by Mark Wilson

The United States Court of Appeals for the Tenth Circuit held that a former Colorado prisoner waived his argument that Title II of the Americans with Disabilities Act (ADA) abrogates sovereign immunity. The court also held that he could not prevail on his Rehabilitation Act claim because he failed to prove intentional discrimination.

Former Colorado prisoner Darrell Havens was a “near-total quadriplegic.” From 2008 until 2011, Havens was confined at Fort Lyons Correctional Facility, which provided skilled nursing care to prisoners with significant medical problems.

After Fort Lyons closed, Havens was housed on a Special Medical Needs Unit (SMNU) at the Denver Reception and Diagnostic Center (DRDC) from 2011 to 2015. This was Colorado's only facility that provided 24-hour medical care.

DRDC is an intake center that generally houses prisoners only temporarily. As such, it lacks programs and facilities that are available at other prisons.

DRDC did not have a recreational or law library, but legal resources could be accessed from other facilities. Havens claimed he also did not have access to the same number and variety of educational programs he would have had at other prisons. His disabilities also prevented him from accessing some DRDC programs and services that able-bodied prisoners could access.

Havens brought federal suit in November 2014, alleging ADA, Rehabilitation Act and constitutional violations. On initial screening, the district court sua sponte dismissed all but his ADA and Rehabilitation Act claims as legally frivolous.

After Havens was granted medical parole on July 1, 2015, the district court granted defendants summary judgment, concluding that his release mooted his injunctive relief claims, his ADA damages claim was barred by Eleventh Amendment sovereign immunity, and he could not recover damages under the ADA or Rehabilitation Act because he could not show discriminatory intent.

The Tenth Circuit affirmed. The court first concluded that Havens forfeited his argument that Title II of the ADA abrogates Eleventh Amendment sovereign immunity, by failing to raise it before the district court.

Turning to his Rehabilitation Act claim, the court recognized that deliberate indifference is sufficient to prove the requisite element of intentional discrimination. The court ultimately held that “the fundamental weakness of both of Mr. Havens’ claims is that neither (1) the choice to place and operate a SMNU at DRDC, or (2) the specific security and access policies governing the SMNU demonstrates deliberate indifference.” See: Havens v. Colorado Department of Corrections, 897 F.3d 1250 (10th Cir. 2018).

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