request and recommended frequent restroom breaks. The office acknowledged, however, that such breaks would "not always [be] possible due to security and accountability reasons" and, instead, suggested that adult diapers would accommodate his digestive concerns "during those times." Ultimately, Brooks refused to wear the recommended diapers because, inter alia, having to sit in soiled diapers among other inmates in the dining hall would have placed him at risk of assault. Throughout 2012 and 2013, Brooks made numerous other accommodation requests, all of which were denied.

Brooks also unsuccessfully sought accommodations through clinical services during the same time period after his initial movement pass expired. For example, Brooks requested a transfer to an ADA-designated facility to help manage his condition. Defendant Kathy Howell, the Regional Director of Corrections and Clinical Services, who was responsible for overseeing health services at Fremont and a number of other prisons, attended the meeting addressing Brooks's request. Although the stated purpose of the meeting was to address Brooks's needs, Brooks's movement pass was not renewed to help him access meals, nor was he moved to a facility that could better accommodate him. Brooks also requested a movement pass and extra toilet paper from clinical services; Defendant David Tessier, a health services administrator assigned to Fremont, denied both requests.

B. Procedural Background

Brooks eventually commenced the instant litigation, seeking both injunctive relief and money damages. Among others, Brooks named as defendants the CDOC, Russell, Howell, and Tessier. As specifically regarding Russell, Brooks alleged she violated both Title II of...