Marks v. Colo. Dep't of Corr.
| Decision Date | 12 May 2020 |
| Docket Number | Case No. 19-1114 |
| Parties | Nancy MARKS, Plaintiff - Appellant, v. COLORADO DEPARTMENT OF CORRECTIONS; Colorado Division of Criminal Justice; Susan Keller, Community Parole Office, Colorado Department of Corrections, in her official capacity; Rick Raemisch, Executive Director Colorado Department of Corrections, in his official capacity, Defendants - Appellees. Disability Law Colorado; Colorado Cross-Disability Coalition; Disability Rights Center of Kansas ; Disability Rights Advocates; Disability Rights Education and Defense Fund ; American Civil Liberties Union; American Civil Liberties Union of Colorado ; American Civil Liberties Union of New Mexico ; American Civil Liberties Union of Utah ; American Civil Liberties Union of Kansas; American Civil Liberties Union of Oklahoma ; American Civil Liberties Union of Wyoming; Civil Rights Education and Enforcement Center, Amici Curiae. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Michael Fairhurst (David Lane, with him on the briefs), Killmer, Lane & Newman LLP, Denver, Colorado, on behalf of the Plaintiff-Appellant.
Cathern H. Smith, Assistant Attorney General (Philip J. Weiser, Attorney General for the State of Colorado, with her on the brief), Denver, Colorado, on behalf of the Defendants-Appellees.
Amy Farr Robertson, Co-Executive Director, Civil Rights Education and Enforcement Center, Denver, Colorado, and Claudia Center, Senior Staff Attorney, Disability Rights Program, American Civil Liberties Union, San Francisco, California, filed an Amici Curiae brief, in support of Appellant.
Before BACHARACH and CARSON,* Circuit Judges.
Ms. Nancy Marks was serving a prison term in Colorado when she obtained entry into a community corrections program operated by Intervention Community Corrections Services (Intervention). To stay in the program, Ms. Marks needed to remain employed. But while participating in the program, she aggravated a previous disability and Intervention deemed her unable to work. So Intervention terminated Ms. Marks from the program and returned her to prison. (This is called "regression" to prison.)
We affirm in part and reverse in part. We agree with the district court that (1) the claims for prospective relief were moot and (2) neither the CDOC nor CDCJ violated Ms. Marks's right to equal protection. But we reverse the award of summary judgment on the claims involving the Rehabilitation Act and Americans with Disabilities Act. On these claims, the district court made two errors.
First, the court mistakenly concluded that the Rehabilitation Act didn't apply because Intervention hadn't received federal funding. The court should have considered whether the federal government had funded the CDOC and CDCJ, not Intervention.
Second, the court mistakenly focused on whether the CDOC and CDCJ could incur liability under the Rehabilitation Act and Americans with Disabilities Act for a regression decision unilaterally made by Intervention. This focus reflects a misunderstanding of Ms. Marks's claim and the statutes. The statutes prohibit public and federally funded entities from discriminating against disabled persons in programs like community corrections. These prohibitions apply regardless of whether the entities operate the programs directly or indirectly. So the CDOC and CDCJ could incur liability for disability discrimination by operating the program, through Intervention.
In Colorado, local governments operate community corrections programs under state oversight. Colo. Rev. Stat. §§ 17-27-101, 17-27-108(1) – (2) (2013). Colorado provides this oversight through the CDOC and CDCJ, which set standards, administer contracts with local governments and other providers of community corrections, and audit the facilities. Id. § 17-27-108(1) – (2). Under state oversight, localities can enter contracts to operate community corrections programs. Id. § 17-27-103(1).
With this authority, Jefferson County and its board of commissioners entered into contracts with the CDOC and CDCJ to operate a community corrections program. In turn, Jefferson County contracted with Intervention to run the community corrections program where Ms. Marks was placed.
The CDCJ contract specified that any subcontractors had to adhere to the CDCJ's standards.2
Ms. Marks suffers from spinal stenosis
, which limits her ability to walk and requires her to use a wheelchair. While participating in community corrections, she fell in the shower and aggravated her disability.
The incident prompted Ms. Marks's physician to send two letters to Intervention. The first letter described Ms. Marks's injuries, told Intervention to place her on complete bedrest for two weeks, and recommended physical therapy. The second letter indicated that Ms. Marks's treatment had been unsuccessful, that she should continue bedrest, and that she was disabled.
Although Ms. Marks alleges that she could have continued working despite her disability, Intervention decided that she couldn't and terminated her from the program:
Six of the eleven Conditions of Placement require physical activity on the part of the client: one of the more important conditions is that she is employed at a phone location. [Ms.] Marks's medical conditions make it apparent that she will not be able to obtain employment in the foreseeable future, as is required by the ICCS residential program. ... ICCS has rejected placement after acceptance as her medical conditions no longer make her appropriate to remain in the ICCS residential program.
Appellant's App'x, vol. 2, at 401. Ms. Marks completed her sentence in prison rather than in the community corrections program.
Appellant's App'x, vol. 1, at 47–49.3
The district court dismissed the claims for prospective relief as moot, reasoning that Ms. Marks had completed her sentence. On appeal, Ms. Marks invokes an exception to mootness, arguing that the defendants' conduct was capable of repetition yet evading review.
We engage in de novo review of Ms. Marks's challenge to the determination of mootness. See Rio Grande Silvery Minnow v. Bureau of Reclamation , 601 F.3d 1096, 1109 (10th Cir. 2010). Exercising de novo review, we agree that the claims for prospective relief are moot.
Federal jurisdiction exists only if the court could grant relief affecting the plaintiff's rights. See Preiser v. Newkirk , 422 U.S. 395, 401, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975) (). Jurisdiction must continue throughout the litigation even as circumstances change. See Jordan v. Sosa , 654 F.3d 1012, 1024 (10th Cir. 2011). When circumstances change and the court can no longer affect the plaintiff's rights, the case ordinarily becomes moot. Id.
An exception exists when the wrongdoing is "capable of repetition yet evading review." Ind v. Colo. Dep't of Corrs. , 801 F.3d 1209, 1215 (10th Cir. 2015). This exception is "narrow" and "only to be used in exceptional situations." Jordan , 654 F.3d at 1034–35 (). The plaintiff invoking the exception bears the burden of proof. Id. at 1035.
Id. (quoting Weinstein v. Bradford , 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) (per curiam)).
We assume without deciding that Ms. Marks has proven that her regression occurred too quickly to be litigated. Even with this assumption, the exception would not apply because Ms. Marks is unlikely to experience the same wrongdoing in the future. Ms. Marks does not allege that she may return to prison, that she may reenter a community corrections program, or that she may again face regression from a program based on her inability to work. Ms. Marks instead concedes that "the probability of recurrence against [herself] is not high." Appellant's Opening Br. at 63.
But Ms. Marks argues that she need not show any possibility of facing the same conduct again. For this argument, she relies on three cases involving abortion, elections, and press access to trials: Roe v. Wade , 410 U.S. 113, 125, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), Norman v. Reed , 502 U.S. 279, 288, 112 S.Ct. 698, 116 L.Ed.2d 711 (1...
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